Getting Rulemaking Petitions On File Online

 New option allows filing of petitions for rulemaking through ECFS.

 If you’re planning on filing a petition for rulemaking with the FCC but you’re out of paper, or maybe your printer is low on toner and the local Kinko’s is closed, we’ve got good news for you. The Commission has announced that petitions for rulemaking may now be filed electronically!

As we reported last December, the FCC has been tweaking its Electronic Comment Filing System (ECFS) to accommodate a wide range of electronic filings that previously could be filed only on paper. Thanks to those efforts, ECFS will now accept rulemaking petitions along with the other non-docketed filings we listed in our December post.

The drill for petitions for rulemaking is essentially the same as for other non-docketed filings:

  1. Go to the ECFS home page;
  2. Click on the “Submit a Non-Docketed Filing” link in the list of “ECFS Main Links” (top left corner of the screen);
  3. From the first drop-down menu, select the FCC “inbox” to which your filing is to go – for a rulemaking petition, that would be (unsurprisingly) “Section 1.401 Petition for Rulemaking”; from the “Filing Type” drop-down, pick “Petition for Rulemaking”;
  4. Complete the rest of the form;
  5. Upload the document you want to file;
  6. Click the “Continue” button;
  7. Follow the remaining prompts.

You’ll know that you’ve successfully navigated the maze when you see a confirmation screen with a unique confirmation number. (Practice tip: It’s always a good idea to make and keep a screen grab copy of the confirmation screen, just in case any question ever arises.)

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Rural Call Completion Update: Final Rules Now in Effect

As we reported late last year, a few of the FCC’s revisions to its rules concerning rural call completion had to be run past the Office of Management and Budget before they could take effect. According to a notice in the Federal Register, that process has now been completed, so the final elements of those rule revisions have taken effect as of March 4, 2015.

More Tales of the TCPA: $342K Fine for Violation-Laden Robocalls

Spoofing tactic appears to backfire on robocaller.

As a public service, we offer a couple of helpful CommLawBlog tips to folks who feel like violating the Telephone Consumer Protection Act (TCPA) by making unsolicited prerecorded advertising calls:

  1. First and foremost, DON’T violate the TCPA;
  2. If you insist on ignoring Tip No. 1, at least:
  • Don’t call numbers on the National Do No Call Registry;
  • Don’t provide an “opt-out” number that doesn’t work;
  • Don’t “spoof” somebody else’s number so that their number, not yours, shows up in the caller ID display of the folks you’re illegally calling;
  • And, ABOVE ALL, don’t tick off constituents of Senator John McCain.

Security First of Alabama (Security First) made all these mistakes, and it’s now got $342,000 worth of reasons to regret having done so.

As our readers know, the TCPA requires (among other things) that telemarketers obtain a consumer’s prior express consent before making robocalls (i.e., calls using prerecorded voice messages) to the consumer’s residential phone. (There are some very limited exemptions to that prohibition, but they don’t come into play here. Also, there are additional requirements – like getting the consent in writing – when robocalls to mobile phones are involved, but those also didn’t come into play here.) We have previously reported big fines imposed by the FCC for violating that prior consent requirement. Security First’s fine may be somewhat smaller than those, but it does highlight a couple of points of interest.

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Telecom Tickler 2015 - CPNI Certifications Due By March 2

 It’s that time of year again – time for our annual reminder to all telecommunications carriers and interconnected VoIP providers that your CPNI certifications are due by March 2, 2015. While the Enforcement Bureau has announced the deadline as March 1, it appears not to have noticed that in 2015, March 1 is a Sunday. Thanks to our old friend Section 1.4(j) of the FCC's rules, when a filing deadline falls on a holiday – and the rules do indeed specifically confirm that Sundays are “holidays” – the deadline rolls over to the next business day, which in this case will be Monday, March 2.

As described by the Enforcement Bureau, CPNI – Customer Proprietary Network Information to the uninitiated – includes “some of the most sensitive personal information that carriers have about their customers as a result of their business relationship”. Think phone numbers of calls made or received, or the frequency or duration of calls, etc. . . . basically the same stuff the NSA has apparently been collecting for years. While the NSA is not required to file CPNI certifications with the FCC, telecom carriers aren’t so lucky.

The Bureau has issued a convenient “Enforcement Advisory” to remind one and all of the fast-approaching deadline. Like similar advisories in past years, this year’s includes a helpful list of FAQs and a suggested template showing what a certificate should look like.

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Incentive Auction Update: Projected Opening Bids Shoot Up in Latest Greenhill Report

Latest Greenhill estimates incorporate more sophisticated procedures and analytics, results of AWS-3 auction.

[Blogmeister’s Note: Oops. It appears that the FCC and its pals at Greenhill may have attempted to goose broadcaster interest in the Incentive Auction by some fancy footwork in the latest Greenhill Report, and we here at CommLawBlog initially fell for it. In our post as originally published here, we mistakenly assumed that a table appended to the most recent report was intended to correspond to a similar table included with the October report. The differences in dollar values between the two certainly attracted attention, which may have been the point. But closer examination of the two tables indicates that they are quite different and not really comparable. As a result, while the numbers in the new table are indeed considerably higher than the October numbers, the fact is that the anticipated walk-away dollar values for auction participants do not appear to have changed appreciably. We have corrected our original post accordingly.]


Let’s say that you’re a TV broadcaster (full-service or Class A), and you’ve been thinking about participating in the Incentive Auction but, so far, at least, you haven’t been quite persuaded. Maybe the FCC’s new estimated opening bids will change your mind. Or will they?

The Commission has released an update to the now-infamous Greenhill Report released just last October. This updated version is revised to incorporate procedures and analytics currently out for comment at the Commission, including: elaboration on the options to go to high- or low-VHF; the proposed “bid hierarchy” of multiple bidding options and the “preferred” bid option; and additional fleshing out of the post-auction transition, payment of proceeds, and disbursement of relocation funding for repacked stations. It also incorporates consideration of the results of the recently-closed, wildly successful AWS-3 auction.

The result? Lots of cha-ching … or so it would seem until you look a bit closer.

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Roam-eo, Roam-eo, Wherefore Art Thou? Locating E911 Callers to Become Easier

With widespread cooperation, Commission looks to improve accuracy, reliability of E911 location capability

Back in the day, when landline phones ruled, emergency responders could locate 911 callers with relative ease. After all, each landline phone was tied to a specific, readily identifiable address (and often a specific office at that address), so when a call came in, it was easy to pinpoint the originating address.

Then came wireless phones, and locating the emergency caller got trickier: an E911 message originating from a wireless phone could be coming from just about anywhere. Initially, the FCC mandated that carriers be able to provide Public Safety Answering Points (PSAPs) the location of an E911 caller to within 50 to 300 meters (depending on the technology used). But that requirement applied only to calls originating outdoors, and it mandated provision of only horizontal locations determined by geographic coordinates (i.e., latitude and longitude). What about wireless 911 callers who happened to be indoors or, worse, on an upper story in a high-rise?

As we reported, last year the FCC launched a proceeding looking to improve E911 location capability for just such circumstances. And now, in the wake of an impressively cooperative response to the Commission’s proposals, the FCC has adopted a Fourth Report and Order (4th R&O) establishing a new set of E911 location standards. Set to take effect gradually over a period of several years, the new standards reflect the seemingly universal acknowledgement that the ability of emergency responders to locate E911 callers quickly is a matter of utmost importance.

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Incentive Auction Inquiry: Wide Range of Technical Questions Out for Comment

FCC tries to tie down crucial elements of underlying auction design, including definitions of “clearing targets”, “spectrum impairments”

While the schedule may have slipped some, the Incentive Auction is still on its way. And even if the Auction may not start until sometime in 2016 (at least according to the current thinking), the Commission is facing – now – the monumental task of working out the myriad details that will govern the auction process. To that end, last month the FCC invited comment on a mind-numbing array of highly technical questions about both the reverse and forward components of the Incentive Auction. We’ll summarize a few of the highlights concerning the reverse auction. (And let’s be clear, this is just a summary of about 80 pages – i.e., half of the 160+-page request for comments – of densely-packed Commission-ese.) We’ll address forward auction highlights in a separate post. 

Setting the Clearing Target and Impairment, Categories of Licenses 

The principal goal of the reverse auction is to clear UHF spectrum of current TV broadcast licensees in order to make that spectrum available to wireless operators. A couple of years ago, the Commission was hoping to be able to clear a nationwide “clean swath” of spectrum amounting to as much as 126 MHz. The thought was that the reverse auction software could be set up to use that level as a starting point from which the on-going reverse auction calculations would be based. In other words, unless a set of particular reverse auction deals would clear that pre-identified amount of spectrum, those deals would be non-starters.

The FCC now seems to be accepting the reality that using a fixed 126 MHz starting point (or even some lower level, like 108 MHz) might be a tad ambitious because of various practical constraints (for example, border interference considerations). As a result, it is now proposing an approach that would rely on a dynamic, rather than static, clearing target concept. The target would be the highest clearing target possible from among the available options depending on broadcaster participation in the reverse auction. But the Commission makes clear that it would like to hear from commenters relative to the notion of omitting any initial clearing targets.

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AWS-3 Auction Closes After Two Months of Bidding

FCC rakes in record receipts.

The FCC finally brought down the closing gavel for the AWS-3 auction (that would be Auction 97 for those of you who keep track of such things) on January 29. The auction began on November 13, took breaks for four holidays – Thanksgiving, Christmas, New Year’s Day and Martin Luther King Day – and even slowed down when a couple of winter storms blew through Washington, D.C. Still, by the time the 341 rounds of bidding were complete, nearly $45 billion in total successful bids had been netted, a record for FCC auctions. (The previous high number, taken in during the 2008 sale of 700 MHz frequencies, brought $19 billion, which looked big back then but now looks a bit thin.) The AWS-3 auction also featured the highest number of rounds, 341, exceeding the previous high (318) from the 2010 paging auction.

As the auction dragged on, the FCC was under the gun to get it closed, and quickly. Congress imposed a February, 2015 deadline for the FCC by which the FCC must issue licenses to the successful bidders, and plenty of paper will have to be pushed before those licenses can be officially bestowed. With an eye on the calendar as January sped by, the FCC goosed the auction process along by increasing eligibility requirements to 100% and accelerating bidding activity to 21 rounds a day. (When the auction started in November, the FCC conducted only three rounds a day.)

The close of the auction sets in motion a rapid series of events for both winning bidders and the FCC.

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Update: More New AWS-3 Rules Now In Effect

Last year we reported on the adoption of new service rules governing AWS-3 spectrum use. And as we also reported a couple of months later, those rules took effect in July, 2014, except for a handful of provisions that had to be run through the Paperwork Reduction Act drill at the Office of Management and Budget. The good news is that, according to a notice in the Federal Register, that hurdle has now been cleared for Sections 2.1033(c)(19)(i)-(ii), 27.14(k) and (s), 27.17(c), 27.50(d)(3), 27.1131, 27.1132, and 27.1134(c) and (f). As a result, all of those sections have become effective as of January 28, 2015. That leaves only some revisions to Section 2.106 (the Table of Frequency Allocations) still in limbo. Don’t look for those last lingering changes to kick in until after the auction of the 1755-1780MHz band has been wrapped up. Check back here for updates on that front.

The Bigger They Come ...: Size Still Matters to M&A Regulators

But increase in antitrust review thresholds is the smallest inflation adjustment in years.

Another annual ritual is upon us: the Federal Trade Commission has announced the dollar value thresholds that will trigger automatic federal review of mergers and acquisitions for the next year or so. And it’s good news (sort of) for readers who keep Hart-Scott-Rodino checklists at the ready, because they won’t have to update much this year. That’s because the 2015 annual adjustment is the smallest we have seen in years – barely noticeable at one-half of one percent, well down from the annual 3%-7% leaps we had seen in recent years.

The FCC has the option of choosing to review, or not to review many, if not most, communications-related transactions in detail before issuing an approval. But under federal antitrust law, the Department of Justice and the Federal Trade Commission must review transactions that cross certain dollar amount thresholds. So if you’re considering a merger or acquisition, bear in mind that the administration will automatically be sending at least two agencies to take a closer look at transactions where either:

  • the total value of the transaction exceeds $305,100,000; or
  • the total value of the transaction exceeds $76.3 million and one party to the deal has total assets of at least $15.3 million (or, if a manufacturer, has $15.3 million in annual net sales) and the other party has net sales or total assets of at least $152.5 million

The new thresholds are set to take effect as of February 20, 2015.

Bear in mind, too, that the filing fees that parties to a deal have to pay the government for the pleasure of going through the review process have also been adjusted. (Fees are split between the FTC and the Department of Justice.) For most of 2015, parties to any deal subject to review and valued at less than $152.5 million will pay a $45,000 fee.  For deals valued at more than $152.5 million but less than $762.7 million, the review fee will be $125,000. And if you’re proposing a deal valued at more than $762.7 million, get set to fork over a tidy $280,000.

When negotiating deals, all parties would be well-advised to bear these thresholds in mind. Once those lines are crossed, the prospect of additional (and considerable) time, expense and hassle to navigate the federal review process is a virtual certainty.

ANSI C63.17-2013 Now Officially in the FCC Rulebook

Five months ago we reported that, in a bit of regulatory tidying up, the Office of Engineering and Technology had updated the FCC’s rules. The Commission had, in 2012, incorporated by reference into its rules a standard – ANSI C63.17-2006, to be precise – adopted by the American National Standards Institute (ANSI). The standard governs certain measurement procedures in the 1920-1930 MHz band, used mainly for cordless phones, backstage intercoms, and other voice-quality audio gear.

The specific version referenced in the rules had been developed by ANSI in 2006 – but, wouldn’t you know it, ANSI revised its standard in 2013. So in August, 2014, OET opted to substitute the 2013 version for the 2006 version. As it turns out, though, just because OET said so in August didn’t make it so in August. OET’s order had to be published in the Federal Register for it to take effect. Oddly, that didn’t happen … until now. The order has just been published in the Federal Register, as a result of which the 2013 version of ANSI C63.17 has taken effect as of January 21, 2015.

As we noted last summer, if you’re seriously interested, you can get yourself a copy of ANSI C63.17-2013 here … as long as you’re willing to spend $113.00 for the privilege.

Update: Start-Date for Certain Mandatory ECFS Filings Set

Last month we reported on the FCC’s expansion of the use of its ECFS (short for “Electronic Comment Filing System”) online filing system to permit – and, in five cases, require – certain non-docketed materials to be filed through ECFS. For the five types of filing that must be filed through ECFS, the dates by which that requirement is to take effect had not yet been fixed as of our last report.

For two of those types, we were able to calculate the effective date to be January 12 and, sure enough, the Commission has since confirmed the correctness of our calculatio: January 12 is indeed the date as of which Section 224 pole attachment complaints and formal Section 208 complaints must be filed through ECFS.

And thanks to a notice published in the Federal Register, we know the effective date as of which the remaining three types of filings will have to be filed electronically. .

The following types of filings will have to be submitted electronically as of February 12, 2015 :

  • Network change notifications by incumbent local exchange carriers
  • Domestic Section 214 transfer-of-control applications
  • Domestic Section 214 discontinuance applications

Once accepted through ECFS, each such notice or application will be assigned its own ECFS docket number, so related follow-on submissions should be filed through the conventional, docket-number-based ECFS interface.

Comment Deadlines Set in IP Transition Proceeding

Early last month we reported that the FCC is seeking input on various ways in which the transition from the legacy copper network to Internet protocol (IP) technology will affect consumers and competitive providers. If you’re planning on tossing in your two cents’ worth, you now know the deadlines by which you’ll have to do so, because the FCC’s Notice of Proposed Rulemaking has now made it into the Federal Register: comments are due by February 5, 2015, and replies by March 9. Comments are replies may be filed through the FCC’s ECFS online filing system; refer to Proceeding Nos. 14-174, 13-5, 05-25, RM-11358 and RM-10593 (use the “Add another proceeding” button to get them all in).

Update: Comment Deadlines Set in Hearing Aid Compatibility Proceeding

A couple of weeks ago we reported on a request from the Wireless Telecommunications and Consumer and Governmental Affairs Bureaus for comments to refresh the record in a couple of proceedings relating to hearing aid compatibility regulations. The Bureaus’ public notice has now been published in the Federal Register, so we can calculate the applicable deadlines. While the Federal Register notice uncharacteristically fails to specify the dates, we figure that comments in response to the Bureaus’ request are due by January 22, 2015 (i.e., 30 days from the Federal Register publication), and replies are due by February 6 (i.e., 45 days from publication). All comments may be filed electronically through the FCC’s online system; separate copies of comments should be submitted in both Proceeding Nos. 07-250 and 10-254.

Wireless Bureau Provides Guidance on Data Roaming Rates

Benchmarks established, other policy aspects clarified in response to T-Mobile petition

The Wireless Telecommunications Bureau has given the wireless industry an early Christmas gift by granting T-Mobile’s Petition for Declaratory Ruling regarding data roaming rates. As we previously reported, back in May, T-MO had asked the FCC to provide the industry with guidance as to what a “commercially reasonable” roaming rate is. The term “commercially reasonable” was imposed on data roaming by the FCC three years ago. (Readers will recall that Verizon challenged the FCC decision in court but lost, leaving the obligation to be commercially reasonable intact.) Since then, though, T-MO and many other smaller carriers have been having trouble negotiating data roaming rates with AT&T and Verizon, as the Big Two carriers have resisted terms that smaller carriers viewed as “commercially reasonable” – a negotiating tactic made possible because the precise metes and bounds of “commercial reasonableness” have never been defined. And therein lies the rub – hence T-MO’s petition.

Numerous carriers, including T-MO, have been trying to negotiate data roaming rates with AT&T and Verizon, only to find that their conception of what is commercially reasonable is a lot different from AT&T and Verizon’s conception. The smaller carriers have complained that the rates offered them by AT&T and Verizon have been anywhere from 8 to 100 times higher than retail rates offered by the big carriers to their own customers. Because “commercially reasonable” is a term new to the communications lexicon, there has been no easy reference point for establishing a benchmark for data roaming. (The more customary standard – applicable to common carrier rates – is that they be “just and reasonable”. That standard predates the 1934 Communications Act itself, with roots in the old rate regulation scheme for railroad traffic.) So despite the court-approved existence of an obligation to offer commercially reasonable rates, data roaming rate negotiations were getting nowhere. This has gotten especially critical in recent months as companies have needed to enter into roaming agreements for LTE traffic, a form of data roaming.

In its petition T-MO asked that the FCC identify “benchmarks” for assessing “commercial reasonableness”:

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Coming Soon to More Screens Near You: FCC Labels!

Thanks to Congress, electronic labeling may be an option for more FCC-authorized RF devices

Most radiofrequency (RF) equipment certified by the FCC is required to carry a physical label listing the FCC ID and making various other FCC-mandated disclosures. Observant users of electronic products will recognize those labels as the ones with a (usually) long ID number, sometimes an FCC logo, and verbiage like: “This device complies with part 15 of the FCC Rules. Operation is subject to the condition that the devices does not cause harmful interference.”

But, thanks to Congress and President Obama, those physical labels may increasingly be a thing of the past – at least for pieces of gear that include screens. The recently enacted E-LABEL Act (that’s short for “Enhance Labeling, Accessing, and Branding of Electronic Licenses Act of 2014”) directs the FCC to provide (through rules or otherwise) that manufacturers of RF devices with electronic displays (i.e., screens) have the option of using electronic labeling, instead of physical labeling, for their equipment.

As those immersed in the FCC’s equipment authorization procedures know, the FCC’s rules already allow for electronic display on software-defined radio products and modular transmitters with user display screens. The rules also already provide for alternative labeling procedures when permanently affixing a label is not “desirable” or “feasible”, like if the item is too small or when etching the notice on the item would damage it. In fact, just last summer the Commission provided guidance for electronic labeling, at least for devices which (a) are subject to certification or Declaration of Conformity requirements and (b) have non-removable display screens. (For those really curious, the FCC’s Knowledge Database – known to the in-crowd as “KDB” – advises that electronic labels must be accessible to users without special codes, lengthy steps, or use of accessories, and that the information included in the label cannot be modified.) The KDB guidance did not, however, extend to equipment subject to “verification”, a third type of FCC equipment authorization requiring that equipment be "uniquely identified".

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FCC Reminder (Redux): Cell Phone Jammers Are STILL Illegal

Wi-Fi jammers, too!

Having recently spanked Marriott for $600K for interrupting private Wi-Fi use at one of its hotel properties – concern about which presumably prompted Marriott to seek formal guidance about just how far they can go in managing Wi-Fi use at their venues – the Commission has issued another of its ever-popular “Enforcement Advisories” warning against the use of jammers to interfere with cellphone, Wi-Fi or GPS devices. (Similar advisories were issued in 1999, 2005, 2011 and 2012, along with Spanish and Mandarin versions of the 2012 notice.)

The use of jammers is, of course, a very tempting way to control disruptive uses of wireless devices. Prison officials have long wanted to use jammers in prisons, where illegal cellphones are in widespread use by (among others) cell-bound prisoners managing illegal enterprises on the outside. And we have previously reported about one enterprising commuter in Philadelphia who used a pocket-sized jamming device when fellow bus passengers disturbed his ride by talking on their phones too loudly.

There are many other venues where a jammer would come in handy for the average Joe: theaters and concert halls, for instance, where standard pleas at the beginning of a performance to turn cellphones off are often ignored, leading to an annoying cellphone jingle in the middle of a performance. And how about restaurants, which are noisy enough without the person at the next table yapping away on the phone?  

But guess what?

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ECFS Now Available for Non-Docketed Filings

New “Submit a Non-Docketed Filing” module allows some filers to eschew paper.

In a move presumably designed to make everybody’s lives easier, the Commission has expanded its Electronic Comment Filing System (ECFS) to accept a wide range of filings that previously could be filed only on paper. That’s good news. But before you take advantage of this new opportunity, be sure you’re familiar with the fine print.

Historically, ECFS has been available only for materials being submitted in docketed proceedings. Since many FCC activities don’t involve such proceedings, paper filings have continued to be the order of the day in many areas. (Two years ago the Media Bureau opened up its CDBS system for pleadings directed at particular applications, but that still left many filings plodding the paper trail.)

Now the Commission has included a new “module” (dubbed, not surprisingly, the “Submit a Non-Docketed Filing” module) in ECFS to accept, electronically, certain non-docketed submissions.

The new module is currently up and running and ready to receive your non-docketed filings, so feel free to use it for the any of the types of filings listed below starting now. Use of the module is voluntary for the time being – so if you want to burn through those last couple of toner cartridges and boxes of copy paper, feel free to stick with hard-copy filings – but note that electronic filing for items so identified in our list below will be mandatory in the near future. (The dates when voluntary turns to mandatory have been set for some types, but remain To Be Determined for others, as indicated below.)

Filings accepted by “Submit a Non-Docketed Filing” module in ECFS: 

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FAA to Ease (a little) Its System for Reporting Tower Light Outages

But the FCC isn’t planning to give tower owners much slack as a result.

If you’re responsible for a tower subject to lighting requirements imposed by the Federal Aviation Administration, your life may be getting a bit easier early next year. According to an advisory issued by the FCC’s Wireless Telecommunications Bureau, the FAA is modifying its notification process to allow folks reporting lighting outages to specify, in their initial notices, the amount of time they expect to need to get the outage fixed.

We all know that the FAA imposes lighting requirements on certain tower structures, and the FCC adds extra muscle to those requirements when it comes to FCC regulatees responsible for such structures. Under the Commission’s rules, folks with a tower subject to FAA lighting requirements must monitor the tower lights at least once every day, either by directly eyeballing the tower or by observing “an automatic properly maintained indicator designed to register any failure of such lights”.

And when there’s an outage, things are supposed to happen.

The FCC requires that a record be made of the nature of the outage, the date and time the outage was noticed, the date and the outage is corrected (and the nature of the corrections) … and the date and time the FAA is notified.

Wait – notify the FAA?

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Rural Call Completion Update: Further Tweaks to Take Effect in January

Last month we reported on the FCC’s disposition of a number of petitions for reconsideration in the rural call completion proceeding. In taking care of those petitions, the Commission tweaked its rules a bit, mainly in response to suggestions from USTelecom and ITTA. That action has now been published in the Federal Register, which means that those tweaks will become effective as of January 9, 2015. Note, however, that the “information collections” that the FCC has adopted in this proceeding – including both those adopted in the Report and Order a year ago and the changes in the recent order on reconsideration – apparently have still not received the big thumbs up from OMB (as required by the Paperwork Reduction Act). As a result, we still don't know when the record retention and quarterly rural call completion statistics reporting requirements will take effect.

Update: Comment Deadlines Extended in 24 GHz Proceeding

Back in October we reported on a Notice of Inquiry seeking comments on the possible use of frequencies above 24 GHz for mobile services. According to a notice in the Federal Register, the deadlines for those comments have been extended. Comments are now due by January 15, 2015, and replies are due by February 17.

The IP Transition: FCC Asks Practical Questions About Copper Retirement

NPRM seeks to address effects of discontinuance of copper-based services on consumers, competition.

As many readers doubtless know (and as we have previously reported), the IP transition is underway: telecom carriers are shifting away from time division multiplex (TDM) technology using traditional copper wires; instead, they are embracing Internet protocol (IP) technology using optical fiber and coaxial cable facilities. This shift will implicate a wide range of regulatory considerations which the FCC is already looking into. It will also affect consumers and competitive telecommunications providers who are used to the TDM/copper wire way of life.

In a Notice of Proposed Rulemaking and Declaratory Order (NPRM/DO), the Commission has requested comments on three particular ways in which the transition will affect consumers and competitive providers.

Back-up Power. The legacy copper network is powered from the telephone company central office, where back-up generators are usually available when commercial power fails. Because consumers don’t need to provide their own electricity to power their landline phones, the phones usually work during a power outage as long as the phone wires on the street haven’t been knocked down. But when phone service is Internet-based and provided by cable or fiber, power does not come from the central office – meaning that, if a household relying on IP/non-copper telephone service loses power, its phones go dead unless some back-up power system is in place in the consumer’s home or office.

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Comment Sought on Possible Expansion of Hearing Aid Compatibility Requirements

Out for comment: Shift to function-based, rather than technology-based, regulatory approach, and mandatory 100% HAC compliance

The Wireless Telecommunications and Consumer and Governmental Affairs Bureaus are looking to refresh the record in a couple of old, but ongoing, rulemaking dockets dealing with hearing aid compatibility (HAC) regulations. In particular, the Bureaus have asked for input on two questions: (1) should HAC rules apply to devices based on how those devices are used – for voice calling – rather than on the type of technology they use; and (2) should the rules require HAC compliance by 100% of covered handsets instead of just a percentage?

HAC regulations require telephone handsets – both wireline and wireless – to be usable by persons who wear hearing aids. Wireless handsets must not interfere with the operation of hearing aids (such as by causing a “buzz” in the ear of the wearer); and the earpieces of both wired and wireless handsets are required to generate a magnetic field that links to the “telecoil” feature of hearing aids, allowing the sound to be reproduced directly by the hearing aid. Wireless handsets are labeled with “M” (for “microphone”) and “T” (for “telecoil”) ratings, reflecting how well they perform with hearing aids. All wireless handset manufacturers and wireless service providers must offer a certain minimum number of HAC models, and the FCC has imposed very large forfeitures for non-compliance.

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Update: Effective Date, Comment Deadlines Set in Cell Phone Signal Booster Proceeding

Several weeks ago we reported on the FCC’s order disposing of several petitions for reconsideration that had been filed with respect to its 2013 decision to adopt a new regulatory approach to the use of cell phone signal boosters. In its most recent order the Commission adopted a couple of tweaks to its rules and proposed some further tweaks. All of those actions have now made it into the Federal Register. As a result, we now know when all but one of the newly-revised rules will take effect, and we also know the deadlines for commenting on the proposed additional tweaks.

According to one notice, all the revisions adopted by the Commission last month will take effect on
December 29, 2014 except for Section 20.21(f)(1)(iv)(A)(2), which, because it’s an “information collection”, must first be run past the Office of Management and Budget thanks to the Paperwork Reduction Act.

And according to a separate notice, comments on the newly-proposed tweaks are due by December 29, 2014 and replies are due by January 20, 2015.

Rural Call Completion Update: FCC Grants One, Tosses Four Petitions for Reconsideration

As we reported just about a year ago, the FCC adopted a number of rules to address the problem of rural call completion or, more accurately, rural call non-completion. Many calls placed to numbers served by small rural telephone companies don’t seem to make it to their destination. And that seems to happen especially when the calls are routed through “least cost” intermediate service providers who don’t take kindly to the high per-minute termination access charges imposed by many small telcos. In keeping with its priority goal of universal connectivity, the FCC adopted rules mandating that calls not be blocked, that carriers file quarterly reports on call completion success rates, and that a ring tone not be delivered to the calling party until the call has actually been connected to its destination.

Five petitions for reconsideration were filed and the Commission has now denied all but one of them.

In response to the one successful petition, filed by USTelecom and ITTA, the FCC has decided to exempt from call quality reporting requirements intraLATA toll calls that are: (a) carried entirely over the covered provider’s network or (b) handed off by a covered provider directly to a the terminating carrier or a terminating tandem switch. Some carriers don’t keep detailed records of such calls now, so the cost of reporting on such calls would likely impose significant new cost burdens. Since the benefit of reports on such calls would be limited, the scale balanced in favor of an exemption. The exemption does not apply to interLATA toll calls, even if they are directly handed off to the terminating carrier or tandem; the FCC said that the majority of on-net traffic is interLATA and will still be covered.

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Update: Last of the New Text-to-911 Rules Now Effective

Last month we reported that most of the rules adopted back in August to make text-to-911 service generally available took effect in October. As often happens, though, a small number of the new rules couldn’t kick in until the Office of Management and Budget gave them the go-ahead. That’s because those particular sections – Sections 47 CFR 20.18(n)(10)(i) and (ii), (n)(10)(iii)(C), and (n)(11) – are “information collections”.

Under the new rules, Public Safety Access Points (PSAPs) may voluntarily register when they are technically ready to receive text messages to 911. As PSAPs become text-ready, they may either register in the PSAP database (or, if the database is not yet available, submit a notification to PS Docket Nos. 10–255 and 11–153) or provide other written notification reasonably acceptable to a covered text messaging provider. To implement these requirements, the Commission seeks to collect information primarily for that database. Either approach will do the trick. (PSAPs and covered text providers may also mutually agree to an alternative implementation timeframe (other than six months). Covered text providers must notify the FCC of the dates and terms of the alternate timeframe that they have mutually agreed on with PSAPs within 30 days of the parties’ agreement.)

Additionally, some third-party notifications – to consumers, covered text providers, and the Commission – will need to be effective in order to implement text-to-911. The new rules provide for the collection of information about such notifications, which are essential to ensure that all affected parties are aware of the limitations, capabilities, and status of text-to-911 services.

According to a notice in the Federal Register, all these information collection rules have become effective as of November 14, 2014.

Spectrum Auction Recon Update: Corrected Reply Deadline Announced

Last week we reported on the establishment of opposition and reply deadlines with respect to a couple dozen or so petitions seeking reconsideration of the Commission’s spectrum auction Report and Order. According to a follow-up notice in the Federal Register, it turns out that the reply deadline announced by the Commission last week was off by a few days. If you want to file a reply to any oppositions to the recon petitions, you will have until November 24, 2014. That gives you an extra weekend – lucky you!

Update: Last of the New 911 Rules Now in Effect

Almost a year ago we reported on the adoption of a number of rules designed to improve performance of the 911 system in the aftermath of the 2012 “derecho” storm. Most of the new rules had taken effect by February of this year, but a couple lingered on in limbo, awaiting OMB approval. All but one of those stragglers made it through the Paperwork Reduction Act process last month, leaving only Section 4.9(h) on the outside looking in. (For those who may have lost track over the last year or so, Section 4.9(h) requires “Covered 911 Service Providers” to notify Public Safety Answering Points (PSAPs) and other “911 special facilities” of major disruptions in 911 service within time limits established by the Commission.)

The wait is over! According to a notice in the Federal Register, OMB has signed off on Section 4.9(h), so it has become effective as of November 4, 2014.

176 Questions: 24+ GHz NOI In a Nutshell

Our friend Michael Marcus has been busy. Lucky for us.

We recently reported on a Notice of Inquiry (NOI) seeking input on the possible use of millimeter wave frequencies (i.e., 24 GHz and north) for mobile communications. Our friend, Michael Marcus, a spectrum-savvy engineer (and former FCC official) who knows a lot more than a thing or two about these things, has delved deeply into the NOI and distilled from it a jaw-dropping list of the questions posed by the Commission. We encourage anyone interested in this proceeding to take a gander at Mike’s handiwork – but it’s not for the faint of heart: running 12 single-spaced pages, it includes 176 separate questions (along with the modestly cautionary disclaimer that “This enumeration is thought to be correct, but is not guaranteed.”).

Elsewhere on his own SpectrumTalk blog, Dr. Marcus calls readers’ attention to a recently published textbook, Millimeter Wave Wireless Communications, by four “major pioneers” in the area. (Those would be Theodore S. Rappaport, Robert W. Heath Jr., Robert C. Daniels and James N. Murdock.) According to Mike, the book ties together information from a variety of sources.Would-be millimeter wave mavens may want to check it out.

Response Dates Set for Spectrum Auction Recons

Meanwhile, back at the ranch …

While the NAB and Sinclair press their appeal of the Commission’s Incentive Spectrum Auction Report and Order (R&O), a number of other folks have expressed their discontent with various aspects of the R&O in petitions for reconsideration that the FCC will have to address and resolve. A list of those petitions has been published in the Federal Register. That notice sets the deadlines for oppositions and replies.  Oppositions to any or all of these petitions must be filed by November 12, 2014; replies to any oppositions are due by November 21.

More than 30 separate petitions have been filed on behalf of:

  • Abacus Television
  • Artemis Networks, LLC
  • GE Healthcare
  • Competitive Carriers Association
  • Advanced Television Broadcasting Alliance
  • T-Mobile USA, Inc.
  • Beach TV Properties, Inc.
  • Free Access & Broadcast Telemedia, LLC
  • Bonton Media Group, Inc./Raycom Media, Inc.
  • Block Communications, Inc./FBC Television Affiliates Association,
  • Gannett Co., Inc./Graham Media Group/ICA Broadcasting
  • Qualcomm Incorporated
  • CBS Television Network Affiliates Association/NBC Television Affiliates/ABC Television Affiliates Associates Association/FBC Television Affiliates Association
  • Cohen, Dippell and Everist, P.C.
  • the American Society for Healthcare Engineering of the American Hospital Association (WMTS Coalition)
  • Journal Broadcast Corporation
  • NBC Telemundo License LLC
  • Radio Television Digital News Association
  • LPTV Spectrum Rights Coalition
  • Sennheiser Electronic Corporation
  • the Dispatching Printing Company
  • Media General, Inc.
  • the Videohouse
  • Public Broadcasting Service, Inc./Association of Public Television Stations/Corporation for Public Broadcasting
  • American Legacy Foundation
  • Signal Above, LLC
  • the Walt Disney Company
  • International Broadcasting Network
  • U.S. Television, LLC
  • Mako Communications, LLC.
  • Expanding Opportunities for Broadcasters Coalition

You can take a look at the various petitions on ECFS – just go to the ECFS Search page and enter “12-268” in the “Proceeding Number” box and, in the “Type of Filing” box in the “Advanced Options” sections, select “Petition for Reconsideration from the drop-down menu. (Note that the list in the Federal Register does not correspond exactly to the petitions available on ECFS, but it’s reasonably close. One apparent omission: When we performed the ECFS search, it turned up a petition filed on behalf of Sprint that isn’t listed in the Federal Register notice.)

After the FCC has ruled on these petitions, interested parties will have the opportunity to seek judicial review of the FCC's reconsideration order. If (as may reasonably be expected) this leads to more appeals on the spectrum auction front, there's no telling what impact that might have on the start date of the auctions. As we reported last week, the anticipated start has already moved from 2015 to "early 2016" because of (among other things) the already-pending NAB and Sinclair appeals.

Check back here for updates.

FCC Imagines 10 Gb/s 5G Mobile Service Using 24+ GHz

The limitations that make frequencies over 24 GHz unsuitable for mobile use may not be limitations after all.

Engineers are never satisfied. Even when “4G” mobile service was still a new idea, the engineers had begun thinking ahead to what will eventually become 5G: 10 gigabits/second (far faster than 4G), a thousand-fold increase in traffic capacity, and end-to-end delays of no more than a thousandth of a second.

The problem is to find radio frequencies for all that capacity and speed. The prevailing belief has been that mobile wireless works best only below about 3500 MHz. Higher frequencies propagate badly and do not penetrate well through building walls. Frequencies that are much higher, above about 24 GHz – sometimes called millimeter wave frequencies – require “line of sight” conditions: the transmitting and receiving antenna must be able to see each other. Ordinarily such a set-up by its nature precludes mobile operations.

But the folks on the FCC’s Technological Advisory Council – a group of academics and private sector technology experts that advises the government – are not content with the prevailing belief.

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Update: Anticipated Spectrum Auction Date Pushed Back

If you picked “mid-2015” in your office pool for the date the FCC’s incentive spectrum auction would be held, we’ve got some bad news for you. While that was probably a pretty good bet up to now (since Commission officials have tenaciously stuck with the “mid-2015” date for some time), it’s not looking so good anymore. According to an item just posted on the FCC’s blog, the current target date is “early 2016”.

Gary Epstein, Chair of the Commission’s Spectrum Auction Task Force, alluding to “undeniable impediments” in the auction’s path, has this to say:

As Chairman Wheeler indicated several weeks ago, the court challenges to the auction rules by some broadcasters have introduced uncertainty.  Earlier this week, the court issued a briefing schedule in which the final briefs are not due until late January 2015.  Oral arguments will follow at a later date yet to be determined, with a decision not likely until mid-2015.  We are confident we will prevail in court, but given the reality of that schedule, the complexity of designing and implementing the auction, and the need for all auction participants to have certainty well in advance of the auction, we now anticipate accepting applications for the auction in the fall of 2015 and starting the auction in early 2016. Despite this brief delay, we remain focused on the path to successfully implementing the incentive auction. [Emphasis added]

With briefing wrapping up very late in January, the “court challenges” mentioned – one from the NAB, the other from Sinclair – probably won’t be argued until mid- to late spring, 2015. In our experience, the D.C. Circuit usually takes at least two-three months following oral argument to crank out a decision on relatively easy cases. More complex cases can take significantly longer. (Extreme example: One of my colleagues once had to wait more than three years for a decision following oral argument.)

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FCC Further Tweaks Signal Booster Rules

Some rules relaxed while measures added to prevent interference to wireless networks 

Back in early 2013, the FCC took steps to help consumers deal with the dreaded cell phone phenomenon of dead spots by allowing the use of private signal boosters. (Readers should recall that boosters receive and re-transmit cell phone signals to improve coverage in their immediate vicinity.) And now, underscoring its interest in encouraging such devices, the Commission has tweaked its rules. But be forewarned, the tweaks are highly technical and unless you’re deeply involved in the manufacturing side of the booster universe, you shouldn’t expect to notice any dramatic changes.

To recap, there are two classes of approved boosters, Consumer and Industrial. Consumer boosters, in turn, come in two flavors, Wideband Consumer Boosters (designed to boost signals of more than one cell provider) and Provider-Specific Consumer Signal Boosters (designed to boost the signals of just a single cell provider). All Consumer Boosters are subject to “Network Protection Standards” (NPS), although those standards differ somewhat between the two different types of Consumer Boosters.

Among the NPS imposed on manufacturers of Wideband Consumer Boosters was a testing requirement – involving downlink noise limits, if you really must know – which proved problematic for manufacturers. (As it turned out, neither the FCC’s Office of Engineering and Technology nor most Telecommunications Certifying Bodies had the filtering equipment necessary to measure the downlink noise as required, which obviously complicated the testing process.)

So several manufacturers, noting that the downward noise testing element was not included in the NPS as a means of protecting against interference, suggested that it could be tossed. They also suggested that bidirectional capability, which was what the downward noise limit test was designed to help achieve and confirm, could be addressed in other ways (for example, by adding downlink gain limits to the Transmit Power Off Mode requirement – we warned you that the tweaks are highly technical, didn’t we?).

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Update: More New 911 Rules Take Effect

Slowly but surely, the new set of rigorous requirements for 911 system service providers adopted last December in the wake of the 2012 “derecho” storm are coming on line. Most of those requirements took effect in February, but four particular rules did not. That’s because they involve “information collections” that had to be run past the Office of Management and Budget thanks to the Paperwork Reduction Act. OMB’s review process has now been wrapped up for three of the four – those would be Sections 12.4(c), 12.4(d)(1) and 12.4(d)(3) – and they have now taken effect, according to a notice in the Federal Register. (To refresh your recollections, Sections 12.4(c) and 12.4(d)(1) relate, respectively, to the required submission of annual reliability and initial reliability certifications. Section 12.4(d)(3) imposes certain record retention obligations.)

Still waiting in the wings: Section 4.9(h), which requires reporting on outages potentially affecting a special 911 facility. Apparently OMB hasn’t given that one the thumbs up yet. When that does happen, look for another Federal Register notice. We’ll let you know when that pops up.

Update: Text-to-911 Rules Now in Effect

Sure, text-to-911 capabilities by December 31, 2014 is now the law, with mandated implementation by June 30, 2015 at the earliest. But your best bet, in an emergency, is still to make a voice call to 911, if possible.

R U rdy 4 txt 2 911? For the texting illiterate, that’s text-speak (somewhat similar to Newspeak from George Orwell’s Nineteen Eighty-Four) for “Are you ready for text to 911?” If you’re a commercial mobile radio services (CMRS) provider or “interconnected text provider”, you’ve got fewer than three months: the FCC’s rules now require all CMRS (CMRS) providers and “interconnected text providers” to support text-to-911 by the end of 2014.

What do you think, will this be doubleplusgood or doubleplusungood?

Followers of our blog will recall that last year the major CMRS carriers voluntarily agreed to make text-to-911 services available by May 2014. As we reported earlier this year, in January the FCC proposed rules mandating that all texting providers support text-to-911. And now those rules have been finalized, adopted and published in the Federal Register. Most took effect earlier this month (although some, involving new information collections, are still subject to Office of Management and Budget approval).

While the rules may technically be effective now, don’t expect text-to-911 to be working everywhere for a while yet.

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Update: Effective Date of (Most) Revised Tower Rules Set

Last month we reported on the FCC’s overhaul of its antenna structure regulations. The Commission’s Report and Order has now made it into the Federal Register. That, of course, establishes the effective date of most of the revised rules – and that date is October 24, 2014. We say “most” of the revised rules because, wouldn’t you know it, a couple of the revisions involve “information collections” that have to be run past the Office of Management and Budget thanks to the Paperwork Reduction Act. Those revisions – which involve Sections 17.4, 17.48 and 17.49 – will kick in once OMB has given them the once-over. Check back here for updates.

FCC Spanks T-Mobile for $819,000

Hearing aid compatibility shortfall draws big fine.

More than two years ago we reported that the FCC had proposed to fine T-Mobile a whopping $819,000 for violations of hearing aid compatibility (HAC) requirements. (Under those requirements both manufacturers and mobile carriers must offer a broad range of handsets that (a) don’t cause interference to hearing aids and (b) do work with the telecoil add-ons that many hearing aid wearers use.) As is customary, T-Mobile was given a chance to respond to the proposed fine, which it did (in May, 2012), arguing not that it hadn’t violated the rules, but rather that the fine was “unduly punitive” and should be sliced in half.

The FCC was not convinced. We know this because the Commission has now finalized the fine, leaving it at $819,000 – no reduction for effort, good behavior, or anything else.

This case is unusual for a couple of reasons.

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FCC Adopts ANSI C63.1-2013 for 1920-1930 MHz

FCC rule change adopts ANSI update that reflects 2012 FCC rule change.

The FCC continues to mop up the technical rules for Unlicensed Personal Communications Service at 1920-1930 MHz. An order in 2012 simplified those rules. Among other things, the FCC incorporated by reference into its code an American National Standards Institute (ANSI) standard governing certain measurement procedures in the 1920-1930 MHz band. The ANSI standard adopted by the FCC in 2012 – ANSI C63.17-2006 – has since been superseded by a later and greater version, ANSI C63.17-2013. And now an order from the Office of Engineering and Technology has substituted that later version into the rules in place of the earlier iteration. All the details of ANSI C63.17-2013 aren’t spelled out in the FCC’s rule – but if you’re seriously interested, you can get yourself a copy of ANSI C63.17-2013 here … as long as you’re willing to spend $113.00 for the privilege.

Update: Deadlines for Seeking Reconsideration, Appeal of Spectrum Auction Report and Order Set

Exactly three months after its adoption, the FCC’s Report and Order (R&O) setting the preliminary ground rules to cover the ambitious incentive auction and repacking of the TV band has now been published in the Federal Register. While this does not mean that the auction is imminent – the FCC is still hoping that it will happen next year – the Federal Register publication does set the effective date of some (but not all) of the rules adopted in the R&O. Perhaps more importantly, it starts the clock on a number of important deadlines.

First and foremost, the effective date of some of the new rules is October 14, 2014. But heads up, because that does not apply to §§1.2105(a)(2)(xii) and (c)(6); 1.2204(a), (c), (d)(3), and (d)(5); 1.2205(c) and (d); 1.2209; 2.1033(c)(19)(iii); 15.713(b)(2)(iv); 15.713(h)(10); 27.14(k) and (t)(6); 27.17(c); 27.19(b) and (c); 73.3700(b)(1)(i) through (v), (b)(2)(i) and (ii), (b)(3), (b)(4)(i) and (ii), and (b)(5); 73.3700(c); 73.3700(d); 73.3700(e)(2) through (6); 73.3700(f); 73.3700(g); 73.3700(h)(4) and (6); 74.602(h)(5)(ii) and (iii); and 74.802(b)(2). Those sections all involve “information collections” that must be run past the Office of Management and Budget (thanks to the Paperwork Reduction Act) before they can take effect.

Irrespective of the effective date, the R&O’s appearance in the Register establishes the dates for seeking reconsideration or judicial review.

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Regulatory Weed-Whacking: The FCC Cleans Up its Antenna Structure Regulations

Nearly a decade in the making, FCC tower rules brought into the 21st Century

If you’ve got one or more tower structures, you may be in luck. The FCC has at long last taken a weed-whacker to Part 17 of its rules, a long-overgrown regulatory briar patch governing the construction, painting and lighting of antenna structures. While the substantive requirements remain largely intact, a number of procedural changes should make life at least a little easier for tower owners as well as the Commission’s Staff. At a minimum, the changes should make the rules easier for real people to grasp.

The only real question here: What took so long?

Tower Inspections. The current rules require that tower lights be monitored at least once every 24 hours, either by observation of the tower itself or through an alarm system that takes care of the process automatically. In addition, any automatic or mechanical control devices, indicators, and alarm systems associated with a tower-lighting system must be inspected quarterly to confirm that the gear is working properly. Some major tower owners have set up Network Operations Centers (NOCs) which are staffed at all times, have highly sophisticated equipment that sounds an alarm at any tower lighting malfunction, and stores records of all alerts. An alert is sent not only if the lights fail at a tower but also if the monitoring system fails. Historically, the FCC has granted several waivers of the quarterly inspection requirement to companies that have demonstrated that their NOCs are adequately staffed and equipped.

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Update: Deadlines Set for Responses to Recon Petitions in AWS-3 Service Rules Proceeding

A couple of weeks ago we reported on the filing of two petitions for reconsideration of the adoption of rules governing AWS-3 service on 65 MHz of repurposed spectrum.  (We included links to the two petitions for those who might be inclined to read them.) A public notice reflecting those filings has now made it into the Federal Register. As a result, we now know the deadlines for oppositions and replies to the petitions: Oppositions must be filed by August 21, 2014, and replies are due by September 2.

Update: Some Cell Phone Unlocking Now Officially Legal

We recently reported that Congress had passed a bill designed to overrule a 2013 decision by the Librarian of Congress which severely limited the ability of cell phone owners to “unlock” (legally, at least) the software in their phones in order to move from one network to another. That bill has now been signed into law by the President, a development which FCC Chairman Wheeler promptly applauded.

Wireline Competition Bureau Clarifies That You Do - or Do Not - Need Agency Approval Before Transferring Control of Some ETCs

Well, that clears that up

On July 24, the FCC’s Wireline Competition Bureau (WCB) issued a public notice “reminding” carriers of prior approval requirements when certain Eligible Telecommunications Carriers (ETCs) plan to undergo a transfer of control. ETC status is granted by state public utility commissions in most cases, but the FCC itself handles this function in the 20% or so of the states that have chosen not to regulate in this area. ETCs receive millions of dollars from the Universal Service Fund (USF) to support the services they provide, so the administering agency, whether it be the FCC or a comparable state agency, reviews the identity and commitments of proposed ETCs carefully before granting them that status and thus making them eligible to receive the USF support. It would not be surprising, therefore, for the pertinent regulatory agency to require ETCs to seek approval before control of the entity is transferred to a new entity.

The problem is that there is nothing in the FCC’s rulebook that requires such approval.

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Congress Says Unlocking Cell Phones is Okay

You ask: why is this even a question?

Thanks to action by Congress – something we don’t get to say often, these days – it will soon once again be lawful to “unlock” your cell phone so as to use it with a different carrier.

You ask: why is this even a question?

Because of an earlier act of Congress – the Digital Millennium Copyright Act (DMCA), to be specific – whose Section 1201(a)(1)(a) provides that:

[n]o person shall circumvent a technological measure that effectively controls access to a work protected under this title.

The software in a phone is a “work protected under this title.” The locking software is a “technological measure that effectively controls access” to the phone. So to “circumvent” the software by unlocking it violates the DMCA. Even a first offense, if done “willfully and for purposes of commercial advantage or private financial gain," can draw a fine of up to $500,000 plus up to five years in the federal penitentiary.

The DMCA allows the Librarian of Congress, the official in charge of copyright matters, to make exceptions to the law. And indeed, he used to have an exception on the books that covered cell phone unlocking. Located in 37 C.F.R. § 201.40(b)(3) (2012), it permitted the "circumvention of technological measures that effectively control access to copyrighted work", i.e., "unlocking" of

[c]omputer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network. 

Note the requirement that unlocking (“circumvention”) be initiated by the “owner of the copy of the computer program” – i.e., the owner of the software in the phone. That’s you, right? When you’ve bought a phone, haven’t you also bought the software inside it? That’s what a reasonable person might think.

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Update: FCC Announces Form 477 Web Pages, Webinar

Webinar on new filing interface for Form 477 to be held on August 6; FCC releases link to Form 477 filing resources.

As we reported last month, the new Form 477 filing interface implemented as part of the Commission’s expansion of the Form 477 Data Program goes live on July 31. And as the FCC promised, additional Form 477 guidance – consisting of several web pages with instructions, resources, system guides, background information – is now available to prospective filers on the FCC’s website. (Cautionary note: While the FCC has indeed set up potentially useful web pages, it has included on those pages a number of links that are not yet live, at least as of the date the availability of those pages was first announced. The Commission assures one and all that those links will be updated before the new interface goes live on July 31.)

The Commission also promised an instructional webinar after the launch. True to its word, the FCC has announced that the promised webinar has been scheduled to occur on August 6, 2014 from 2:30-3:30 p.m. (ET). You can attend the real deal at the FCC’s Meeting Room in Washington, or you can watch it live over the ether at Stay-at-home viewers will be given the opportunity to email questions in to the presenters during the show.

Fifth Circuit: False Claims for USF Funds Are Not Subject to False Claims Act Suits

Court holds that USF funds, administered by a private corporation, are not “federal funds” within meaning of False Claims Act.

One weapon in the government’s anti-fraud arsenal – the False Claims Act – will no longer be available to the Feds in their efforts to combat bogus claims made to the Universal Service Fund (USF) if a recent decision out of the U.S. Court of Appeals for the Fifth Circuit sticks.

The USF, of course, is the multi-billion dollar cash reservoir used to subsidize a variety of programs designed to assure that all Americans have affordable access to essential telecommunications services. Created by Congress in 1996 (but having roots dating back to 1934), the USF is funded by mandatory contributions from telecom carriers, who in turn pass the charges along to their customers. If you haven’t heard of it, take a look at your phone bill, which has a surcharge of more than 15% to cover your share of your carrier’s mandatory contribution to the USF. Since pretty much every phone bill every month to every customer everywhere includes that line item, the cash coming into the USF is not chickenfeed. (Illustrative examples: Annual USF disbursements exceeded $8.5 billion in 2012; earlier this month the Commission expanded the funds available to the Education Rate (E-rate) component of USF – which supports communications technology (e.g., Wi-fi) in schools and libraries – to more than $3 billion annually for the next two years.)

The USF is administered by the Universal Service Administrative Company (USAC), a non-profit corporation established to oversee the day-to-day operation of the USF. Contributions go directly to the USAC, which then distributes them back out to service providers in furtherance of USF programs.

When so much money is doled out anywhere, you can pretty much count on people trying to get their hands on more than they’re entitled to.

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Update: Petitions for Reconsideration Filed in AWS-3 Service Rules Proceeding

Back in April we reported on the adoption of service rules to govern AWS-3 service on 65 MHz of repurposed spectrum, and then last month we noted the publication of the FCC’s action in the Federal Register. As longtime CommLawBlog readers know, Federal Register publication of such things starts the time for filing petitions for reconsideration (which are due within 30 days of publication) and petitions for judicial review (due within 60 days of publication. And sure enough, according to an FCC public notice, two parties have indeed filed for reconsideration.

Trimble Navigation Limited and Deere & Company – two members of the GPS Innovation Alliance – filed a joint petition asking for more stringent limits on AWS-3 emissions into radionavigation satellite system spectrum. Meanwhile, Engineers for the Integrity of Broadcast Auxiliary Services Spectrum also sought reconsideration. Their complaint: in its decision the FCC appears to have completely ignored their comments regarding the FCC’s decision to move Department of Defense operations into the 2 GHz TV Broadcast Auxiliary Services band.

Interested parties will be permitted to comment on either of both of these petitions. The deadline, however, won’t be set until the FCC’s public notice shows up in the Federal Register. Ordinarily, the comment period in such situations is abbreviated, so if you are interested, be sure to check back here for updates.

Connect America Fund Recon: What the FCC Taketh, the FCC Can - and Does - Giveth Back

FCC answers some questions on next phase of CAF, but raises new questions about the CAF Phase II and Mobility Fund Phase II Auctions

If we go just by the title of the FCC’s most recent action in the Connect America Fund (CAF) docket, the FCC accomplished quite a bit in one fell swoop. The lengthy (108 pages!) document is entitled “Report and Order, Declaratory Ruling, Order, Memorandum Opinion and Order, Seventh Order on Reconsideration, and Further Notice of Proposed Rulemaking.” Phew! (Let’s just call it the CAF Recon Order for short.) That just about runs the gamut of possible FCC actions, so we should expect a lot for our money. And, to a large extent, we got it. 

The CAF Recon Order is a follow-on to the FCC’s massive and comprehensive attempt in 2011 to radically reform the entire regime of universal service funds (“USF”) and intercarrier compensation that has ruled the telecom landscape for a generation. That effort, grandiosely but not inaccurately dubbed the “Transformation Order” by the FCC, took an axe to the carrier-to-carrier rates and USF that previously paid for the high costs of completing long distance calls to rural areas of the country. Many prices paid by long distance telephone companies and wireless carriers, along with some previously available USF, were reduced, consolidated or eliminated over a period of a few years, and provisions that might have incentivized some operators to over-invest in upgrading their networks were eliminated. The availability of USF was eliminated as unnecessary for situations where, without reliance on USF, comparable service had been deployed. 

The “transformation”, while dramatic, has proven to be less than permanent in a number of respects.

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Update: Effective Date Set for Updated Spectrum Screen

Federal Register publication also establishes deadlines for reconsideration, appeal, of spectrum screen Report and Order.

CORRECTION!!! In this item as originally posted, we reported that the full text of the FCC’s spectrum incentive auction Report and Order, FCC 14-50, had been published in the Federal Register. That was incorrect. What appeared in the Federal Register was the related Report and Order, FCC 14-63, concerning the updated spectrum screens adopted in anticipation of the incentive auctions. We wrote about that latter order here. While the two orders are obviously related, they are also obviously separate and distinct, and – to put it bluntly – we messed up this time. While the deadline dates described in our original post are accurate, they apply only to the spectrum screen decision and not to the spectrum incentive auction Report and Order. We have revised the post accordingly. We apologize for this error.

Last June the Commission released its order adopting new spectrum screens in advance of the spectrum incentive auction. We reported on that order last month. The FCC’s spectrum screen Report and Order has now been published in the Federal Register. As a result, we now know that the rules adopted by the Commission are set to take effect on September 9, 2014.

Anyone who wants the FCC to rethink any part of the Report and Order has until Monday, August 11, 2014, to file for reconsideration. (The niceties of the recon drill may be found here.) Anyone who wants to take the matter straight to one of the courts of appeals has until September 9.

And anybody in that latter category who has his or her heart set on having the appeal heard by a particular Circuit will have to comply with the rules governing the judicial lottery procedures. Those rules kick in when petitions for review of a single order are filed in multiple Circuits. In that event, the determination of which Circuit gets to hear the appeal is made by lottery conducted by the Judicial Panel on Multidistrict Litigation. In order to get your preferred Circuit into the drum from which the lucky Circuit will ultimately be drawn, you have to file your petition for review within 10 days of July 11 (i.e., by July 21) and, also by July 21, you have to have a paper copy of the petition bearing the “received” stamp of the court delivered to the General Counsel’s office at the FCC. (Here’s a helpful guide about all this prepared by the FCC’s Office of General Counsel.)

Form 499 Changes in the Works, Apparently

Does the FCC really care about your input on a mandatory online filing requirement for the Forms 499? We’re not entirely sure.

The Office of Management and Budget advises that “[e]liminating . . . unjustified reporting and paperwork burdens” is a “high priority” of the current Administration. Perhaps, but OMB also reports that, in 2011 Americans spent an estimated 9.14 billion hours filling out Federal government forms.

According to a recent notice published in the Federal Register pursuant to the hilariously named Paperwork Reduction Act (PRA), the FCC is looking to streamline the reporting burdens of Forms 499-A and 499-Q by eliminating one filing requirement (“the third-party disclosure requirement” – whatever that means… more on this below) and ditching paper filing in favor of mandatory online electronic filing for Forms 499-A and 499-Q. So, thankfully, the FCC may be embracing the Administration’s supposed priority.

Or maybe the FCC just got tired of trying to squeeze new boxes and lines onto the paper forms whenever requirements change.

In any case, other than the extremely vague PRA notice, we know nothing about the proposed changes because the FCC hasn’t released any other information about them. So filers have no way of knowing how the new requirements may be implemented or whether the changes will actually reduce reporting burdens.

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Update: Final Effective Date for Form 477 Expansion Plan Set

The new Form 477 filing interface goes live on July 31.

Last year we reported on the Commission’s expansion of the Form 477 Data Program, which collects information from broadband and voice service providers. Because of the new “information collection” components, the expansion could not fully take effect until approval by the Office of Management and Budget. The FCC has now published notice in the Federal Register announcing OMB’s final approval of the new Form 477 protocols. As a result, all the rules comprising the Form 477 Data Program are now in effect and the FCC is ready to collect its data through a new filing interface.

And about that new interface. According to a recent Public Notice, the newly developed Form 477 filing interface – originally set to go live on July 31 – must be capable of collecting and processing data “securely and efficiently”. Of course, being a new system (and developed by the government), one would anticipate a few technical difficulties at the outset. To account for potential issues, the FCC has shifted the Form 477 filing window by 30 days – where it would typically run from July 1 to September 1, this year it will run from July 31 to October 1, 2014.

To assist filers with the new system, the Commission also plans to march out a number of resources – updated web pages, instructions, systems guide, and frequently asked questions – before July 31. It’s also planning to present an “instructional webinar”, but don’t look for that until sometime after the filing window opens. Unfortunately, there’s no mention of an Android or iPhone app.

More information on the revised Form 477 data collection can be found on the FCC’s website.

2014 Reg Fees Proposed: Good News for Radio, VHF TV; UHF TV, Not So Much

It happens every spring: the annual announcement of proposed regulatory fees that the FCC’s regulatees will be called upon to shell out toward the end of summer. While the Notice of Proposed Rulemaking (“NPRM”) laying out the proposed fees has in recent years tended to pop up in early May (or even April, back in 2010), the Commission is running a tad late this time around. 

Never fear – the proposed 2014 reg fees are here!

While the final figures (usually adopted in July or early August, payable in late August or September) may vary here and there from the proposals, generally any changes will be minor. The issuance of this year’s 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).

There’s some interesting news for both TV folks and radio folks in the FCC’s proposals.

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Spectrum Hold 'Em: FCC Updates Spectrum Holding Policies

Low-band spectrum gets special treatment in the upcoming “Incentive Auction” and in the FCC’s case-by-case analysis of secondary market transactions.

We hold these truths to be self-evident, that not all spectrum is created equal, that they are endowed by their Creator with certain unalienable-but-unequal attributes, that among these are frequency, wavelength, and the transmission of energy. That to secure rights to use spectrum, Government agencies are instituted among Men, deriving their just powers from the Communications Act . . .

That’s right. Not all spectrum is created equal. No need to feel bad for the spectrum. We doubt it cares. Spectrum is utilized for a countless number of applications including radio, television, wireless Internet, mobile telephony, even cooking your food. Certain spectrum bands are just better suited for some tasks than for others.

More specifically, for mobile telephony/broadband applications, low-band (i.e., below 1 GHz in frequency) spectrum offers better signal propagation for enhanced geographic coverage than high-band (i.e., above 1GHz) spectrum, but high-band is better at transmitting larger amounts of data (albeit over shorter distances). Low-band spectrum, which wireless carriers covet due to better coverage capabilities and lower deployment costs, is in shorter supply than high-band spectrum. As directed by Congress and the Communications Act, the FCC is responsible for allotting spectrum among various uses and users. According to the FCC, ensuring access to low-band spectrum by multiple carriers helps to enhance competition and is, therefore, desirable.

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Update: Comments Requested on T-Mobile Declaratory Ruling Request

We recently reported on a Request for Expedited Declaratory Ruling in which T-Mobile is asking the Commission for guidance on how the “commercial reasonableness” of data roaming charges is to be measured. Acting with admirable alacrity, the FCC has now formally acknowledged the T-Mobile filing and has invited comments and reply comments about it. Anyone with something to say on the topic of data roaming charges has until July 10, 2014 to submit comments; reply comments may be filed by August 11. Submissions may be uploaded through the FCC’s ECFS filing site; use Proceeding No. 05-265.

Reasonableness and Roaming Charges: In Search of More Definite Standards

Sometimes even nationwide carriers need a little reasonableness.

The rates that carriers charge one another for providing roaming service have never been subject to precise regulatory limits. Voice roaming has historically been treated as subject to the traditional common carrier standard, i.e., voice roaming rates must be “just and reasonable” and “not unreasonably discriminatory”. And, since 2011, data roaming service – which the FCC has chosen to treat as an “information service” not subject to common carrier regulation – must be available on “commercially reasonable” terms. Neither standard lends itself to ready quantification, a fact which major carriers have taken advantage of.

As it turns out, this lack of clarity has worked to the disadvantage of at least one big carrier as well as many smaller ones.

But now, efforts on a couple of fronts are being made to graft some useful flesh onto the historically bony standards. A small carrier has filed a complaint alleging that Verizon’s roaming rates, both voice and data, are unreasonable (commercially and otherwise) and discriminatory. And, more recently, T-Mobile USA, Inc. (T-MO) – by no means a small fish in the telecom pond – has asked the FCC to issue an expedited declaratory ruling about how the term “commercially reasonable” should be interpreted in the context of data roaming rate negotiations.

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Pursestrings 2014: New, Improved Effective Date for New Application Fee Schedule Announced

Last month we reported on the FCC’s announcement that its new application fee schedule would kick in as of June 6. We also suggested that there would likely be some slippage and that the actual effective date would be later. Sure enough, the Commission has announced that the real effective date of the new fee schedule will be July 3, 2014. The Commission promises that it will issue a further public notice confirming the date before then; it also says that new fee filing guides will be posted on its website before as well. We’ll keep an eye out and, if the date starts to move again, we’ll let you know.

In the meantime, if you have any applications that could be filed by July 2, you can save yourself at least a couple of bucks by getting them in before the prices go up.

Update: Effective Date of New AWS-3 Rules Set

In April we reported on the adoption of new service rules for 65 MHz of re-purposed spectrum in the 1695-1710 MHz, 1755-1780 MHz, and 2155-2180 MHz bands to be used for Advanced Wireless Services (AWS-3). The Commission’s Report and Order has now been published in the Federal Register, which means that the effective date of most (but not all) of the new rules has been set. Mark your calendars: July 7, 2014 is the date. But note that the amendment to Section 2.106 (adding Fixed and Mobile allocations for the 2025-2110 MHz band to the Federal Table of Frequency Allocations) won’t kick in until the Commission issues a further notice in the Federal Register. Ditto for Sections 2.1033(c)(19)(i)-(ii), 27.14(k) and (s), 27.17(c), 27.50(d)(3), 27.1131, 27.1132, and 27.1134(c) and (f), all of which involve new "information collections" that first have to be run through the Paperwork Reduction Act drill at the Office of Management and Budget. Check back here for updates.

Auction 97: Date Set, Rules Floated for Upcoming AWS-3 Auction

FCC sets ambitious $10.5 billion reserve price.

Hot on the heels of its March 31, 2014 adoption service rules for the long awaited AWS-3 service, the FCC wasted no time issuing a public notice and request for comments in which it set a date – November 13, 2014 – for the auction of the new spectrum and proposed rules to govern the auction. (Last April we reported on the structure of the newly-authorized service and the license blocks that will be up for sale.)

If everything on the AWS-3 front looks like it’s moving fast, that’s because it is. The haste is necessitated by the looming statutory date of February, 2015 by which the Commission must have not only completed the auction but also actually issued the licenses to the winning bidders. The auction notice is designed to set the stage for the auction itself.

The auction will follow the typical FCC auction format, including the now-customary anonymous bidding feature. This relatively recent wrinkle to the auction process prevents bidders from knowing who is bidding on what until after the auction is over. A few features are of particular note:

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Now Available: The Incentive Auction Report and Order

The full Report and Order in the FCC’s incentive auction proceeding has finally been released. If you had 484 pages in the office pool relative to the document’s total length, you’re a winner. Ditto if you had 329 pages for the length of the report itself, sans appendices and separate statements. And if your office pool was truly hardcore, you may be pleased to know that there are a total of 2,279 footnotes.

All of which is to say that, while we will be reporting on exactly what the decision says, we won’t be reporting on it today. (The new rules won't take effect until 60 days after they get published in the Federal Register -- and even then, the "information collection" components of the rules will have to await OMB review thanks to the hilariously-named Paperwork Reduction Act.)

But since we recognize that there is intense interest in the incentive auction proceedings, we’re posting this notice that the order is now out. You can access it here. To help find your way through it, you might also want to take a look at the FCC’s public notice describing its action and/or the somewhat more detailed Staff Summary of the order.

And, of course, check back with us here at for updates.

Foreign Fake Phones Fetch Forfeiture Forewarning

No fine, yet, but the company must answer questions and provide documents on hundreds of products – if the company is still around.

Counterfeit Rolexes, sure. Or Coach bags. But cell phones? Blackberrys? Really?

Really. Consumer electronics is among the biggest categories of counterfeit imports. (Although that still doesn’t explain the Blackberrys.)

The Department of Homeland Security, which includes Customs and Border Protection, asked the FCC to check on some suspect Samsung Galaxy and Blackberry devices being imported and marketed by a California company. All cell phones, along with many other electronic devices, must be labeled with an “FCC ID” number specific to the device. The numbers, which evidence compliance with FCC technical rules, are easy to check on this page of the FCC website.

Here, the numbers on the Samsung phones turned out to be valid Samsung numbers – but the devices bearing the numbers didn’t match up with the specs tied to those numbers in the FCC’s database. Samsung took a look and confirmed they had neither manufactured the devices nor authorized the labeling. The Blackberrys didn’t even make it that far: they bore two different, plausible-looking numbers, neither of which was valid for anything.

We will pause here to wonder why a counterfeiter bright enough to know about FCC ID numbers did not bother to use the right numbers for the particular phones he was counterfeiting.

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FCC Gives Robocallers 2.9 Million Reasons to Lawyer Up Ahead of Time

Ignore the FCC’s warnings at your financial peril.

Telemarketing is a fact of modern life, mainly because it can be a very efficient and effective way to communicate a message (commercial, political, etc.) to a huge audience. But that doesn’t mean that the audience necessarily likes to receive telemarketed messages: many, perhaps most, consumers don’t. That’s probably even truer when it comes to “robocalls” (i.e., calls that are dialed automatically or play prerecorded messages), a type of unsolicited marketing that involves no actual human interaction, at least on the robocaller’s end. And it’s probably truer still when the robocall is directed to a cell phone or mobile device where the recipient can end up paying for the minutes.

Responding to public sentiment more than two decades ago, Congress (in the Telephone Consumer Protection Act (TCPA)) banned the use of automatic calling (both live and prerecorded) to mobile devices except in emergency situations or when the company has the express written consent of the recipient of the call. In contrast to landline numbers, mobile phone subscribers don’t have to put their numbers on the Government’s Do-Not-Call list to get this protection. (See our earlier post and this FCC Advisory that provide details on some of the TCPA’s requirements.)

Charged with enforcing the TCPA’s proscriptions, the FCC has dogged TCPA violators aggressively and expensively. Just ask Dialing Services, LLC, a robocaller that, according to the FCC, made almost 200 unsolicited robocalls to cell phones. (Actually, it made more than 4,700,000 such calls – but is being penalized for only about 200 of the most recent. Read on for more about that.) And for those 200 calls, it’s being fined nearly $3 million.

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Court Dismisses TCPA Charges Brought Against Telecommunications Provider

Federal judge: Telecom carriers (1) not routinely liable for telemarketing violations committed by customers and (2) not subject to private suit for alleged violations of Truth in Caller ID Act.

Increasingly, telephone carriers may find themselves unexpectedly on the wrong end of lawsuits alleging violations of the telemarketing laws. Fortunately, at least one federal judge has recognized that such suits are off the mark.

Unsolicited marketing calls are like weeds – nobody likes them, they seldom do any good, and they’re almost impossible to get rid of. But Congress tried. In 1991 it enacted the Telephone Consumer Protection Act (TCPA), which perhaps most famously created the “Do Not Call” list. The TCPA also created a “private right of action” that allows consumers – individually or, increasingly, as an entire class – to sue telemarketers who break the rules.

That right to sue can be effective when directed against the proper targets (i.e., the wrongdoing telemarketer), but it can also be misdirected toward blameless parties, with unhappy results – much like a flame thrower which is effective at killing the occasional dandelion, but which wreaks havoc when pointed at the rose bushes. The universe of innocent bystanders in the TCPA context includes telephone carriers. You might think that no penalty could legitimately be imposed on carriers whose only involvement is the happenstance that a telemarketer used the carriers’ services. But aggrieved consumers (and their deep-pocket-seeking counsel) probably think otherwise.

Take, for example, the case of Flowroute, a telecommunications provider.

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Pursestrings 2014: Possible Effective Date for New Application Fees Announced

NOTE: This post has been UPDATED and CORRECTED since it was originally published (see explanatory note, below).

 As we previously reported, the Commission announced its routine cost-of-living-based application fee increases in an Order released in March. That Order has now been published in the Federal Register, as a result of which the new fees are set to kick in on June 6, 2014.

We understand that, as a practical matter, there may be some, probably minor, slippage of the actual effective date, as the Commission has to adjust its various online filing systems to reflect the changed fees. But since we know that the new fees will not in any event become effective prior to June 6, if you’ve got any applications you’re thinking about filing, you can save yourself at least a couple of bucks by filing now rather than waiting until June 6.

[Blogmeister’s Note: Nostra Culpa, Nostra Maxima Culpa – As noted, the post above has been substantially updated and corrected since it was originally published earlier today.

In its original form we referred to Section 158(b) of the Communications Act, which requires that the Commission provide Congress with any revised application fee schedule no less than 90 days before that schedule is to take effect. We suggested that that requirement might delay the effectiveness of the amended application fee schedule.

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Rural Call Completion Update: FCC Invites Comments on Waiver Requests, Possible Clarifications

As we reported last year, the Commission adopted new rules designed to increase its ability to monitor, and correct, the “frequent and pervasive” problem of failed telephone calls to small towns and rural areas. While those new rules took effect several months ago, it appears that a number of bugs, or possible bugs, still need to be worked out in the reporting system. We know this because a number of requests for waivers have already been filed, and the Commission itself is wondering whether certain categories of call attempts described in Appendix C of the Rural Call Completion Order need to be clarified or modified.

AT&T presents perhaps the most troublesome proposal. AT&T wants to report only the sample of data contained in the Originating Access Charge Verification records. With only sample data, the FCC will be unable to determine the cause for the degradation of many rural calls that are not contained in AT&T’s sample. That could significantly undermine the overall effectiveness of the new rules. AT&T is also looking for waivers with respect to certain AT&T Mobility traffic and intraLATA toll traffic, not to mention a six-month extension of the reporting deadline. As AT&T is the interexchange carrier with the most traffic terminating to many rural areas, a grant of AT&T’s waiver request could nullify many of the benefits to be derived from the new rural call completion rules.

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FCC Whacks Cell Phone Vigilante $48,000 for Jammer Use

The defendant had sought to keep other drivers from talking on their phones.

Cell phone jammers are illegal, and can draw large fines from the FCC, but people keep using them anyway: to keep workplace employees off the phone; to limit calls to and from a cosmetology school or sheriff’s office; or for peace and quiet on the bus.

Today’s offender, one Jason R. Humphreys, drove his daily commute along Interstate 4 between Seffner and Tampa, Florida with a jammer concealed behind the seat cover of the passenger seat. His reason? To keep people from talking on their cell phones while driving. But his chosen method not only blocked drivers’ calls – including those to 911 – but also calls by their passengers, people on nearby buses, and everybody else in range of his device.

When a local cell company reported receiving interference, the FCC’s Tampa office swung into action. Tracking down interference from a moving car is a lot tougher than finding one that stays still, but Mr. Humphreys’s signal was strong enough to locate – and indeed, was strong enough to shut down the sheriff’s deputies’ radios as they approached his SUV. When the FCC later tested the jammer, they found it clobbered not only cell phone frequencies, but many others as well, including some of those used for communications among first responders.

The FCC has tentatively found that Mr. Humphreys violated three separate rules: unauthorized operation of a radio transmitter, use of an illegal device, and intentionally causing interference. The base fines for these offenses are $10,000, $5,000, and $7,000, respectively. The FCC has discretion to raise them up to $16,000, and did so for each of the three violations, for a total of $48,000. The FCC could have, but did not, assess these amounts per day of a continuing violation, up to $112,500 for each violation. Still, unless Mr. Humphreys has a lot more resources than most of us, shelling out that $48,000 is going to put a dent in his spending plans.

We entirely understand Mr. Humphreys’ urge to take matters into his own hands; we likewise feel helpless and frustrated at drivers’ paying more attention to their cell phone conversations than to the traffic. But even so, a jammer can do more harm than good. And it gets very expensive, if the FCC tracks you down.

Update: FCC Rejects Class Action Proposal

About a year and a half ago we alerted readers to a Petition for Rulemaking proposing that the FCC allow lawyers to file class actions on behalf of complainants. Rather than summarily toss the petition, the Commission invited public comments on it. And now, 19 months down the line, the Commission has tossed the petition.

Not surprisingly, the FCC sees no need to set up a new class action process when the federal courts are already highly experienced in handling such cases. Further, there’s the question of resources: the Commission recognizes that implementation of a class action process would suck up “considerable resources” and would entail various litigation-related activities with which the Commission has no experience. Why bother, when the existing complaint procedures already emphasize "streamlined and expeditious dispute resolution"? And anyway, there’s no evidence that folks who complain to the FCC would prefer to be shunted off into Class Action Land, that the Commission could force them to go that route in any event, or that their various complaints would necessarily raise the common issues of law and fact necessary for class action treatment.

So if you’re thinking of filing a class action, don’t waste time going to the FCC – just head to court straightaway.

AWS-3 Takes Center Stage

FCC adopts service rules for long-awaited 65 MHz of re-purposed spectrum.

At its March 31 meeting, the FCC made available an additional 65 MHz of spectrum for broadband operations – sort of. This much anticipated action fulfills part of the objective of the National Broadband Plan to deliver 500 MHz of new spectrum for broadband, while also meeting the requirement of the Middle Class Tax Relief and Job Creation Act of 2012 to find and license 55 MHz of spectrum within certain designated bands by February, 2015. This required taking some spectrum from notoriously possessive Federal government users and figuring out which spectrum bands could most quickly and easily be re-purposed. Amazingly, the Commission’s decision seems to have left most prospective licensees reasonably happy, while not accommodating everyone completely -- usually the sign of a fair decision. The adoption of these service rules, with the February, 2015 statutory deadline looming, sets the stage for an auction of the new spectrum in the fall of this year.

 Before we get to the provisos and complications, here are the main specifics of the new spectrum plan:

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Incentive Auction Plan B: Government-Subsidized Cable?

Public notices suggest apparent redirection of auction funds to provide universal cable service.

To the bafflement of many, the FCC has consolidated its Incentive Auction and Open Internet proceedings. The public notice announcing that move sheds no light on exactly what the Commission might have in mind – the only reason given is that the FCC wants to “streamline consideration of issues common to both dockets”. Interestingly, it also mentions (in a footnote, maybe because it figures that nobody reads the footnotes anyway) that the soon-to-be-incoming Comcast-Time Warner Cable merger will also get channeled into the Grand Unified Docket.

Interests common to both dockets? What could those be? And what’s the Comcast merger got to do with anything?

Thanks to our old friend, the hilariously-named Paperwork Reduction Act (PRA), we have an idea.

The PRA, of course, requires the FCC to run new “information collections” past the Office of Management and Budget. And PRA requests have to be published in the Federal Register, where they seem to be largely ignored by everybody but us. (Our motto: We read them because we know you won’t.)

And what should appear in this morning’s Federal Register? A PRA notice indicating that the Commission is contemplating reallocation of at least some of the $1.75 billion TV Broadcaster Relocation Fund to a program that would provide universal cable TV service to everybody in the U.S. (The PRA notice describes, very generally, two questionnaires the FCC plans to send out – one to all U.S. households to determine who’s got cable and who doesn’t, and one to all U.S. cable providers, to get an idea of subscription prices.)

Is this a great country or what?

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And Then There Were Four (Nationwide Wireless Carriers)

FCC approval of AT&T acquisition of Leap Wireless reduces roster of nationwide carriers by 20%.

The FCC has taken another giant step toward reconstitution of the old Ma Bell monopoly by approving AT&T’s acquisition of Leap Wireless, which operates nationally under the Cricket brand. Leap was the fifth largest facilities-based wireless carrier in the U.S., so it was surprising that the proposal for it to become part of the second largest carrier elicited so little opposition from anti-trust regulators, the public interest community, or even the remaining smaller competing carriers. The deal received little more than a shrug from the FCC’s Eighth Floor, which let the Wireless Bureau, rather than the commissioners themselves, resolve the matter.   This curious lack of high level interest contrasted sharply with the strong signals from federal regulators that any move by Sprint to acquire T-Mobile (Number Three buying Number Four) would be regarded with extreme disfavor. How come Number Two buying Number Five didn’t even merit a glance?

The transfer of control applications did generate oppositions from Public Knowledge and several entities with idiosyncratic grievances against AT&T. (Full disclosure: Your blogger represented two entities that opposed, or asked that conditions be placed, on the transaction.) The pleadings and counter-pleadings which were volleyed back and forth for six months took a comical turn at one point. Recall that, a couple of years ago, Leap vigorously opposed AT&T’s acquisition of T-Mobile on the grounds that AT&T was refusing to offer reasonable roaming rates to other carriers. But when the same charges were leveled against the AT&T/Leap deal, suddenly Leap fell silent on this point. In addition, Leap has historically characterized itself, repeatedly, as a nationwide carrier in its SEC filings, its FCC filings, and its advertising. But now, suddenly, Leap disavowed that status. Leap also claimed not to compete with AT&T, despite giant billboards all around the country proclaiming how Cricket’s service is less expensive than AT&T’s.

For its part, AT&T had earlier solemnly pointed to Leap as a disruptive and vigorous competitor which elicited competitive responses from AT&T. But now AT&T has done a perfect about- face, declaring with equal solemnity that Cricket has been a competitive non-factor that has not affect AT&T's sales strategies at all.

Clearly, mergers make strange bedfellows.

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E911 Update: Third Further NPRM Comment Deadlines Set

Earlier this month we reported on the FCC’s Third Further Notice of Proposed Rulemaking (NPRM) in its effort to improve E911 location capabilities. The NPRM has now made it into the Federal Register, as a result of which we now know the comment deadlines. Comments in response to the NPRM may be filed by May 12, 2014 and replies by June 11.

Good Day Sunshine: "The Federal Communications Commission Process Reform Act of 2014"

Rob Schill shares his views on the latest Congressional effort to bid “good day” to the Sunshine Act.

[Blogmeister’s Note: The House recently passed H.R. 3675, the Federal Communications Commission Process Reform Act of 2014. If passed by the Senate and signed by the President, this bill would require the FCC to set certain deadlines and time limits for some of its activities, and also prepare some extra routine reports and the like. We’d go into greater detail on these nitty-gritty points if the bill were likely to get through the Senate, but the smart money currently says that that’s not going to happen, so we won’t bother our readers with unnecessary information. If the smart money turns out to have been wrong, for sure we’ll be reporting on the final bill.

One aspect of the House bill did attract our attention: a provision that would permit FCC Commissioners to meet in nonpublic sessions to discuss business. The longstanding Government in the Government in the Sunshine Act (the Sunshine Act) would ordinarily prohibit such closed door meetings, but the House is nevertheless apparently OK with letting the FCC bar the doors and shutter the windows. A nearly identical proposal was introduced in 2013. Our colleague, Kevin Goldberg, wrote – somewhat disparagingly – about it back then. In the interest of fairness and balance, this time around we’re offering a different take on the matter from our colleague, Rob Schill.]

The Federal Communications Commission Process Reform Act of 2014 (the 2014 Reform Act) raises the same essential question my friend and colleague Kevin Goldberg addressed last year: Is it conducive to “good government” to create an exception to the Sunshine Act that would allow more than two commissioners to meet privately when a few key transparency safeguards are included? Kevin and I reach different answers to that question.

The 2014 Reform Act seeks the happy medium between the competing needs of openness and administrative efficiency. The bill looks to provide for transparency and accountability while acknowledging the reality that the FCC often does not move at a pace consistent with the changing technology world it is tasked to oversee. The fact that the bill has bipartisan Congressional support, as well as the support of FCC members and industry representatives, suggests that perhaps Congress is onto something here. 

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Pursestrings 2014: New Application Fees Announced

Effective date TBD

If you’re planning on filing any applications in the near future, you can save yourself a few bucks by getting them on file sooner rather than later. That’s because the FCC’s schedule of application fees has just been given its semi-regular overhaul, resulting in an across-the-board uptick of about 8%. (That reflects the net change in the Consumer Price Index for all Urban Consumers since the last increase, a formula specified by Congress in Section 158 of the Communications Act.)

The Act gives the FCC no latitude when it comes to fee application cost-of-living adjustments: they’re supposed to be done every two years. Since the last increase took effect in 2011, we’re running a bit late this time around, but who’s keeping track?

The good news is that, while the 2014 fee hikes have been announced, they won’t become effective for at least a few months. The precise effective date is, well, not all that precise just now. Historically, this is where the fun begins. Long-time readers may remember our original “Pursestrings” series of posts, starting in September, 2008, and stretching out until mid-May, 2009. (Short version: Despite adoption of a new fee schedule in September, 2008, with an anticipated effective date of January 1, 2009 or thereabouts, that date was missed, and then several later announced effective dates passed as well. The fees announced in September, 2008, finally kicked in for real until May, 2009.) Things worked a bit more smoothly in 2011, the last time the fee schedule was hiked, but you never can tell.

According to this year’s announcement, the effective date of the new rates will be 30 days after the order is published in the Federal Register. Perhaps so, but Section 158(b) of the Communications Act requires that the Commission notify Congress of application fee adjustments “not later than 90 days before the effective date”. So the FCC’s going to have to let Congress know about the new fees, and then wait 90 days. It will also have to publish a notice in the Federal Register 30 days before they can take effect.

Bottom line: you’ve probably got another three, maybe four, months to take advantage of the current lower fees. We’ll keep our eyes open for further Federal Register notices and report on them in future posts.

Update: Reply Comment Deadline Extended in In-Flight Cell Phone Proceeding

Most readers will likely recall that, late last year, the FCC invited comments (and replies) on whether the Commission should lift its regulatory ban against cell phone use in airplanes. Not surprisingly, the FCC’s proposal attracted considerable attention. To date, more than 1,300 comments have already been filed in the docket.

Reply comments were originally due by March 17. Not anymore.

At the request of CTIA-The Wireless Association® and two aeronautics-related companies (AeroMobile Communications Limited and Panasonic Avionics Corporation), the deadline for replies has been extended a generous 60 days (to May 16, 2014). The extension will enable all parties to conduct further analyses and undertake further consultation relative to the thorny technical issues on the table. It will also give interested parties time to sift through the ever-growing pile of comments already submitted.

FCC Seeking Proposals for Rural Broadband Experiments

Some Connect America funding contemplated once policies, standards are set in second phase of proceeding.

The FCC is looking for proposals to bring advanced telecommunications services to rural Americans . . . and it’s planning on providing governmental cash to worthy proponents. To help it determine what projects will get funded and how much funding will be available, the Commission has launched a two-phase process. In the now-open first phase, prospective proponents have been invited to submit “expressions of interest” describing what they have in mind. In the second stage, the FCC will seek more detailed and definite applications, subject to resolution of certain policy issues in the Further Notice of Proposed Rulemaking (FNPRM) component of the Technology Transition Order. Comments on the FNPRM are due March 31. 

The Commission’s invitation is addressed to the widest range of communications service providers, including ILECs, CLECs, cable, utilities, fixed and mobile wireless, municipalities, Tribes, WISPs, and others. So if you’re interested in building high-speed, scalable IP-based networks in rural areas and maybe getting at least some federal funding in the process, listen up.

In its call for proposals, the FCC is focusing on proposals to build robust last-mile broadband, rather than middle mile projects. Proposed experiments described in expressions of interest must be for rural areas currently lacking Internet access service that delivers at least 3 Mbps downstream/768 kbps upstream.

The major goal here is to determine how the use of “tailored economic incentives” might encourage the deployment of next gen networks, wireline and wireless, in rural, high cost areas to which such networks have historically been slow to spread. In the FCC’s words, the experiment will “test, on a limited scale, the use of an application-based competitive bidding process with objective selection criteria”.

The Commission is currently considering what mechanism(s) to use in the award of Connect America funding support in price cap territories where the incumbent declines the offer of model-based support. One possibility would be for the FCC to use application-based competitive bidding, rather than a reverse auction. Another innovation: while such funding has previously been available only in areas served by price cap incumbent local exchange carriers, in this program it will also be made available in areas where the incumbent is a rate-of-return carrier.

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FCC Proposal Intrudes on Unlicensed Spectrum

Mobile-satellite tower operations would share part of the same band used for Bluetooth, Wi-Fi, and many more unlicensed devices.

My colleague Don Evans ably posted an earlier report on the FCC’s proposal to allow Mobile-Satellite Service (MSS) tower-based operations to move into the adjacent 2.4 GHz unlicensed band – home to Bluetooth, the most-used forms of Wi-Fi, and countless other kinds of devices.

This follow-up post drills down on how the proposal might affect unlicensed users.

Globalstar has long been licensed for MSS operations at 2483.5-2495 MHz, immediately above the unlicensed band at 2400-2483.5 MHz. See the diagram. Until now, Globalstar’s license has allowed only satellite downlinks.

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Update: Comment Deadlines Set in Proposed Text-to-911 Mandate Expansion

Last month we reported on an FCC proposal to expand its Text-to-911 mandate to include all texting service providers. That proposal has made it into the Federal Register. As a result, we now know that the deadline for comments on the proposal is April 4, 2014, and the deadline for reply comments is May 5. Comments and replies may be submitted electronically by uploading them at this FCC site; use Proceeding Number 11-153.

First IP Transition Experiment Proposal Out for Comment

First in the door with a proposal: Iowa Network Services, with the help of one of our Fletcher Heald colleagues

As we reported last month, in late January the FCC released its Technology Transitions Order inviting proposals for service-based experiments designed to gauge the effects likely to be encountered as we shift from the legacy telephone network to an all Internet Protocol (IP) alternative. The target deadline initially set for proposals was February 20. And with lightning speed, the very next day the Commission released a public notice seeking comment on the first proposal, which had been filed on February 20.

We are pleased to report that that proposal, filed by Iowa Network Services, Inc. (INS), was prepared by our colleague (and occasional CommLawBlog contributor) James Troup on behalf of INS, an FHH client.

INS operates a statewide Centralized Equal Access (CEA) network in Iowa comprised of more than 2,000 miles of fiber optic cable and dual tandem switches. The network allows INS to aggregate rural traffic, centralize the provisioning of expensive features and functionalities, and help bring the benefits of advanced communications services and competition to rural areas of Iowa. INS connects service providers to more than 300 rural exchanges.

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In Depth and On Time: FCC Contemplates Indoor E911 Location Information With Added Dimensions

Commission looks to move CMRS location requirements indoors, expand them from 2-D to 4-D.

Since 2010 the FCC has been insisting on greater accuracy in the ability of wireless providers to pinpoint the location of wireless phones for E911 purposes. The automatic location information (ALI) rules currently in place require that carriers be able to provide Public Safety Answering Points (PSAPs) the location of an E911 caller to within 50 to 300 meters (depending on the technology used). But that requirement applies only to calls originating outdoors, and it mandates provision of only horizontal locations determined by geographic coordinates (i.e., latitude and longitude).

Nowadays, however, wireless phones are the source of most 911 calls, and the “great majority” of wireless calls originate indoors – hence the need for improved indoor E911 location capability.

Fortunately, test bed results and industry input confirm that indoor location technologies have improved considerably, so much so that they are expected to “deliver 50-meter location accuracy for many indoor environments with a high degree of reliability” in the near term. With its Third Further Notice of Proposed Rulemaking (NPRM) the FCC is now looking to ensure that the wireless-dependent public benefits from that capability.

But locating E911 callers inside buildings poses an additional question: how are first responders supposed to find the caller-in-distress when the geographic coordinates identified by the carrier turn out to be the site of a multi-story building?

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Upcoming Webinar: Paul Feldman on the IP Transition Trials

On the agenda: The FCC’s invitation for IP experimentation – how it will work, who stands to gain or lose, what it all means

No doubt about it: the transition from 20th telephone technology to 21st Century digital-based IP telephony is a game-changing development likely to affect service providers, equipment vendors, device manufacturers and, of course, the consuming public. As reported here by FHH telecom guru Paul Feldman, the FCC has invited telephone service providers to undertake experiments to identify and test the effects of the IP transition across the board.

If you’re looking for insight into the myriad questions arising from the FCC’s invitation to experimentation, Paul will be participating in a webinar on the IP transition order on Friday, February 28, 2014 at 1:00 p.m. (ET). Paul and fellow panelists Sam Harlan, VP-Engineering at CHR Solutions, and Ken Pyle, Managing Editor of Viodi View, will address a wide range of transition-related issues, including:

  • ŸWhat are some of the larger short-term and long-term implications of the order?
  • What companies may propose experiments? Are non-traditional carriers likely to try any pilot projects?
  • How will test results be fed back into something that is more permanent?
  • What are the potential dangers and opportunities for small carriers and vendors?
  • Who might be the winners and losers?

Best of all, the webinar, which is a production of Team Lightbulb, is FREE! You can register here.

Update: Most, But Not All, New 911 Rules Now In Effect

Some reporting, record retention requirements still in limbo pending OMB approval

In December we reported on a new set of rigorous requirements for 911 system service providers. And as we reported last month, most – but not all – of the requirements were set to take effect on February 18, 2014. However, also as we reported last month, two of the new rule sections impose new “information collections”; before they can take effect, those two sections (Sections 12.4(c) and (d)(1)) must be run through the Office of Management and Budget (OMB), a process that generally takes several months.

What we did not report in January was the fact that two additional sections (Sections 12.4(d)(3) and 4.9(h)) also impose “information collections” and must, therefore, also be shipped over to OMB. (We didn’t report that in January because the FCC didn’t acknowledge that those two were in fact “information collections” until a corrective announcement in February.)

To recap, then, now that February 18 is here, all “Covered Service Providers” must take reasonable steps toward providing reliable 911 service by conducting network monitoring and circuit audits and insuring the availability of backup power at any central office that serves a public safety access point.

But until further notice from the FCC, “Covered Service Providers” are not required to submit their annual reliability certifications (Section 12.4(c)) or their initial reliability certifications (Section 12.4(d)(1)). They are also not required to comply with the record retention obligations of Section 12.4(d)(3) or to report on outages potentially affecting a special 911 facility (Section 4.9(h))..

OSHA to Tower Industry: Protect Your Workers

With 17 preventable deaths in the last 14 months, regulators send a message to everybody involved with tower work.

A great many communications operations  – broadcasters, telecom, cable, public safety – utilize towers in some capacities. So it caught our attention when our friends at Radio World reported on an open letter released recently by David Michaels, Ph.D., MHP, addressed to “Dear Communication Tower Industry Employer”. The letter highlights an important area of regulation for anybody responsible for a tower. (You may know Dr. Michaels better as the Head Honcho -- technically correct title: Deputy Secretary for Occupational Safety and Health in the Department of Labor -- at the Occupational Safety and Health Administration (OSHA).)

The gist of the letter: There has been a rash of fatal accidents involving tower workers. Thirteen deaths in 2013, four more reported already in 2014.

And, according to Michaels, all of those deaths were preventable.

Aggravating that already tragic report is OSHA’s conclusion that a “high proportion” of the deaths occurred because of a “lack of fall protection” – either inadequate protection or failure to ensure that tower workers are using the available protection properly – for which the workers’ employers are responsible.

So Michaels is using his open letter to remind employers, in no uncertain terms, of their “responsibility to prevent workers from being injured or killed while working on communication towers”. Who is the target audience? Not only the company that hires the workers, but also tower owners and “other responsible parties in the contracting chain”.

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Update: Cell Signal Booster Marketing Deadline Extended

About a year ago we reported on the adoption of a new set of rules governing the use of cell phone boosters. In passing, we noted that all boosters marketed in the U.S. must comply with the new standards by March 1, 2014.

Not so fast.

Turns out that it was a bit trickier than expected to develop the test procedures necessary to ensure compliance. The task force designing those test procedures included members of the TCB Council, test labs, equipment manufacturers and representatives of the wireless industry. Despite that fact – or who knows, maybe because of it – the task force’s in-depth consideration of the process “revealed significant technical and policy issues”. The upshot: the test procedures weren’t finalized and published until last month. And without final test procedures, manufacturers weren’t in a position to finalize and submit applications to get their gear certified.

Now that the test procedures – which the FCC assures us are “more robust” and “comprehensive” – are in place, manufacturers have started to run their equipment through the process. But that takes time. As a result, the Commission has agreed to extend for 60 days, to and including April 30, 2014, the deadline by which all Consumer Signal Boosters marketed, distributed or sold in the United States must comply with Section 20.21 of the Commission’s rules. In the meantime, the restrictions on sale and marketing (set out in Section 20.21(g)) are being waived until April 30 as well.

TV Channel Sharing: FCC Takes a First Data-Gathering Step

With the FCC’s blessing and help from the wireless industry, two L.A.-area TV stations set to temporarily cohabit a channel

An essential component of the FCC’s long-discussed, still-in-development plan to free up TV spectrum for mobile broadband use is the concept of channel sharing by television stations. The idea, which the Commission has been officially studying for more than three years already, seems relatively straightforward. Thanks to the efficiency of digital operation, the standard 6 MHz channel allotted to each TV licensee can accommodate at least two separate stations. That being the case, in theory the Commission could re-take half of the spectrum currently occupied by TV operations simply by encouraging each station to move in with one other station on a shared channel.

Nearly two years ago the FCC took a preliminary step by announcing some initial minimal guidelines to govern such channel sharing. In the Incentive Auction Notice of Proposed Rulemaking, channel sharing was expressly identified as one option available to TV licensees in the spectrum re-packing effort. So the concept of channel sharing is more than just a glimmer in the FCC’s eye.

Despite its obvious commitment to the channel-sharing notion, though, the Commission has little idea of the feasibility or practicality of sharing. That’s mainly because no such arrangements have been authorized . . . until now.

Heeding the FCC’s invitation for volunteers, two L.A.-area stations have stepped up to the plate with a proposal that will allow for testing of at least some of the assumptions underlying the Commission’s Grand Plan. And knowing a good thing when it sees it, the FCC has approved the proposal.

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Update: FCC Proposes Expansion of Text-to-911 Mandate to ALL Texting Service Providers

Comments sought on how and when text-to-911 should be required across-the-board, including by interconnected “over the top” services

Pity the poor FCC. Saddled with an outdated governing statute and limited resources, it’s supposed to regulate newly-minted whiz bang technologies that get embraced by the public seemingly before the FCC even learns about them. And when it tries to get ahead of the curve, it occasionally gets too far ahead. Case in point: its text-to-911 bounce-back rule for roaming customers. A great idea on paper but, as the FCC learned, beyond the capabilities of existing technology, the result being a last-minute revision to the rule last September.

Bloodied but unbowed, the FCC is again revising its text-to-911 rules in an apparent attempt to catch up with that “app” thing that all the kids are using. In a Policy Statement and Second Further Notice of Proposed Rulemaking (PS/SFNPRM) the Commission is proposing to require all interconnected text messaging services to enable consumers to send text message to 911. This would include texting apps that ride “over the top” (OTT) of the data services of wireless service providers. 

But this time, even the FCC recognizes that its ambitions may exceed present-day technical capabilities.

More than a year ago the Big Four wireless carriers (Verizon, AT&T, Sprint, and T-Mobile) agreed that, by May 15, 2014, they would provide text-to-911 service to Public Safety Answering Points (PSAPs) that are capable of, and that request to receive, such service. With text-to-911 capabilities for the Big Guys now just a few months away, the FCC has decided as a matter of policy that every CMRS carrier and every provider that enables interconnected texting should do this as well.

How and when that might happen is unclear.

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Telecom Tickler 2014 - CPNI Certifications Due By March 3

It’s that time of year again – time for our annual reminder to all telecommunications carriers and interconnected VoIP providers that your CPNI certifications are due by March 3, 2014. While the Enforcement Bureau has announced the deadline as March 1, it appears not to have noticed that in 2014, March 1 is a Saturday. Thanks to our old friend Section 1.4(j) of the FCC's rules, when a filing deadline falls on a holiday -- and the rules do indeed specifically confirm that Saturdays are "holidays" -- the deadline rolls over to the next business day, which in this case will be Monday, March 3.

As described by the Enforcement Bureau, CPNI – Customer Proprietary Network Information to the uninitiated – includes “some of the most sensitive personal information that carriers have about their customers as a result of their business relationship”. Think phone numbers of calls made or received, or the frequency or duration of calls, etc. . . . basically the same stuff the NSA has apparently been collecting for years. While the NSA is not required to file CPNI certifications with the FCC, telecom carriers aren’t so lucky.

The Bureau has issued a convenient “Enforcement Advisory” to remind one and all of the fast-approaching March 3 deadline. Like similar advisories in past years, this year’s includes a helpful list of FAQs and a suggested template showing what a certificate should look like. The only noteworthy change from last year: the potential per-violation fine has risen to $160,000 (from last year’s $150,000), and the maximum potential fine for a continuing violation has been similarly jacked up, to $1,575,000 (from last year’s $1,500,000).

As those potential fines indicate, the Commission takes this reporting requirement very seriously. Historically it has doled out five-digit fines to non-compliant carriers. In fact, the FCC’s zeal is such that, in many instances, it has initiated forfeiture proceedings even against carriers who, as it turned out, had fully complied with the rules.

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FCC Invites Experiments To Test Effects of All-IP Telephone Network.

Commission seeks data for critical policy dialogue; coming changes may particularly affect smaller carriers – and their customers.

Major changes are coming to the telephone system that provides the interconnected communications system on which American society has long depended. For more than 125 years that system has been based on a circuit-switched, mostly copper-wire-based public switched network (PSTN) – nowadays sometimes called a “Time Division Multiplex (TDM)” network. But networks based on Internet Protocol (IP) technology have begun to replace the PSTN. The FCC has now expressly acknowledged that the “the global multimedia communications infrastructure of the future” will consist of all-IP networks very different from the circuit-switched technology we have been used to since Alexander Graham Bell.

And with that acknowledgement, the FCC has now started to take steps to identify and assess the effects that the fundamental technological overhaul of our nationwide phone system are likely to have on phone companies, consumers, and the FCC’s own ability to achieve its statutory responsibilities.

To that end, the FCC has invited proposals for “service-based” experiments designed to illuminate and inform the transition to IP-based service. Reflecting the seriousness and urgency of its purpose, the FCC has set an unusually short deadline for the submission of the initial round of experiment proposals: they are due by February 20, 2014, a mere three weeks after the FCC’s call for those proposals. Potential experiment proponents will need to get moving quickly, as will parties wishing to comment on any proposals that are ultimately filed: comments are due by March 21.

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Size Still Matters to M&A Regulators

As usual, triggers for automatic merger and acquisition review have been revised.

As the recovery from the economic turmoil of the late oughts gathers steam, the federal government has performed its annual ritual of gazing into its crystal ball, furrowing its regulatory brow, and announcing the thresholds it will use for automatic federal review of mergers and acquisitions for the coming year. 

The FCC, of course, can choose to review, or not to review many, if not most, communications-related transactions in detail before issuing an approval.  On the other hand, Congress long ago deemed that the Department of Justice and the Federal Trade Commission must review transactions that cross certain dollar amount thresholds.  The dollar amounts of those thresholds for the rest of 2014 have now been announced.  They are set to take effect as of February 24, 2014.  Readers considering a merger or acquisition should bear in mind that the administration automatically will be sending at least two agencies to take a closer look at transactions where either:

  • the total value of the transaction exceeds $303,400,000; or
  • the total value of the transaction exceeds $75.9 million and one party to the deal has total assets of at least $15.2 million (or, if a manufacturer, has $15.2 million in annual net sales) and the other party has net sales or total assets of at least $151.7 million

The new thresholds also affect the filing fees that parties to a deal have to pay the government for the pleasure of going through the review process. (Fees are split between the FTC and the Department of Justice.) For most of 2014, any deal subject to review and valued at less than $151.7 million will pay a $45,000 fee. (Used to be that deals coming in at a mere $100 million got to pay that.) For deals valued at more than $151.7 million but less than $758.6 million, the review fee will be $125,000. And if you’re proposing a deal valued at more than $758.6 million, get set to fork over a tidy $280,000.

When negotiating deals, all parties would be well-advised to bear these thresholds in mind. Once those lines are crossed, the prospect of additional (and considerable) time, expense and hassle to navigate the federal review process is a virtual certainty.

H Block Update: Last of the New Rules Now Effective

Back in July we reported on the adoption of new service rules to govern the H Block band. All but a small handful of those rules took effect in September, and one of the stragglers kicked in in November. According to a notice in the Federal Register, the Office of Management and Budget has now cleared the last of the rules, so with the publication of the Federal Register notice on January 17, 2014, they have become effective. According to the notice, OMB signed off on these rules on September 26, 2013; why it’s taken nearly four months for the Commission to publish a perfunctory notice reflecting that sign-off is a mystery. Whatever the reason, all of the new H Block rules are now in effect.

Update: Effective Date Set for Most New 911 System Service Provider Rules

Last month we reported on a new set of rigorous reporting requirements to which 911 system service providers will be subject. The Commission’s Report and Order laying out the new requirements has now been published in the Federal Register, which means that they will become effective as of February 18, 2014 – EXCEPT FOR new Sections 12.4(c) and (d)(1). Those sections – which include the specs for the new Annual Reliability Certification and Initial Reliability Certification – involve new “information collections” which must be run through the Paperwork Reduction Act drill before they can take effect. That process generally takes several months to complete. Check back here for updates.

Update: Comment Deadlines Set in In-Flight Cell Phone Proceeding

Cell phones on airplanes? Everybody seems to have an opinion about the FCC’s proposal (about which we reported last month) – and it seems to be the same opinion across the board.

Now the Commission’s Notice of Proposed Rulemaking (NPRM) has made it into the Federal Register, so we all have a deadline for making our feelings known to the Commission. To be sure, the fact that no deadline has heretofore been established hasn’t stopped folks from expressing their views: within the first month following release of the NPRM more than 400 comments had been filed. No, we didn’t read them all, but a spot check indicates that approximately all of them oppose giving a governmental green light to cell phone use in the air.

On the other hand, none of the comments we saw takes on the main issue the FCC has authority to decide: whether cell phones in the air will cause interference to cell service on the ground. If the answer is no, the FCC will have little choice but to drop its ban and let the airlines decide what kind of cabin environment they want in the air.

Still, it’s possible that the Commission’s proposal has some fans somewhere who will be moved to file, but from the response the NPRM has received so far, the boo-birds are likely to outnumber the cheerleaders by a whopping margin. But who knows? In any event, according to the Federal Register notice, comments must be filed by February 14, 2014; reply comments are due by March 17. If you’re inclined to chip in your two cents’ worth, just click on over to this link and submit in Docket No. 13-301.  (You can also file separate comments pursuant to the hilariously-named Paperwork Reduction Act; those go to the FCC, but at a separate address listed in the Federal Regiater notice; they're due by March 17, too.)

Mexico Announces Auctions for TV, Satellite Authorizations

Foreign investors eligible to participate in upcoming auctions.

[Blogmeister’s Introduction: We welcome a new guest contributor, Mario Piana, an attorney with the Mexican firm of López Velarde, Heftye y Soria, S.C. Mario is familiar with Mexico’s regulatory activities vis-à-vis its telecommunications industries. He has provided us with the following recap of recent announcements from Ifetel, Mexico’s new telecommunications regulatory body. As outlined below, those announcements signal upcoming opportunities – for both Mexican citizens and foreign investors – to participate in Mexico’s telecom industries

Two opportunities for acquiring communications interests in Mexico have recently been announced, one involving nationwide digital broadcast television networks, the other involving commercial satellite services.

Digital TV Networks

On December 20, 2013, the Instituto Federal de Telecomunicaciones (also known as Ifetel) – created by a law enacted last year – formally announced the bidding process to be used for the awarding of licenses for the operation of two national digital broadcasting television networks through auctions. [Blogmeister’s note: Licenses are referred to as “concession titles” in Mexico.] The process is set out in a Program of Bidding Processes to Grant Licenses of Frequencies for Digital Broadcasting Television (the “TV Bidding Process Program”) published in the Diario Oficial de la Federación [i.e., the Mexican equivalent of the Federal Register].

This begins the implementation of a new regulatory framework arising from recent fundamental reforms to the regulation of Mexico’s telecommunications industries. According to the Federal Constitution, the bidding processes for the two national digital broadcasting networks shall be called no later than March 10, 2014.

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Comm Act Overhaul Underway . . . Sort of

Commerce, Communications Committee chairmen seek public input on fundamental questions about federal regulation of communications

It’s generally acknowledged that the Communications Act – first enacted four score years ago and not substantially updated in nearly 20 years – is ill-suited for regulation of the 21st Century communications landscape. And now two well-placed members of Congress have announced the start of an effort to update the Act and perhaps restructure the FCC itself.

Given the prominence of the folks making that announcement, anyone subject to the FCC’s regulatory reach should pay attention. But before you get overcome with visions of sweeping change just around the corner, it’s important to temper your expectations with a healthy splash of reality: any significant change to the Act that may occur isn’t likely to happen in the immediate future, if at all.

The two gentlemen responsible for the latest initiative are Fred Upton (R-MI) and Greg Walden (R-OR), the Chairs of, respectively, the House Energy and Commerce Committee and that Committee’s Communications and Technology Subcommittee. You can see them explain their plans in a 13-minute video posted on the Committee’s website. To summarize: Noting that (a) the FCC first opened its doors in the Great Depression and (b) the last time the Act was amended, 56 kb/s by dial-up modem was the state of the art, Upton and Walden sensibly feel that it’s time to talk about an update.

The emphasis, though, is more on the “talk” part than the “update” part.

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Deadline for Hearing Aid Compatibility Status Reports Looms

Form 655’s are due January 15, 2014.

The FCC’s Enforcement Bureau has reminded wireless service providers – including resellers – that their hearing aid compatibility (HAC) reports (Form 655) are due to be filed by January 15, 2014. Since failure to file can lead to costly fines – starting at $6K per violation – it’s a good idea to get those reports in on time.

As a component of the FCC’s effort to assure that folks with hearing loss are afforded the safety and convenience benefits of wireless telephony, wireless service providers and handset manufacturers are subject to certain requirements: a minimum number of hearing aid-compatible handset models must be offered and/or a minimum percentage of all their models must be hearing aid-compatible, depending on a complex formula. Failure to meet the minimum requirements can net you a $15,000 penalty per month for each handset you’re short. (Hearing aid compatibility is rated on numerical scales that reflect how well the handset couples to hearing aids with a minimum of buzzing or other interference to the hearing aids.)

To help the FCC police compliance with that requirement, wireless service providers and manufacturers must submit annual status reports demonstrating (at least ideally) that they are meeting the minimum. Reports from wireless providers are due in January; manufacturers’ reports are due in July.

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Can the FCC Handle Phone Service over the Internet?

Regulating IP telephony will be like updating the rules of the road from horse-and-carriage traffic to modern automobiles.

Slowly and carefully, the FCC is circling around a problem that may be its hardest ever. The digital TV transition? Piece of cake. First-on-the-planet incentive auctions? No sweat. But this one is tough: nothing less than a remake of the U.S. telephone system, all 120 million phones and 1.5 billion miles of wire.

The engineers and entrepreneurs have gotten out ahead of the FCC lawyers. Now the lawyers are scrambling to catch up.

Bell’s System

Imagine you’re Alexander Graham Bell. It’s 1876. You’ve just finished constructing the first two working telephones. You have made the first ever telephone call, to your assistant in another room: “Mr. Watson, come here, I want to see you.” The call needed a pair of copper wires between the telephones, to carry an electrical signal whose variations matched the sound waves of your voice.

Now you’re ready to scale, as we say these days – to start the rollout that will place a telephone in every home and business. Your problem: just like that first time, any two telephones on a call must have a pair of wires connecting them.

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In-Flight Cell Phone Use Would Come With Strings for Airlines

Draft rules would license airlines to operate on-board base stations for data and/or voice service

Almost everybody agrees: letting airline passengers talk on cell phones is a terrible idea. Nobody wants to fly cross-country strapped in next to a blabbermouth. If the matter were up for national referendum, there would be no doubt as to the outcome. Even the people who don’t trust the government to get anything right will make an exception: they want the regulators to silence the individual in the next seat.

The problem is finding a regulator having the authority to do this.

The FCC is one place to look. And indeed, since 1991 its rules have prohibited the use of in-flight cell phones, at least on the original cell frequencies at 800 MHz. The ban originated because, in earlier times, airborne cell calls posed a threat to cell phone operations on the ground. (Contrary to many reports, protecting electronic equipment on the aircraft was never the objective.)

Since those days, however, engineers have figured out how to place a miniature base station on board the aircraft, which removes the threat to ground-based calls. Details are here. In addition to keeping the on-board phones at very low power levels, the base station equipment deliberately creates radio noise in the cabin that keeps the phones from attempting to communicate directly with base stations on the ground.

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Update: Effective Dates Announced for Some (but Not All) of the New Rural Call Completion Rules; Comment Deadlines set for Proposed Rules

Last month we reported on the Commission’s Report and Order and Further Notice of Proposed Rulemaking (R&O/FNPRM) aimed at addressing the problem of failed telephone calls placed to small towns or rural areas. The R&O/FNPRM has now made it into the Federal Register in two separate parts. The R&O portion includes the rules that the Commission has already adopted, and the FNPRM portion includes the further contemplated changes about which the FCC has invited comment.

Federal Register publication, of course, means that effective dates and comments deadlines have now been established.

According to the Register notice, the newly adopted rules will become effective on January 16, 2014. Before you mark your calendars, though, be advised that that date appears to apply only to Section 64.2101, which consists of definitions. Section 64.2201, which specifies ringing indication requirements, will not take effect until January 31, 2014, and the various retention and reporting requirements (set out in Sections 64.2103, 64.2105 and 64.2107) won’t take effect until further notice because they have to run past the Office of Management and Budget thanks to the Paperwork Reduction Act.

As far as the FNPRM is concerned, comments may be filed by January 16, 2014 and reply comments by February 18, 2014.

FCC Imposes New Requirements for 911 System Service Providers

Commission addresses numerous systemic failures in 911 service that surfaced after 2012 “derecho” storm.

In a matter of hours on June, 2012, a powerful, fast-moving, killer storm (dubbed a “derecho”) swept from the Midwest to Northern Virginia, a silver-dollar’s-throw across the Potomac from the FCC’s headquarters. It laid bare severe shortcomings in 911 service: from isolated breakdowns to systemic failures, 911 service was unavailable (or at least unreliable) for millions of residents for extended periods.

In the wake of that unacceptably poor performance of a critical public safety function, the FCC completed an extensive review of the 911 system begun in 2011. As a result of that review, the FCC has now imposed on 911 system service providers (SSPs) a new and rigorous set of requirements. (This latest action is separate from, but motivated by some of the same concerns as, the FCC’s Notice of Proposed Rulemaking released last September looking to require facilities-based Commercial Mobile Radio Service providers to provide daily public reports of the percentage of cell sites operating in their networks during and immediately after major disasters.)

SSPs are, generally speaking, wireline phone companies that route 911 calls from wireline and wireless phones to 911 call centers. Historically, SSPs have not been subject to detailed regulatory requirements relative to system maintenance and monitoring. Instead, the Commission has expected SSPs to voluntarily adhere to a number of “best practices” developed by several industry organizations, including (a) the Network Reliability Steering Committee (NRSC) of the Alliance for Telecommunications Industry Solutions, (b) the Network Reliability and Interoperability Council (NRIC) and (c) the Communications Security, Reliability, and Interoperability Council (CSRIC). The FCC did require SSPs to keep track of, and report, outages. Analysis of the outage reports – by both the FCC and the reporting SSP – was thought to provide adequate information, and impetus, to assure the identification and correction of any systemic problems.

The FCC’s review of the 911 system, however, demonstrated convincingly what the derecho experience had strongly suggested: the voluntary approach didn’t work, and the submission of outage reports didn’t uncover the resulting problems.

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Cell Carriers Agree to Unlock Phones

Deal comes just ahead of a threatened FCC rulemaking.

This week the FCC had planned to consider a rule that would require cell companies to allow “unlocking” of their phones for transfer to a competing carrier. Unlocking phones used to be legal, until a 2012 ruling by the Librarian of Congress – at the cell companies’ request – made it a criminal offense. The public backlash reached the White House, on whose behalf, reportedly,  the National Telecommunications and Information Administration petitioned the FCC to take the issue away from the Librarian and make unlocking legal again.

On the very day the FCC was to address the matter, the cell companies’ trade association, CTIA-The Wireless Association, sent a letter to the FCC essentially capitulating. Five major carriers – AT&T, Sprint, T-Mobile, U.S. Cellular, and Verizon Wireless – have now agreed to unlock a phone on request after fulfillment of the (usually) two-year contract required when buying a subsidized phone through the carrier, or within one year of buying a prepaid phone. Matter closed.

Or maybe not.

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Incentive Auction Update: Add PEA to the Alphabet Soup Options for the 600 MHz Band

EA or CMA or MSA/RSA or CMA or . . . how about PEA? 

One of the crucial questions that the FCC must answer before it can get its Incentive Spectrum Auction off the ground is how it plans to sell 600 MHz licenses in the “forward” part of the auction.  In the Incentive Auction Notice of Proposed Rulemaking, the Commission indicated that it was initially leaning toward selling them based on Economic Areas (EAs), rather than larger pieces of real estate (e.g., nationwide licenses) or smaller alternatives (e.g., CEAs or MSA/RSAs).  (Fuzzy on the distinctions?  Check out the Blogmeister’s Sidebar at the end of this post for further information.)

But now the Wireless Telecommunications Bureau, at the prodding of the Competitive Carriers Association (CCA), is thinking that Partial Economic Areas (PEAs) might be the way to go, and it’s asking for input on the question.

This is a big deal.  Here’s why.

As most readers presumably know, the Incentive Auction will consist of two independent but interrelated elements: (1) the reverse auction, through which the FCC will “free up” spectrum by giving TV licensees cash to vacate their current channels; and (2) the forward auction, in which the FCC will sell off the spectrum freed up in the reverse auction.  (The cash generated by the latter will be used in part to pay broadcasters in the former.) The ultimate success or failure of the Incentive Auction will be measured in part by how much money the forward auction brings in.

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Incentive Auction Update: Projected Auction Date Moved into 2015

FCC Chairman moves the target date from 2014 to the “middle of 2015”, assures that all auctions systems will be “thoroughly tested”

Despite the FCC’s repeated insistence that it’s been on track to complete all the necessary prep work to conduct the Incentive Auction sometime in 2014, Chairman Wheeler has now taken the opportunity – in a blog posted on the FCC’s website – to throttle back that ambitious schedule. While Wheeler is less than specific about the likely timing of the auction, he is now expressing the belief that it can be held “in the middle of 2015”. 

Of course, in order to do that, the Commission will have to hit a number of milestones in terms of nitty-gritty preparation details along the way, as the Chairman acknowledges. We should get a better idea of precisely what those milestones are and when they might be met at the January, 2014 Commission meeting. That’s when the Incentive Auction Task Force is slated to make a presentation on its anticipated timeline for rolling out the auction.

The very rough roadmap sketched out by Wheeler in his blog post mentions an initial Report and Order establishing “policies” that should be ready for a Commission vote “in the spring” of next year.  That would be followed “in the second half” of 2014 by release of two public notices – an “Auction Comment Public Notice” and a “Procedures Public Notice” – designed to “provide additional details and seek comment on how the specific parts of the auction will actually function.” No other specifics (if you can call those vague references “specifics”) are laid out.

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Update: Comment Deadlines Set in Wireless Infrastructure Rulemaking

In October we reported on a Notice of Proposed Rulemaking (NPRM), in which the Commission is exploring a host of potential measures to make it easier for wireless companies to build new infrastructure. The NPRM has now been published in the Federal Register, so the comment deadlines are established: if you want to file comments in response to the NPRM, you’ve got until February 3, 2014; reply comments are due by March 5.  To file online, start at this link and file in Docket No. 13-238.

More 411 on 844: New Toll Free Numbers Up For Grabs as of 12/7/13

With toll free numbers fast running out, FCC declines to delay roll out of new toll free code despite concerns about possible abuses.

If you’ve got your eye on a vanity toll free telephone number you’d like to use – or if you might want to expand an existing vanity number to include another toll free area code – listen up: New toll free area code 844 is about to make its debut. And now the FCC has announced how numbers in that area code are going to be assigned.

Last summer we wrote about the new toll-free code, which is set to become available at noon (ET) on December 7, 2013. At that point area code 844 will join the ranks of 888, 877, 866, and 855, along with the original toll-free 800 code. 

All toll free numbers are administered by SMS/800, Inc., which oversees the toll free Service Management System for the North American Numbering Plan. Entities known as “Responsible Organizations” – usually referred to simply as “RespOrgs” – can access the SMS/800 database and reserve particular numbers. If a subscriber wants a particular toll free number, it contacts a RespOrg, which in turn obtains the number for that subscriber from the database.  A RespOrg is not supposed to reserve any number unless the RespOrg is doing so at the specific request of a telephone subscriber.

Anticipating an initial rush for numbers using the new 844 code, the FCC asked for comment on how distribution of those numbers should be handled. Its conclusion: limit each RespOrg to 100 numbers per day for the first 30 days. (The FCC imposed a similar limit when area code 855 first came on line.) After the first 30 days, the usual rule will come back into effect for numbers in the 844 code: like other toll free numbers, they will be assigned on a first-come, first-served basis.

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Unhappy about Airborne Cell Phones? Don't Call the FCC.

Yes, we all hate the FCC’s proposal to allow cell phones in flight, but the FCC is not to blame.

The FCC’s release of its “tentative agenda” before each monthly meeting draws close scrutiny from people like us, but not much from the larger world outside the Beltway.

Until, that is, this week.  That’s when the December agenda appeared, with this item:

Increasing Consumer Access to In-Flight Mobile Wireless Services:  The Commission will consider a Notice of Proposed Rulemaking to revise outdated rules and provide airlines with the ability to permit passengers to use mobile wireless services via onboard airborne access systems.

 The FCC confirmed that, yes, it will formally propose removing its ban on in-flight cell-phone use.

The public reacted vehemently. Who says Americans are apathetic? The 24 hours after the agenda item appeared saw intense press, TV, and online coverage. Website commenters were outraged – even more than usual. Flight attendants were up in arms. A White House petition is gaining hundreds of signatures by the hour. The FCC has not said, but we’re betting their in-box is piling up angry messages.

In fact, we can’t think of another time when an FCC action (or, in this case, an announcement of a coming proposal to maybe take a possible future action) has triggered such a strong public outcry.

We would join the outcry, too, except that we have an inside fact: the FCC is the wrong target.

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FCC to Telemarketers: Get It In Writing!

New FCC rules requiring express written consent now in effect

If you’re a for-profit company that engages in or relies on telemarketing, BEWARE! Rule revisions adopted by the FCC nearly two years ago have recently taken effect. Those revisions, adopted pursuant to the Telephone Consumer Protection Act (TCPA) impose significantly tighter restrictions on certain telemarketing activities. Since the number of potentially expensive TCPA-based law suits targeting telemarketers continues to grow, everyone involved in such activities should pay close attention to the revised requirements.

The TCPA, enacted more than two decades ago, is Congress’s effort to protect consumers from unsolicited telephone and fax advertising. The particular TCPA-based rules at issue here involve: (1) autodialed or pre-recorded telemarketing calls to cell phones; and (2) telemarketing calls, to any residential line, using an artificial or prerecorded voice. Historically, both types of call have been permitted under certain limited circumstances. The new rules tighten up those limited circumstances considerably.

First things first. What is “telemarketing?”, you ask. The FCC defines it (in Section 64.1200(f) of the rules) as

the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.

Some telemarketing calls, often referred to as “robocalls”, are made using automatic dialing equipment (autodialers); some may include prerecorded or artificial voices. With few exceptions, all telemarketing calls require some form of consent on the part of the party being called.

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Commission Starts to Address Rural Failure(s) to Communicate

With new reporting requirements, FCC begins effort to crack down on rural call impairment.

Acting with impressive speed (a mere nine months after issuing the underlying Notice of Proposed Rulemaking (NPRM)), the FCC has adopted new rules designed to increase its ability to monitor, and correct, the “frequent and pervasive” problem of failed telephone calls to small towns and rural areas. The new rules mark an important first step toward safeguarding the integrity of our nation’s telecommunications network and protecting the consumer’s right to communicate without service provider interference or intrusion. The FCC has done the right thing, giving priority to the rights of consumers to have their calls completed without interruption or degradation.

The new data collection and reporting requirements – adopted in the face of extensive lobbying by large telephone companies seeking exemptions that would have rendered the new rules useless – should provide the FCC with the tools to uphold the social compact between carriers and consumers. In the words of the new FCC Chairman Tom Wheeler, the Commission is looking to “make networks work for everyone.”

Whom do the new rules apply to? “Covered Providers” – defined here as any provider of long distance voice service that makes the initial long distance call path choice for more than 100,000 domestic retail subscriber lines. So long as the 100,000 line threshold is met, a Covered Provider can be an ILEC, CLEC, interexchange carrier (IXC), CMRS provider, or a voice over Internet protocol (VoIP) service provider – both one-way and two-way VoIP. (Some VoIP providers argued that the FCC didn’t have the authority to impose rules on them; the Commission rejected those challenges.)

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The FCC Wants to Know: How Fast is Your Phone?

Mobile app tests your speed, reports results to the FCC.

Perhaps you missed the opportunity, a couple of years ago, to install a device in your house that tells the FCC your broadband speeds. If so, and you’re still kicking yourself for missing out, you're in luck. Now, instead of having to hook up an FCC-provided “free wireless router”, you can download an Android app developed for the FCC that does much the same thing on your mobile device. (An iPhone equivalent is expected early next year.) 

This all began with the FCC’s shocking discovery that most people don't know their own broadband speeds. For those who are interested, there are websites that will test your speed; see the examples here and here. (CommLawBlog does not endorse these, or the others mentioned below.) But the FCC was not satisfied with you knowing your speed. They wanted to know, too. So they invited you to install a device called a “SamKnows Whitebox” on your computer that shared your speed information with the FCC.

At the same time, they asked for public input on how to get comparable data from mobile broadband users. That effort has now borne fruit. (Read the FCC’s fact sheet about the new app here, or click through its 11-slide PowerPoint here, or scroll/click your way through the FCC’s webpage on the subject here.)

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Form 499-A Instructions: Comment Sought (Again) on Proposed Changes

The latest version of the FCC’s clarification on reseller certification language recommended for use by wholesale telecommunications providers is now available for comment.

The FCC’s Wireline Competition Bureau is seeking comment on another round of proposed changes to the Form 499-A and Form 499-Q instructions. The latest proposals contain (among a few other things) what many hope will be the final version of the “reseller certification” language for use starting next year. (Reseller certifications are what wholesale telecommunications providers rely on to ascertain applicable Universal Service Fund (USF) contribution obligations.)

Our regular readers will recall that the Commission’s “Wholesaler-Reseller Clarification Order” from nearly a year ago promised clarification to the reseller certification language in the upcoming Form 499-A instructions.  As we observed last March, that clarification was missing from the instructions released earlier this year. Then in August we reported that a group of wholesale telecommunications providers had offered suggested revisions to the reseller certification language and other aspects of the FCC Form 499-A instructions.

(If you need to refresh your recollection of the information in our previous posts, now would be a good time to go back through them again. That background will be helpful for what follows.)

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Update: In 700 MHz Interoperability Push, FCC Acts Promptly on AT&T Prompt

FCC implements key provisions of AT&T’s 700 MHz interoperability proposal while extending interim construction deadline for 700 MHz A and B Block licensees until December 13, 2016.

In September we reported on a voluntary industry solution, proposed by AT&T and DISH Network, looking to bring interoperability to the 700 MHz block.  Since AT&T required, as a condition to its proposal, that the FCC adopt a number of rules to AT&T’s liking by December 31, 2013, we expressed some skepticism as to the FCC’s ability to meet that ambitious deadline. But lo and behold, the FCC has managed to do just that in record breaking time. 

In a "Report and Order and Order of Proposed Modification" released on October 29, the FCC, among other things, has modified: (a) certain technical requirements for the Lower 700 MHz D and E blocks; and (b) AT&T’s B and C Block licenses, as AT&T had requested as part of the voluntary industry interoperability solution.  The Commission also extended the interim construction benchmark deadline for all 700 MHz Lower A and B Block licensees until December 13, 2016, and issued a waiver of the interim construction benchmark for certain Lower 700 MHz A Block licensees that must limit their deployments in order to protect incumbent Channel 51 operations. 

What’s particularly noteworthy in the Order is the inclusion by the FCC of various escape valves AT&T provided for itself, which could delay the roll-out of 700 MHz interoperable devices for at least six months. It’s not clear what the FCC would do, if anything, to extend the interim construction deadlines for Lower A and B Block licensees should AT&T miss the deadline to begin the roll-out of interoperable devices.

In keeping with the breakneck speed with which the FCC seems to be dealing with AT&T’s proposal, the Order has been published in the Federal Register already. The amended rules are set to take effect on December 5, 2013, although the Order itself will technically be subject to judicial review until at least January 4, 2014 (and longer, if anyone seeks such review prior to that date).

H Block Update: Effective Date Set for Revised Certification Requirement

Last August we reported that most, but not all, of the H Block service rules adopted by the Commission in June were scheduled to take effect in September. The three exceptions: Sections 1.2105(a)(2)(xii), 27.12, and 27.17, all of which involve new “information collections” requiring Paperwork Reduction Act review by the Office of Management and Budget. Now we’re one step closer to getting all the new rules in place. By a public notice in the Federal Register, the Commission has announced that OMB has signed off on the revised 1.2105(a)(2)(xii), so that section (as revised) is now effective. (Turns out the OMB’s sign-off happened on September 17. We don’t know why the FCC held off a month and a half to spread the word.)

The new version of Section 1.2105(a)(2)(xii) requires

a party seeking to participate in any auction conducted pursuant to the 2012 Spectrum Act to certify in its application, under penalty of perjury, that the applicant and all of the related individuals and entities required to be disclosed on its application are not person(s) who have been, for reasons of national security, barred by any agency of the Federal Government from bidding on a contract, participating in an auction, or receiving a grant and thus statutorily prohibited from participating in such a Commission auction.

No word on the other two not-yet-effective rules. Check back here for updates on that front.

FAA Approves Electronic Devices Throughout Flight

Airlines are cleared to allow “Airplane Mode” devices even during take-off and landing. Cell phone calls are still barred.

A lot of us hate turning off our electronic devices for take-off and landing. We have to sit there, bored, and leaf through the SkyMall catalogue, hoping the pilot knows what he’s doing. Sure we have a book, but it’s in the overhead bin, while we are strapped into the seat. All but the Luddites among us have a range of devices – tablets, smart phones, notebooks, music players, etc., etc. – to distract ourselves. But just try to turn one on during take-off or landing, and the normally pleasant and accommodating flight attendants turn surly.

Somebody ought to do something.

In fact, somebody – in this case, the Federal Aviation Administration (FAA) – had done something. It had adopted a rule that stood firmly behind those surly flight attendants. The alleged reason was that emissions from a Kindle reader or other personal electronic device somehow interfered with the cockpit equipment and would take the plane off course, or something like that. 

We were always suspicious of that argument; the maximum emissions from a device in Airplane Mode are extremely low, measured in nanowatts. The argument sounded even thinner when we learned the pilots were allowed to use iPads in the cockpit. Right next to all the supposedly interference-prone equipment. 

We reported over a year ago that the FAA was rethinking the take-off-and-landing rule, and was taking comments on whether to drop it.

The wait is over.

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FCC Releases Details on Workshop about Unlicensed Spectrum Issues

Workshop to take place November 8 at FCC headquarters.

The FCC has announced the topics and panel participants for its November 8 workshop on unlicensed spectrum issues related to the spectrum incentive auction. Details are here.

Meet the New Boss(es) . . .

. . . same as the old bosses? Wheeler, O’Rielly finally confirmed.

OK, readers, how about a big “welcome aboard” to the two newest arrivals on the Eighth Floor?

The Senate has confirmed Tom Wheeler and Michael O’Rielly as Chairman and Commissioner, respectively, of the Federal Communications Commission. They are expected to be sworn in as soon as possible. The confirmations return the FCC to a full complement of five commissioners. 

For those keeping score, Wheeler will be the third Democrat commissioner (joining Commissioners Mignon Clyburn – previously the Acting Chairwoman – and Jessica Rosenworcel) while O’Rielly will be the second Republican (along with Commissioner Ajit Pai).

The confirmations were delayed briefly when Senator Ted Cruz placed a procedural hold on them because of concerns about possible changes in FCC policy to expand mandatory disclosures relative to television political advertisements. Wheeler and Cruz had a sit-down chat about the matter, during which Wheeler advised Cruz that imposing such disclosure requirements was “not a priority”. Cruz was apparently satisfied, and he lifted his hold.

With that, the normally creaky Congressional wheels suddenly began to spin with impressive ease. During the last two minutes of the Senate session immediately following Cruz’s announcement, Senate Majority Leader Harry Reid asked for unanimous consent that the nominees be confirmed. No objection was voiced, and that was that. 

The record will reflect that, also in those last two minutes, the Senate unanimously approved the designation of November 2, 2013, as National Bison Day. And, just in time (since the month was already pretty much gone), it approved the annual designation of October as National Work and Family Month.

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Another H Block Update: Reconsideration of Auction Procedures Sought

A couple of days ago we called readers’ attention to a petition for reconsideration of the H Block service rules that had been filed by the Rural Wireless Association (RWA).  We mentioned in that post that an FHH client – NCTH, Inc. – had filed for reconsideration of the H Block auction procedures.  And now a public notice of that latter recon petition has made it into the Federal Register.  The NCTH petition urges the Commission to address and resolve RWA’s petition before the auction so that, if the Commission is persuaded by RWA’s arguments, it can make appropriate changes to the auction before the participants – that is, bidders and the FCC – get too deeply wedded to the procedures as originally announced.  (Spoiler alert: NCTH agrees with the RWA position.)

The NCTH petition also suggests that the Commission reduce the reserve price set for the H Block auction.  The reserve price is the minimum amount that the auction must bring in before the auction will be deemed to be valid. Often, the reserve price is set to be close to the initial minimum bid amount.  But here, the reserve price for the H Block auction is $0.50 per MHz/pop, which calculates out to about $1.5 billion – magnitudes greater than most observers had expected.  The astronomical reserve price may be part of an arrangement with DISH Network that has been the source of some speculation.  Since an unusually high reserve price could easily discourage smaller carriers from bidding, NCTH suggests that the Commission should lower the reserve price to increase participation.  (It also expresses concern about the Commission’s failure thus far to make clear on the public record what influence, if any, the DISH arrangement may have had on the establishment of the reserve price.)

Oppositions to the NCTH petition for reconsideration may be filed by November 13, 2013.  Replies may be filed by November 25.

Update: Revised Text-to-911 Bounce-Back Rule Now In Effect

Earlier this month we reported on the Commission’s last-minute amendment of its text-to-911 bounce-back rule. The amendment was necessitated by the fact – brought to the FCC’s attention by CTIA – that the bounce-back rule (that would be Section 20.18(n)(7)) would be impossible for carriers to comply with for roaming customers due to the way text-to-911 messages are handled.

The order announcing the amendment has now been published in the Federal Register. And as we pointed out in our original post, the Commission took care to provide that the amendment will take effect immediately upon Register publication (rather than 30 days thereafter, as is the FCC’s SOP). So the amended text-to-911 bounce-back rule is now officially in effect.

H Block Update: Reconsideration of Service Rules Sought

Another caltrop has been dropped in the path of the H Block auctions that the Commission is trying to push forward full speed ahead. A petition has been filed seeking reconsideration of the rules, adopted last June, governing the licensing of H Block spectrum.

The petition, filed by the Rural Wireless Association (RWA), challenges the FCC’s decision to issue H Block licenses on an Economic Area (EA) basis, rather than a Cellular Market Area (CMA) basis. It also faults the Commission for adopting population-based construction requirements. 

In RWA’s view, the H Block rules as adopted will present a barrier to the participation of small and rural carriers in the H Block auction and will result in the failure of carriers to provide H Block service to rural consumers. According to RWA (which used to be known as Rural Telecommunications Group, Inc.), Congress indicated that the FCC should be far more solicitous of rural interests than the H Block rules appear to be.

As we have previously indicated, the H Block rules and related auction procedures do seem to have been crafted with a particular agenda in mind, an agenda not necessarily consistent with rural interests. (Full disclosure: FHH represents a party that has sought reconsideration of the auction procedures.) Whether all this runs afoul of Congress’s intent remains to be seen. But the pendency of reconsideration petitions could cast enough of a pall of uncertainty over the upcoming auction to discourage potential bidders. And that, in turn, could reduce the government’s take out of the auctions. 

The Commission may seek to resolve the petitions sooner rather than later, to dispel any uncertainty as quickly as possible. But the prospect of appeals will still linger.

The filing of the RWA petition has now been noted in the Federal Register, which sets the dates for oppositions and replies. Anyone wishing to oppose the RWA petition has until November 12, 2013 to do so; replies may be filed by November 22.

Yeah, Who DOES Need the FCC?

A counterpoint to Mitchell Lazarus’s similarly-titled, but philosophically different, post.

[Blogmeister’s Note: When we posted Mitchell Lazarus’s item concerning the need for the FCC, we anticipated push-back. And sure enough, our colleague Jon Markman has stepped up. The views expressed in the post below are Jon’s alone. As was the case with Mitchell’s post, others here at FHH may share some or all of Jon’s views; some may not. Ditto for our readers. We again encourage anyone who agrees or disagrees with Jon to let us know by sending along a comment.]

In a recent post here on CommLawBlog, my colleague Mitchell Lazarus addressed some core functions of the FCC that make it “not only valuable, but indispensable to how we live”. With all due respect to Mitchell – who has forgotten more about the FCC, spectrum, and telecom law in the last month than I could hope to learn in a decade – I would like to offer a different take.

The government shutdown prompts a conversation on just what are the “essential” tasks of the Federal government (keeping in mind that the Federal government is just one of the many levels of government we have in the U.S.).

In his post, Mitchell alluded to some of the extreme posturing inspired by the government shutdown, such as claims that the shutdown demonstrated the irrelevance of the Federal government and proved that smaller government is good and no government is even better. I tend to believe that this was mostly rhetoric used by one side to rally their base and/or strengthen their bargaining position in the budget negotiations; I suspect that the speakers in fact support much of what the Federal government does. But insofar as they were representative of honest beliefs, they are indicative of a far more extreme position than the norm.

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Shutdown Follow-up: H Block Auction Dates Re-Set

If you’re planning on participating in the upcoming H Block auction, it’s time to get your calendar out and mark some scheduling changes. As a result of the governmental shutdown, the originally announced dates are being shifted to provide auction participants a bit more time for planning and preparation. According to the latest public notice, the auction will now begin on January 22, 2014 (eight days later than previously announced).  Other important dates are now set as follows:

Window for Short Form (FCC Form 175)
Applications OPENS:                                                               November 4, 2013 – 12N ET

Window for Short Form Applications CLOSES:            November 15, 2013 – 6:00 p.m. ET

Upfront payments (via wire transfer) due:                    December 18, 2013 – 6:00 p.m. ET

Auction begins:                                                                          January 22, 2014

To assist would-be bidders, the Commission is also presenting an online auction tutorial on November 4, 2013, and it's planning to conduct a mock auction on January 17, 2014.

Who Needs the FCC?

The operation of our culture and commerce depends on at least three of the FCC’s functions.

[Blogmeister’s Note: Despite Blogger Mitchell Lazarus’s use of the editorial “we”, the views expressed in this post are his alone. Others here at FHH may share some or all of his views; some may not. Ditto for our readers. We encourage anyone who agrees or disagrees with Mitchell to let us know by sending along a comment.]

The recent government shutdown was applauded by some who believe that small government is better, and so, by extension, that no government at all must be better still.

That got us to thinking. Not about the whole government, just the piece we know best: the FCC. Suppose the FCC closed for good. Would anybody notice? (Other than us; we’d have to find another line of work.)

In other words: How essential is the FCC to a functioning society?

A lot of what the FCC does has social value, in the eyes of many. But set that aside. Are any of the FCC’s responsibilities not only valuable, but indispensable to how we live?

We wouldn’t ask the question unless we had an answer.

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H Block Update: Auction Scheduled

But government shutdown, still-pending issues could interpose delays.

Despite some dissension on the 8th floor of the FCC about whether to proceed immediately with the H Block auction, the FCC has adopted a scheduling order and associated rules and procedures to govern the auction. (Blogmeister's Note: As previously promised, here is a link to the FCC's original public notice setting the dates and procedures for the H Block auction -- but heads up!  Thanks to the government shutdown, the FCC has since adjusted the relevant dates.  Check here for our update.) Commissioner Rosenworcel had argued that the H Block auction should be paired with the auction of AWS-3 spectrum in order to reap a larger pay-out to the FCC from the combination of the two. Despite this objection, the Commission plunged ahead on September 13 to set the auction up for January 14, 2014. The Middle Class Tax Relief and Job Creation Act of 2012 had directed the FCC to auction this spectrum no later than February 23, 2015, so the Commission had a little leeway here on when it had to initiate the auction.

The H Block consists of the 1995-2000 MHz and 1915-1920 MHz bands.   It is therefore adjacent to the PCS G Block held by Sprint on one side and the AWS-4 band held by DISH Network on the other. This geographic setting has unfortunately made it the Alsace-Lorraine of telecommunications – the prize in a tug o’ war between the two giant adjacent licensees who have tried to make it their own.

The rules applicable to this auction follow the procedures typical for auctions these days with a few key exceptions:

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Update: Text-To-911 Bounce-Back Rule Revised for Roaming Customers

Amended rule to take effect on expedited basis; Rule adopted last May to be waived pending effectiveness of amendment

There’s nothing like an impending deadline to get your attention – even if you are the FCC.

Readers will recall that, just last May, the Commission adopted new rules requiring text-to-911 “bounce-back” messages when a person sends a text message to “911” but text-to-911 capabilities are not actually available. As we reported, the new rules were set to take effect on September 30, 2013. But in July, CTIA sought reconsideration, pointing out that the bounce-back rule (Section 20.18(n)(7), if you need to know) would be impossible for carriers to comply with for roaming customers due to the way text-to-911 messages are handled. Obviously, addressing that problem before the effective date was a matter of some importance.

And sure enough, the FCC has done what needed to be done. In an Order on Reconsideration issued on (wait for it) September 30, the FCC amended Section 20.18(n)(7) to read as follows:

(7) Notwithstanding any other provisions in this section, when a consumer is roaming on a covered text provider’s host network pursuant to 20.12, the covered text provider operating the consumer's home network shall have the obligation to originate an automatic bounce-back message to such consumer when (a) the consumer is located in an area where text-to-911 service is unavailable, or (b) the home provider does not support text-to-911 service in that area at the time. The host provider shall not impede the consumer’s 911 text message to the home provider and/or any automatic bounce-back message originated by the home provider to the consumer roaming on the host network.

This appears to address the problem identified by CTIA.

But this amendment won’t go into effect until it’s been published in the Federal Register, while the rule as adopted last May is already in effect. Doesn’t that mean that, at least for the time being, providers are technically in violation of the rule (even if compliance with the rule is technically impossible)?

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Buddy, Gonna Shut You Down (Reprise)

Tach it up! Tach it up! For the second time in two and a half years, FCC moves to DefCon1 in anticipation of government shutdown.

We posted a heads-up alert last week about the possible shutdown of the federal government and the effect that that could have on licensees. Now the FCC itself is getting into the act. It has just posted on its website a “Plan for Orderly Shutdown Due to Lapse of Congressional Appropriations”. The Commission’s plan allots a total of four hours to complete “orderly” shutdown procedures.  They’re figuring that, of a total of about 1,750 agency employees, only 38 will be manning the battle stations during the shutdown; everybody else will have to go home and shelter in place . . . but only after they have completed their orderly shutdown procedures. (Comforting factoid: All three Commissioners will stay on board through the shutdown.)

Unfortunately, the Plan doesn’t shed any light on practical questions of importance to us out here in the Real World. For instance, will the Commission’s various e-filing portals remain open and operational? We don’t expect that anything that might get filed during the shutdown (assuming that any of those portals do stay up and running) would be given a file number or be processed in any way during the shutdown, but it would still be a relief to be able to file applications, etc., even if they remain untouched by any bureaucratic hand for the duration.

[UPDATE: Since we first posted the above item we have been informally advised by a member of the Media Bureau’s staff that no FCC systems will be available for any purpose during the shutdown. From this it’s probably reasonable to conclude that CDBS, ULS and the Commission’s other online filing systems are going to be shut down for the shutdown. It’s not entirely clear why that should be the case, since the Commission routinely closes up shop – every weekend, for instance, and all federal holidays – without feeling the need to seal off its e-filing portals. But we don’t make the news here, we just report it – and the word we’re getting is that uploading of materials through the Commission’s online systems will not be a happening thing during the shutdown.]

Caution: With Possible Government Shut-Down On Horizon, Early Renewal Filing May Be A Good Idea

Sadly enough, the possibility of a governmental shut-down next week looms if Congress is unable to get its act together to keep the government funded. As matters currently stand, it looks like September 30 would be the last day routine business might get done before the budget impasse closes down the government. Such a shut-down would affect the FCC along with all other federal agencies. This could have a disastrous impact on non-broadcast licensees whose licenses are expiring after 11:59 p.m. on September 30.

The Administrative Procedure Act provides that licensees continue to have operating authority even after the expiration of their licenses as long as they have a renewal application on file. However, in order to take advantage of that automatic extension of your license, you must have actually filed a renewal application – and there’s the rub.  If the agency is closed for business, licensees would theoretically be unable to file their renewal applications. (It’s not clear whether on-line filing mechanisms – think ULS or CDBS – would remain up and running during a shut-down. And even if they were technically still functioning, it’s equally unclear whether a renewal application uploaded through those systems would trigger the automatic extension of operating authority.)

A shut-down would theoretically extend the time for you to file a renewal application until the government re-opens, but it would not automatically extend your operating authority beyond the expiration date. So a licensee whose license expires on, say, October 10, 2013 might not be able to file a renewal application until some later date when the government gets going again. In the meantime, the licensee would not have any authority to be operating.

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Incentive Auction Update: Bureau Looks For Input on What Auction-Induced Reassignment Expenses Should be Reimbursable

Public notice suggests FCC is looking to cut as many corners as possible.

If you’re a full-power or Class A TV licensee and you haven’t started to do the math relative to what the much-heralded incentive auction could mean for you dollars-and-cents-wise, here’s a CommLawBlog tip – it’s time to get started . . . because the Media Bureau clearly has. Don’t believe us? Check out the Bureau’s request for comments on the “catalog of eligible expenses” that it has compiled. You’ve got until October 31, 2013 to let the Bureau know what you think about its catalog (and some related issues); you’ll also be able to file reply comments until November 14.

The Bureau’s (and the Commission’s) interest here arises particularly from the Middle Class Tax Relief and Job Creation Act of 2012 (what many of us refer to as the Spectrum Act). There Congress established a $1.75 billion “TV Broadcaster Relocation Fund” for reimbursement of certain expenses incurred by broadcasters in connection with the various channel shuffles necessary to make the incentive auction work. Congress left to the FCC the nitty-gritty chore of figuring out just what expenses would be subject to reimbursement.

The Commission has now started on that process, and it’s looking for industry input.

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NTIA to FCC: Unlock Those Phones!

Sister agency asks FCC to adopt a rule requiring carriers to unlock phones on a customer’s request.

We reported earlier this year on a decision by the Librarian of Congress that overnight made it illegal for consumers to unlock their cell phones – that is, to run software that lets the phone work with a different wireless carrier. The Librarian’s decision discourages customers from straying to a carrier’s competitor because doing so, if your phone is locked, usually means having to pay for a new one.

Almost everyone thought the anti-unlocking rule was a bad idea: the FCC chairman, the White House, 114,000 petition signers, and vast numbers of outraged bloggers. The only fans of the rule, it seems, are the Librarian himself and the wireless carriers that requested the change.

Now the National Telecommunications and Information Administration (NTIA), which represents the White House on spectrum-related matters, has filed a Petition for Rulemaking asking the FCC to adopt a rule that requires a carrier to unlock a phone (or tablet) at the customer’s request. The rule would apply even while the customer is under the usually mandatory contract that goes with buying the phone from the carrier at a discount. (Adoption of the rule might require the carriers to separate their phone-selling contracts from their service contracts, a step T-Mobile has already taken.) The rule would also apply if the customer has completed the contract or paid an “early termination fee” to end it prematurely.

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Coming to a Network Near You - 700 MHz Interoperability . . . Maybe

Its sieve-like “commitment” to interoperability leaves AT&T multiple convenient ways to get off the hook.

For years, the build-out process for 700 MHz wireless networks has been slowed because of interoperability concerns. The FCC has made noises about possible regulatory resolutions, but so far those noises have not turned into agency action. So now a couple of the private players have announced their own solution. 

FCC Acting Chairwoman Clyburn has loudly proclaimed that that “solution will resolve the lack of interoperability in the lower 700 MHz band in the most efficient manner”. But heads up – as the Chairwoman correctly notes, this is a “voluntary industry solution”. Here, “voluntary” is used in its conventional meaning (as opposed to when the Enforcement Bureau refers euphemistically to the “voluntary contributions” it extracts from targets of its investigations). 

Let’s peek behind the curtain to see what we’re actually getting, shall we?

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Update: Last of the New Cell Phone Booster Rules Now in Effect

When last we reported on the FCC’s comprehensive new approach to the regulation of cell phone boosters, one last piece of red tape had to be snipped before the new rules would take effect. That is, the Office of Management and Budget still had to rubberstamp a number of the new rule sections before they could take effect, thanks to the ironically-named Paperwork Reduction Act. (If you’re keeping score, the sections in question are Sections 1.1307(b)(1); 20.3; 20.21(a)(2); 20.21(a)(5); 20.21(e)(2); 20.21(e)(8)(i)(G); 20.21(e)(9)(i)(H); 20.21(f); 20.21(h); 22.9; 24.9; 27.9; 90.203(q); 90.219(b)(1)(i); 90.219(d)(5); and 90.219(e)(5).)

Good news! According to a notice in the Federal Register, OMB has given all those sections the big Thumbs Up, so they have all become effective as of September 11, 2013. (Note, however, that as the Commission made clear in its Report and Order last February, compliance with the rules will not be required of all consumer and industrial signal boosters sold and marketed in the U.S. until March 1, 2014).

Net Neutrality 2013: The D.C. Circuit Hears the Arguments

Three-judge panel grills opposing counsel for two hours, seems to signal doubts about FCC’s Open Internet rules.

It’s been almost two years since net neutrality was the Big Issue here – and now it’s back! On September 9 the U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments in Verizon’s appeal of the FCC’s effort, dating back to late 2010, to impose “open Internet” rules on broadband providers. The importance of the argument could be seen from the turn-out at the court: it was SRO in the D.C. Circuit’s main courtroom, forcing the marshals to herd the overflow into a separate courtroom where they piped in the audio of the argument.

As we have repeatedly cautioned, trying to guess the result in a case based on oral argument is an iffy proposition. Judges are adept at keeping their cards close to their robes. But still and all, it sure sounded to us like the Commission’s net neutrality effort – or at least much of it – is skating on very thin ice. In particular, at least two of the three judges on the panel (Judges David Tatel and Laurence Silberman) seemed especially “dubious” – to use a term that popped up during the argument – of the anti-discrimination component of the Open Internet rules. And whether the remaining anti-blocking provision could survive in the absence of its companion anti-discrimination provision was far from clear (although at one point Judge David Tatel seemed to suggest that there might be some way to preserve the former without the latter). Judge Silberman, on the other hand, seemed convinced that the anti-blocking provision is also a goner.  (The third judge -- Judge Judith Rogers -- asked significantly fewer questions than her confreres.)

With respect to Verizon’s argument concerning the FCC’s lack of clear statutory authority for its Net Neutrality rules, Judge Silberman jokingly suggested that the Commission’s authority derives from “emanations from a penumbra” of some statutory language – which seemed to some observers, at least, to indicate that he may be more than a little sympathetic to Verizon on this point as well.  Tatel, on the other hand, seemed at times to suggest that he could see some statutory basis for the FCC.

In our post about the recent Ninth Circuit argument about Aereokiller, we observed that, in that argument, at least, the Ninth Circuit wasn’t particularly chatty. That was not a problem in the net neutrality argument. Although each side was originally allotted a total of 20 minutes of argument time, the whole affair ended up taking two hours – much of it because of extensive probing by the judges. But don’t take our word for that – listen yourself. As it turns out, effective September 9, the D.C. Circuit is now posting recordings of oral arguments on its website! Here is a link to the argument in the Verizon net neutrality appeal. Grab some popcorn and a drink and prepare to be entertained for 120 minutes.

Conventionally the D.C. Circuit takes at least a couple of months to prepare its opinions following oral argument. Because of the complexities of the net neutrality case, it may take the court longer to crank out its decision. You never know. Check back here for updates.

Foreign Ownership Questions? Frank Montero, Don Evans May Have Some Answers

FHH foreign ownership gurus on the bill in upcoming webinar

If you’re interested in the FCC’s recent relaxation of its foreign ownership rules – and the impact that that relaxation might have on commerce nationally and globally – check this out. FHH mavens (and regular CommLawBlog contributors) Don Evans and Frank Montero will be sharing their expertise in a webinar on October 23, 2013. Titled “What the FCC’s Relaxed Foreign Ownership Regulations Mean for Global Commerce”, the gig is billed as a webinar for folks who advise communications and broadcasting companies, professionals involved in media ownership and regulation, and pretty much anybody dealing in international commerce. It may even qualify for continuing legal education in some jurisdictions. Such a deal! The 90-minute affair is sponsored by Bloomberg BNA.  Consult the registration page for information about admission fees (there are several options),CLE details, other webinar panelists and the like.

FCC Seeks Comment on LightSquared Handsets

Inquiry focuses on recent technical submission.

If you thought LightSquared was dead and gone, think again. We reported in November on the company’s proposal to shift its operations farther away from GPS frequencies, so as to escape the vehement negative reaction of GPS users. Now LightSquared has released additional technical information about its handset operations in the newly proposed band. The FCC wants to know what you think.

Comments on the LightSquared submission are due on September 6, 2013 and reply comments on September 23.

Update: Effective Date Set for Most New H Block Rules

Last month we reported on the FCC’s prompt adoption of new service rules governing operation in the H Block, i.e., the portion of the spectrum consisting of the 1915-1920 MHz and 1995-2000 MHz bands. The Commission’s Report and Order has now been published in the Federal Register, which sets the effective date for most of the new rules at September 16, 2013. The exceptions? Those would be Sections 1.2105(a)(2)(xii), 27.12, and 27.17, all of which involve new “information collections” that must first be run past the Office of Management and Budget, thanks to the Paperwork Reduction Act. That process will take several months, at least. Check back here for updates.

Update: Initial Effective Date for Form 477 Expansion Plan Set

Last month we reported on changes to the Commission’s Form 477 Data Program, which collects information from broadband and voice service providers. The Report and Order setting out those changes has now made it into the Federal Register, meaning that some – but not all – of those changes will take effect on September 12, 2013. Which parts didn’t make the cut? Those would be the new “information collection” components, which can be found in Sections 1.7001, 1.7002, 43.01 and 43.11. As we mentioned in our earlier post, such information collections have to be run through the Office of Management and Budget for its thumbs up pursuant to the hilariously named Paperwork Reduction Act. That process usually takes several months. Check back here for updates.

Form 499-A Instructions: The Industry Suggests an Alternative

The FCC seeks comment on proposed changes to the Form 499-A instructions submitted by a group of wholesale carriers.

The Commission is on a constant crusade to ensure that all telecommunications providers who are supposed to be contributing to the Universal Service Fund (USF) are in fact doing so . . . and doing so in the proper amounts. Last month the FCC received some help from the private sector in the form of a letter – filed jointly by eight wholesale telecommunications providers (including Verizon, AT&T, Sprint, CenturyLink and XO Communications) – offering suggested revisions to the “reseller certification” language, and other aspects, of FCC Form 499-A. 

And now the Wireline Competition Bureau (WCB) has solicited input on the proposal.

The USF, of course, is a program which supports several federal, telecom-related, subsidy programs. It is funded through mandatory “contributions” – the guv’mint prefers that you don’t call it a tax, even if it looks like one – from telecommunications providers based on their “end-user” revenues. (More below on what constitutes an “end-user”.) The providers traditionally don’t dip into their own pockets to make the payment; instead, they simply pass the cost along to their customers in a separate line item charge. Still, providers want to be sure that they aren’t overpaying, while the Commission wants to make sure that all are paying their fair share.

Which brings us to Form 499-A.

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The 411 on 844: A New Toll-Free Area Code Coming Soon

Toll-free phone numbers using the next area code in the 800 series will be up for grabs starting this December.

A new toll-free area code is about to become available. Put your hands together for 844, which is set to join the ranks of 888, 877, 866, and 855, and, of course, the venerable 800.  844 will be the sixth toll-free code. Two more are on deck for future use – 833 and 822. Note: 811 is not a toll-free area code; rather, that has been reserved for the “Dig Safe” (formerly known as “Miss Utility”) three-digit dialing code used to notify the appropriate folks of planned excavation that might disrupt underground pipes or wires.

The establishment of a new toll-free area code gives rise to potential opportunities and problems. You’ve got four months to figure out what it might mean for you.

Before we get into all that, though, we must express our surprise that the demand for toll-free numbers continues to mushroom. After all, many people are migrating from conventional landlines to cellphones and IP-based services which don’t charge for what we used to call “long distance” calls. If there is no toll, why worry about setting up toll-free numbers? We don’t know, but we do know that the demand continues unabated. 

How unabated?

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Update: Deadlines Set for Responses to CTIA Recon of Text-to-911 Bounce-Back Rules

A couple of weeks ago we reported that CTIA-The Wireless Association® had filed for reconsideration of the Commission’s new text-to-911 “bounce-back” rules. The official notice of that filing has now made it to the Federal Register, which starts the opposition and reply periods. Anyone inclined to oppose CTIA’s petition has until August 15, 2013 to do so; CTIA will then have until August 26 to respond.

EBS Industry Players Push For Expanded GSAs, New Filing Windows

Proposal would eliminate coverage holes, inefficiencies in existing coverage design.

Take a look at a map of the service areas assigned to licensees in the Educational Broadband Service (EBS). You might expect to see a coherent pattern of similar coverage areas effectively blanketing, in the aggregate, entire states (perhaps even with particular stations’ contours coterminous with state boundaries). You’d be disappointed. What you’ll see instead is a crazy quilt of circles, trapezoids, crescents, half-moons, triangles – shapes differing from channel to channel.   And beyond that, there are multiple areas that don’t happen to sit within any EBS station’s coverage.

But change may be on the way, if a group of EBS licensees has anything to say about it.

The group, led by the National Educational Broadband Service Association (NEBSA), has presented the FCC with a “Joint Industry Proposal” (the Proposal) looking to expand existing EBS service areas, called Geographic Service Areas (GSAs), so they’ll be coterminous with the county boundaries touched by the edges of the GSAs. And, perhaps more importantly, the Proposal includes a three-stage approach to licensing all the EBS spectrum that has lain fallow for years.

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Foreign Ownership Rules Loosened For Common Carrier and Aeronautical Licensees

FCC relaxes alien ownership restrictions for some, but NOT all, services.

While Congress continues to debate fundamental issues of immigration policy, the FCC has taken steps to make it considerably easier for aliens to own controlling and non-controlling interests in common carrier and aeronautical stations. The odd result is that aliens can now own such licenses but may find it difficult to immigrate here to operate them.

As we reported when the FCC initially proposed changing its alien ownership rules, the impetus for the FCC’s Second Report and Order (Second R&O) was two-fold. First, the Commission recognized that its cumbersome alien-ownership approval process was impeding foreign investment in the United States at a time when capital investment is being strongly encouraged. Second, the process of trying to identify exactly who a company’s foreign owners are and where they are from can be difficult, if not impossible. The Commission and its regulatees found that they were spending inordinate amounts of time and money trying to ascertain where alien owners were from for purposes of the rules without any concomitant public benefit for the effort involved.  

While the new rules retain the basic structure of requiring prior FCC approval for aliens either to: (a) indirectly control a US common carrier licensee, or (b) own more than 20% of a licensee company, they greatly simplify the procedures and detailed ownership accounting that created so much wasted effort. We hasten to emphasize that the rules continue their very strong prohibition on alien ownership or control of broadcast licensees above the benchmark levels, even though those licenses are statutorily eligible for the same treatment as common carrier and aeronautical licenses. This disparate treatment is coming under increasing attack, most directly by Commissioner Pai. For the time being the disparity remains firmly in place, although the Commission has invited comment on a request for “clarification” of limitations on alien ownership of broadcast licensees.

Here are some of the highlights of the new rules:

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Form 477 Expansion Plan

FCC expands data collection program for broadband/voice service providers; someday the FCC will also want to know what planet you’re from.

FCC <3 DATA. (Translation from the ’net-speak: The FCC loves DATA.) In particular, the kind of data that broadband and voice service providers are required to report and that, presumably, assist the FCC in making informed policy decisions.

So we probably shouldn’t be surprised that the Commission has decided to collect even more of it through a modified “Form 477 Data Program” as broadband and voice services continue to evolve (but not quite to this level . . .yet).

FCC Form 477 has been around since the turn of the century. Many providers of broadband, local and mobile phone, and interconnected VoIP services are already familiar with it, since they’ve had to file it twice a year for some time now. But get ready, the FCC has now made several changes to the types of data it will be collecting.

The changes are part of an overall Commission effort to comply with requirements of the Broadband Data Improvement Act and the FCC’s own recommendations in the National Broadband Plan.  Also spurring the changes: next year the Commission will be assuming responsibility for collection of broadband deployment data under the State Broadband Initiative program.  Historically, the National Telecommunications and Information Administration has taken care of that chore, but that’s set to end in the fall of 2014.

So, starting most likely in 2014, through its modified Form 477 program the FCC will be collecting even more data about:

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Update: Reconsideration of Text-to-911 Bounce-Back Details Sought

CTIA says the roaming responsibilities imposed by FCC can’t be implemented technologically.

In May we reported on the FCC’s adoption of new rules requiring that bounce-back messages be provided in situations where a person sends a text message to “911” but text-to-911 capabilities are not actually available. Text messaging service providers must be able to “do the bounce-back” by this September. As it turns out, not everyone is totally tickled pink with the new rules. CTIA – The Wireless Association®, for one, doesn’t like the way the new rules would be applied to roaming situations.

For those of you who – like Justice Scalia (check out Footnote 1 in the linked opinion) – may not be familiar with CTIA – The Wireless Association®, it’s the trade group repping the international wireless telecom industry. “CTIA” originally stood for “Cellular Telephone Industry Association”, but that later transmogrified into “Cellular Telecommunications & Internet Association” and, eventually, into the quasi-acronymic “CTIA – the Wireless Association®” (don’t forget the R-in-a-circle registered trademark symbol!). 

As adopted, the FCC’s new bounce-back rules make a wireless carrier responsible for providing bounce-back messages to a consumer “roaming” on its network. But, according to a Petition for Reconsideration filed by CTIA, this is technologically impossible – at least just now – due to the way text messaging works in roaming situations. Apparently, however, a consumer’s “home” wireless carrier is able to provide bounce-back messages to its own customers while they are roaming on another network. Thus, CTIA is asking the Commission to modify the bounce-back rules to “allocate carrier responsibilities in a way that aligns with technical realities.”

The FCC has released a Public Notice announcing the filing of CTIA’s petition. Oppositions to the petition will be due within 15 days after notice is published in the Federal Register.  Check back here for updates.

(REMINDER: Text-to-911 service is not yet widely available. Calling 911 is preferable to texting 911 in most circumstances. It’s still advisable to refrain from sending text messages to 911 unless you can’t make a voice call for some reason in an emergency situation.)

FCC Opens Door for New Kids on the (H) Block?

FCC rules will ensure the new arrivals will play nice with PCS.

Well, that was quick! Just last December the FCC proposed to “unleash” H Block spectrum for commercial licensing (as we reported here) and six months later, it’s a done deal . . . almost.

In case you’ve forgotten, the H Block consists of the 1915-1920 MHz and 1995-2000 MHz bands. Congress directed the Commission to license this spectrum using competitive bidding as long as the H Block spectrum could be used without causing harmful interference to the neighboring PCS downlink band (1930-1995 MHz).

The folks at the Commission have decided that the H Block kids can indeed play nice with their PCS neighbors. Of course, the parental units at the FCC have also adopted a set of rules, including appropriate power and out-of-band emission limits, for the H Block kids to help ensure that they don’t cause any trouble. According to the FCC, the rules are intended to prevent only “harmful interference” but not necessarily all “detectable interference.” Parents can only do so much to protect their kids, right?

The “Service Rules” for this band follow for the most part the by now familiar drill – i.e., renewal, buildout, and discontinuance policies that have been applied to other new services. Here are a few highlights from the Commission’s recent H Block Report and Order:

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FCC Blesses SoftBank/Sprint Union

Celebrating the Fourth of July, the Commission approves alien take-over of U.S wireless carrier.

As was expected, the FCC has approved SoftBank Corp.’s acquisition of majority control of Sprint Nextel, as well as Sprint’s acquisition of 100% control of WiMAX broadband provider Clearwire.  As is also the FCC’s somewhat inconvenient custom, the Order was released at the end of the day on Friday of a holiday weekend, so that the common folk had to read it during the holiday, even if we were trying to relax on the nearest beach.

The decision contains nothing earth-shaking.  It’s apparent that the FCC has become increasingly uncomfortable with the growing monopoly strength of AT&T and Verizon in the wireless marketplace, so it’ll do anything it reasonably can to help Sprint and T-Mobile become stronger marketplace competitors.  SoftBank is going to dump big bucks into Sprint, and Sprint has agreed to decommission its equipment from Chinese suppliers that some people worry might have subversive back-door software, so to quote a legendary comic character, “What, me worry?”

Antitrust considerations didn't give the Commission heartburn because SoftBank does not operate in the U.S., so there will be no competition-reducing horizontal merger of competitors.

Of interest to our clients who hold Educational Broadband Service (EBS) licenses and lease their spectrum to Clearwire, several EBS entities complained that Clearwire’s EBS spectrum lessors might not be complying with the regulatory requirement that at least 5% of the capacity of an EBS system be reserved for educational uses.  The FCC said that the charges had not been adequately proven, the complaining parties who lease spectrum to Clearwire should hold perhaps their tongues because they had previously certified that they themselves were in compliance, and there was nothing to indicate that Clearwire would not continue to honor its leases.

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Did Verizon Short its Customers - and the FCC - $250 million (or More)?

D. C. communications lawyers Smithwick & Belendiuk ask FCC Inspector General to take another look at 2010 consent decree that may not have been all it was cracked up to be.

In recent years the Commission has repeatedly characterized its mission as one of “consumer protection”. One prominent example: back in 2010, the Enforcement Bureau claimed to have “ma[de] things right and put customers back in the driver’s seat”  with respect to “mystery fees” that Verizon Wireless had apparently been improperly imposing on its customers for years. Then-Chairman Genachowski said that the Bureau’s successful negotiation of a consent decree with Verizon demonstrated to American consumers that “the FCC has got your back”.  Then-Commissioner (now Acting Chairwoman) Clyburn said that the “voluntary contribution” Verizon agreed to pay the government – $25 million, over and above the $50+ million in unlawful charges to be refunded – “sends a clear message as to how important this is to us”.

You’d think that the 2010 Verizon consent decree was a massive triumph of Good over Evil, with all innocent victims made whole and the wrong-doer brought totally to its knees.

Um, not exactly, according to the folks at Smithwick & Belendiuk (S&B), a D.C. communications law firm.

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FCC Ruling: CPNI Protections Extend to Some (But Not All) Data Stored on Mobile Devices

FCC rules that confidential data collected on consumers’ devices by software for which carrier is responsible must be protected. 

Irony alert! As questions mount about the government’s access to consumers’ private communications – both telephonic and digital – the FCC has issued a Declaratory Ruling (Ruling) advising wireless carriers of their obligation to protect the privacy of their customers’ information. So even as the government acknowledges that its own treatment of such information may not have been as confidential as had previously been represented, the government is imposing arguably new confidentiality burdens on both large and small mobile carriers.

Essential governmental principle at work: do as we say, not as we do.

What’s at issue here is the protection of Customer Proprietary Network Information (CPNI), but in a relatively new setting. 

Generally, CPNI consists of certain customer information – including such data as the customer’s specific calling plans, special features, pricing and terms, and details about whom they call and when – that is deemed “proprietary”. (The official statutory definition of CPNI may be found in Section 222(h)(1) of the Communications Act.) The law requires that carriers go to great lengths to keep CPNI confidential: carriers can use, disclose, or permit access to individually identifiable CPNI only in limited circumstances relating to their provision of telecommunications services or with customer consent.

Historically, the FCC has focused on how carriers collect, retain and use CPNI in their internal, “back-office” systems. But in 2011, a new risk to CPNI surfaced, a risk not in the carriers’ internal systems, but in the consumers’ own individual devices.

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Harmonic Convergence? FM Interference to 700 MHz LTE Service

700 MHz licensees (with some apparent FCC support) complain of FM interference to hypersensitive LTE gear – but must FM licensees foot the bill to correct the problem?

The introduction of different species into an established ecosystem tends to be a dicey proposition.  Almost invariably, co-habitation requires the sharing of scarce resources.  And more often than not, the different species approach the whole sharing thing in different, not entirely compatible, ways.  The result: occasional dissatisfactions and frustrations – leading to occasional inter-species frictions and fisticuffs.

Take the RF spectrum ecosystem, for example.

Most inhabitants of the spectrum have historically figured out ways to coexist in relative peace (at least for the most part) – thanks largely to the fact that the potential impact of one service on another has been taken into account in the frequency allocation process. But as the demand for spectrum increases, and every little niche is filled up, it is becoming more difficult to avoid inter-service conflicts. And sure enough, the introduction of a recent new species – 700 MHz wireless systems using LTE equipment – seems to be causing some unexpected problems. 

Since January, 2012, spectrum that used to constitute TV channels 52 and up has been reallocated to 700 MHz wireless services. Television still occupies channels 51 and down (at least for the time being), and there has been much hand-wringing over how the relatively low power wireless services will be able to coexist in such close proximity to high-powered TV stations.

Now it turns out that another problem – less anticipated – has reared its ugly head. Wireless operators using high gain LTE antenna systems and high gain LTE receivers have experienced interference which, they claim, is caused not by TV but by nearby FM stations. 

FM stations? How can that be, since FM stations operate in the 88-108 MHz band, far away from 700 MHz?

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Number, Please! Comment Deadlines Set in Telephone Numbering Proceeding

In April we reported on a Notice of Proposed Rulemaking and Notice of Inquiry (NPRM/NOI) in which the FCC has proposed changes in how telephone numbers are obtained by certain types of providers. The ultimate upshot of the Commission’s proceeding could eventually mean serious changes in what we understand a telephone number to represent. The NPRM/NOI has now been published in the Federal Register, which (as loyal readers should know by now) sets the deadlines for comments and reply comments. Anyone interested in commenting has until July 19, 2013; reply comments are due by August 19.

Update: Comment Deadlines Set in Big House Burner Ban Proceeding

Last month we reported on a Notice of Proposed Rulemaking (NPRM) looking to address the problem of contraband cell phone use in prisons. The NPRM has now been published in the Federal Register, which means that comment and reply comment deadlines have now been set. If you’re looking to chip in your two cents’ worth, you’ve got until July 18, 2013 to file comments, and until August 2 for reply comments.

Raisin' Defenses at the FCC

A Supreme Court case offers a possible route to appealing a forfeiture without having to pay it first.

A pair of California raisin farmers might have made it easier to challenge an FCC forfeiture.

A party dinged with a forfeiture that it thinks is unfair now has two options under the Communications Act. One is to challenge the forfeiture order directly in the Court of Appeals. The problem with that approach is that, as a condition to getting into the Court of Appeals, the challenger must first pay the forfeiture. Since forfeitures can reach up into six and seven figures and, let’s face it, not everyone has that much spare cash lying around, that condition poses a serious disincentive to direct appeals.

The other option is to not pay the forfeiture and wait for the FCC (assisted by their friends from the Department of Justice) to bring suit in your nearest federal District Court. In that case, the burden is on the government to prove that you are in fact really liable for the forfeiture, which gives you an arguable advantage going in. But at least one appellate court has held that a party choosing this option is not allowed to raise the full panoply of defenses that might normally be available in challenging the forfeiture.

What does this have to do with raisins?

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Update: Comment Periods in Receiver Standards Inquiry Extended

Last month we noted that the FCC (through its Office of Engineering and Technology) had requested comment on a white paper concerning technical standards for radio receivers, produced by its Technological Advisory Committee and entitled “Interference Limits Policy: The use of harm claim thresholds to improve the interference tolerance of wireless systems.” The basic idea is to add flexibility to the notion of “interference” from a nearby band.

The questions posed in the white paper are a matter of potentially major consequence. Probably because of that, three entities that have occasionally found themselves at odds on a number of substantive regulatory issues found common ground here, at least with respect to the need for more time to respond to the FCC’s invitation for comments: the National Association of Broadcasters, the Consumer Electronics Association, and the GPS Innovation Alliance filed a joint request for more time. 

That request has been granted. As a result, comments are now due by July 22, 2013 and reply comments by August 7.

Health Effects of Radio Waves: Effective Date of New Rules Set, Also Comment Deadlines

Back in April we reported on the FCC’s most recent foray into the thorny issue of health effects of radio waves. The FCC adopted minor tweaks to its existing rules, proposed further tweaks, and sought comments on broader issues, including the controversial question of whether the current radio-frequency exposure limits are safe, and if not, what they should be.

The document has now been published in the Federal Register, in two separate parts. The first part sets out the newly adopted rules; the second part poses the questions on which the Commission has requested comment.

Publication in the Federal Register establishes both (a) the effective date of the rule changes that were adopted and (b) the deadlines for comments on the out-for-comment questions. The adopted changes will become effective on August 5, 2013. Comments will be due on September 3, 2013, and reply comments on November 1.


In response to non-request for waiver, Public Safety and Homeland Security Bureau waives rules that may not need to be waived.

Broadcasters may be asked (many apparently already have been asked) by the Federal Emergency Management Agency (FEMA) to broadcast some PSA’s relating to the (relatively) new Wireless Emergency Alert (WEA) system. While some broadcasters have reacted to that request with understandable – and legitimate – reluctance, the FCC’s Public Safety and Homeland Security Bureau has now assured us that the PSA’s are OK for broadcast. . . as long as certain conditions are met.

The bottom line here is relatively simple; getting there, though, requires a surprising amount of explanation.

For years, FEMA and the FCC and others have been working to improve the overall ability of government officials to alert the citizenry to emergency situations.   Broadcasters have observed one aspect of that effort in the overhaul of the Emergency Alert System.  On the non-broadcast side, the FCC established the WEA system, through which the guv’mint can send geographically-targeted emergency messages direct to individuals’ mobile devices. The WEA has already been triggered in a wide range of situations – hurricanes, tornadoes, terrorist threats, missing persons, etc. – and has, according to the FCC, “proven to be a valuable tool”.

So what’s the problem?

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Update: Effective Date Set for Text-to-911 Bounce-Back Rules

The new requirements relative to text-to-911 bounce-back messages have been published in the Federal Register, which means that they are technically set to become effective on June 28, 2013. As a practical matter, that effective date is meaningful only to the lawyers, since the “bounce-back” obligation won’t have to be implemented by carriers until September 30. But the Federal Register publication does set the dates for seeking reconsideration (June 28) and judicial review (July 29).

Coming Soon, Universal Text-to-911; Coming Sooner, Bounce-Back Messages

FCC looks to eliminate possibly dangerous confusion over spotty availability of text-to-911 service. 

Text messaging is rapidly becoming the preferred method of communication by smartphone and tablet users. Trillions of texts are sent each year. But many emergency assistance providers – the folks on the receiving end of 911 calls – aren't yet ready to adapt to the trend. Although texting to 911 will be part of the next generation 911 technical standard, emergency dispatch centers are currently able to receive text messages in only a few select areas.

So if you’re in an emergency, and you text 911 about your dilemma, how do you know whether the message was received and help is on the way? The bad news: you don’t. The good news: by September 30, 2013, you will, thanks to new “bounce-back” requirements adopted by the FCC.

The move is part of the on-going effort, by the Commission and the wireless industry, to provide more effective emergency communications services. Last year, in an agreement with the National Emergency Number Association and the Association of Public Safety Communications Officials (APCO), the largest nationwide cell phone carriers -- Verizon, AT&T, Sprint and T-Mobile -- voluntarily committed to make text-to-911 services available by May 2014. 

But just because the Big Four can do it doesn't mean that the smaller carriers will follow suit. Since 911 is a universal number which consumers expect to work everywhere, the FCC has issued a Further Notice of Proposed Rulemaking (FNPRM) looking to develop guidelines for text-to-911 deployment by all carriers. Text-to-911 will significantly improve access to emergency 911 services in a wide range of circumstances. It will be a boon to individuals with hearing or speech disabilities who cannot make voice calls, for instance. It will help in those (ideally) rare situations where a voice call might be dangerous (the burglar is in the house, and you’re hiding). Since text messaging uses the spectrum more efficiently than voice, text-to-911 will also help ease the load on networks otherwise blocked by congestion or outages (earthquakes and tornadoes, for example).  

But universal text-to-911 capability won’t happen overnight.

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2013 Reg Fees: The FCC Proposes a Couple of Alternatives

Commission looks to update its methodology for calculating regulatory fees, but proposes a possible alternative approach to cushion the blow this year.

One of the time-honored rites of spring – at least at the FCC – is the release, every April or May, of a Notice of Proposed Rulemaking setting out the schedule of regulatory fees the Commission thinks it may impose on all regulatees come August-September. Historically, we here at CommLawBlog have tried to be Johnny-on-the-spot in letting our readers know the fees that have been proposed, even though the fees that eventually adopted (usually in July) may vary here and there from the initial proposal.

But this year is different.

Instead of providing one set of proposed fees, the Commission has given us a Notice of Proposed Rulemaking (NPRM) laying out two sets of possible fees . . . because it’s in the process of a much-needed update of its calculation methodology, and it’s still not sure: (a) whether the new approach is exactly right and, even if it is, (b) whether that new approach should be applied this year. Depending on which method it ultimately adopts, the fees for some broadcasters could swing by a couple of thousand dollars. As a result, we’ve had to prepare a more elaborate table reflecting the proposals, so we’re a day or so behind our usual curve. Please bear with us.

To understand what’s going on here, you have to understand how reg fees are calculated.

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FCC Seeks Comment on Receiver Standards - Again

Request reopens matter laid to rest just six years ago.

The FCC has reopened the difficult question of technical standards for radio receivers.

Everyone agrees that poor receivers impair efficient use of spectrum. In particular, receivers that respond to a wider swath of frequencies than necessary can receive interference from unwanted signals close by the intended signal. Just ask LightSquared, whose plans to use mobile satellite frequencies on terrestrial towers failed because its signal was close enough to GPS frequencies to overpower some GPS receivers.

Less selective, more interference-prone receivers are cheaper to manufacture. Market forces are not much help because a more selective (and hence more expensive) receiver is rarely of immediate benefit to the purchaser. The improved receiver does benefit other users seeking to operate on frequencies nearby, as better GPS receivers would have benefited LightSquared. But the manufacturer gains no competitive advantage to offset the higher price. So manufacturers, especially of consumer equipment, tend to supply the least selective (and least expensive) receivers that will work in the current spectrum environment.

A situation like this, where market forces act against the public good, is a classic set-up for regulation.

The FCC tried. Just over ten years ago it issued a Notice of Inquiry on whether to include “receiver interference immunity performance specifications” in its rules. After sifting through sixty-odd comments, and then waiting a few years, the FCC terminated the proceeding in a terse one-pager.

Now the issue is back.

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Jailhouse Block (Reprise): FCC Looks to Ban Burners from the Big House

FCC proposes rule changes to help combat contraband cell phone usage in correctional institutions.

If The Shawshank Redemption had been set in 2013 rather than 60 years or so earlier, this prison-yard exchange between inmates Andy Dufresne and Red would probably go something like this:

Andy: I understand you're a man who knows how to get cell phones.

Red:    I'm known to locate cell phones from time to time…but what would you want one for, Andy, to update your Facebook status?

The problem of contraband cell phone use in correctional institutions for social media status updates is very real. And while inmate status updates or video posts might be somewhat amusing – especially if they involve an organized flash mob(ster?) or this rendition of Michael Jackson’s Thriller – authorities are evermore concerned that contraband cell phones are being used by inmates for far more nefarious, criminal purposes.

In a recent Notice of Proposed Rulemaking (NPRM), the FCC is exploring regulatory approaches for reducing contraband cell phone usage in correctional institutions.

Why can’t prisons just “jam” the contraband cell phone signals, you ask?

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Tower Hot Potato: Ownership Dispute Doesn't Shield Station Licensee From Tower-Related Obligations

YOU own it. No, YOU own it. No, YOU own it  . . . .

A recent decision from the full Commission teaches us a couple of valuable lessons when it comes to potential liabilities both for tower owners and for those who may not think that they’re tower owners.

It all started in 2006, when Ely Radio, LLC bought KWNA(AM), Winnemucca, Nevada. The deal provided, in standard contractual terms, that the buyer would be acquiring all the “property and fixtures . . . used or useful” in the station’s operation. The average reader might leap to the conclusion that the “property and fixtures” in question would necessarily include the station’s tower. Don’t be so sure. 

Fast forward a couple of years. The Enforcement Bureau’s San Francisco Field Office determines that the station’s tower hasn’t been lit at night; making matters worse, the tower’s owner hasn’t been making the required observations and, as a result, hasn’t reported the outage to the FAA. When the Enforcement folks check the FCC’s database, they determine that the tower’s owner is listed not as Ely Radio, LLC, but rather the company that had sold the station back in 2006.

Covering all their bases, the Field Office reps notify both the 2006 seller and buyer of the problem. The seller promptly writes back to advise the Commission that the tower was sold to Ely Radio as part of the 2006 deal, even though the seller did apparently hold onto the land on which the tower is situated. Based on that information, the Enforcement Bureau issues a Notice of Apparent Liability to Ely Radio for the tower lighting, observation and notification violations; the Bureau throws in an additional violation – failure to notify the Commission of the 2006 change in the tower’s ownership. Ely Radio responds that, contrary to what the 2006 seller may be saying, Ely Radio did not acquire the tower as part of its deal, so the seller is the one who should be liable for any tower-related violations. 

At this point, let’s recall the Commission’s longstanding policy of refusing to adjudicate issues relating to local law.

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Update: TVStudy Version 1.1.2 Now Available

From our Moving Targets File, the latest word from the FCC is that it has released a new version (Version 1.1.2) of the TVStudy software that the Commission “plans to use in connection with” the anticipated spectrum auctions. We wrote about TVStudy back in February, when it first burst – without discernible prior notice – onto the scene. Apparently, a number of folks have since provided the FCC with some “feedback” which, in turn, has caused the Commission to fiddle with the software.

According to the Commission, the revised version

addresses an issue with calculation cell indexing that can result in the population of some cells not being correctly considered, and which may cause the program to crash in unusual instances. The update affects only the command-line program (C code); the graphical user interface (Java code) is unchanged and its version remains the same (Version 1.1.1). To facilitate the update process, the 2013Jan_tvstudy_files (which included both the software and all of the required databases) have been replaced with separate files for 2013Apr_tvstudy (software only) and the databases (cdbs, terrain, census), which are unchanged from the initial release. This means that only the TVStudy software (less than 2 MB) needs to be downloaded and updated; the various CDBS, terrain, and census databases need not be replaced.

Presumably, this makes sense to somebody.

It appears that the Commission plans to use the revised version for auction-related computations, since the FCC’s public notice cautions that “[i]t is recommended that all TVStudy users apply this update so that results will match those obtained by the FCC.”

If you understand the stuff in the block quote, above, it will probably also make sense to you that the FCC advises that “a separate build (executable file and source code) for Debian-based Linux systems (such as Ubuntu) is also being released along with instructions for configuring the software for use on Debian/Linux platforms.” All you Debian/Linux folks (yes, that means you Ubuntu fans, too, we think) can access the relevant files here.

The public notice invites continued input from the interested parties “to help insure consistent results”. Notwithstanding Ralph Waldo Emerson’s take on consistency, it seems to us that the FCC is on the right track in that regard.

FCC Proposes Rule Changes for Obtaining Telephone Numbers

Interconnected VoIP providers may soon have direct access to numbering resources, and the significance of area codes could become a thing of the past.

Have you ever wondered where telephone numbers come from? Well, kids, there’s this bird called a stork that delivers the numbers to your phone company which is very happy to receive them…

If only it were that simple.

Telephone numbers aren’t just made up by the phone companies. There are complex rules and processes (and history) involved in determining where numbers are assigned geographically, which sequences of numbers can be assigned, and which companies are ultimately allowed to have access to the numbers. Of course, these processes ultimately involve the FCC, which has authority over all telephone numbers in the U.S.

In a recent release containing a Notice of Proposed Rulemaking (NPRM), Order and Notice of Inquiry (NOI) the FCC is looking to make some changes to how telephone numbers are obtained by certain types of providers and, eventually, the fundamentals of what we understand a telephone number to represent.

Unfortunately, no, the FCC still doesn’t have a way to make telephone numbers magically immune from robocallers.

In the near-term, rules proposed in the NPRM (if adopted) would allow interconnected VoIP providers to have direct access to telephone numbers instead of having to obtain them through  carriers. The NPRM seeks comment on this proposal and the associated issues. To test out its proposals and gather data, the FCC’s Order is allowing certain interconnected VoIP providers – including, specifically, Vonage – to have direct access to telephone numbers as part of a limited trial.

For the long-term, the FCC is seeking, through the NOI, comment on various issues related to whether telephone numbers should be disassociated from specific geographic locations.

In other words, in the future area codes such as 212, 305, and 404 might not be tied specifically to Manhattan, Miami and Atlanta… but more on that a little later.

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Failure to Communicate? FCC Proposes New Reporting Requirements for Blocked Rural Calls

New quarterly form would theoretically shed more useful light on chronic problem, but proposed exceptions could gut the form’s effectiveness.

Although perhaps not widely acknowledged or often discussed, the problem of “blocked” or unsuccessful long-distance telephone calls to rural customers is a serious one. For at least a couple of years interested parties have urged the Commission to do something about it. And now the FCC thinks that it’s come up with a way to begin to address this failure to communicate:  new recordkeeping requirements, and a new report to be filed quarterly by facilities-based originating providers (with some notable exceptions). 

The report would theoretically allow the Commission to better monitor the delivery of long-distance calls in rural areas. In a Notice of Proposed Rulemaking (NPRM), the FCC has invited comments on the proposed requirements.

So what’s the problem the FCC is addressing here?

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700 MHz B Block Build-Out Deadline Extended For Many, But Not All

With interoperability issues still unresolved, FCC gives many B Block licensees a few more months of breathing room.

If you’re an active Lower 700 MHz band B Block licensee with an interim four-year construction benchmark deadline before December 13, 2013, here’s some good news: unless you happen to fall within a couple of exceptions, the FCC has extended your construction deadline to December 13, 2013.  This tracks a similar extension granted to Lower 700 MHz A Block licensees a couple of months ago.

The construction deadline in question stems from Section 27.14(g), which requires 700 MHz B Block folks both to provide signal coverage and to offer service over at least 35% of the geographic area of their licenses by one  of two dates, either (1) June 13, 2013 (if the initial authorization was granted on June 13, 2009 or earlier), or (2) within four years of the initial license grant.

Since at least 2009, a number of 700 MHz licensees have been complaining that the FCC’s approach to the 700 MHz band – i.e., developing two separate and distinct band classes within the Lower 700 MHz band – has given rise to interoperability issues that have in turn impeded construction.  In March, 2012, the Commission agreed to explore interoperability issues, but beyond the issuance of a Notice of Proposed  Rulemaking, nothing has come of that “Interoperability Proceeding” to date.  Meanwhile, the construction clock has continued to tick down. 

The announced extension reflects the FCC’s recognition that its own failure to act thus far has put some folks in a bind.

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Update: Effective Date of New Cell Phone Booster Rules Announced

Last February we reported on the FCC’s adoption of a new comprehensive regulatory approach to cell phone boosters. The Report and Order setting out that approach has now made it into the Federal Register. As a result, many – but not all – of the new rules will take effect as of May 13, 2013. Which of the amended rules won’t kick in then? Why, those would be Sections 1.1307(b)(1); 20.3; 20.21(a)(2); 20.21(a)(5); 20.21(e)(2); 20.21(e)(8)(i)(G); 20.21(e)(9)(i)(H); 20.21(f); 20.21(h); 22.9; 24.9; 27.9; 90.203(q); 90.219(b)(1)(i); 90.219(d)(5); and 90.219(e)(5). Those all involve “information collections” and, thus, must first be blessed by the Office of Management and Budget thanks to the hilariously-named Paperwork Reduction Act. Check back here for further updates on that front.

Please keep in mind the crucial distinction between cell phone boosters (at issue here) and cell phone jammers. The latter remain illegal.

Cellular Wars: The Employees Strike Back!

Anonymous complaints about jamming result in six-digit fines.

We have previously reported on the FCC’s campaign to stamp out cell phone jamming devices. It turns out that the Commission has apparently found some guerilla allies in that campaign. In two recent Notices of Apparent Liability, two companies have been whacked with six-digit fines – $126,000 in one case, $144,000 in the other – for operating jammers. Both times the Feds were called in by anonymous tipsters.

In each case, the company admitted to operating multiple jammers. Seems they were trying to discourage  employees from using their cell phones in the workplace. While the FCC’s orders obviously don’t identify the complainants who ratted out the companies, we think it’s probably a pretty good bet that the tips came from company employees who wanted to be able to make cell calls from the workplace.

Both of the target companies ‘fessed up to acquiring the jammers online from overseas sources. One of the companies – Taylor Oilfield Manufacturing – claimed that it had fired up its jamming efforts “following a near-miss industrial accident that allegedly was partially attributable to employee cell phone use.” No matter, responded the FCC. Jamming is prohibited, and that’s all there is to that.

To emphasize how seriously it takes this kind of violation, the Commission piled on when it came to calculating the fines.

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Update: Comment Deadlines Set in U-NII 5 GHz Rulemaking

In February we reported on an FCC proposal that would not only add new 5 GHz frequencies but also overhaul – maybe even simplify – a particularly confusing stretch of the rules. One possible upshot would be the opening up of 195 MHz of spectrum for Wi-Fi-type operation.

The Notice of Proposed Rulemaking (NPRM) has now been published in the Federal Register which, as our regular readers know, establishes the relevant filing deadlines. Comments in response to the NPRM are due to be filed by May 28, 2013, and replies by June 24.

Update: New "Grantee Codes" to be Issued as of May 1, 2013

In June of last year, we reported that the FCC had decided to begin using five-character “grantee codes” in connection with its equipment certifications. (The problem was that the Commission was running out of the three-character codes it had historically used.) It took a couple of months for that decision to become technically “effective”. And, apparently, it has taken yet another eight months actually to implement the new format.

We know that because the Commission’s Office of Engineering and Technology, which is in charge of the equipment certification program, has announced that it’s going to start issuing five-character grantee codes as of May 1, 2013. From that date on, grantee codes – also known as FCC identifiers or FCC ID’s – will consist of “an Arabic numeral between two and nine followed by four alphanumeric characters (capital letters or Arabic numerals between two and nine).” Check out our post from last June for more information.

Regulation in Retrospect: "New" FCC Rule Books Now Available

In a quaint tip-of-the-hat to the Way Things Used To Be, the FCC has issued its annual public notice advertising the availability of printed versions of its rules. According to the notice, for less than $300 – $298, to be precise – you can grace your bookshelves with all five volumes that comprise Title 47 of the Code of Federal Regulations. Hot off the presses, straight from the Government Printing Office (GPO) to your door.

Before getting out your checkbook, though, take a closer look at what the FCC’s public notice is touting: hard copies of the rules as they were as of October 1, 2012. That’s right, for $298 you can buy a set of rules that are already more than six months out of date. Such a deal. It’s the kind of thing you might expect to find if you cruise a lot of yard sales on the weekends. Just the ticket if you’re looking for neat stuff to put in an October, 2012 time capsule.

For many of us there is something curiously reassuring about holding a real book in your hand, leafing through its fine-print pages to find just the rule you’re looking for. The problem with the books the government is selling is that the rule you find there may not be the rule that’s in effect anymore.  (And let's be clear here -- it's the GPO which is selling these books, not the FCC.  The FCC has simply announced their availability, and is presumably standing ready to throw them at wrong-doers.)

Many old timers in the communications bar swear that the Commission used to require that all licensees have on hand at their stations copies of the rules relevant to their service. If such a requirement did exist (and we suspect that it did), it appears to have gone by the boards. Nowadays, the FCC’s website says nothing about such a requirement. Instead, it refers the reader to the e-CFR website maintained by the GPO. That GPO site – which, by the way, we here at CommLawBlog swear by and strongly recommend – is generally up-to-date within 24 hours, meaning that even the most recent rule changes are reflected in their version. Oh yeah, and it’s free.

FCC Looks at Health Effects of Radio Waves

In a Notice of Inquiry, the FCC proposes to reopen the controversial question of radiofrequency exposure limits.

Do cell phones cause cancer?

Those on both sides of the question will carefully parse the FCC’s 201-page “First Report and Order, Further Notice of Proposed Rule Making and Notice Of Inquiry,” as the agency wades again into one of its murkiest controversies: what effect do radio waves have on health?

The FCC has had rules limiting RF (radiofrequency) exposure for decades. Other bodies recommend numerical exposure limits, that being outside the FCC’s expertise. The FCC nevertheless decides which recommendations to adopt, what kinds of transmitters must be tested for compliance, and how those tests are to be carried out.

The proper limits for safe exposure are a matter of considerable debate – a debate that helped to prompt the FCC’s current action. The question is controversial in part because of disagreement over how radio waves affect bodily tissue.

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FCC Announces Restoration of Media Bureau

The Media Bureau is back! Did YOU miss it? WE did.

Looks like the successful hack of the FCC’s computer network in September, 2011 – which we reported on back in February – may have been more intrusive than the government has let on so far. In an unusual public notice, the FCC has acknowledged that the entire Media Bureau apparently went missing sometime in the late summer/early fall of 2011. The agency’s internal computer records reflect that, as of October 1, 2011, all traces of the Media Bureau – historically one of the hardest working and most productive operations within the agency – had been purged from all Commission systems.

As a result, there have been no references to the Bureau on the FCC’s website for the last 18 months or so. The disappearance was apparently not noticed by visitors to the website. We’re guessing that that’s because, thanks to the redesign of the site, those seeking the Media Bureau pages generally gave up in frustration, assuming that the Bureau’s pages (a) were there somewhere, but (b) had been buried so deeply behind various blogs, dashboards, consumer notices and other higher priority matters that they could not, as a practical matter, be located through routine search techniques. (Vestigial cached versions of Bureau materials, including some CDBS records, apparently remained accessible from some computers external to the FCC’s systems, creating the comfortable illusion within the private sector that all systems were still go and things were still Business As Usual within the Bureau.)

While the Commission’s notice stops short of explaining exactly what happened, there’s plenty of solid information from which we might cobble together a reasonable theory.

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Update: PSAP Do-Not-Call Registry Now Effective

Compliance deadline still up in the air pending finalization of operational details

Late last year we reported on the FCC’s adoption of new rules establishing a “do-not-call” registry for Public Safety Answering Points (PSAP’s). PSAP’s, of course, are places where your 911 is answered; the phones there are associated with conventional 10-digit telephone numbers which are accessed when you dial 911 for emergency assistance. The new registry is part of a Congressionally-mandated system intended to prevent automatically-generated marketing calls – the dreaded “robocalls” – from being made to PSAP numbers.

As noted in our earlier post, noncommercial TV and radio stations which use automatic dialing equipment in connection with their fund-raising activities will need to be careful to comply with the new rules. Historically, charitable and political organizations have been allowed to call numbers on the FTC’s “Do Not Call” list because their calls are deemed to be noncommercial and, thus, entitled to greater First Amendment protection. But the FCC’s new PSAP Do-Not-Call regime does not include any such exemption. Since it does impose very serious penalties for violations, attention should be paid by anyone using automatic dialing equipment.

While the PSAP Do-Not-Call rules were adopted by the Commission last October, they did not become effective immediately. That’s because some aspects of those rules needed first to be run through the Paperwork Reduction Act drill at the Office of Management and Budget (OMB). According to a notice published in the Federal Register, however, OMB has now signed off on the rules (principally, Section 64.1202). As a result, they have become effective as of March 26, 2013.

But just because the underlying rules are now effective does not mean that the PSAP Do-Not-Call registry is yet up and running. In its Federal Register notice, the Commission advises that, “[o]nce the operational details of the PSAP Do-Not-Call Registry have been finalized”, the Commission will be issuing a public notice alerting affected entities of the date by which compliance must begin. Check back here for updates.

Outraged FCC Takes Strong Action, Shakes Finger at Robocallers

Barred by law from imposing fines on first offenders, the agency can only issue threats.

Your cell phone rings. You pause the movie, untangle from your significant other, and stride across the room to answer it. “Hello there!” says the cheerful recorded voice. “We’re calling about your credit card! Are you paying too much interest?”

You stab at the hang-up button and head back to the couch, grumbling that there ought to be a law.

Actually, there is. You can read the FCC’s rule right here.  It’s been on the books for about ten years, based on a statute that Congress passed much earlier. Robocalls to cell phones are illegal, period (unless you have expressly agreed in advance).

So how can the robocallers keep doing it? Not only are the calls an irritant, but depending on your cell plan, you may be paying per-minute charges for the privilege of having your life interrupted. Robocalls have gotten so bad the Federal Trade Commission even offered a $50,000 prize for ideas on how to stop them.

Now, finally, the FCC has acted.

The FCC got the goods on two companies that specialize in making robocalls for other businesses. It has evidence that each made more than one million robocalls to wireless phones. Fines can amount to $16,000 per call; for a million calls, that adds up to $16 billion. In practice, of course, the FCC would not actually levy fines that high. But still, the penalties ought to be stiff. In these cases, the actual fines imposed amounted to . . . well, zero.

Not even equal to the victims’ per-minute charges.

How can that be?

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Cell Phone Unlocking: Mitchell Lazarus Sheds More Light

See and hear Mitchell Lazarus bypass his limited typing skills with a short video interview on cell phone unlocking.

Following up on his recent post on the cell phone unlocking ban, our colleague, Mitchell Lazarus, had the opportunity to speak with Colin O'Keefe of LXBN on the matter.  Happily, the interview was recorded and is now available for all to see - just click on the video below.   In the brief interview, Mitchell explains the latest developments and offers his thoughts on why Congress is likely to take action on the ban soon. 

700 MHz Recons Rejected

Better late than never, FCC tosses five-year-old petitions for reconsideration of 700 MHz rules.

700 MHz licensees who have been holding their breath and turning blue while waiting for the FCC to rule on petitions for reconsideration they filed more than five years ago may now gulp some air.   The FCC has taken a quick break from its usual tasks of unleashing broadband and unlocking spectrum to act on that lingering bit of unfinished business.  

In August, 2007, the FCC released its 700 MHz Second Report and Order (2nd R&O) establishing the critical service rules that govern licensing and operations in the 700 MHz band.   As could be expected, the 2nd R&O caused dismay to some industry players, leading ten companies to file petitions for reconsideration addressing, by our count, more than 20 different aspects of the 2nd R&O. The petitions, all filed in September, 2007, languished while the Commission conducted auctions, ultimately awarding 700 MHz licenses worth billions of dollars. In fact, so much time has gone by that the first build-out deadline for those licenses (i.e., June 13, 2013) is fast approaching. The FCC must have decided that it should probably rule on the petitions that had challenged many of the build-out parameters from the get-go.

For example, for many 700 MHz licenses, the build-out rules require that 35% of a market’s geography be covered at the first benchmark. This contrasts sharply with the usual population-based coverage requirements that apply in most other services. The distinction is critical for carriers who find themselves required to provide service to geographic areas where there are no people, often at greater expense than would be necessary to serve areas where people are actually clustered. Many 700 MHz licensees now feverishly building out their markets could have used relief from this requirement, as was requested by a number of the petitioners.

But it was not to be.

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Why It's Suddenly Illegal to "Unlock" Your New Cell Phone

White House, FCC gang up on Librarian of Congress, seek reversal of recent rule.

If you buy something, it’s yours, to do with as you want. Right?

Don’t be silly.

We first encountered the concept of limited ownership with purchases that lacked any physical existence, like e-books and online music. If I buy an online movie from Amazon, I can watch it on my Kindle Fire forever – but I can’t donate it to my local library. I can buy a book for my Kindle reader, but having read it, cannot pass it on to my wife. We don’t fully own these things because they’re not really things. They are made of bits, not atoms. What we buy is only a license for particular uses.

But when we buy an actual thing, made of atoms, then it’s ours, and we can use it in any way that we want.

Not any more. Not if the thing is a cell phone.

Most people buy a phone at much less than the real price. I paid Verizon $200 for mine, which actually costs more like $700. Over the next two years Verizon will recoup the difference out of my monthly payments. If I leave Verizon before the two years are up, they will charge me an “early termination fee” to make up the shortfall. That’s part of the deal that got me a $700 phone for $200.

But now let’s say my two years are up. The phone is paid for. My contractual obligations to Verizon are satisfied. Now I can walk away from Verizon and use the phone with Sprint-Nextel’s service instead. Right?

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FCC Form 499-A: Updated and Ready to File by April 1

The newly revised FCC Form 499-A and its accompanying instructions are now available, but some expected revisions on wholesaler-reseller USF exemption guidance are conspicuously absent.

It’s March! Spring is right around the corner, the excitement of college hoops is in the air, and you only have a few weeks left to come up with a clever April Fools’ Day prank to play on your coworkers. (If you’re short on novel – and safe – ideas, here’s a classic.) As if that’s not enough excitement, telecommunications providers get to experience the fun of preparing the annual FCC Form 499-A filing due by April 1. 

The FCC has released its annual update of the Form 499-A, including changes to the Form’s accompanying instructions. All joking aside, there really are some interesting aspects to this year’s new 499-A – including some anticipated “guidance” that is conspicuously absent. We’ll discuss that more after we cover some of the 499-A basics.

When to file? 499-A filings are due by April 1. If you’ve filed the 499-A before, you know it’s a process that has undoubtedly contributed to the madness in March. It’s as fun as filing your taxes but with virtually no possibility of getting a deadline extension. So don’t be a fool, and don’t miss the April 1 due date – the potential penalties are no joking matter.

Who has to file? With very few exceptions, telecommunications providers of all kinds must file the 499-A. This includes, for example, providers of wireless and wireline telephony, interconnected and non-interconnected VoIP service, audio bridging service, prepaid calling cards, and satellite services. A common misconception is that the 499-A and other FCC requirements don’t apply to non-voice/data services or to companies that simply buy and resell the services of other carriers. Don’t be fooled (there’s that word again): the definition of telecommunications is quite broad (basically, any transmission of information could fit) and the 499-A’s applicability is vast.

(REMINDER: The FCC’s new accessibility-related recordkeeping certification is also due by April 1. If you’re required to file the FCC Form 499-A, you’ll most likely need to also file this new certification. Sorry, not joking here, either.)

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TV "White Space" Devices Go Nationwide

New action follows December roll-out to eastern states.

TV “white space” devices, which operate on an unlicensed basis in locally vacant TV spectrum, are now authorized nationwide. This is pretty fast, by Government standards; just last December the FCC okayed the first large-scale roll-out to seven eastern states plus Washington, D.C. The class of approved coordinators for the database these devices rely on to find open channels is growing much more slowly. Also growing slowly is the number of FCC-approved devices that can use the service; we count just five so far.

Update: FCC Releases "Consumer Guide" on Cell Phone Signal Boosters

The FCC tells you what you need to know, for now . . .

Did you read our earlier post on new requirements for cell phone signal boosters? If not, you’re probably a member of Commissioner Pai’s signal-booster-ignoramus-club. (Check out his separate statement in which he opined that, “[i]ndeed, I very much doubt that most individuals will learn about these requirements [relative to cell phone boosters] in the foreseeable future.”) Presumably with you in mind, the FCC has now released a Consumer Guide on what you need to know if you currently own a signal booster.

To aid in the effort to educate the American public, we are passing this information on to you, our valued readership. So if you own a signal booster or are thinking of getting one, take a look at the Guide.

Signal booster manufacturers and cell phone service providers (including resellers) should also take a look at our original post because the new requirements will affect you as well.

The Five-Year Enforcement Shot Clock: Has the FCC Finally Begun to Acknowledge It?

Forfeiture cancellations suggest possible path to clearing backlogged complaints (and enforcement holds).

It appears that the Commission may have taken the first steps – baby steps carefully cloaked from public view, perhaps, but steps nonetheless – toward addressing its hopeless backlog of broadcast complaints. In a series of super-low-key actions in recent weeks, the Media Bureau has quietly cancelled a number of previously assessed forfeitures. The actions have been reflected in terse (and we do mean terse – check out this example) letters that provide no explanation for the cancellations. But based on the answers we got to some informal inquiries, we figure that these cancellations could be the harbinger of considerably more dramatic developments on the complaints front.

It appears that the recent forfeiture cancellations have all involved the same general fact pattern. The Bureau issued a notice of apparent liability (NAL) and/or forfeiture order for violations which occurred significantly more than five years ago. The target licensee responded by arguing that, thanks to 28 U.S.C. §2462, the FCC is statutorily prevented from collecting the fines, so they should be cancelled. That argument has been initially rejected by the Bureau in some cases (here’s an example), but the licensees have pressed their argument before the Commission in applications for review. 

And now, we understand that the Bureau has been directed by higher-ups in the agency to cancel the forfeitures in light of that Section 2462 argument. The Bureau’s cancellation letters are, we are told, the result of that direction.

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FCC Gives Cell Phones a Boost

New devices should help to eliminate “dead spots” with little risk of interference.

Despite the promise of ubiquitous cell phone coverage, we are all too familiar with the dreaded phenomenon of dead spots. Historically, cell users frustrated by that phenomenon often fought back by using signal boosters that receive and re-transmit cell phone signals to improve coverage. Recognizing the obvious desirability of boosters, but concerned about their potential for interference, the FCC has now adopted a new comprehensive regulatory approach to boosters. As a result, we can look for a new breed of consumer signal boosters hitting the market soon, probably by year’s end.

This should come as good news for consumers . . . unless you rely upon poor signal coverage as an excuse to avoid calls from your mother (shame!), have an aversion to compulsive cell-phone talkers (like some of us here), or have already purchased an existing device that’s not compliant with the FCC’s rules (in which case you may need to upgrade).

Previously, the FCC did not specifically prohibit boosters, but its rules were a bit fuzzy. For years various groups expressed concern that “unauthorized” boosters were causing harmful interference to wireless networks. To address those concerns, the FCC initiated a formal rulemaking to look into the issue in 2011. The result: two new categories of boosters, subject to different requirements.

“Consumer Signal Boosters” are “out-of-the-box” devices for personal use by individuals to improve cell coverage in a limited area, like a house, a car, an RV, a boat, etc.  “Industrial Signal Boosters” are all others.  Deployed by wireless providers, they serve larger areas, like campuses, hospitals, tunnels, airports, office buildings, etc. Since such industrial boosters aren’t significantly affected by FCC’s latest action, we’ll focus here on the new category of Consumer Signal Boosters. (Also unaffected by the new rules are “femtocells,” which connect to the network though broadband Internet access rather than licensed cell frequencies.)

Ready to get boosted?

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Ain't No Sunshine: Introducing "The Federal Communications Commission Collaboration Act of 2013"

[Blogmeister’s prologue: Kevin Goldberg has a second-to-none track record when it comes to defending the First Amendment and Open Government. Named the outstanding constitutional law student in his graduating class at the George Washington University Law School, he has served as a member of the Board of Directors of the District of Columbia Open Government Coalition, a member of the Executive Committee of the Board of Directors of the National Press Foundation, a member of the Board of Directors of the Public Participation Project and the Chair of the Legislative Affairs Committee of the Media Law Resource Center. In 2006, Kevin was inducted into the National Freedom of Information Hall of Fame for his continued and superlative service in pursuit of open government. He is the youngest of the current 56 members in the Hall. When he has something to say about the public’s right to know, we listen. Kevin has something to say about the proposed “Federal Communications Commission Collaboration Act of 2013”.

We expect some of our readers may disagree with Kevin’s views, and we expressly invite those who do disagree to share their views with us in comments, or possibly even in a guest post.]

Nearly 50 years ago, Congress passed the federal Freedom of Information Act (FOIA), giving all of us citizens access to the records of every executive branch agency (subject to nine very narrowly-construed exceptions). The FOIA embodies the fundamental premise that the public has a right to know how the government does the public’s business.

A decade later, in the wake of the Watergate scandal, Congress passed the Government in the Sunshine Act (a/k/a the Sunshine Act), again seeking to ensure the public’s right to know. (In Congress’s words, “Government is and should be the servant of the people, and it should be fully accountable to them for the actions which it supposedly takes on their behalf.”) The Sunshine Act gives us all access to the meetings of certain executive branch agencies, much as the FOIA give us access to those agencies’ written records.

Maybe not for long, though, at least as far as the FCC is concerned.

Bills proposing the “Federal Communications Commission Collaboration Act of 2013” have been introduced in Congress – as S. 245 by Senators Amy Klobuchar, D-MN, and Dean Heller (R-NV) and H.R. 539 by Representatives  Anna Eshoo (D-CA), John Shimkus (R-IL), and Mike Doyle (D-PA). Under the bills’ provisions, FCC Commissioners would be allowed to engage in a significant amount of regulatory activity outside of the public’s view.

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TVStudy: Changes in TV Coverage Calculations Devised For Incentive Auctions

OET seeks comments on alternative to traditional OET-69 methodology.

The FCC’s Office of Engineering and Technology (OET) wants to sharpen its pencil when it comes to predicting TV station coverage. The National Association of Broadcasters (NAB) doesn’t think that that’s a good idea – not just now, at least.

Who cares? You should, if you’re a full-service or Class A TV licensee about to be forced into deciding whether (and if so, how) you will participate in the incentive auction process currently being devised by the Commission.

OET has announced, pretty much out of the blue, that it has developed new software – dubbed TVStudy – which the Commission “plans to use in connection with” the incentive auctions. At issue is the way the FCC plans to utilize OET-69 in the implementation of the auction process.

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As the Blizzard of 2013 Makes Its Move, FCC Provides Emergency Response Information

With a nasty nor’easter threatening to dump its load all the way from the Great Lakes to New York and New England, the FCC has started its anticipatory disaster response. A public notice released this afternoon alerts the public that Commission personnel will be available through the weekend, 24/7, to assist communications providers as they deal with the effects of the storm.  Emergency communications providers – a universe that includes broadcasters, cable operators, wireless and wireless providers, and, of course, first responders – should contact that Operations Center if they need help in initiating, resuming, or maintaining communications operations during the weekend. The phone number for the FCC Operations Center is 202-418-1122, and its email address is

Although the public notice doesn’t mention it, folks in the storm zone might also want to take a look at the FCC’s “advisory tip sheet” on communicating during emergency conditions. The tips, developed by the Commission in partnership with the Federal Emergency Management Agency (FEMA), aren’t what you’d call radical or cutting-edge by any means, but they serve as an excellent reminder that, in emergencies, caution, cool heads and common sense are among the most useful tools available.

Historically, the Commission has also activated its Disaster Information Reporting System (DIRS) in advance of approaching major storms. Such activation has not yet been announced by the FCC (as of 4:30 p.m. on Friday, February 8), but we won’t be surprised if word comes down before too long that the DIRS is open for business. Check back here for updates.

Telecom Providers and Manufacturers: Accessibility-Related Recordkeeping and Certification Requirements Are Now in Effect

For some time already many, if not most, communications service providers and equipment makers have had to ensure accessibility to the disabled; now they’ve got to keep records of those efforts AND separately certify to the FCC that they’re in fact keeping those records.

If you happen to be subject to Section 255, 716 and/or 718 of the Communications Act, the FCC wants to make sure that you know you’ve got some recordkeeping to do – and some reporting, too. (Fuzzy on whether you’re in that club? If you are not a communications service provider or equipment manufacturer, you need read no further. If you do happen to fall into one or both of those categories, you should read on, although it may turn out that you, too, are off the hook.)

The new recordkeeping requirements – which took effect on January 30, 2013 – arise from Congress’s repeated efforts to ensure that telecommunications services and equipment are accessible to folks with disabilities. Thanks to those efforts, certain service providers and manufacturers must take affirmative steps to provide accessibility to the extent achievable. 

And now, in addition to actually taking those steps, the affected companies must also maintain records of the steps they’ve taken . . . and they’ve also got to confirm to the FCC, once a year, that they are indeed maintaining such records.

What kind of recordkeeping are we talking about?

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Update: Rural Microwave Flexibility Policy Now In Effect

Another element of the FCC’s overhaul of the wireless backhaul system is now in place.

Looks like it’s full speed ahead for another aspect of the Commission’s overhaul of the wireless backhaul regime. As we reported two days ago, the effective date of the rule requiring registration of TV pickup licenses has just been announced (that would be April 1). And the FCC has followed up with a Federal Register announcement that the Rural Microwave Flexibility Policy adopted last August – another component of the backhaul overhaul – has now been approved by the Office of Management and Budget. As a result, the Policy is now in effect.

For those not up on the details of the Policy, here’s the scoop.  Ordinarily, the FCC requires that Fixed Service licenses be able to carry a minimum payload per megahertz of radio bandwidth. But the Commission will “favorably consider” requests for waiver of those requirements if the following criteria are satisfied:

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Update: Effective Date Set for Registration Requirement for TV Pickup Licenses

Mandatory registration is one element of FCC's expansion of wireless backhaul opportunities.

If you’ve got a TV pickup license in the 6875-7125 MHz or 12700-13200 MHz bands, you’ll be needing to register your stationary receive-only sites in the Commission’s Universal Licensing System (ULS) in the near future (if you haven’t done so already). Section 74.605, the Commission’s rule requiring such registration will finally become effective April 1, 2013, according to a notice in the Federal Register.

Long in the works, the “new” requirement was actually adopted nearly 18 months ago – back in August, 2011 – as part of the Commission’s overhaul of the wireless backhaul process. That overhaul is intended to make more spectrum available for fixed wireless operations serving as the “middle mile” links that move end-user traffic between cell towers and the core network. The increased spectrum availability is to be accomplished by allowing such services to share spectrum already used by TV pickup licenses in the 6875-7125 MHz or 12700-13200 MHz bands. But effective sharing will require coordination of use of the frequencies, and mandatory registration of receive-only sites will obviously facilitate such coordination.

Of course, it’s been a good idea to register such sites for some time, as we (and our friend and reader, Dane Ericksen) were recommending nearly two years ago. The Commission has permitted ULS registration of TV pickups since 2008 as an optional aid to coordination in the band. But come April, “optional” registration will become “mandatory” registration.

The delay in making Section 74.605 effective is a bit puzzling. Since the rule constitutes an “information collection”, it had to be run through the Paperwork Reduction Act process at the Office of Management and Budget. But according to the FCC’s Federal Register notice, OMB had signed off on the rule back on March 27, 2012. Whatever the reason for the one-year hold-up in making the rule effective, though, the fact of the matter is that we now know that it will be effective on April Fool’s Day. If you’ve got a TV pickup license in the 6875-7125 MHz or 12700-13200 MHz bands and you’ve been dragging your feet as far as registration goes, now would be a good time to get that job done.

FCC Demonstrates Principle of Conservation of (Regulatory) Energy

Law of physics, FCC-style: Energy expended on international telecommunications reporting requirements must apparently remain constant

Providers of international telecommunications services may be happy to learn that the FCC has reduced or eliminated requirements to report data on international traffic, revenue and circuits.  Sort of.  By consolidating Sections 43.61 and 43.82 of its rules into a single rule (Section 43.62), the FCC claims in the public notice touting its Second Report and Order (2nd R&O) that it will “eliminate” international traffic and revenue reporting requirements for over 1,000 reseller carriers. (Facilities-based service providers should get a few breaks, too, but we won’t cover them in detail here.)

But there’s a catch (or two, or three, or four. . .) to the Commission’s broad claim of deregulation. As it turns out, the elimination/reduction of reporting requirements is balanced out by a raft of new requirements which effectively restore the equilibrium of regulatory burden because, presumably, to do otherwise might violate the laws of physics and destroy the universe.

What new requirements are involved?

First, all entities that either (a) have an International Section 214 Authorization or (b) provided any international services in the prior year will have to file a “Registration Form” and a “Services Checklist” annually by July 31. Previously, only common carriers that actually provided international services had to file anything. (This means that all holders of International Section 214 Authorizations must now file something each year. Before, by simply not providing telecommunications services, companies could obtain and retain such authorizations without necessarily triggering additional filing requirements.)

The new Registration Form shouldn’t create a huge burden. In addition to soliciting basic name/address information and a certification, it also requires a list of a filer’s International Section 214 Authorizations and cable landing licenses. Doesn’t the Commission – which granted such authorizations in the first place – already have all this information in its databases, you ask? Yes, but according to the FCC, requiring companies to report these data “will serve as a valuable check on our own records, ensuring that the filers’ records and our records agree.”

The new Services Checklist, which consists of a list of seven check boxes (two of which include two separate sub-boxes each) also seems fairly tame, for an FCC required form. Reporting entities simply designate the categories which apply to their services; entities which provided “International Communications Services Resale” (ICS Resale) and “International Miscellaneous Services” during the reporting period must indicate whether or not such services generated over $5,000,000 in revenue in the prior year. 

Simple so far.

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Telecom Tickler 2013 - CPNI Certifications Due By March 1

If you’re a telecommunications carrier or interconnected VoIP provider, now’s the time to get out your calendar, turn it to early February or so, and mark in big red letters: “CPNI CERTIFICATIONS DUE MARCH 1, 2013”. And don’t forget to follow up by that important deadline.

CPNI here refers, of course, to Customer Proprietary Network Information (but you probably already knew that), and the certifications that are due at the Commission by March 1, 2013 are required by the FCC’s rules (as you hopefully already knew as well.) The FCC has issued a convenient “Enforcement Advisory” to remind one and all of the deadline. Like similar advisories in past years, this year’s includes a helpful list of FAQs and a suggested template showing what a certificate should look like. Heads up, though – this year’s advisory specifies that CPNI includes the numbers of calls made and received; advisories in past years referred only to “phone numbers called”. Additionally, in this year’s advisory voicemail is specifically included among the services covered by CPNI.

As we have explained annually for the past several years, the CPNI rules are designed to safeguard customers’ CPNI against unauthorized access and disclosure.  The rules themselves are set out in Subpart U of Part 64 of the Commission’s rules, if you want to check them out yourself. Here’s a link that will take you there, but you might want to stock up on No-Doz® before heading there.

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Coming Soon: New Kids on the (H) Block?

Advanced Wireless Services proposed for H Block spectrum – as long as the NKOTHB are in sync with PCS

Nearly a year ago Congress passed, and President Obama signed into law, the Middle Class Tax Relief and Job Creation Act of 2012. The 47% famously referred to by former Candidate Romney may be surprised to learn that more than 53% of the text of the law dealt with matters largely unrelated to tax relief or job creation. By contrast, Title VI of the law – what we in the biz refer to as the “Spectrum Act” – comprises a whopping 55 out of the law’s 102 pages. That amounts to nearly 54% by our math (don’t worry, we used a calculator). Not surprisingly, we have reported on numerous aspects of the Spectrum Act here over the last year. 

Don’t fret if you’ve missed out – there’s plenty more Spectrum Act fun still to come.

For example, we have the FCC’s Notice of Proposed Rulemaking (NPRM), released last month and recently published in the Federal Register, seeking comment on proposed service rules for the Advanced Wireless Services (AWS) H Block spectrum. Licenses in the block are anticipated to be offered for competitive bidding in 2013.

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Administrative Alchemy Yields Gold for DISH

FCC transmutes mobile satellite licenses into terrestrial/satellite licenses.

We reported in last May’s edition of FHH Telecom Law that the FCC had proposed to alter the satellite licenses held by affiliates of DISH Network to allow terrestrial operations.   DISH had bought the licenses out of bankruptcy proceedings, the satellite-oriented mobile communications business having proven not to be a viable business model, at least in this band for the original holder of the licenses. In connection with that acquisition, DISH urged the FCC to modify its licenses to permit (in addition to the Ancillary Terrestrial Component  (ATC) of those licenses) terrestrial service without any concomitant obligation to provide satellite service. 

The FCC had already made such terrestrial-sans-satellite service possible in 2011 by reallocating the pertinent 2 GHz band to permit, on a co-primary basis, both satellite communications and terrestrial fixed/mobile communications. All that remained was for the Commission to create technical and service rules for the new terrestrial service in this band (to be dubbed AWS-4) and modify the licenses accordingly. The Commission has now done that by a Report and Order issued just in time to be placed under DISH’s Christmas tree.

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113th Congress: Cooperation and Convergence?

(Blogmeister’s Note: FHH Telecom Law welcomes back guest commentator Catherine McCullough. This month she provides her perspective on trends that will impact communications clients in the 113th Congress. Catherine is a Vice President at DCI Group where she counsels clients in federal policy matters.

The Worst Congress Ever has just wrapped up its business. Where do we go from here?

As I write this, the gavel on the 112th Congress’ last votes fell just days ago. The ignominious 112th Congress is doing its walk of shame back home from Washington and all around town its performance is being summed up: “Worst. Congress. Ever.” 

Writing about the specific telecom issues facing Congress at the beginning of the last session, I speculated that the 112th would be heavily influenced by love and money. In other words, Congress needed to confer incentive auction authority on the FCC and pass a few pro-consumer measures (involving, e.g., protection of online privacy). And sure enough, Congress did take care of the auction issue – bringing money into the Treasury seemed to be a priority.   Some progress was made on the privacy front, but not all of it through the legislative process.

But at the beginning of the new 113th Congress, rather than talk about specific issues I want to focus more on how two other trends will shape communications policy: cooperation and convergence.

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Incognito Incentive Auction Input Encouraged

Media Bureau offers tips on keeping commenters’ ID’s on the QT.

In an effort to coax otherwise reticent TV broadcasters to join in the public discussion about the Commission’s plans for incentive auctions, the Media Bureau has issued an unusual public notice providing “additional guidance” relative to the fine art of filing comments anonymously. (Exactly when the Bureau had previously provided any such guidance isn’t clear – we certainly don’t remember any – but they’re claiming that this new guidance is “additional” to something, and who are we to say them nay?)

The notice reflects the Bureau’s recognition that some, perhaps many, broadcasters might be reluctant to chime in on the auction proposals because public disclosure of auction-related sensitivities now might be disadvantageous come auction time. It’s always wise to keep your cards close to your vest, so individual TV folks might logically prefer not to reveal questions or concerns that might signal their ultimate auction strategy if and when the auction actually happens. (Even Congress, in mandating the incentive auction process in the first place, provided for confidentiality relative to some information submitted by reverse auction participants.)

Logical though that close-to-the-vest approach may be, it’s contrary to the Commission’s effort to assemble the most comprehensive record possible. As the Commission sees it, the more information it can gather relative to the interests of broadcasters now, the more likely the Commission will eventually be able to design incentive auctions that will attract maximum broadcaster participation. And the more broadcasters that participate in the auction, the greater the likelihood that the auction process will free up maximum spectrum for the Great God Mobile Broadband.

So the Bureau is making clear not only that you can file anonymously, but also how to file anonymously.

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Court Upholds FCC Role as Data Roamin' Umpire

But the opinion may indirectly threaten survival of the FCC’s “network neutrality” rule

The FCC can require mobile data providers to offer roaming arrangements, says the U.S. Court of Appeals for the D.C. Circuit. But in so ruling (in a case titled Cellco Partnership v. FCC), the court may have threatened survival of the FCC’s network neutrality rules. We’ll come back to that.

“Roaming” arrangements make it possible to use your cell phone outside your own provider’s service area. We take it for granted that a cell phone will work anywhere in the country, and usually it does. If your own provider has a tower in the vicinity, it will take the call. Otherwise, one of the local cell companies will handle the call and send the bill to your provider, which (of course) will pass the bill on you.

As to voice calls, the FCC has required roaming capabilities since the dawn of the cell phone era. No one questions its authority over voice-call roaming. But the FCC’s jurisdiction over roaming for mobile data usage – such as email, Facebook, and web browsing on smartphones and tablets – has been a matter of debate, at least until this court ruling.

Why the difference? After all, voice calls are transmitted in digital form. The technologies for handling voice and data are very similar. Why would anyone think the regulatory schemes might be different?

The answer: common carriage.

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FCC Bars Non-Emergency Robocalls to PSAP Numbers

New rules impose new obligations, hefty potential penalties, on politicians and non-profits (including NCE broadcasters) who use automatic phone dialing gear for public outreach.

Unwanted marketing telephone calls are merely annoying for most of us, but in some cases they’re actually dangerous. A marketing call that goes to a number in a 911 service center can block capacity needed for an emergency call – basically, it ties up a line that could and should otherwise be open for real emergency calls, not commercial come-ons or requests for contributions – and the results can be disastrous. 

Simply blocking “911” from automatic dialing equipment won’t do the trick. That’s because the well-known “911” is just an expedient device making it easy for the public to reach help in case of an emergency. In fact, when you dial “911,” your call is directed to a conventional 10-digit phone number at a Public Safety Answering Point, or “PSAP”. The full 10-digit numbers associated with PSAP’s aren’t generally publicized, but that makes no difference to automatic equipment that initiates marketing calls. That equipment simply dials random or sequential numbers; the odds are that such calls will hit some PSAP numbers sooner or later.

The FCC has now adopted rules establishing a new and separate “do-not-call” registry designed specifically to protect PSAP numbers from non-emergency calls. Why? Because Congress told them to do it in the Middle Class Tax Relief and Job Creation Act of 2012 – the same sweeping law that brought us, among other things, the reverse and forward auctions aimed at TV spectrum repacking. The new rules apply to both voice and text messaging calls to PSAP numbers. Congress wasn’t fooling around, and neither is the FCC. The statute mandates fines of at least $100,000 and up to $1 million per call for automatically dialed calls (“robocalls”) directed to PSAP numbers. Telemarketers must check the FCC’s database at least once every 31 days.

We hope that most, if not all, of you are familiar with the “Do Not Call” list created several years ago by the FCC and Federal Trade Commission (FTC). You can put your home number on the list at (some 209 million numbers have been registered). Telemarketers (at least those who observe the law) are not allowed to call numbers on that list.

But the FTC’s “Do Not Call” list doesn’t stop all uninvited – and possibly unwanted – calls.

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Update: Incentive Auction Comment Deadlines Extended

Overwhelmed by the enormity and complexity of the Incentive Auction NPRM (which it took us six – count ‘em, six) separate posts to summarize)? No problem. Thanks to the NAB and CTIA-The Wireless Association®, who jointly requested more time, the FCC has extended the deadlines for comments on the NPRM. Mark your calendars: comments are now due by January 25, 2013, and reply comments are due by March 12.

Inside the Incentive Auction NPRM (Part 6): Reconfiguration for Wireless - The Final Step

[Blogmeister’s Note: This is the last in a series of posts describing the FCC’s Incentive Auction Notice of Proposed Rulemaking. You can find all installments in this series by clicking here. Contributors to this series include Dan Kirkpatrick, Rob Schill, Don Evans and Harry Cole.]

Once the “reverse” and “forward” auctions have both been completed and TV licenses have all been tucked away in their newly-compacted space, the fun will really begin for the Commission.

Once the “reverse” and “forward” auctions have been completed and the broadcast TV industry has been repacked, the FCC will finally be able to reconfigure the vacated UHF spectrum for mobile. But determining, now, precisely how that reconfiguration will ultimately look, then, poses a unique challenge in view of the number of unknowns currently in play.

Until the “reverse” auction is completed, questions will remain regarding the amount of spectrum that will be available for reconfiguration, the particular frequencies comprising that available spectrum, and the geographic locations covered by that spectrum. Therefore, the band plan described in the Incentive Auction Notice of Proposed Rulemaking (NPRM) is more of a “framework” based on the expectation of cleared frequencies. In admirable bureaucratese, the NPRM describes its goal as “a band plan that balances flexibility with certainty.” 

The certainty includes proposing a fixed amount of downlink spectrum nationwide with uplink spectrum possibly varying in different geographic areas. The idea is to best utilize what are expected to be varying amounts of cleared spectrum in different geographic areas. By providing uniform downlink spectrum throughout all geographical areas, the Commission hopes to assure a more interoperable universe at the device level, where each mobile device can use the same receive filters while the carriers’ base stations can be modified to allow for multiple uplink spectrum signals. A level of interoperability at the device level is expected to lead to lower device costs while allowing for greater economies of scale. 

Consistent with the uncertainties surrounding the final reconfiguration process, the Commission advises that its general “focus” is on five “key policy goals”, to wit: utility, certainty, interchangeability, quantity, and interoperability.

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Inside the Incentive Auction NPRM (Part 5): The "Forward" Auction

[Blogmeister’s Note: This is another in a series of posts describing the FCC’s Incentive Auction Notice of Proposed Rulemaking. You can find all installments in this series by clicking here.Contributors to this series include Dan Kirkpatrick, Rob Schill, Don Evans and Harry Cole.]

The “forward” auction to be used to dole out reconfigured spectrum to wireless operators may seem traditional, but watch out. 

If the “reverse” auction designed to clear TV broadcasters out of large chunks of their current spectrum isn’t complicated enough, consider the “forward” auction. That’s the component of the Incentive Auctions in which hopeful wireless licensees will bid on the to-be-vacated spectrum sight unseen at the same time that the spectrum is being cleared. Because the availability of wireless licenses is dependent upon the results of the reverse auction in different geographic areas, wireless bidders won’t know exactly which spectrum band they’re bidding on or even whether any band will actually be available when the reverse auction is over. 

This double helix of descending bids on spectrum simultaneously coupled in sequential stages with parallel ascending bids on that same spectrum is audacious. But it is theoretically an efficient and quick way of re-assigning a precious resource.

Complexity in the computer age is not necessarily a deal breaker, but human (and computer) fallibility gives us some pause about this plan. Through the Incentive Auction Notice of Proposed Rulemaking (NPRM), the Commission is still looking for input on its plan, so we can expect experts from the world of Academia to chime in knowledgeably on the concept. 

In the meantime, we lay out here the Commission’s preliminary thoughts. The three basic auction design elements are: bid collection procedures, assignment procedures, and pricing.

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Inside the Incentive Auction NPRM (Part 4): TV Repacking - The Practical Side