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

New BIP deadline: March 29; New BTOP deadline for CCI projects: March 26

NTIA and RUS have announced extensions of the deadlines for some, but not all, submissions in response to the Second Notice of Funds Availability (NOFA) issued as part of the Big Money Hand-out made possible by the American Recovery and Reinvestment Act of 2009.  Applications for Broadband Initiatives Program (BIP) funding will now be due at RUS by 5:00 p.m. (ET) on March 29, 2010. Applications for Comprehensive Community Infrastructure (CCI) projects under the Broadband Technology Opportunities Program (BTOP) will now be due at NTIA by 5:00 p.m. (EDT) on March 26, 2010. 

It’s not clear why one agency opted for March 26 while the other opted for March 29, but would-be applicants should be sure to note that the deadlines for NTIA and RUS applications responsive to the Second NOFA are no longer identical.

Also, the extensions do NOT apply to requests for NTIA/BTOP funds for Public Computer Center projects or Sustainable Broadband Adoption projects. The deadline for applications for such projects remains 5:00 p.m. (EDT) on March 15.  Check out our blog post about the Second NOFA for further details about the different types of projects.

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Chairman confirms upcoming effort to re-purpose TV spectrum for mobile broadband

For several months now the question on many TV broadcasters’ minds has been: will they or won’t they take away my spectrum and turn it over to smartphones? And while various FCC higher-ups have dropped conflicting hints about what the answer might be, the fact is that no one has expected to know for sure until the release (currently set for March 16) of the FCC’s National Broadband Plan (NBP).   But late this month Chairman Genachowski tipped the Commission’s hand, albeit without adding much practical detail. 

The FCC’s answer appears to be: TV spectrum is not being used efficiently, and would be better allocated to mobile broadband use, so the FCC plans to devise some mechanism to encourage TV licensees to cough up some or all of their spectrum in return for the prospect of taking home some portion of the proceeds when their spectrum is auctioned off for broadband.

According to the Chairman, the NBP will call for the “freeing up” of 500 MHz of spectrum over the next decade.  And one way the FCC hopes to achieve that, at least in part, will involve “establish[ing] market-based mechanisms that enable spectrum intended for the commercial marketplace to flow to the uses the market values most.” 

Can you spell “a-u-c-t-i-o-n”?

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Proposals are intended to make FCC proceedings more efficient and transparent, and less prone to abuse.

Those of us charged with getting the FCC to do things – issue licenses, grant waivers, cancel fines, all of that – are vitally interested in the fine points of FCC procedures, because understanding them can spell the difference between success and failure.  Just as no one would sensibly sit down to a game of poker without knowing that three of a kind beats two pair, no competent practitioner would take on the FCC without knowing the somewhat more complex rules of that agency’s regulatory game. And, sometimes, part of the job lies in knowing how to navigate those rules most advantageously.

So we take notice when the FCC proposes to change its procedures, as it did in two recent Notices of Proposed Rulemaking (NPRMs).  By and large the amendments are meant to serve laudable goals:  to make FCC proceedings more efficient and transparent, and to forestall some of the more common forms of abuse.

One NPRM proposes internal housekeeping changes which would:

• allow the staff (in place of the full Commission) to dispose of frivolous or repetitive requests for reconsideration;
• allow the FCC to amend  an action (as well as to set it aside) within the first 30 days;
• expand the use of electronic filing and notification;
• close some of the 3,000+ dockets that have become inactive;
• split overly large dockets; and
• clarify the effective date of new rules.

In a separate NPRM, the FCC takes on the always-controversial subject of its ex parte rules.

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Billions in broadband stimulus cash up for grabs – Deadline for applications: March 15, 2010

In the American Recovery and Reinvestment Act of 2009, known to some as the Gravy Train Act, but more generally known as the Stimulus Act, Congress allocated $2.5 billion to the Rural Utilities Service (RUS) and $4.7 billion to the National Telecommunications and Information Administration (NTIA). The money was to be doled out, in the form of grants or loans, to worthy projects designed to bring new or improved broadband service to America. As we reported last year, NTIA and RUS originally planned to make these awards in three tranches beginning in June, 2009 and ending before the September 30, 2010 award deadline imposed by the Stimulus Act.

Unfortunately, it’s harder to give out millions of dollars than you might expect. So far these agencies have managed to open only one application tranche, and have issued only a handful of grants.   Of course, they did get far more applications (2,200) than they had expected, which slowed things down. And the applications themselves required vast amounts of supporting data that was onerous in the extreme (the word “overkill” comes to mind) that had to be generated by the applicants and digested by the agencies. That slowed things down, too.

With the September 30 deadline fast approaching, each of these agencies has issued a second “Notice of Funds Availability” (NOFA) to distribute the remaining Stimulus Act funds for broadband projects.  Given the time constraints and the amounts of money already applied for, the third application window has been eliminated – meaning that this is the last opportunity to make a grab for any of this stimulus cash.    The deadline for filing applications for these funds is March 15, 2010. While applications can be submitted as early as February 16, there is no advantage in filing early other than beating the last minute rush.

Even if you are familiar with the NOFAs issued last year for the first tranche of funding, you still need to study these new NOFAs closely, because substantial changes have been made to the funding programs. Happily, many of these changes simplify what was universally understood to be an unnecessarily complex application process developed for tranche 1. Other changes relate to the prioritization of the awards.

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* (With a two-year contract. Fees may apply.)

You know those pesky penalties the cell phone companies impose when you cancel your service before the contract period has expired?  How they keep you from switching providers even when the service turns lousy or the competition offers a better deal? Or a better phone? To folks in the biz, those are referred to as Early Termination Fees (ETFs), and they’re back under the FCC’s microscope.

Cell phone companies offer deep discounts on the phone du jour, but only if the customer signs up for a one- or two-year contract, during which the company recoups the subsidy (and more) from monthly charges. Locking the customer into the contract is an ETF that can range up to $350. Worse, the ETF often remains at the full amount up to the last day of the contract period. Customers have complained their company charges the fee even when they move to an area the company doesn’t serve.

Back in December, we reported that the FCC had put Verizon’s ETF in its crosshairs after public outcry moved Congress to act, or to at least to threaten action. The FCC asked about Verizon’s customer notification policy on ETFs: what do the customers know and when do they know it?

Recently, the FCC widened its scope to include AT&T, Google, T-Mobile, Sprint, and another letter to Verizon. The first, Verizon-only, round of questions focused on how the consumer learns about the ETFs. Now the FCC is interested in how the ETFs are calculated, how they are applied to various phones and service plans, whether (and how) ETFs are prorated, and whether it possible for consumers to avoid ETFs altogether.

The companies’ responses are due by February 23, 2010.

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FCC adopts new Cuba policy, finally!

Our last report on Cuba ended with a cliffhanger: the Department of the Treasury's Office of Foreign Assets Control (OFAC) and Commerce's Bureau of Industry and Security (BIS) had eased their Cuba regulations with respect to telecommunications, but the FCC was clinging to its 16-year old, highly-restrictive policy. It turns out that the FCC was waiting on word from the State Department—and once that word rolled in, the Commission moved quickly. 

On January 12, 2010, FCC Chairman Genachowski received a letter from the State Department rescinding its 1993 policy letter and setting out new policy guidelines.  Sure enough, a scant nine days later, the Commission issued a Public Notice modifying its process for applications for service to Cuba. While the most burdensome restrictions from the old regime have been removed, applicants looking to serve Cuba should be aware of the following:

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With “Reboot.FCC.Gov”, FCC solicits public input to improve public interaction with agency

Depending on who you ask, 2010 may or may not be the start of a new decade. Depending on who answers, 2010 may or may not be the start of a new FCC. That’s because the FCC is relying on you (and you and you, the guy in the brown shoes reading this during his lunch break) to help decide on the direction in which the agency should be moving. They’ve labeled this process “Reboot.FCC.Gov” and, like all the kids are doing nowadays, they’ have not only set up a website at that domain, but also tied the whole thing together with the Blogging, and the Twittering and the Facebooking and the YouTubing (there’s a bunch of other social media connections as well, including, for some reason MySpace, in case the next big indie band wants to participate).

A more conventional format was used to launch the rebooting process on January 13: a press release (the website does contain a one minute “welcome” video from FCC Chairman Julius Genachowski).  As that release explains, the Commission is “soliciting public input on ways to improve citizen interaction with the FCC.” The Chairman elaborates on this, explaining that the goal is to “get input from all corners of the country on ways to improve usability, accessibility, and transparency across the agency.”

The project’s efforts focus on five key elements:

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It’s that time of year again – no, not tax time (well, not quite), but rather time to file annual Customer Proprietary Network Information (CPNI) certifications with the Commission. And just to make sure that the deadline is clearly highlighted on everybody’s “to do” list, the FCC has released an “Enforcement Advisory” reminding telecommunications carriers and interconnected VoIP providers that their CPNI certifications are due by March 1, 2010 (although they can be filed any time after January 1, 2010). 

CPNI is information relating to the quantity, type, destination, location, amount of use and configuration of service provided to telecom users. While it’s the kind of data that is collected routinely by carriers in the ordinary course of their business, it is nevertheless very private information – as the FCC has recognized in Subpart U of Part 64 of its rules. That subpart requires carriers and interconnected VoIP providers to establish and maintain systems designed to ensure that subscribers’ CPNI is adequately protected. 

And since the FCC is not in a position to inspect each and every company in order to confirm compliance with the rules, the Commission has dumped that particular monkey onto the backs of the companies themselves.  Each year telecommunications carriers must certify that they have established appropriate procedures and processes to protect CPNI. The certificate must include a description of how the procedures ensure that the responding company is or is not in compliance with the CPNI rules and must include a summary of all consumer complaints about unauthorized release of CPNI. It should also explain any actions taken against data brokers. And a detail which is often overlooked: the certification must be signed by a company officer who must affirmatively state that he/she has personal knowledge that the CPNI safeguards which have been established are adequate to ensure compliance.

Who has to file?

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Enforcement Bureau throws the (phone) book at convenience store

On January 14, just beating the expiration of the statute of limitations to punish offenders, the FCC’s Enforcement Bureau issued a spate of fines and citations against companies which had failed to file Hearing Aid Compatibility (HAC) Reports.   While the Bureau’s actions to some extent targeted the usual suspects (equipment vendors and carriers), they also, perhaps unwittingly, threatened a vast new class of businesses with regulation and enforcement actions. And by doing that, the Bureau also may have started a domino effect likely to lead to the elimination of the near-ubiquitous availability of prepaid phones and phone cards.

Despite the dire (and probably unforeseen, at least by the Bureau) consequences of its action, this whole affair started from good intentions. The Commission is rightly sensitive to the needs of the hearing-impaired. Because of that, the FCC’s rules contemplate that telephone equipment manufacturers will produce, and telecommunications service providers will make available to the public, a significant stock of cellphone handsets that are compatible with hearing aid devices. No problem there. And to keep everybody honest (in a “trust but verify” mode), the Commission requires all phone manufacturers and service providers to submit HAC reports on January 15 of each year, detailing their compliance with the handset stocking rules. Since these rules came into effect a few years ago, the FCC has taken an extremely harsh and unforgiving attitude toward carriers who fail in the slightest measure to meet the requirements of the rules.  

That harsh approach was evident in the fact that, among the Bureau’s targets was Firefly Mobile Communications. Firefly is a conventional telecommunications service provider, to be sure, but it was actually exempt from complying with the substantive handset stocking rules because it sold so few of them. Even so, Firefly was not exempt from the requirement to file an HAC report, so the Bureau slapped it with a citation and threatened to impose a fine if it fails to file the report again. (A “citation” is the FCC equivalent of a cop issuing you a warning rather than a speeding ticket; for some categories of offenders, the FCC is required to first issue such a warning before it can impose an actual fine.)

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Agency addresses spread of digital voice technology 

The telephone system formerly relied on the technology called “circuit switching”: by dialing a number, a caller caused the equipment to set up a temporary, private connection with the person being called. This is inherently an analog technology. Now, however, calls are increasingly carried in data packets moving over heavily shared facilities, either the on public Internet or on private networks that operate in much the same way. But the FCC rules are still geared to the old analog circuit-switched system. They are not well suited to handling IP-related innovations like VoIP and Google Voice. Recently we harrumphed that these advances would soon trigger the need for a regulatory overhaul.

Either our harrumphings carried across the Potomac, or else (and more likely) the people at the FCC saw the same facts we did and reached similar conclusions. The FCC has now released a short public notice with the momentous title, “Comment Sought on Transition from Circuit-Switched Network to All-IP Network.” It solicits input on the contents of a possible future Notice of Inquiry. Responses to the NOI in turn would inform a Notice of Proposed Rulemaking. And comments in response to the NPRM would help the FCC to formulate new rules. With three comment cycles planned, and allowing a year or two for each, the rules will take a while. (If you’re inclined to stake out your position early in the process, the deadline for responding to the initial comment invitation is December 21, 2009.)

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Treasury and Commerce Departments relax Cuba rules for telecommunications providers, but FCC not yet on board

Mojitos, plantains and panatelas, here we come! Cuba has been re-opened for telecommunications transactions with U.S. companies . . . at least as far as two important agencies are concerned.

Back in April, President Obama directed the federal agencies that administer the longstanding U.S. embargo against Cuba to “reach out to the Cuban people” by liberalizing the rules governing telecommunications to and from Cuba. And while his directive seemed to suggest that things should change immediatamente, it took until July to get things largely teed up, and even then an unexplained last minute delay added two more months to the process. But in September, two of the federal agencies that have historically administered the U.S. embargo against Cuba – Treasury’s Office of Foreign Assets Control (OFAC) and Commerce’s Bureau of Industry and Security (BIS)—relaxed their regulations. As a result, U.S. companies may now: enter into transactions for telecommunications service to and from Cuba; build telecommunications facilities to Cuba; and export telecommunications-related goods to Cuba – all without the need to obtain specific approval in advance. And get this – the new rules authorize travel to Cuba that is incidental to these approved activities. Vamonos, amigos!!

Heads up, though. One communications-related agency has taken a more, er, languid approach to El Presidente’s directive.

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One of the things that gripes an awful lot of people is the so-called early termination fee, or ETF, which you have to pay if you try to cancel your cellphone contract before two years are up. It is usually about $200, so if you are a Verizon customer drooling to get an iPhone, you are out of luck and can’t move over to AT&T unless you are willing to pay the piper’s penalty.

There is another side of the story, of course. Cellphone companies offer handsets at subsidized prices – below what they really cost – to woo customers. If you accept the subsidy, you should at least keep buying the service for a while, so that the carrier can recoup its investment in your whiz-bang phone toy. If you prefer not to subject yourself to an ETF, you can usually do so, but then getting the phone you want will cost you more. Because the cellphone companies make the deep discount on the phones so attractive, most people go for the ETF, which is, of course, exactly what the phone companies hope to accomplish: they get their hooks into you as a customer.

So many people got stressed out about ETFs, though, that Congress finally threatened to pass a law about them. Exactly how that would have shaken out we can’t say, because the cellphone companies made a pre-emptive strike by pro-rating their ETFs. In many cases, the fee goes down a little each month and is smaller in the final few months of your contract. Congress quieted down after that, even though the ETF stays high enough to cause indigestion when you have only a month or two to go before true freedom is yours.

However, quiet rarely endures.

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Another step closer to mobile spam?

Back in September we wrote about a petition for declaratory ruling filed by Club Texting, Inc., which appeared to be anticipatorily seeking a Get Out Of FCC Jail Free card for itself and others engaging in “text broadcasting”.   Deadline alert!!!  The FCC has just invited the public to comment on that petition. In a public notice issued November 9, the Commission summarizes Club Texting’s petition, and then opens the door for the Great Unwashed to chip in their two cents’ worth. Comments on the proposal are due by November 30, reply comments by December 7.

Curiously, the FCC’s public notice does not provide a link to Club Texting’s petition. Such a link would certainly come in handy to anybody who might want to take the Commission up on its invitation to submit comments. Even more curiously, when we went out to the FCC’s ECFS to try to track down the petition, we couldn’t find it – even using the spiffy new ECFS interface. No problem – we tracked down a copy of the petition  and are providing the link, above, as a public service.

The Commission’s notice tersely echoes the general points advanced by Club Texting in its petition. What the notice doesn’t emphasize is that “text broadcasting” is pretty much the same as (or, as Club Texting describes it, the “functional equivalent” of) that scourge of the late 20th Century, junk faxing. (Not surprisingly, Club Texting prefers the more benign term, “fax broadcasting”.) Nor does the public notice mention that Club Texting is touting, on its website, the fact that it has over 60 million cellphone numbers that it can make available to its customers who might want to text their important messages to some, or all, of those 60,000,000 phones. The Commission probably didn’t mention that factoid because Club Texting didn’t mention it in its petition.

Anyway, if you feel moved to comment on Club Texting’s petition, you’ve got until November 30.

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An FCC letter shows why new phone services like Google Voice must soon trigger a regulatory overhaul.

An innocuous-looking letter from the FCC to Google marks the beginning of the end of the telephone system we have known for the past 130 years.

The old phone system, the one started by A.G. Bell and still in use today, has a dedicated connection between each pair of people talking to each other. Whether plugged in by a switchboard operator, in the early days, or dialed by the user, later on, whether carried by copper wire, microwave radio, satellite signal, or fiber-optic cable, every individual phone conversation has its own separate circuit which is (a) set up for just that one call and (b) taken down when the parties hang up. This is called a “circuit-switched” system.

The FCC has regulated this set-up since 1935. The details evolved over the decades. But the FCC rules, then and now, have always been geared specifically to a circuit-switched system.

One element of these rules recently became controversial. When you place a long-distance call to your Aunt Mildred in Boston, say, you pay the long-distance carrier, and it in turn pays the Boston phone company to accept the call and ring Aunt Mildred’s phone. In telephone-speak, the money changing hands is called an access charge for terminating the call. It is an important source of revenue for local phone companies. If Mildred lives in rural South Succotash, the access charges are higher, because it costs more to run a phone system where the customers are farther apart.

The differences in access charges present an opportunity for abuse. Some companies that generate a lot of inbound long-distance traffic, like conference-call bridges and sex-call services, deliberately locate in rural areas. The incoming calls then generate high access-charge revenues for the local phone company, which may split the take with the conference-call or sex-call provider. The practice is called traffic pumping. For now, at least, it is legal.

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FCC public notice attempts to squelch Internet rumor, but recent request for declaratory order sends a different message

Responding to a rumor that has already been circulating on the Internet for five years or more, the Commission has issued a public notice which – you should probably be sitting down for this one – denies the accuracy of the rumor! It’s charming, in a kind of down-home-folksy way, that the FCC thinks that, with the issuance of a one-page notice, it may be able to Set the Record Straight, freeing countless naifs from misinformation which the Internet-fanned rumor has forced them to embrace.

According to the notice, the “rumor”, circulated “mostly by e-mail”, warns that “a nationwide directory of cell phone numbers will be made available to telemarketers, and that consumers will start receiving telemarketing calls on their cell phones.” The Commission assures us that “[t]here is no truth to this rumor”.

But as it turns out, the “rumor” may not be too far from the truth.

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(Alternate title: Jammin’ With The Cell Boys)

We have previously reported (here and here) on various aborted efforts of a company called CellAntenna to conduct tests of cell phone jamming technology around the country, including here in Washington, D.C. CellAntenna seems to have gotten the support of many state correctional officials to test its method of jamming cell phone calls made from prisons – that is, calls made on cellular phones, not calls from prison cells.   Such calls are a continuing headache to the corrections communities, who would dearly love to jam them. The problem is that the jamming technology tends to interfere with spectrum licensed to cellular and PCS carriers who are gravely concerned that other legitimate cell phone calls in the vicinity of prisons will be interrupted. More broadly, the cellular community is worried that this jamming technology could spread like the swine flu to concert halls, schools, libraries, etc., resulting in general disruption of cell phone traffic over their networks. So they have vigorously opposed real world testing of the CellAntenna equipment, even when the FCC has been somewhat willing to accommodate the tests.

Now a company called Telcore Networks seems to have gotten all parties on board. On September 1 the FCC gave Telcore an experimental authorization to test its jamming technology at the Maryland State Correctional Facility in Jessup, Maryland.  Telcore’s device apparently jams only the bad calls (those from prisoners) while letting the good, legitimate calls go through. Telcore worked with the prevailing cellular carriers in the vicinity to ensure that no interference to normal traffic would occur, and the carriers’ consent and cooperation with the test was no doubt key in getting FCC approval. It was not clear from publicly available material how the good will be separated from the bad (this side of Judgment Day, anyway), but the technology – if it works – may provide a means of dealing with a problem weighty enough to earn Congressional hand-wringing and proposed legislation. The frequencies on which the experiment are authorized include 824 -829 MHz, 869-894 MHz, 1850-1910 MHz, and 1930-1990 MHz. The test will be conducted on September 3, so interested parties expecting phone calls from prisoners in the Jessup facility on that day may be disappointed.

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It’s official! The FCC has formally announced that the deadline for reg fees this year will be 11:59 p.m. (ET) on (drum roll . . . fanfare) September 22, 2009. But why wait until then? The teller windows are now open at Fee Filer, so why not avoid the late September rush and check this chore off your to-do list right now.

The newly-officialized deadline is indeed the same as was reflected in the reminder letters received by many a week or two ago. While we had informally heard from a Commission staffer that that date might get moved a tad, that plan apparently got nixed – possibly because of the potential for confusion that it reeked of.

When you do pay your reg fees – and, given the penalities for non-payment, there really is no option here – don’t forget to include payments for all your auxiliary licenses. The reminder letter sent out by the Commission lists only your main channel(s), and leaves it to you to track down those pesky auxiliaries (the fee for which is $10 each). While the 25% late charge on a $10 fee may not look bad, the other, non-cash, penalities – including possible red-lighting – should be scary enough to get you into ULS tout de suite to doublecheck your list of auxiliaries against what the FCC thinks you have.

We here at Fletcher Heald will be happy to assist in getting reg fees paid. Let us know if we can help.

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You may be getting a letter from the FCC in the next couple of days (if you haven’t already) alerting you to the deadline for this year’s regulatory fees.  That letter – which will not bear any signature of any FCC official or identify any originating office within the FCC – will probably say that the deadline is September 22. 

Don’t necessarily believe it.

 We have been informally advised by the Commission’s staff that the letters were prepared and shipped out by an outside company to which the FCC had given the September 22 date some time ago.  But in the meantime, the Commission’s staff has apparently determined that either September 23 or 24 might be a better date.  We are told that an official notification – including a banner to be prominently displayed on the FCC’s website – is in the works.  Of course, the final date may turn out to be September 22 after all, just like the letter says.  Sometimes you never know about these things.

Needless to say, whatever the final deadline might be, you are not required to wait until the very last minute to file your fees.  Au contraire.  You should feel free to file your fees at your earliest convenience.  As far as we can tell, the fees specified in the letter notifications that got sent out may be correct (although, as we have previously warned everyone, those notifications do not include fees for any auxiliary stations).  In other words, with the letter in hand you should be able to figure out what you owe.  So you might even be in a position to file your fees today.

Not. 

Unfortunately, as it turns out, the Commission’s Fee Filer system has not yet been set up to accept this year’s reg fees.  And, as we have previously reported, all reg fee filers this year must start the payment process through Fee Filer.

When will you be able to file your fees?  When will you have to file your fees?  At this point nobody seems to know for sure.  We expect all of these questions to be cleared up reasonably quickly.  Check back here to CommLawBlog for updates on getting your reg fees filed.

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DTV-only as of October 1, 2008? This is your lucky fiscal year!

While pre-October 1, 2008, termination of analog operation was clearly the exception rather than the rule, it appears that stations which did shut down their analogs before October 1 are getting a free reg fee ride this year. In looking through the Commission’s recent reg fee order, we noted the following statement relative to DTV operation: “[S]tations that were broadcasting in digital only on October 1, 2008 would not be assessed regulatory fees for their digital license for FY 2009.”  (Stations that were broadcasting in both analog and digital modes as of October 1, 2008, however, will be required to pay regulatory fees, but those fees relate only to the analog operation.)

This exemption is limited: it does not get eligible stations off the hook for other regulatory fees that may be due, such as those for studio-transmitter links, remote pick-ups, satellite earth stations, and the like. Rather, the exemption relates only to the reg fee for the main broadcast license. (Of course, the payment for that license normally represents the lion’s share of the amount due.)

The FCC’s largesse is consistent with its treatment of DTV for the past several years.

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Filing deadline still unannounced

The Commission has adopted its final schedule of Regulatory Fees for 2009. You can find the new fees listed in Appendix C of this Report and Order. (Since the R&O – including its nine appendices – runs to 68 pages, it may be helpful to point out that Appendix C appears at pages 21-23 in the PDF version you will find when you click on the link.)

The new fees are, with one exception, the same as the Commission proposed last May. We described those proposed fees here. The sole exception is the fee associated with AM CPs. Here’s a surprise: the final fee ($400) turns out to be $80 less than the FCC had originally proposed!

The only real change this year is that electronic payment of all reg fees must be started through the FCC’s Fee Filer system as of this year. The Commission recognizes that some folks may not be able actually to pay through the Fee Filer system. (For example, the fees for some licensees may exceed $100,000, and credit card payments in such amounts may not be a happening thing.) But at a minimum, everybody is supposed to start at Fee Filer because that will enable them to generate a voucher Form 159-E which, the Commission assures us, “will have important electronic attributes associated with this regulatory fee payment.” With very limited exceptions, anyone not paying their fees through Fee Filer will need a voucher Form 159-E to accompany their payments.

Accessing the Fee Filer system requires you to have a current FCC Registration Number (FRN) and associated password. If you don’t have an FRN, we would be happy to help you work through the CORES system to get one.

As it has done for the past five years, the Commission will again send out “assessment notifications” to all broadcast licensees, advising them of the reg fees associated with their primary licenses. But, also as in past years, those notifications will NOT include any necessary fees for auxiliary licenses. This is important to remember, because even though auxiliary fees don’t show up on the FCC’s notifications, such fees are still required to be filed – and a failure to file even the weeny little $10 fee for, say, a remote pickup unit can result in “red light status” affecting all your licenses.

We expect the deadline for reg fees to be announced shortly.  Check back here to CommLawBlog.com for updates.

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It looks like the Obama Administration’s effort to open the door for U.S. companies to provide telecom services in Cuba has taken a step forward, and then a step (or maybe just half a step) back. But either way, there appears to have been movement recently – enough to justify this reminder to keep on your toes if you’re thinking about moving into the Cuba market.

Last April the Administration announced its intent to lift many of the longstanding U.S. sanctions against Cuba.  On the telecom side, the Secretaries of State, Treasury and Commerce were directed to enable providers to: enter agreements to establish fiber-optic and satellite links between the U.S. and Cuba; enter roaming service agreements with Cuban telecom providers; provide and pay for telecom, satellite radio and television services for Cuban customers; and export certain donated communications devices.

The Office of Foreign Assets Control (OFAC) began crafting new regulations immediately to effectuate the President’s directive.  We spoke with an official in OFAC’s Licensing Division on July 17, 2009, and were told that those rules have been finalized and delivered to the White House. 

That’s the good news.

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Expanded conditional license opportunities, greater tolerance for adaptive modulation in the works

Microwave radio serves as the nation's nervous system. (Microwave ovens, a different technology, take care of the stomach.) These radios operate through the ubiquitous sideways-facing dishes and domes on radio towers, water towers, and tall buildings. Their signals regulate the movements of railroad trains, control the electric grid and natural gas and oil pipelines, carry long-distance telephone calls and Internet traffic, transport TV programming to cable systems, send 911 messages to the local police station, deliver cell phone calls to the towers, tell the ATM your bank balance, and carry vast amounts of data that fuel ordinary businesses nationwide.

Many of these systems operate at availability levels in excess of 99.9999% (“six nines,” in industry parlance). This allows for outages adding up to no more than 30 seconds per year – not bad for systems that sit high up outdoors, exposed to the weather year round.

The FCC is considering three changes that would help improve the operation of these systems.

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The Commission has released its Notice of Proposed Rulemaking (NPRM) laying out its proposed 2009 regulatory fees. To no one’s great surprise, for the second year in a row all but one of the 61 categories of broadcast-related fees are proposed to go up. (The lone exception is the fee for a broadcast auxiliary license, which – also for the second year in a row – is proposed to remain at $10.) The proposed fees are listed in Appendix I to the NPRM.

And when we say “up” we mean “UP”. Reg fees for all full-service TV licenses in the Top 100 markets would increase by more than 9%, with UHF stations in the Top 10 going up by more than 14% and VHF’s in Markets 11-25 up by more than 13%. 

On the radio side, Class C AM’s in all markets are looking at double digit surges mainly in the 13%-14% range (and as much as 15.4% for stations serving populations of 25,001-75,000). Class D AM’s would fare only slightly better, with increases in the 11%-12% range (except for those serving fewer than 25,000 listeners – they’d only get whacked for a 9.5% increase). All FM stations are looking at reg fees that would be 5%-9% higher than last year.

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It appears that the Commission’s technical team has successfully resolved the problem reported in our last update. Recent anecdotal observations indicate that the “new” application filing fees – you know, the ones which were adopted by the Commission last September, and which officially went into effect on April 28 – are finally being automatically generated by the Commission’s CDBS on-line application filing/fee payment systems.  (No word yet on whether the problem has been resolved on the Commission’s IBFS database.)

As recently as May 11, a glitch in the system was resulting in licensees being prompted to pay the old, lower, fees.  But as we reported then, the Commission will not be giving a free pass to those who paid the incorrect fees during this time.  The Commission may approach each licensee individually to request the difference in fees, or may announce a set of procedures for licensees to submit the additional fees.

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FCC invites comments on birders’ proposals regarding tower approvals

If you think you might be needing to build a tower in the next several years, listen up. The birding lobby has opened a new offensive in its long-running effort to force the FCC to give greater consideration to bird-related concerns when it authorizes tower construction.

Recently, the Commission invited comments on the following proposals advanced by the birders:

• Amend the Commission’s environmental regulations so that exclusions from those rules are available only for FCC actions that have no significant environmental effects individually or cumulatively;
• Prepare a programmatic environmental impact statement addressing the environmental consequences of the Antenna Structure Registration (ASR) program on migratory birds, their habitats, and the environment;
• Promulgate rules to clarify the roles, responsibilities and obligations of the Commission, applicants, and non-federal representatives in complying with the Endanger Species Act (ESA); and
• Consult with the U.S. Fish and Wildlife Service on the ASR program regarding all effects of towers and antenna structures on endangered and threatened species; and
• Complete the proposed rulemaking in the Migratory Birds Proceeding to adopt measures to reduce migratory bird deaths in compliance with the MBTA.

Oh, and did we mention that all of these proposals are supposed to be implemented on an expedited basis?

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Faithful readers will recall that we titled the last installment of our “Pursestrings Updates” series the “final chapter”. We spoke too soon. 

On April 28, the Commission’s new application filing fees finally went into effect, after a series of delays about which we dutifully reported here . . . and here . . . and here  . . . and, well, you get the point.  We figured that, with its formal announcement of the April 28 date, the FCC had things under control.

We should have known better.

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First reaction to the Big Decision

[Blogmeister's note: Our crack team covered the oral argument in Fox last November, and will be providing additional coverage of the Court's decision released April 28.  The following is one commentator's view of the landscape.]

The Supreme Court has issued its long-awaited decision in FCC v. Fox Television Stations, Inc., the case involving the application of the FCC’s indecency policy to “fleeting expletives”. By a 5-4 vote, the Justices concluded that the FCC’s action was consistent with its statutory obligations under the Administrative Procedure Act. Accordingly, they reversed the contrary decision of the U.S. Court of Appeals for the Second Circuit and remanded the case back to the Second Circuit. Score one for the Commission.

While any decision favoring the Commission’s indecency policy in any way is troubling, the good news here is that the Supreme Court’s ruling changes very little on the indecency front. To the contrary, its primary effect in the indecency area is to set the stage for the next, and far more important, act in this long-running drama.

But the news is not all good. Lurking behind the high profile “celebrities talking dirty on TV” allure of the case is a major shift in a seemingly mundane legal doctrine, a shift that could affect FCC regulatory activity in all respects for years to come. So while many commentators may choose to dwell on the obvious “indecency” aspects of the ruling, the real importance of this decision lies elsewhere.

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New application fee schedule still set to take effect April 28, 2009.

For those procrastinating on filing applications with the Commission, now is the time to act if you want to save a few bucks.

As we reported on March 26, the Commission’s new broadcast application fee schedule will go into effect on April 28. (Application fee schedules for other services also kick in next Tuesday, April 28. You can find a collection of 2009 Fee Filing Guides for all services here.) The current fees have been in effect far longer than the Commission originally contemplated, as faithful readers of the first five or six installments of our “Pursestrings Update” series know.  But the fun ends on Monday night: all the new fee schedules will become effective at 12:01 a.m. on Tuesday morning.

Please let us know if we can help you pull together any last-minute filings to beat the deadline.

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Whistleblowers can challenge bidding credit claims, reap big rewards

With the public issuance of letters (DA 09-822, DA 09-823 and DA 09-824) to certain winners in Auctions 58 (PCS licenses), 66 (AWS licenses) and 73 (700 MHz licenses), the Commission has lifted the curtain ever so slightly on a melodrama that has been playing out in the Federal District Court since 2007. While we still don’t know the entire cast of players, much less how the melodrama will be resolved, we can say one thing for sure: it is NOT a good idea to try to play cute with the FCC’s bidding rules in an effort to secure undeserved bidding credits. Even if the FCC doesn’t catch you, a little-known provision of Federal law provides private parties both a major league financial incentive to blow the whistle on such misconduct and a non-FCC forum in which to blow that whistle.

The source of the somewhat obscure process is the False Claims Act. Usually invoked by “whistleblowers” eager to call attention to waste in the government procurement process (think hammers bought by Uncle Sam for $5,000 a pop), the FCA permits anyone to file a complaint “on behalf of the U.S. Government” to recover ill-gotten gains. (The cognoscenti refer to such actions as “qui tam” suits – don’t ask why.)  To sweeten the deal, another provision of the law also permits the person making the claim to skim off up to 30% of any settlement or damages award that might result. And since the Act also provides for treble damages, the potential payday can easily reach into the eight digits.

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A CommLawBlog scoop: Agency brainstorming on possible "consolidated licensing system"

Word on the street (actually, word around the FCC) is that the Commission is embarking on a quest for what some might view as the bureaucratic equivalent of the Impossible Dream: an Uber-consolidated on-line licensing system to unify the balkanized collection of existing systems currently in use. This would mean “hello” to a new “Consolidated Licensing System” and “see ya” to the Universal Licensing System (ULS), OET’s Experimental Licensing System, the International Bureau’s “MyIBFS”, and the Media Bureau’s (apparently mis-named, or at least prematurely named) “Consolidated Database System” (CDBS). At this point, it’s not clear whether any other systems – such as the FCC’s tower registration operation – would also be included.

On-line filing – whether it’s used for license applications, routine reporting, or other requests or notifications – is obviously a Good Idea. It streamlines processes, permits easy on-line access to filed materials, facilitates cross-checking and searching, pushes the initial inputting burden onto the applicant (rather than the FCC’s staff), saves paper, and generally makes life better. Oh sure, there have been the occasional complaints about the user-friendliness of, say, ULS (née 1998) and CDBS (née 2000). And yes, some users have carped about how you can’t simultaneously search the various databases for information about a particular entity, or a particular location, etc.

But maybe, just maybe, the FCC has heard those cries of despair and frustration.

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eBay to Take Over Spectrum Auctions

It’s official!! The FCC has eloped with Internet auction giant eBay, forming a “strategic partnership” under which eBay will run all the Commission’s spectrum auctions. Citing “multiple significant synergistic” benefits, the FCC has turned its auction chores over to eBay, lock, stock and barrel: not only will eBay handle the bidding process, but it will also collect all payments through its PayPal system and even provide pre-auction screening of bidders through its established “feedback” system.

By relieving itself of the considerable administrative headaches of auctioneering, the Commission will now be able to devote more of its scarce resources to developing important spectrum management policies, such as increased monitoring of the completeness of broadcasters’ public inspection files and protecting the public from the all-too-occasional “fleeting expletive”.

In return for pulling the laboring oar in all spectrum auctions, eBay will receive a 20% commission on all auction proceeds collected. Additionally, it has been awarded naming rights to the Commission’s headquarters building (formerly known as “The Portals”) in Washington, D.C. 

According to the Commission, no current FCC staff positions will be terminated as a result of the eBay partnership. The existing staff of the Auctions and Spectrum Access Division of the Wireless Telecommunications Bureau – the folks who have historically handled FCC auction details – will help out with the transition of auction duties to eBay. After that, they’ll use their transitioning skills to help with the DTV Transition, staffing phone banks at the FCC’s Call-In Center and assisting in the installation of digital converter boxes and appropriate rabbit ear antennas. When the DTV Transition has been completed (projected date: 2015!!!), remaining FCC staff members will be assigned to serve on Skype Customer Support lines. Skype is an Internet-based telephone service owned by eBay. (Another benefit of the “strategic partnership”: selected FCC users will get a 0.5% bulk discount on Skype service!)

Some adjustments to the auction process will be necessary. For example, in order to accommodate the 20% commission due to eBay, the Commission will no longer permit the use of “bidding credits”, which have historically reduced the proceeds actually realized by the Commission from spectrum sales. Along the same lines, any bidder who has received two or more “negative” feedback comments in any eBay auction during the 10 years prior to an FCC auction will be subject to a 10% surcharge if it is the successful bidder.

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It’s official (we think) – New application fees to take effect April 28, 2009

Loyal readers have doubtless been on the edges of their seats since the last installment of our “Pursestrings Update” series. (Newbies can catch up by reading our earlier installments here, here, here, here, here,  and here.) We have a new development to report: the Commission has now formally announced that the revised application fee schedule first adopted last September (has it really been that long?) will take effect on April 28, 2009. Mark your calendars (and try to get any applications you’re working on filed by then – the new schedule reflects an across-the-board increase, tracking increases in the CPI).

The new effective date is just about four months later than the effective date which the Commission originally envisioned and indirectly announced. It’s also about three months later than the effective date that was formally announced in the Federal Register. And it’s a bit more than two months after the effective date that was posted, ever so briefly, on the Commission’s “application fee” webpage (and printed in some fee filing guides that the Commission posted, and then removed, from that webpage). 

But what the heck – better late than never. Actually, since the fees are going nowhere but up, the delay has been beneficial for those who have been filing feeable applications since December 30. 

But it does look like we’ve come to the end of the line.

Readers will observe that the latest public notice offers no explanation for the on-again-off-again-on-again-off-again-on-again-off-again effective dates so far. In fact, the notice makes no reference at all to any of that history. That’s probably for the best.

In any event, April 28 appears to be the day. We’ll keep our fingers crossed.

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Senate bill calls for “inventory of airwaves” to identify spectrum for more broadband, advanced communications use

With several trillion dollars’ worth of bills stacking up on the kitchen table, the Senate is thinking about searching for quarters under the sofa cushions.

When times get tough around the household, what’s a tried and true way of generating some quick cash? A yard sale, of course. So in these dire economic times, some Senators have proposed – in S. 649, a bill introduced on March 19 – that Congress get ready for a Federal spectrum yard sale by making a list of all the spectrum controlled by NTIA and the FCC.   (The Senators in question are former presidential wannabe John Kerry and co-sponsors Olympia Snowe, Roger Wicker and Bill Nelson.) 

After all, the public picked up $20 billion in pin money from the 700 MHz auction. Maybe lightning can strike twice.

In fairness to the bill’s sponsors, their goal supposedly is to assure that we will all be able to find “additional spectrum” to “meet the growing demands and needs of consumers and businesses alike.”   The bill’s sponsors seem particularly interested in opening up space for more broadband and advanced communications services. But in her statement in the Congressional Record, Snowe correctly observed that “there is no new spectrum to allocate, only redistribute”, which would seem to put the kibosh on the notion of finding “additional” spectrum. So it appears that the sponsors contemplate that spectrum already in use is going to be changing hands – a process which has in the recent past tended to result in payments to the guv’mint.

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Editors' Note: Let’s be honest. The first day on a new job usually stinks. Everything’s new and different. Everybody’s trying to weasel up to your good side. Big and Important Stuff definitely needs to get done, but right out of the box it can be hard to tell the Big and Important Stuff from the Totally Unnecessary and Possibly Counterproductive Stuff.

As a public service, we here at CommLawBlog have put together a "To Do" List for Julius Genachowski when he arrives on the Eighth Floor of the FCC. (We know he hasn’t been confirmed yet, but who really believes that that’s going to be a problem?)  

But what do we know? The Chairman-Designate would probably benefit even more from suggestions from CommLawBlog readers. We down here in the CommLawBlog bunker merely have our fingers on the pulse of the Regulated Nation; you ARE the pulse of the Regulated Nation.

We’re sure Mr. Genachowski would welcome additional input from the blogosphere for his To Do list. Check out our initial thoughts below, then post your own using the comment box at the end of our list.

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More fines on the way as FCC ramps up CPNI enforcement

Look out below! The Commission has lowered the boom on telecommunications carriers who apparently didn’t file their Customer Proprietary Network Information (CPNI) certifications when they were supposed to last March. An “Omnibus Notice of Apparent Liability” (ONAL) was issued late on February 24 directed against some 600 carriers.   At $20,000 per violation, the FCC’s take could run upwards of $12,000,000.

As we reminded one and all a couple of weeks ago, in 2007 the Commission began requiring each carrier to submit (by March 1 of each year, starting in 2008) to the Commission a compliance certificate, signed by a company official, stating that he or she has personal knowledge that the company has established operating procedures that are adequate to ensure compliance with the CPNI rules. The seriousness of this requirement apparently didn’t sink in fully with a large number of carriers, all of whom seem simply to have ignored it. That’ll be $20,000, please – payable to Uncle Sam. (Of course, each carrier identified in the ONAL will have the opportunity to explain why it should not be liable for a forfeiture – but since they have all already had an opportunity to demonstrate that they did in fact comply with the certification rule, and since they all apparently came up short in that department, it’s difficult to be optimistic about their chances at avoiding a fine at this stage.)

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February 18 has come and gone, and the new application fee schedule which was supposed to go into effect on that day has NOT gone into effect. (By the way, if you want copies of the Commission’s now-you-see-it-now-you-don’t 2009 fee filing guides, let us know – we have a complete set of those bad boys and we’ll be happy to make them available to one and all.)

In response to our February 18 post, we heard from one off-the-record source that the folks charged with updating the on-line CDBS payment process have finished their work, so they’re apparently not the cause of the delay, contrary to our earlier suspicions. We also heard that at least somebody inside the Commission was saying that the effective date had to be postponed from February 18 because of some “legal ‘notice’” (the internal FCC memo reportedly included quotation marks around “notice”) requirement that they supposedly just learned about.

Just learned about? Since we’ve been on this topic like a hobo on a ham sandwich for weeks already – not to mention our original post about the new fees that appeared months ago – that suggests that they haven’t been reading CommLawBlog.com, which hurts us deeply. 

But wait a minute – the Commission did put a notice in the Federal Register about the new fees back in January, which suggests that they do know about the notice requirements. Curiouser and curiouser.

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WTB nixes prison test of cell phone jamming technology

Never mind the personal jet packs. We just want a little gadget in our pocket with a pushbutton on it, so when the teenager behind us in line at the post office – or worse, sitting next to us on a long and crowded commuter train ride – whips out her cell phone and starts in, "And I was like, No! Really? And he was like, Well, yeah. And I was like, No!. . .", we can push the button. And she's like, "Hello? Hello?" while her cell phone flashes "Out of Service Area."

Wouldn't that be great?

Not according to the FCC.

Last month we reported that the FCC had okayed a January 8 demo of wireless phone jammers in the District of Columbia jail. The authorities argued that prisoners with cell phones can cause trouble even while incarcerated, and saw jammers as a solution. The wireless phone industry vigorously opposed. The January demo never happened. The prison authorities renewed their request early in February. Late on February 18 the FCC's Wireless Telecommunications Bureau (WTB) reversed course and turned them down.

Notwithstanding our own frustration – in the post office, train, and elsewhere – we can think of some good reasons why the WTB is right to disallow even temporary and limited use of jammers.

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The latest word is that the adjusted application fee schedule which the Commission adopted six months ago, and which was supposed to go into effect on December 30 -- no, wait, make that January 29 . . . no, no, that’s not it . . . wasn’t it February 18? – will NOT be going into effect on February 18 after all. That rumor appears to have legs because the 2009 Fee Filing Guides – you know, the unofficial items that the FCC quietly posted on its site in early February, as we previously noted – have been equally quietly removed from the site. We checked this morning (February 18) and, sure enough, they had disappeared.

If we had to guess, we’d suspect that the on-going delay may have something to do with revising the automatic fee payment system in CDBS, which has to be adjusted to conform to the new fee schedule. And, of course, we do have to guess, because the FCC has not bothered to announce any of this to the public. So much for governmental transparency.

As a practical matter, the Commission’s delays on this particular front are welcome, as they postpone across-the-board fee increases. But it’s troubling that the Commission seems incapable of dealing with what should be a relatively mundane internal updating process, and it’s troubling that the Commission appears willing to ignore its own orders (e.g., its September Order expressly mandating that the new fees would become effective within a very specific time frame) without public explanation. And it’s even more troubling that the Commission hasn’t elected to let its regulatees – who, after all, are the ones most directly affected by the fee change – in on any of this.

Stay tuned. We’ll try to be your go-to site for Adjusted Fee Schedule updates.

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Commission compels carriers to conclusively tie down customer’s consent

The U.S. Court of Appeals for the D.C. Circuit has issued a decision upholding the Commission’s 2007 Order relating to the necessary mechanism for obtaining customer approval for release of customer proprietary network information (“CPNI”). That mechanism imposes greater burdens on carriers than had been the case prior to 2007.

Under the Communications Act, certain customer information – including the customer’s specific calling plans, special features, pricing and terms, and details about whom they call and when – is deemed “proprietary” and is supposed to be kept confidential.  Still, that information is useful for carriers’ marketing purposes: some carriers directly market new or different services to their customers based on CPNI, while others contract with joint venturers or outside third parties to use this information to market for them. 

Before using CPNI for marketing, carriers must have the customer’s approval. The big question in this case is how that approval is supposed to be obtained.

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Unofficial Fee Filing Guides said to trump Federal Register notice

True to our word, we have doggedly pursued the mystery of the effective date of the new application fees. Here’s what we found out.

Back in September, when the Commission adopted the new fees, it specified that “the amendment to the Schedule of Application Fees made herein shall become effective 90 days after notification to Congress.” The FCC then promptly notified Congress and, according to a representative of the Office of Managing Director (OMD), the 90-day waiting period ended on December 30, 2008. Now the FCC’s own language (i.e., “the Schedule . . . shall become effective 90 days” blah blah blah) certainly seems to be self-executing – that is, one might have thought that, once those 90 days elapsed, bingo, the new fees would automatically go into effect.

But no.

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A couple of days ago we reported that the new application fees adopted back in September had, at long last, become effective as of January 29. Our report was based on an order that appeared in the Federal Register on January 29 which specified that the new fees were, in fact, effective on January 29.

We suspected that something might be amiss, though, when the automatic fee calculator in CDBS continued to demand the former (i.e., lower) fees, rather than the newly effective “adjusted” fees, but that could just have been a problem with the CDBS administration.

Now the Commission has indicated that, despite the Federal Register directive, the effective date for the new fees will not be until February 18, 2009. We say that this was “indicated”, rather than “announced”, because the information showed up without fanfare (let alone public notice) on a page deep in the bowels of the FCC’s website. There the Commission posted revised Fee Filing Guides for the various services, with the link to each of the Guides labeled “Effective 2/18/09”. So it looks like February 18 is the official date.

But wait.

On the front page of each of the Fee Filing Guides is a notation which reads “This is an unofficial compilation of the radio services and requests for FCC actions that are subject to fees.”  Unofficial? Does that mean that the Federal Register date – which sure looks official, being in the Federal Register and all – supersedes the Guides? We’re looking into this and will post the answers if and when we get any.

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Way back in September we alerted our readers that the Commission had “adjusted” its schedule of  application fees to reflect increases in the consumer price index. (Reminder: The term “adjustment” here is a euphemism for “4.9% across-the-board increase”.) But, as so often happens, the new rates weren’t put into effect right away. Instead, the FCC had to notify Congress of the changes and then sit back and twiddle its regulatory thumbs for 90 days. That process has now run its course, and on January 29, 2009, the Commission published a notice in the Federal Register letting us all know that the new fee schedule took effect as of that notice. Presumably the Commission will eventually get around to issuing revised versions of its Fee Guides for the various services. Until then, all of the revised fees may be found in the schedules included in the 1/29/09 Federal Register notice.

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The concept of “harmful interference” is central to FCC spectrum policy. The FCC has never said just what the term means. Oddly, though, that might be a good thing.

Nearly every band of the radio spectrum is shared among two or more categories of users. If we think of the spectrum as being spread out horizontally, the users of each band are stacked vertically. To see how this looks, click here.

Each band has a predetermined pecking order among its users: primary, secondary, and unlicensed. The relationships among all of these turn on harmful interference. Specifically:

• “Primary” users are protected against harmful interference from all other users.
• “Co-primary” users – services in the same band jointly designated as primary – may not cause harmful interference to each other.
• "Secondary” users may not cause harmful interference to primary users, and must accept harmful interference from primary users.
• Unlicensed users may not cause harmful interference to primary or secondary users, and must accept harmful interference from everybody.

The notion of harmful interference being key to the whole enterprise, we might expect to find a crisp and objective definition in the FCC rules. But when we look, we find something else. It comes in two parts:

In the case of a radio-navigation service (like GPS) or a safety service (police, fire, distress beacons, etc.), harmful interference is anything that “endangers” its functioning.

In the case of any other licensed service, harmful interference is whatever “seriously degrades, obstructs, or repeatedly interrupts” the service.

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On January 22, President Obama elevated Commissioner Michael Copps to the position of Acting Chairman of the Commission. Copps, who has been a Commissioner since 2001, will preside over the slimmed-down three-person Commission until a permanent Chairman takes over. Former Commissioner Tate left the agency in December  when her term ended, and former Chairman Martin bailed out as of Inauguration Day – leaving Acting Chairman Copps to rule the roost over remaining Commissioners Adelstein (D) and McDowell (R). No word yet on how long it may be before the Commission returns to full five-member strength (or who might be filling at least one of the two empty seats). Repeated media reports have indicated that President Obama intends to nominate Julius Genachowski – an Obama Harvard Law School chum and Chief Counsel to Former FCC Chairman Reed Hundt – to be permanent Chairman, but until the President makes a nomination and that nominee is confirmed by the Senate, Copps is The Man.

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If you’re a telecommunications carrier (and FYI – we’re not just talking about POTS and cellular here – think VoIP operators, satellite operators, international resellers and others as well), the FCC wants to be sure that you don’t forget that your annual CPNI certifications are due between January 1 and March 1.  The Commission has issued a public notice reminding everyone about those certifications, and also helpfully providing a suggested template to be used. CPNI – which stands for Customer Proprietary Network Information – is information relating to the quantity, type, destination, location, amount of use and configuration of service.

CPNI is inherently private information, and the FCC’s CPNI rules are designed to protect customers’ CPNI against unauthorized access and disclosure. (While the CPNI rules have been on the books since the late 1990s, the FCC’s interest in enforcing them increased dramatically in 2007 after media disclosures of “pretexting” practices used to obtain CPNI surreptitiously. For further background on CPNI, see the May and September, 2007 issues of FHH Telecom Law.)

One measure adopted by the Commission in 2007 is the annual certification requirement. Each year, telecommunications carriers must have an officer sign and file with the Commission a compliance certificate stating that he or she has personal knowledge that the company has established operating procedures that are adequate to ensure compliance with the rules. The carrier must provide a statement accompanying the certification explaining how its operating procedures ensure that it is or is not in compliance with the rules. Additionally, the carrier must include an explanation of any actions taken against data brokers and a summary of all customer complaints received in the past year concerning the unauthorized release of CPNI.

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The campaign of a company called CellAntenna to conduct demos of its cell phone jamming equipment inside prisons got a boost last week from the FCC.  It will get to give its gear a work-out in the real-world environment of the District of Columbia jail -- but only under rigid limits.

CellAntenna manufactures equipment which can apparently jam cell phone calls within highly circumscribed environments like prisons.  Corrections authorities are very interested in the device as a tool to prevent unauthorized use of cell phones by prisoners to arrange drug buys, plan escapes, order hits on witnesses, call their bookies, exceed the minutes in their monthly plans, call their stock brokers (some of whom may be in the same facility), etc.  To that end, CellAntenna has arranged several demonstration events at prisons around the country, drawing the wrath of CTIA and cell phone companies who object on principle to their signals being jammed.  Not to mention that such jamming operations are normally impermissible within the US and the CellAntenna equipment therefore can't even be sold here.

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Back in September we reported on an invitation for comments on how to amend the rules regulating tower construction near AM stations. At long last the Second Further Notice of Proposed Rulemaking (SFNPRM) has made it into the Federal Register.   Publication in the FedReg in turn establishes the dates for comments. If you want to file comments in response to the SFNPRM, you’ve got until January 12, 2009; reply comments are due by February 9, 2009.

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FCC to OMB: "No mas!"

One of the pleasant vestiges of 1980 is the Paperwork Reduction Act, a law intended to curb the excesses of federal regulatory agencies by mandating independent review of all new regulations which impose paperwork burdens on the public.  The idea was that agencies must quantify and justify such burdens before imposing them on regulated industries or the public.  The Office of Management and Budget (OMB) was appointed to be the final checkpoint on the regulatory assembly line to ensure that agencies were not overstepping.  This, of course, was in the era when "big gov'ment" was Public Enemy #1, and "paperwork" was a dirty word. 

There's obviously been some slippage since 1980 as the FCC has imposed burden after burden on the telecom industries, many of which involve considerable expense and reams of paperwork in the form of periodic reports or record-keeping.  The vast majority of these regs have been rubber-stamped with OMB approval.   (Ironically, the process actually increases the amount of paperwork generated by an agency as part of its justification of the paperwork it is imposing on others.)

That's why it was satisfying last week to see OMB manfully exercise a rare veto over an FCC rule.

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 For almost three years now, the FCC has been struggling mightily to devise rules to govern both the auctioning and regulatory framework for the 700 MHz D Block.   This spectrum block has the unique distinction of being a Public Private Partnership -- a concept never before tried by the FCC and one which has proved elusive to nail down. As most folks in this galaxy are aware, the FCC earlier this year auctioned off most of the 700 MHz band which had been freed up by the relocation of UHF broadcast stations. It netted a tidy $20 billion or so, but failed to get any takers for the D Block at the reserve price which had been set.    The problem, the industry said, was that there were too many uncertainties surrounding the Public Private Partnership. Not only would the winning bidder have had to pay at least $1.33 billion for the license, but then it would have had to negotiate a sharing agreement with the public safety licensee. An auction bidder who failed to successfully negotiate a deal -- a negotiation in which it had limited leverage -- would then have been faced with a massive default payment. If the negotiations were successful, the winner would have the privilege of building out a vast nationwide public safety radio system at its own expense. It is no wonder that bidders were skittish about racing to place their bids.

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 FCC – the Federal Construction Commission?

As reported elsewhere on this blog, the FCC has decided to permit most directional AM licensees to use “moment method” computer programs to verify antenna performance. In a Second Further Notice of Proposed Rulemaking included as a portion of that decision, the Commission has also invited comment on how to amend its rules regulating tower construction near AM stations.

AM antennas are notoriously susceptible to unwanted effects caused by structures located near to the antennas. Such structures – for example, other towers, or large buildings, or construction cranes, or bridges – can re-radiate the AM signal, thus distorting the pattern which the AM station’s antenna was designed to produce.

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With just about everything else getting more expensive by the minute, why should filing applications with the FCC be any different? And sure enough, on September 22 the Commission announced that it was “making adjustments” to its application fee schedule to reflect changes in the Consumer Price Index. In this case, “making adjustments” is just a euphemism for “4.9% across-the-board increase”. The new fee schedule appears as an appendix to the Commission’s Order. The increases take effect 90 days after the FCC notifies Congress of the changes, so you have at least three months to get applications filed before the price jumps kick in.

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On August 7, 2008, the FCC released new rules (FCC 08-148), implementing the Warning Alert and Response Network ("WARN") Act, under which the Commercial Mobile Alert System ("CMAS") will be implemented by cellular telephone, PCS, and other Commercial Mobile Radio Service providers.  The CMAS will allow local, regional, and national emergency alert messages to be delivered to cellphone and other mobile radio terminals.

Carriers may opt in or out of the CMAS.  Those who decline to partipate at all or who choose to participate in only part of their service area must give clear and conspicuous notice to all new customers at the point of sale, including where sales are made by third-party agencies.  A carrier must notify existing customers of an election not to participate by amending the terms and conditions of their service contracts, giving notice in the same way they notify subscribers of other contract changes.  Prepaid service providers are included in the notice requirement; but because they often do not know the identity of their customers, they may give notice through text messaging and other electronic means if they choose not to use paper mail.  Carriers who participate fully may give notice or not, as they choose.  Carriers that elect to participate but later change their mind must notify their subscribers of their changed plans 60 days before curtailing or discontinuing service

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Those who have been vacationing off the planet for the last few weeks may not know that the FCC, in January, will auction off the TV channels no longer needed for broadcast after February 18, 2009, when the transition to digital TV will be complete. These frequencies are not only technically well suited to wireless communications, but will be completely empty at the time they are handed over. This happy combination may not occur again with such a large block of frequencies for decades to come.

Yesterday the FCC voted on rules for the auction and the subsequent management of the auctioned spectrum.

There had been intense lobbying for a large number of different positions on how the spectrum should be auctioned and used. Some parties advocated "maximizing the value of the spectrum," which largely entails letting auction winners impose the same kinds of restrictions on their subscribers that cell phone companies do today, or "promoting open competition" by giving end users more freedom to choose their own devices and applications. There were also competing models of how best to develop spectrum for public safety applications.

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The FCC has granted Corr Wireless Communications, LLC's request to be relieved of the obligation to provide analog service over its cellular facilities.   Corr demonstrated that it had very few remaining analog-only customers and that the need to continuing serving these customers until the spring of 2008 was actually impeding its ability to improve and expand service to its far more numerous digital customers.    The FCC did require Corr to offer to transition the remaining analog customers to digital service at no cost and to certify that there would be no diminution of its coverage area as a result of the conversion to all-digital operation.

While in a digital mood, the FCC shortly thereafter, in a separate action, denied the alarm industry's bid to extend the analog service requirement for two years.  The Commission seems to have gotten the message that there are really some benefits to all-digital operation, and the seven years that customers have had to say goodbye to their analog phones is more than enough.

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Skype, a voice-over-Internet provider, wants the FCC to break the cell companies' stranglehold over customer handsets, reprising the liberation of wireline customers forty years ago.

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