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 FCCOPCenter@fcc.gov.

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 www.donotcall.gov (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

[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.]

Once the final participants in the repacking of the TV band have been identified through the "reverse" auction process, the shuffling of stations necessary to accomplish the repacking will raise a number of practical considerations and conundrums. 

Once the auctions have been completed, the Commission and the TV industry will have to grapple with the practical implementation of repacking: who gets what channels, how will stations moving from one channel to another effectuate that transition, what (if any) reimbursement of transition costs will be available, and to whom. This phase of the process will affect all TV broadcasters, whether or not they opted to participate in the “reverse” auction.

 Initially, the post-transition channels to which full power and Class A station will be assigned will be determined by the FCC, without input from licensees. The Commission will use a software program to figure out the optimal way to squeeze the TV industry into the portion of the current TV band that will remain, post-auction, available for TV operations.   Although stations are not to be involuntarily moved from UHF to VHF, almost any other move will be fair game as long as it’s consistent with the auction results.  Licensees unhappy with whatever “new” channel they are assigned to will have very limited recourse: the Spectrum Act denies stations the right to protest modifications of their licenses (i.e, channel changes)imposed by the Commission to accomplish the repacking.

Re-licensing ProceduresOnce the Commission announces its repacked TV band, a number of procedural steps will have to be taken: as we all learned from the transition to DTV several years ago, it’s one thing for the FCC to specify where stations are supposed to operate on the spectrum; it’s an entirely different thing to get those stations up and running on the appointed channels.

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Inside the Incentive Auction NPRM (Part 3): Doing More with Less - Repacking the TV Band

[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.]

Whether or not you plan to participate in the “reverse” auction, if you’re a TV licensee, you should be aware of what the FCC has in mind for the spectrum around you.

It’s important to understand that the Incentive Auction program is merely a device designed to facilitate the “repacking” of the spectrum. That is, the FCC is dead-set on freeing up space for mobile broadband use in spectrum currently occupied by TV broadcast stations. In other words, many TV licensees can be expected to be moved off their current channels, whether voluntarily (through the “reverse” auction process) or by forced relocation. So while TV licensees not planning on participating in the “reverse” auction” may not be terribly concerned with the mechanics of submitting bids, all TV broadcasters need to pay attention to the FCC’s proposed approach to repacking the spectrum. 

Under the Spectrum Act, when the Commission relocates TV stations in its repacking efforts, it must take “all reasonable efforts” to preserve the “coverage area” and “population served” of every surviving full power or Class A station. For these purposes, “coverage area” and “population served” are to be determined using the methods set out by the Office of Engineering and Technology’s Bulletin No. 69 (OET-69). LPTV and translators station will receive no protection during the repacking process and will be subject to displacement by any relocated full power or Class A station, although the NPRM does request comment on some measures designed to help LPTV and translator stations survive in a post-auction world. 

As for full power and Class A stations, the Commission in the Incentive Auction Notice of Proposed Rulemaking (NPRM) is looking to determine just what “coverage area” and “population” must be protected. Under OET-69, the term “coverage area” is not defined, but it is used synonymously with “service area” as that latter term is defined in Section 73.622(e) of the rules. While “coverage area” (or “service area”) does not account for interference from other stations, OET-69’s measurement of “population served” does, counting only population that is both within the “coverage area” and where the signal is not masked by interference.

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Inside the Incentive Auction NPRM (Part 2): Who's Eligible for the "Reverse" Broadcast 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.]

Hint: Maybe fewer folks than you might have thought.

Who will be eligible to participate in the “reverse” spectrum auction? Not, it would appear, everybody who might want to.

As required by Congress in the Middle Class Tax Relief and Job Creation Act of 2012 (which the FCC prefers to refer to as the “Spectrum Act”), in its Incentive Auction Notice of Proposed Rulemaking (NPRM), the Commission proposes significant eligibility limitations as far as the “reverse” auction goes.

First and probably most important, the only folks who could participate in the “reverse” auction would be licensees of full power and Class A television stations, both commercial and noncommercial. That automatically eliminates LPTV licensees and TV translator licensees.

But Class A licensees should not necessarily be breathing easily, particularly in light of the Commission’s recent attempts to downgrade a number of Class A stations to LPTV status.   The NPRM proposes that any station whose Class A status has been revoked by the Commission would not be eligible to participate in the auction, even if the order downgrading the station has not become final by the time of the auction. (Licensees who get downgraded can seek reconsideration or review of the decision to downgrade, thus avoiding finality and keeping alive – or so they hope – the possibility that the decision might be reversed during the appeals process. Under the FCC’s proposed eligibility criteria for the reverse auction, however, any effort to reverse a downgrade might be pointless if the auction, and consequent repacking, occurs before the downgraded station could be restored to Class A status.) 

There are some potential limiting considerations for full power licensees, too.

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Inside the Incentive Auction NPRM (Part 1): The Overall Auction Design

[Blogmeister’s Note: This is the first in a series of posts describing the FCC’s Incentive Auction Notice of Proposed Rulemaking. You can find all installments in this series as they are posted by clicking here. Contributors to this series include Dan Kirkpatrick, Rob Schill, Don Evans and Harry Cole.]

An overview of the FCC’s proposed approach to spectrum-clearing/spectrum-repopulating incentive auctions and some of the myriad factors at play in that process.

The Incentive Auctions are coming. No doubt about it. TV and Class A licensees will be given the opportunity to cash in in return for making some or all of their spectrum available for repurposing (the beneficiaries of the repurposing being wireless broadband operators). The innovative concept floated out two years ago in the National Broadband Plan is now targeted for implementation in 2014 . . . if about a million different moving parts all happen to align just right. 

Recently, Commission officials (including Commissioner Rosenworcel and Incentive Auction Task Force co-leader Gary Epstein) have emphasized the importance of making the auction process understandable and easy to participate in. As Rosenworcel put it, “[s]implicity is key . . . [A]t every structural juncture [of the auction design], a bias toward simplicity is crucial”. 

Perhaps. But that brings us to the Commission’s Notice of Proposed Rulemaking (NPRM) in which it lays out – over 140 pages of single-spaced text plus 26 pages of proposed rules plus 22 pages of additional appendices plus 15 pages of separate statements by the Commissioners plus a 20-page “Incentive Auction Rules Option and Discussion” – the agency’s thoughts on the Incentive Auctions’ design.

“Ease” and “simplicity” do not spring to mind as the reader slogs through the dense, highly technical NPRM.

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LightSquared's Plan B, Out for Comment

LightSquared proposes to move its cell-type service away from GPS frequencies . . . and into a Weather Satellite Band.

The FCC has requested comment on a Petition for Rulemaking filed by LightSquared Subsidiary LLC seeking a new co-primary allocation permitting non-Federal terrestrial mobile use of the 1675-1680 MHz band.

You remember LightSquared – the company that wanted to deploy a tower-based wireless broadband network in the 1545-1555 MHz satellite downlink portion of the L Band, close to GPS frequencies. GPS users objected, and the National Telecommunications and Information Administration (NTIA) which administers federal spectrum, decided GPS interference concerns could not be overcome, whereupon the FCC pulled LightSquared’s tentative authorization.

With its recent Petition for Rulemaking (and other documents filed in late September), LightSquared seeks a work-around to its GPS headache (and possibly a Hail Mary to resurrect the company, which is now in bankruptcy).

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The FCC Wants to Know: How Much Spectrum Is Too Much Spectrum?

FCC opens inquiry into whether, and how, and how much, wireless spectrum holdings should be limited.

It’s undeniable that a small handful of carriers control an overwhelming amount of mobile spectrum in the U.S. Many observers of the communications landscape believe that that intense concentration has reached alarming proportions. Unfortunately, to date federal regulators have not tended to be among those hand-wringers.

As a result, Verizon and AT&T, and to a lesser extent Sprint and T-Mobile, have increasingly gobbled up huge chunks of spectrum both through auctions and in secondary market transactions, leaving only the crumbs for smaller carriers to squabble over. Often the FCC auctions the spectrum in increments covering huge territories – Regional Economic Area Groupings (REAG) or Major Economic Areas (EA) – that span as many as ten states. Such vast areas are too big for a small or medium sized carrier to handle and usually more than even the largest carriers can hope to build out in a reasonable timeframe.   So a considerable amount of spectrum lies moldering in the larders of the largest carriers for a rainy day while smaller carriers cannot fulfill their customers’ basic needs.

Now the FCC has decided to take a fresh look at its policy on mobile spectrum holdings. In a Notice of Proposed Rulemaking released in September (and published in the Federal Register in early October) , the FCC has opened a far-ranging and much needed inquiry into all aspects of the spectrum accumulation issue.

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DIRS Activated as Hurricane Sandy Makes Landfall

Sweeping alert affects communications providers in 150+ counties across 10 states and DC.

As we anticipated, the FCC has activated its Disaster Information Reporting System (DIRS), to enable it to monitor damage to broadcast and telecommunications facilities during Hurricane Sandy.  (Note that the activation has occurred even though the FCC itself is shut down because of the storm -- major props to the folks in the FCC's Public Safety and Homeland Security Bureau for stepping up to shoulder this important responsibility.)

The DIRS is a voluntary, web-based system that communications providers – a universe that includes wireless, wireline, broadcast, cable and Voice over Internet Protocol providers – can use to report “communications infrastructure status and situational awareness information during times of crisis.” The FCC is asking that providers submit their reports starting 10:00 a.m. on Tuesday, October 30, 2012, and every day after that by 10:00 a.m. until DIRS is deactivated.

In particular, the Commission wants to know, among other things, the status of communications equipment, restoration efforts, power (i.e., whether providers are using commercial power, generator or battery), and access to fuel, if they provide service to certain affected areas.

What are those areas? Given the enormous size of Sandy, there are a lot of them. Take a deep breath. Here are the areas the FCC has identified:

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As Sandy Nears, FCC Provides Emergency Response Information

 With Frankenstorm Sandy muscling its way up the East Coast and preparing to turn inland in a couple of days (if virtually all the current weather reports are to be believed), the FCC has started its anticipatory disaster response. A public notice released late Friday, October 26, alerts the public to an “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.

And in a separate public notice, the FCC has confirmed that its Operations Center will be open all this weekend, 24-hours-a-day, to address emergency communications needs as they arise. (Presumably the Center will stay open during the coming week as the storm makes landfall, but the notice released Friday addresses only this weekend.) 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 FCCOPCenter@fcc.gov. 

Other emergency contacts listed on the FCC’s website include:

Eric Panketh
Acting Division Chief
phone: 202-418-0063
email: Eric.Panketh@fcc.gov

Tim Perrier
Associate Division Chief, Operations and Security
phone: 202-418-1190
mobile: 202-907-4424
email: Timothy.Perrier@fcc.gov

Steve Maguire
Associate Division Chief, Plans and Programs
phone: 202-418-0614
mobile: 202-365-1539
email: Steve.Maguire@fcc.gov

Louis Sigalos
Regional Communications Liasion
phone: 281-492-6288
email: Louis.Sigalos@fcc.gov

Historically, the Commission has also activated its Disaster Information Reporting System (DIRS) in the face of approaching hurricanes. Such activation has not yet been announced by the FCC (as of 9:00 a.m. on Saturday, October 27), but we won’t be surprised if word comes down before the weekend is out that the DIRS is open for business. Check back here for updates.

FTC Posts Bounty on Robocallers

You can win $50,000 and a trip to Washington. And the undying, everlasting gratitude of your fellow telephone subscribers.

Sometimes technology just takes a wrong turn. Yes, it has vastly improved our lives. No one wants to go back to the days before smallpox vaccine, or power steering, or existential cat videos. But technology also provides its share of daily annoyances. High on that list is the “robocaller”: a machine that dials your phone, and when you answer, delivers a recorded message.

The economics of robocalls works much like email spam: the perpetrators can reach so many people, at such a low cost per contact, that they don’t care if 99.9% hang up without hearing the message. But robocalls are much more intrusive than spam. They prompt the victim off the couch to answer a ringing phone. And, unlike other kinds of telemarketing calls, robocalls even deny us the satisfaction of telling off the person who called.

The Federal Trade Commission has decreed most robocalls to be illegal. But the rules do allow some kinds. Political parties can robocall at will, thanks to that pesky First Amendment – and in these final days leading up to an election, they exercise that right with a vengeance. Also legal are robocalls from charities and health care providers, and “reverse 911” calls that warn people about local emergencies – for example, calls to a particular neighborhood about contamination of the water supply.

But the FTC is confident that illegal robocalls make up the vast majority (even though it does not provide any hard supporting data). And enforcement has been lax. We know that because we get so many of them. As yet there is no easy way for the recipient to block robocalls – no equivalent of the email “junk filters” that protect us from most email spam.

That is where the FTC comes in.

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FCC Moves Against More Vendors of Cell Phone Jammers

New “jammer tip line” invites the public to turn in users and sellers of these devices.

Yes, we know you want a cell phone jammer.  We all do.  But you can’t have one.  They’re illegal.  One reason:  their range is difficult to control.  You want a jammer just to shut down the inane conversation next to you at Starbucks or on the bus.  But thanks to your jammer, a heart attack victim across the street, desperately trying to call for help on his cell phone, may get a screen saying, “No Service.”

The FCC worked hard to shut down dedicated websites that sell phone jammers.  Now it has turned its attention to sellers who try for a less conspicuous profile by selling through multi-purpose sites, particularly craigslist.com.  The rules bar the FCC from imposing a fine on a retailer, among other categories, without first issuing an official notice called a “citation” that describes the prohibited behavior, after which the retailer must re-offend before it becomes subject to the fine.  The FCC has taken that first step against 23 craigslist vendors by issuing citations to each.  Here is an example.  The full list is available here; scroll down.

The FCC also instituted a “jammer tip line” the public can use to turn in users and sellers of these devices.  Call 1-855-55-NOJAM or email to jammerinfo@fcc.gov.  And the FCC reissued an “Enforcement Advisory” that explains exactly what jamming equipment is illegal, and why.

So when the person next you in Starbucks or on the bus pulls out a cell phone and starts a long and pointless conversation, using a jammer is not a good option.  Instead, we recommend a long and angry glare.  Repeat as necessary.

FCC Approves Verizon Acquisition of Cable AWS Holdings

Commission acknowledges numerous competitive downsides to deal, but still says “No Problem”

In recent years the FCC could justly be accused of never having met a merger it didn’t like. While regularly grousing, huffing, and puffing about consolidation in the wireless industry, the FCC has just as regularly approved all mergers and acquisitions that came before it, with the notable recent exception of the AT&T/T-Mobile merger. This “raise eyebrows but approve” policy is one of the reasons that the wireless industry in the United States is more consolidated than at any time since the break-up of the old AT&T more than 25 years ago.

By mustering up its resolve to derail the AT&T deal, the Commission gave hope to progressives that the FCC and Department of Justice had gotten some trust-busting mojo. But the FCC seems to have now retreated back into its “anything goes” posture. The most recent example is its approval of Verizon’s acquisition of large chunks of AWS spectrum across the United States.

In a blockbuster deal, Verizon proposed to acquire a host of AWS licenses from SpectrumCo (composed of several major cable companies) and Cox Cable, who had bought the licenses in a 2006 FCC auction. The cable companies had intended to use the spectrum to launch their own wireless operations in competition with the major cell phone carriers. After years of trying unsuccessfully to develop a workable business model, however, they decided to throw in the towel and sell out to Verizon. In a separate component of the deal, Verizon sought to acquire 30 or 40 PCS and AWS licenses from Leap Wireless in exchange for Verizon’s 700 MHz license in Chicago. When it became clear that there was some pushback from the Commission, Verizon quickly entered into a deal with T-Mobile to offload 47 of the AWS licenses it would otherwise be getting from the cable companies. This lessened Verizon’s spectrum agglomeration considerably in key markets.

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Cell Phone Use on Airplanes? Your Chance to Weigh In!

FAA seeks public input on draft report to Congress that relies on foreign airlines’ lightly used cell service.

In George Orwell’s Nineteen Eighty-Four, the ironically-named Ministry of Love oversees the torture of people disloyal to Big Brother. Within that ministry is Room 101. And inside Room 101 is the worst thing in the world, according to the private terrors of each offender. No one reading the book can help wondering what he or she would find there. 

For us, the answer is easy. Room 101 is set up like the inside of an airplane. One of the center seats is ours. The people on either side of us, barely a foot away, are yammering into their cell phones through every minute of a flight that never ends.

Keeping that horror at bay, for now, is an FCC rule barring handsets from using some (but not all) cell phone frequencies while aloft, and an FAA rule against operating most portable electronic devices, including cell phones, on U.S. aircraft. The FAA has told the airlines they can allow use of some kinds of electronic devices above 10,000 feet, but not cell phones. (As we reported recently, the FAA is considering whether to allow some kinds of devices throughout the flight.)

Now the FAA is taking another look at the cell phone ban as well.

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Class Action Option Out for Comments

FCC invites input on proposal that would allow actions against carriers with results that would be binding even on customers unaware of the dispute.

[Blogmeister’s Note: Peter Tannenwald and Mitchell Lazarus collaborated in the authorship of this post.]

You’ve see the ads: “Did you use Acme brand dynamite in 2011? And miss the Roadrunner? You might be entitled to compensation!!” – followed by columns of mind-numbing fine print. This is the visible tip of a “class action.”  It works like this: A law firm sues some hapless (but rich) company on behalf of a category of persons alleged to have suffered the same harm at the hands of the defendant. The class of plaintiffs must be well defined – this is a legal requirement – but its members need not all be named. If the action succeeds, the class members who heard about it and came forward receive compensation – typically very small, sometimes worth just a few dollars. And the law firm that brought the action can recover very substantial legal fees. (Keep this last point in mind.)

A newly formed company called Solvable Frustrations, Inc. (SFI) has asked the FCC for a rule change that would allow lawyers to file class action complaints at the FCC on behalf of consumers. So far SFI is targeting only common carriers, not broadcasters or cable companies. How Internet Service Providers might fare under a class action regime remains to be seen, but we can image mega-cases over issues like net neutrality and privacy.

The proposal is win-win for everyone, at least according to SFI. Where it would not pay an individual consumer to sue a phone company or cell carrier over a few dollars’ worth of overcharge, a large group of consumers might get meaningful relief by joining together and exploiting the might of large numbers.

Even the carriers, says SFI, would benefit from the economies of scale. They would have to defend a complaint case only once; the issues would be presented by qualified professionals; and the outcome would be binding on all of the other potential complainants waiting in the wings, who would then not be permitted to sue separately. And the FCC would have to go through the decision process only once. Today the backlog of small complaints is humongous. Wouldn’t it be better to reduce a million complaints to half a dozen or so?

There remain just a few legal problems.

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Update: Fixed Microwave Comment Deadlines Set; Some Effective Dates Still in Limbo

Last month we reported on (a) some fine-tuning the Commission had performed on its wireless backhaul rules and policies, and (b) some additional changes the Commission is considering in that area. The FCC’s decision has now been published in the Federal Register – in two separate parts, one reflecting the Report and Order portion of the decision, the other reflecting its Proposed Rulemaking and Notice of Inquiry components.

Federal Register publication sets the comment deadlines for the proposed rulemaking/inquiry aspects. If you want to give the FCC the benefit of your thinking on the Commission’s proposals, you have until October 5, 2012 to get your comments in. Reply comments are due by October 22, 2012.

FedReg publication of the report and order establishes the effective date of the rule changes adopted in that report and order . . . for the most part. All of the newly-adopted rules will take effect on October 5, 2012. All, that is, except for the “Rural Microwave Flexibility Policy,” which provides for waiver of the spectrum efficiency requirements for links in rural areas. Because that policy includes “information collections” that have to be run past the Office of Management and Budget first for its approval (thanks to the Paperwork Reduction Act), the policy won’t become effective along with the rest of the rules. Rather, the FCC and OMB will afford the public further opportunities to comment on the flexibility policy. If OMB gives it the thumbs up, the FCC will publish a notice to that effect, specifying a separate effective date for the policy. We’ll let you know when that happens.

FAA Rethinks Personal Electronic Devices on Airplanes

A feature of modern air travel is the ritual shutting down of electronic gadgets before take-off and landing. The FAA is taking another look at whether this is really necessary.

A little-loved feature of modern air travel, along with security lines, cramped legroom, and overstuffed overheads, is the pre-takeoff ritual where the flight attendant says, “You must now turn off all personal electronic devices. Anything with an on/off switch must be in the off position.” And the same thing again as the plane is preparing to land.

The FAA is taking another look at whether this procedure is really necessary.

Current FAA rules prohibit the operation of all personal electronic devices (PEDs) at all times during the flight, except for hearing aids and heart pacemakers (understandable) and also electric shavers and portable voice recorders (less so). The FAA rule is here. Individual airlines can authorize departures from the rule; most have followed an FAA recommendation to allow use of a PED without an active transmitter at altitudes above 10,000 feet – about five minutes after takeoff and fifteen minutes before landing. Most airlines prohibit transmitters throughout the flight (this includes cell phones, Bluetooth, and Wi-Fi, except to use airline-provided Wi-Fi services), and still require all devices to be turned off below 10,000 feet.

These rules date back to the mid-1960s, when the FAA’s main concerns were electrical interference into the aircraft’s communications and navigation gear. Since then, as aircraft have become increasingly computerized and electronic displays proliferated in the cockpit, the possible on-board targets of interference have increased. Over the same time period, passengers’ gadgets have likewise become computerized and have proliferated. And passenger complaints about being cut off from their devices have steadily mounted.

The FAA has now launched a comprehensive review of PEDs and their actual risk to aircraft safety.

We hope the FAA will address some of the present inconsistencies.

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DIRS Activated as Isaac Approaches

The FCC has activated its Disaster Information Reporting System (DIRS) to enable it to monitor damage to broadcast and telecommunications facilities during Hurricane Isaac.  DIRS is a voluntary web-based system that communications providers can use to report communications infrastructure status and situational awareness information during times of crisis. (“Communications providers” include the full range of wireless, wireline, broadcast, and cable providers.)

The Commission is requesting communications providers in the following counties and parishes to log into https://www.fcc.gov/nors/disaster/ to report and update information through DIRS regarding, inter alia, the status of their communications equipment, restoration efforts, power (i.e., whether they are using commercial power, generator or battery), and access to fuel:

Alabama counties: Baldwin and Mobile;

Florida counties: Escambia and Santa Rosa;

Louisiana parishes: Ascension, Assumption, Avoyelles, Catahoula, Concordia, East Baton Rouge, East Feliciana, Iberia, Iberville, Jefferson, Lafayette, Lafourche, Livingston, Orleans, Plaquemines, Pointe Coupee, Saint Bernard, Saint Charles, Saint Helena, Saint James, St John the Baptist, Saint Landry, Saint Martin, Saint Mary, Saint Tammany, Tangipahoa, Terrebonne, Washington, West Baton Rouge and West Feliciana; and

Mississippi counties: Adams, Amite, Franklin, Hancock, Harrison, Jackson, Jefferson, Lincoln, Pearl River, Pike, Walthall and Wilkinson.

(The FCC’s public notice also suggests that reports/updates can be submitted through the e-filing function on either the Commission’s main webpage or the Public Safety and Homeland Security Bureau’s webpage. From a quick glance at both those pages, however, it’s not clear that the “e-filing function” is immediately obvious – so you will probably find it quicker to log directly into the DIRS site.)

If you lose Internet access, several FCC staff members involved in disaster preparedness have published their office and cellphone numbers:

Jeffery Goldthorp (202) 418-1096 (office), (202) 253-1595 (cell), jeffery.goldthorp@fcc.gov

Julia Tu (202) 321-4399 (cell), julia.tu@fcc.gov

John Healy (215) 847-8094 (cell), john.healy@fcc.gov

Michael Caiafa (202) 418-1311 (office), (202) 277-5690 (cell), michael.caiafa@fcc.gov

David Ahn (202) 418-0853 (office), (571) 232-8487 (cell), david.ahn@fcc.gov

Jane Kelly (202) 418-2832 (office), (202) 503-0398 (cell), jane.kelly@fcc.gov

If you’re in the path of the hurricane but are not in any of the counties/parishes listed above, check the FCC’s home page for further additions to the list of reporting areas. 

Satellite earth station operators needing to operate emergency facilities may apply electronically at http://licensing.fcc.gov/myibfs; or if they cannot access that system, they may apply by letter, e-mail, and even by telephone.  All requests should provide the technical parameters of the proposed operation and a contact point.  Requests not made through myibfs should be re-filed through that system as soon as circumstances permit.

Reg Fee Tips II: Tax-Exempts May Need to Re-File Supporting Documentation

Despite the fact that your tax exempt – and, therefore, reg fee exempt – status may have previously been demonstrated to and accepted by the FCC, the Commission’s records may still not reflect that.

As previously (and repeatedly) noted here on CommLawBlog, it’s time again to reach into your wallets and pony up this year’s annual regulatory fees.  (The fees are due by 11:59 p.m. ET on September 13.)  A lucky few are exempt from having to make this annual contribution – specifically licensee entities that are tax-exempt under federal or state law.  To be FCC reg fee free, you’ve got to send the FCC documentation proving that you’re tax exempt. 

Since tax exemption tends to be a perpetual status, you might think that, once you have submitted your documentation, you’d be reg fee free forever (unless, of course, the FCC were to be notified at some later point that you had lost your exempt status).

Not so fast.

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Reg Fee Calculation Method Under the Microscope

NPRM seeks input on overarching goals and nitty-gritty methodology of reg fee process.

We all know that regulatory fees are imposed annually. The precise fees to be paid each year are proposed in the spring and then, after a notice-and-comment period, finally announced in summer, usually to be paid in September. It happens with mundane regularity. 

But did you ever wonder how the Commission comes up with the actual numbers?

In a Notice of Proposed Rulemaking (NPRM), the FCC has pulled back the curtain on that process, inviting us all into the sausage factory so that we can take a look around and maybe provide our own input into possible changes in the system. The deadline for comments is September 17, 2012; reply comments are due by October 16. If you think you might want to toss in your two cents’ worth, you should probably get started now – the NPRM is pretty dense and requires considerable patience (and some NoDoz®) to wade through.

To get you oriented, here’s a thumbnail sketch of what’s going on. (Caution: this is only a thumbnail sketch. If you want to get fully immersed in the NPRM, you’re on your own.)

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Overall Backhaul Overhaul II: Further Fine Tuning For Fixed Microwave Rules

The FCC follows up on last summer’s overhaul by taking further steps to make life easier for Fixed Service wireless operators.

August must be unofficial “wireless backhaul” month over at the FCC. Following up on last summer’s “overall backhaul overhaul,” the FCC has now taken further steps to make life easier for Fixed Service wireless operators.

Fixed wireless is a low-profile yet indispensable component of the nation’s communications infrastructure, serving a wide variety of entities and industries. It helps to balance the electrical grid, coordinate the movements of railroad trains, and transmit emergency calls to local police and fire personnel. It moves business data for companies with dispersed locations, such as financial companies, chain stores, restaurants, hotels, airlines, and car rental companies.

Increasingly, fixed wireless links are used as “backhaul” for mobile communications, carrying signals between central network facilities and cell towers, particularly where wireline is impractical, as across rough terrain or dense urban buildup. In other words, wireless backhaul helps get that cat video to your smartphone or tablet. Anyone who doubts the ubiquity of fixed microwave need only note the vast numbers of sideways-facing dishes and domes on radio towers, water towers, and buildings.

As important as Fixed Service links are, however, we suspect that the technical minutiae of the FCC’s latest action is of interest to relatively few readers. Therefore, we are providing just the highlights. (If you want to know more, you can read all the details here.)

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Qwest Quest for Forbearance Quashed

Tenth Circuit lets FCC “move the goalpost” in on-going development of forbearance policy.

Despite its obvious concern about the fact that the FCC had “moved the goalposts” with little notice, the U.S. Court of Appeals for the Tenth Circuit has cut the Commission some slack. The court has upheld the FCC’s denial of a request by Qwest Corporation for forbearance from the application of certain dominant common carrier obligations for its local exchange operations in the Phoenix market. Qwest is the former U.S. West Bell Operating Company, later acquired by and now doing business as CenturyLink. Its request, which it framed to fit within analytical requirements the FCC had previously used, fell short when the FCC shifted the regulatory goalposts for such matters.

Two general principles are at work here. First, thanks to the 1996 Telecom Act, incumbent local exchange telephone carriers (ILECs) that are considered “dominant” in their market must, in effect, “share” their networks with competitors by providing those competitors with access to their networks, and on top of that providing access existing network elements on an unbundled basis (i.e., you don’t have to buy packages that include services or facilities you don’t want) at “just” and “reasonable” rates. For ILECs, that’s the bad news.

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Reg Fee Payment Tips

Some hopefully helpful hints for fee filers

Now that the excitement surrounding the announcement of the deadline for 2012 regulatory fees has died down, we all face the grim process of actually paying those fees. Here are some tips that might help the beleaguered broadcast reg fee filer.

How much are you on the hook for?  If you’re looking for a quick way to determine the reg fee applicable to any particular AM, FM, TV, FM translator or TV translator/LPTV/Class A station, you can run a quick search at http://www.fccfees.com/request_all.htm. Provide either the station’s call sign or FCC Facility ID number, hit the “submit” button and voilà – you should see the station in question listed, with its licensee and facilities all spelled out along with the fee due for that particular station. The fee listed there does NOT include any auxiliary licensees – STL’s, remote pickups, that sort of thing – used in association with the listed station. You’re on your own to track those down and make sure any necessary fee(s) is/are paid.

 Exempt or Non-exempt? Some licensees are exempt from reg fees. Most of you exempt folks know who you are, but if you have any doubt about what the FCC’s records show on that score, running a fee search at the link in the preceding paragraph will clue you in. Exemptions are available to licensee entities that are tax-exempt under federal or state law. To be FCC reg fee free, you’ve got to send the FCC documentation proving that you’re tax exempt. Such documentation could include the 501(c)(3) letter you got from the IRS or certifications from your state government confirming your tax exempt status. You can submit your documentation by email to ARINQUIRIES@fcc.gov, by fax to 202-418-7869, or by mail to

FCC, Office of the Managing Director
445 12th Street, S.W., Room 1-A625
Washington, DC, 20554

It should go without saying that, in addition to the documentation itself, you should also include enough information to permit the FCC to know precisely which stations would be subject to the exemption.

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Update: 2012 Reg Fee Payment Deadline Set

It’s official! This year’s regulatory fees must be paid by 11:59 p.m. (ET) on September 13, 2012. The online “Fee Filer” system is now up and running; you can get to it at this link. That’s the first stop you’ll have to make in paying your fees. Once you log into the Fee Filer system (using your FCC Registration Number (FRN) and password), you’ll be able to generate a Form 159-E, which you’ll need to tender with your payment. 

While Fee Filer will ordinarily list fees associated with the FRN used to access the system, WATCH OUT: the list of fees shown in Fee Filer may not be complete. The FCC makes clear that it’s the payer’s responsibility to confirm the “fullest extent of [the payer’s] regulatory fee obligation.” Double- and triple-checking other FCC databases, as well as your own records, is prudent, since failure to file any required reg fee, even if inadvertent and even if only for a very small amount – like, say, a $10 auxiliary license fee – can result in very unpleasant complications (thanks to the Debt Collection Improvement Act).

As outlined in the public notice announcing the September 13 deadline, there are a number of ways in which the fee can be paid, once you have your Form 159-E. Helpful tip: the online approach, using a credit card, is extremely efficient. Wire transfer and ACH payments are also good, although they may involve some additional steps. For our money, the least desirable approach is the old-fashioned way, i.e., sending a paper check to the FCC’s bank in St. Louis. Lots of things could go wrong between the times (a) you stick the envelope in the mail box and (b) the payment is ultimately credited by the Commission. 

Remember, the FCC will not be sending you a hard-copy reminder of your reg fee bill. And remember, too, the FCC imposes a 25% late filing fee, starting immediately after the deadline. You’ve got just about a month to get your payment in – there is no reason to run afoul of that deadline. Good luck.

After Settling for $1.25 Million, Does Verizon Still Charge for Tethering?

Carrier made “voluntary contribution” to resolve “network neutrality” charges on its 4G frequencies.

Remember the debate about “network neutrality”: the principle that an Internet service provider should not discriminate among Internet sites or technologies? Verizon Wireless remembers; it recently agreed to pay $1.25 million to settle an alleged violation. But our own very limited testing suggests the alleged violation may persist.

Verizon’s problems began not with the network neutrality rules governing all Internet providers – those remain to be adjudicated – but with a specific rule that applies only to certain wireless companies.

At around the time the neutrality debate was first heating up, the FCC was busy making plans to auction the 700 MHz band for mobile data applications. At Google’s instigation, the FCC imposed a limited neutrality rule on one portion of the 700 MHz spectrum, called the “C Block.” Licensees on those frequencies, said the FCC, “shall not deny, limit, or restrict the ability of their customers to use the devices and applications of their choice . . . .” When the C Block spectrum was auctioned off, Google bid up the price to the FCC’s minimum and then dropped out, leaving Verizon to take the spectrum in most places.

Skip ahead a few years, while Verizon builds out its C Block facilities. . . .

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Update: Last E911 Detail Tied Down, Rule Now Effectve

The final element of the Commission’s revised E911 rules has now been blessed by the Office of Management and Budget.  With a Federal Register notice of that fact, Section 20.18 of the rules, as revised last July, has taken effect as of July 25, 2012. The rest of the revised E911 rules took effect last November

Effective Date Set for New Grantee Codes

Rules that vastly increase numbers of available codes take effect on August 24.

The expansion of “grantee codes” (issued by the FCC in connection with equipment certifications) will take effect on August 24, 2012, according to a notice published in the Federal Register. This will have no effect on any current regulatees – it’s more of an internal housekeeping matter for the FCC, designed to give the Commission a greater resource of codes to issue in the future. (As we previously reported, thanks in no small measure to the success of the wireless device industry in the U.S., the FCC foresees running out of grantee codes.) So if you happen to receive a grantee code after August 24 and it looks different from the codes you’re used to seeing (because it has more characters and starts with a numeral), don’t fret – it’s just the new system kicking in.

Update: Effective Date Set for New Unlicensed PCS Rules

Action affects devices in the 1920-30 MHz band.

A rule change the FCC adopted (and we reported on) last March, to simplify the technical rules for unlicensed PCS devices in the 1920-30 MHz band, has finally hit the Federal Register. The new rules take effect on August 22.

 

CMAS Testing/Record-keeping Requirements Now In Effect

OMB approval, issued in 2009, finally makes it into the Federal Register in 2012.

Back in 2008, the Commission devised the Commercial Mobile Alert System (CMAS) (a/k/a the “Personal Localized Alerting Network” (PLAN), a/k/a “Wireless Emergency Alerts” (WEA)).  It’s a voluntary service through which wireless providers deliver emergency alerts and warnings from FEMA to their customers.  The FCC came up with the CMAS at Congress’s direction in the Warning Alert and Response Network (WARN) Act.

As we reminded the CMAS universe last March, the Commission’s 28-month timetable for roll-out of the CMAS wrapped up on April 7, 2012.

Wrapped up? Well, not entirely, as it turns out . . . at least until now.

CMAS participants (i.e., wireless providers who have chosen to participate in the FEMA-FCC joint effort) are subject to record-keeping and information-sharing requirements, according to related rules adopted in 2008.  Under those rules, CMAS participants must receive and distribute monthly test messages sent from Federal Alert Gateway Administrator.  In order to ensure that the system is working properly, the wireless provider’s own gateway must send an acknowledgement to the Federal Alert Gateway upon receipt of these interface test messages. The provider must also maintain logs of these monthly tests.

As required by our old friend the Paperwork Reduction Act, such administrative burdens must be approved by the OMB, which they were – back in 2009.  But, presumably because the Commission’s 2008 orders setting up the CMAS provided that the testing and record-keeping requirements weren’t set to take effect until the CMAS’s full deployment, the effective date of those testing/record-keeping chores was put on ice for nearly three years. By the time the CMAS finally went live in April, 2012, the fact that OMB had signed off on the testing/record-keeping end of things three years earlier appears to have been overlooked. Whatever the reason, the Commission didn’t bother to issue a Federal Register notice of OMB’s 2009 approval, and as a result, the testing/record-keeping requirements didn’t kick in in April, along with the rest of the CMAS.

But they’ve kicked in now. A notice of OMB’s approval of those requirements has just now made it into the Federal Register, and they are now effective.

From the FCC Police Blotter: Misrep Lite - When Thinking You're Being Honest Just Isn't Enough

Texas AM whacked $25K for statement that might have been inaccurate.

One of the most fundamental axioms of communications law: correctness is essential, whether you’re filling out an application, filing a pleading, responding to an FCC inquiry, or whatever. When you tell the Commission something, you had better be right. We’re not talking about affirmatively lying to the Commission. That, of course, is even higher up on the list of mortal sins in the FCC’s catechism. But nowadays, any inaccuracy in what you tell the agency – even if it’s not an intentional inaccuracy – can land you in hot water, unless you can show that you had a “reasonable basis” for your statement. The FCC enforcement folks, whose contributions to the government's coffers have increased dramatically in recent years, have recently driven this point home with considerable vigor.

As we have previously observed, Section 1.17(b) of the Commission’s rules prohibits what we have referred to as “misrepresentation lite”. As my colleague Mitchell Lazarus described it, the misconduct prohibited by the rule

does not involve “misrepresentation” – what many of us know as “lying” – because that requires some element of deceit. No showing of deceit is necessary to trigger Section 1.17. All it takes is the filing of “incorrect” information “without a reasonable basis for believing” that the information is, in fact, correct. This seems to say that any mistake in an application could subject the applicant to a very substantial penalty, even if the mistake is purely unintentional.

An AM licensee in Texas found out about this the hard way.

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Revised Tower Registration Process Now In Effect

 It’s official!!! The Commission’s revised antenna structure registration process is now in effect. We know that because the FCC has said so, in the Federal Register – and you can’t get more official than that. The notice announces that the Office of Management and Budget has approved the “information collection” aspects of the new system, so the FCC is cleared to crank it up – which it has now done, effective June 18, 2012

This is important news for anyone who is:

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

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

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

If you’re looking for background on what the changes may mean for you, check out our earlier post on the subject. Or you could watch the FCC’s introductory presentation and demonstration of the new system, which is available at the Commission’s website. (Time Management Tip: Before committing to watch the whole show, be prepared to invest 75 minutes of your valuable time.)

USF Contribution Reform Underway (Again)

Facing steady declines in contributions under the existing system, the FCC is trying – for the third time – to come up with a successful Plan B. Here’s hoping that three’s the charm. 

As we have reported, the Commission recently overhauled the way it doles out the Universal Service Fund (USF), a fund that last year exceeded $8 billion. Now the Commission has turned its attention to the all-important question of how it should be rounding up the cash to be doled out. In a Further Notice of Proposed Rulemaking (FNPRM), the FCC is exploring a number of potentially significant changes to the USF contributions process. 

Historically, the USF has been funded through contributions from common carriers and certain other telecommunications providers. While 2,900 (or so) telecommunications providers currently chip in to the USF, nearly 75% of USF contributions come from five companies: AT&T, CenturyLink, Sprint Nextel, T-Mobile, and Verizon.  But these contributors don’t pay out of their own pocket, as they routinely recover their USF contribution costs from their customers, usually through a line item for USF pass-through charges which is included on each consumer’s monthly bill. Since the bill for USF is thus ultimately footed in large measure by Joe and Loretta Average-Phone-User, USF funding is an important consumer issue.

The Commission is under considerable pressure to expand the universe of USF contributors or otherwise pump up contributions. That pressure arises from decreasing contributions and increasing USF demands.

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Fixed Microwave Group Makes Case for Putting More Spectrum to Work

Coalition asks FCC to adopt service rules at 41-42.5 GHz.

The Fixed Wireless Communications Coalition wants the FCC to adopt new rules for fixed microwave service in the 41-42.5 GHz band.

Almost every new service nowadays involves some degree of sharing, and this band is no exception. The 41-42 GHz segment is allocated not only to the Fixed Service – spectrum-speak for point-to-point microwave links – but also for Fixed Satellite Service downlinks, plus broadcast satellite and a few additional services. The adjacent 42-42.5 GHz region has no Fixed Satellite Service allocation, but does have the same allocations for the Fixed Service, broadcast satellite, and others. To date there has been no actual licensing in either part of the band.

Fixed Service users are willing to share the lower part of the band with satellite interests, according to the FWCC. It points out that sharing arrangements between the satellite and fixed microwave services are highly asymmetrical, tipped strongly in the satellite industry’s favor, so that sharing will have relatively little impact on satellite operations. In both parts of the band, though, the FWCC asks the FCC to follow through on an earlier proposal to delete the broadcast satellite allocation, on the ground that its continued presence would make sharing impractical.

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FCC Floats a Novel Way of Allocating Spectrum

Going beyond ordinary auctions, an FCC working paper proposes a new approach based on mathematical game theory.

The FCC is looking at a new way of allocating radio frequencies.

One of the FCC’s most difficult jobs is squeezing an ever-growing number of users into a fixed amount of spectrum. The variety of radio-based applications keeps growing, but the amount of spectrum suitable for each application is more or less fixed. True, engineering advances keep opening ever-higher frequencies, but the physics of radio waves limits those very high frequencies to a relatively narrow set of applications. Most new spectrum users must fit in and around the incumbents.

The parts of the spectrum best suited to most applications, very roughly from 30 MHz to 30 GHz, are complexly occupied. A band in this region may have primary and secondary allocations, under which secondary users are obliged to protect the primary users from interference, and must accept interference from the primary users. There may be multiple co-primary and/or co-secondary services, with those at the same level required to protect one another. The band may also have one or more types of unlicensed users, who must protect everybody else except each other, and must accept whatever interference comes their way. Much of the FCC-regulated spectrum is also shared with the U.S. government, which adds further layers of complexity.

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Update: Remaining EAS Rules Get OMB Approval, Take Effect

If you’ve been worrying about whether the “information collection” aspects of the FCC’s revised Emergency Alert System (EAS) rules would be in effect soon enough to give everybody time to meet the upcoming June 30, 2012 deadline for CAP compliance, you can breathe easy. According to a notice in the Federal Register, the Office of Management and Budget (OMB) has approved those aspects for six months, effective June 7, 2012. So everything should be good to go for CAP compliance purposes. 

While OMB approval normally lasts three years, the Commission had sought “emergency” OMB review, meaning that the FCC had cut some procedural corners in the usual Paperwork Reduction Act clearance process. The abbreviated six-month approval from OMB will give the Commission the opportunity to fill in the gaps.

Interestingly, OMB appears to have approved, as “information collections”, Sections 11.41(b), 11.42 and 11.54(b)(13). That’s interesting because all three sections have been deleted from the rules, so it’s hard to see how they might be deemed “information collections” that might require OMB approval. To be sure, Section 11.54(b)(13) has been re-codified as Section 11.54(a)(3), so the underlying requirements of that particular subsection are still in the books . . . but Section 11.54(a)(3) itself isn’t expressly included in OMB’s list of “information collections” covered by its approval. That’s probably not a fatal flaw, though, since OMB’s list does include a blanket reference to all of 47 C.F.R. Part 11, which comprises the entirety of the revised EAS rules.

The App of Invulnerability

CommLawBlog’s Curmudgeon-in-Residence observes modern society . . . and doesn’t necessarily like what he sees.

Public safety officials are becoming increasingly concerned about a new cellphone-related hazard.  This time it’s not the problem of driver distraction, which has prompted numerous states to restrict, or even ban, texting or handheld phone use while driving.   No, in this case it’s pedestrian cellphone users who are getting run over in greater and greater numbers due to pedestrian distraction.  Researchers at Stony Brook University, the University of Illinois at Urbana-Champaign and the University of Maryland have identified the growing problem of, and dangers to, distracted walkers.

We here at CommLawBlog can attest to the phenomenon.   Frequently we find ourselves driving toward an intersection or stretch of road where we unquestionably have the right of way, only to find a pedestrian strolling across the road, oblivious to the traffic around him, chattering animatedly on his phone.  He or she doesn’t bother to stop, look or listen (at least not to us).  Instead, he/she just saunters off across the street in perfect confidence that the traffic will halt, veer around, or perhaps levitate over the saunterer as long as he/she is talking into the magic device.

What’s going on?

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Up, Up and Away: In NOI, FCC Is High on DACA

Commission seeks input on Deployable Aerial Communications Architecture techniques.

When communications fail in the midst of a disaster, who can you call? Trick question: most often, you can’t call anyone because, as the question assumes, communications have failed.

But the Commission has now taken a preliminary step toward addressing the problem that gives rise to that assumption: as we predicted last year, the FCC has released a Notice of Inquiry (NOI) looking toward implementation of Deployable Aerial Communications Architecture (DACA) techniques. 

DACA techniques are designed to assist, in emergency situations, with the restoration of communications not just to first responders, but also to consumers.  Think small unmanned aerial vehicles (SUAV), weather balloons, high altitude long distance unmanned vehicles (HALE), and deployable suitcase systems.  The idea is to come up with gear that can be deployed during the first 72 hours after a disaster to help ensure communications capabilities without requiring deployment of special user devices. 

The Commission has already sought public comment on DACA, from which the Public Safety and Homeland Security Bureau prepared a White Paper on the subject.  The NOI is the next procedural step through which the FCC is looking to develop a record on which to base a set of DACA regulations.

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FCC Query: How Much Free Internet Does it Take to Get Consumers Hooked?

The Universal Service Fund (USF) – it’s not just for telephone service anymore.

For more than a decade, the Universal Service Fund (USF) has subsidized (1) telephone lines in places where there isn’t enough of a business case for phone companies to build and operate them, and (2) monthly telephone service for people who couldn’t afford it. 

That’s not good enough anymore, according to the FCC. 

As the Commission sees it, high-speed Internet – broadband – is a necessity, not a luxury. Accordingly, the FCC is looking to re-direct some USF funds to support broadband. Most likely, this will take the form of a monthly discount on broadband for low-income households.

In moving broadband way up on the list of life’s essentials, the Commission may be getting ahead of many consumers. Affordability is undoubtedly one factor in broadband adoption, but there may also be a number of people who just don’t think it’s that important, or not worth the hassle, or too much of a privacy risk, or any number of other concerns. To change their minds, the FCC has decided to use a ploy familiar to the criminal element: it’s going to test how much free or discounted Internet Joe Consumer needs to get hooked on broadband.  As with any pusher, the FCC’s apparent hope is that eventually the consumer will become addicted and willing to cough up the full price.

Accordingly, in February, the Commission announced (in its overhaul of the USF Lifeline program) that it would be setting up a Pilot Program “to test how the Lifeline program could be structured to promote the adoption and retention of broadband services by low-income households”. And now, with a public notice released April 30, 2012, the Wireline Competition Bureau has followed up on that plan. The Bureau is making $25 million available to eligible telecommunications carriers (ETCs) to carry out “field experiments” on customers.

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Media Access Project Exits Stage Left

Public interest communications “law firm and advocacy organization” closes up shop

Media Access Project (MAP), a long-time player in the soap opera that is communications law, has left the show. As of May 1, MAP suspended operations “after evaluating the difficult funding environment facing MAP and other progressive public interest groups.”

Founded in 1973, MAP assumed a variety of roles over the course of its 39-year history. To some it was a tough litigator, a thoughtful advocate, and a mouthpiece for a wide range of interests that might not otherwise have had a mouthpiece. To others, it was a self-promoting buttinsky given to advancing positions of questionable (if any) validity. A seemingly constant presence in the mainstream press, it could be a total pain in the tail to those with whom it disagreed. Many – maybe even most – “industry” representatives may have disagreed with many – maybe even most – of MAP’s positions and tactics. But MAP, apparently indefatigable and unquestionably resourceful, made its voice heard, for better or for worse.

MAP prevailed in a number of important cases before the Commission and the courts and succeeded in swaying legislative policy. But MAP’s more lasting impact will likely be the fact that it spawned, directly and indirectly, a new generation of like-minded organizations that will carry on MAP’s work into the 21st Century. The ongoing work of those organizations will be MAP’s true legacy.

The demise of MAP has a particular, personal, effect on this blogger.

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Wireless Bureau Sheds Light on Upcoming Tower Registration Regimen

Announcement of OMB approval expected soon

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

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

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

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

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

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

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USF/ICC Update: Changes in Carrier Reporting Requirements Effective May 8, 2012

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

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

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

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

Phase I Mobility Fund Reverse Auction Rules Set

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

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

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

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

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2012 Reg Fees Proposed: Up, Up and Away!

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

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

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

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

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

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Some, Maybe All, Remaining Effective Dates in Lifeline Reform Set

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

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

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

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

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

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

Update: Comment Deadlines Set in Alien Ownership Inquiry

A week or two ago we reported on a request for further comments in the alien ownership proceeding. The FCC’s notice asking for more comments has now made it into the Federal Register, which establishes the deadlines for anyone interested in chipping in his/her two cents’ worth. Comments in response to the notice are due by May 15, 2012; reply comments are due by May 25.

Lifeline Reform Update: FCC Invites Comments on Recons

Got something more to say about the FCC’s Lifeline reform? You’re in luck, because at least one more chance to share your thoughts with the Commission is here – as long as those thoughts have something to do with any of the petitions for reconsideration filed with respect to the Lifeline reform order released back in February.

According to a notice in the Federal Register, a total of eight reconsideration petitions were filed. The publication of that Register notice sets the deadlines for oppositions and replies to the petitions. If you want to oppose any of the petitions, you’ve got until May 7, 2012. Replies are now due by May 15.

In the underlying order, the Commission adopted various reforms to reduce Lifeline fraud, waste and abuse, and otherwise overhaul the Lifeline program. Read the full order here – or if you’re not up for 231 pages of fine print bureaucratese, followed by another 100+ pages of appendices – you can read more about it in our post from last month.

If you would prefer to read only the petitions for reconsideration, you can find them at the links below:

USTelecom

TracFone Wireless

T-Mobile USA, Inc.

Sprint Nextel

General Communication, Inc.

Nexus Communications, Inc.

American Public Communications Council, Inc.

District of Columbia Public Service Commission

FCC Gives T-Mobile an Earful

Carrier socked with potential $819,000 fine for not offering enough hearing aid-compatible phones

The FCC has been extraordinarily vigilant about enforcing the requirement that telecom carriers offer their customers certain minimum numbers of hearing aid-compatible handsets.   This requirement arose in 2008 when the Commission established a gradually increasing quota of acoustically coupled and inductively coupled handsets which carriers must make available to hard-of-hearing customers. The idea is that hearing-impaired folks must have a broad range of handsets of different feature levels to select from.

Although the FCC alerted the industry repeatedly to the requirements of Section 20.19 of the rules, T-Mobile seems to have seriously dropped the ball. According to a recent Notice of Apparent Liability (NAL), T-Mobile came up way short: as many as 33 acoustic hearing aid compatible handsets short in 2009 and 2010, and 14 inductive handsets short in that same period. These shortfalls were clear on the face of the annual report that T-Mobile (like other carriers) must file with the FCC detailing, among other things, the handsets they offer. The NAL doesn’t explain how T-Mobile could have failed to take steps to bring itself into compliance when its own disclosures apparently showed a shortfall in the required handsets.

The price tag for this problem?  $819,000.

Several things are notable about the NAL which, we hasten to mention, is only a preliminary set of allegations, not a final determination. T-Mobile will still have plenty of opportunity to plead its case to the Commission.

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FCC Seeks Further Input on Foreign Ownership Rules

Commission contemplates forbearance approach to direct alien ownership limits.

Last fall we reported on an FCC Notice of Proposed Rulemaking in which the FCC is considering how to simplify the application of the foreign ownership restrictions that appear in the Communications Act.   After digesting the comments submitted in that proceeding, the FCC has asked for more input. It seems that a number of commenters were concerned about the interplay of Section 310(b)(3) of the Act with Section 310(b)(4).

Section 310(b)(3) strictly forbids ownership of a broadcast or common carrier licensee by a corporation which is more than 20% owned by aliens or their representatives or by foreign governments or foreign corporations.   In other words, no more 20% of the licensee entity itself may be owned by aliens or their representatives. Section 310(b)(4), however, permits licensee entities to be owned by companies that are themselves owned by aliens or their representatives, so long as the FCC OKs the ownership. In other words, indirect ownership of licensee entities by any quantum of aliens is permissible as long as the FCC approves it.   These provisions have long been thought to define two separate classes of ownership, direct and indirect, with distinct restrictions applicable to each.

Apparently Verizon – a company whose Cellco Partnership subsidiary has significant foreign ownership – pointed out that the FCC’s 2004 effort to provide guidance on these matters actually confused things. Those 2004 guidelines seemed to treat indirect interests in licensees as being subject to the strict 20% prohibition of 310(b)(3) rather than the more liberal 25% provision applicable to indirect interests under Section 310(b)(4). Verizon correctly noted that this makes no sense, and the FCC seems to have heard Verizon’s plea.

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Update: Comment Deadlines Set in 700 MHz Interoperability Rulemaking

Less than two weeks ago the FCC released its Notice of Proposed Rulemaking (NPRM) exploring basic questions of interoperability of wireless services in the 700 MHz band. Acting with lightning speed, the Commission has hustled the NPRM has into the Federal Register. Publication in the Register sets the deadlines for comments and reply comments in response to the NPRM – and in this case the Commission has been generous to would-be commenters. Comments are due by June 1, 2012  and reply comments by July 16.

Access of Evil? FCC Unveils NOITALS

Don’t be surprised when Broadband the FCC Cat pops up on your screen.

The Commission has long bemoaned the fact that the Great Unwashed are “woefully ignorant” of the nitty-gritty details of their Internet access. Not for long. That bell you just heard was signaling the start of classes at the University of FCC, Online Division. Attendance is required. Prepare to get schooled.

In a surprising move – made all the more surprising by the low-key way in which it was disclosed – the Commission is taking aggressive steps to correct the rampant problem of high tech know-nothingism.

Meet NOITALS – the Nationwide Online Information Tracking and Logistics System. (Apparent pronunciation: “KNOW-IT-ALLS”.) In a public notice announcing, among other things, an expansion of the 2012 Measuring Broadband America Performance Study of Residential Broadband Service in the U.S., the Commission mentions NOITALS, pretty much in passing, without any fanfare at all. The Commission plans to use NOITALS to measure everybody’s Internet access speed, along with other parameters of Internet performance). 

How’s it going to do that? 

It seems that NOITALS enables the Commission to see what’s going on in each individual computer, nationwide, without the intervention of the computer’s user.

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Junk Text Provider Wants to Have the Last Word

Should an individual who opts out of text messages receive just one more?

Amid the hundreds of pages of serious stuff coming out of the FCC every day, an occasional oddity catches our eye.

If you have a cell phone, you know about junk texts. From the moment the wireless phone companies began to offer text messaging, it was just a matter of time till we started getting unwanted texts, much as we get telemarketing calls, junk faxes, and email spam. But junk texts can be worse. Not only are we distracted by the unwelcome message, we may have to pay for it, too. Many widely-used wireless phone plans charge 15 or 20 cents per text message sent or received, whether we want it or not.

Back in 2003, the FCC made sending most automated junk texts to cell phones illegal. Since junk texts have to be automated to reach any reasonable number of people, and it is mostly cell phones that can receive them, that pretty much ruled out junk texts altogether. There are exceptions, including one for companies you do business with. Your pharmacy, for example, can send you a text message saying your prescription is ready. But as to these cases, the FCC requires that you have the opportunity to opt out.

A company called SoundBite Communications, Inc., whose business includes sending out texts for other companies, came to the FCC with a problem verging on the metaphysical.

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FCC Relaxes Rules for Unlicensed PCS

 New rules clear way for denser device concentration, higher data rates.

The FCC has relaxed the rules for unlicensed PCS.

If you have no idea what unlicensed PCS is, you have a lot of company. Even among spectrum experts.

Most voice calls from a cell phone don’t actually use cellular frequencies, which are a little above 800 MHz, but instead use higher frequencies allocated to the Personal Communications Service (PCS) in the vicinity of 1.9 GHz. Some PCS frequencies carry signals from the tower to your handset, while other frequencies carry signals the other way, from the handset to the tower. The two have to be kept well separated, lest the transmitter in the handset overpower its own receiver. Of the several ways to achieve this separation, the FCC chose the simplest: a “guard band” 15 MHz wide between the tower-to-handset and handset-to-tower frequencies. But the guard band need not be completely idle, and in fact is used for multiple purposes. One segment, at 1920-1930 MHz, is available on a shared basis for unlicensed applications: hence unlicensed PCS, or in Washington-speak, UPCS.

Unlike some of the other unlicensed bands that house Wi-Wi, Bluetooth, ZigBee, and thousands of consumer applications (our own favorite is a wireless diaper wetness sensor), the UPCS band is lightly populated, mostly with cordless phones. The FCC rules for the band include a complicated “spectrum etiquette” – a listen-before-talk scheme that minimizes the odds of one device stepping on another’s transmission. But the benefit comes with downsides: added equipment costs, and an upper limit on the number of devices that can successfully operate in a given environment.

The new FCC order does not eliminate these technical rules, but it simplifies them considerably. The result will allow more devices to work in close quarters, and will allow devices to transmit at higher data rates. The new rules are closer to those used in many other countries, which simplifies life for global manufacturers. The FCC also cleaned up provisions that were needed when the 1920-1930 MHz band was transitioning from fixed microwave to UPCS and the other current applications, but are no longer needed.

All the details are here.

700 MHz Interoperability Issue Reaches Primetime

FCC tackles key questions about the future of the band.

In response to years of increasingly urgent agitation about the need for interoperability in the 700 MHz band, the FCC has issued a Notice of Proposed Rulemaking to look into the basic questions of whether there are any interference issues raised by interoperability and whether there is a need for regulatory intervention to ensure that users of all licenses in the band have roaming access to each other’s spectrum and can get affordable handsets.

The problem arises because AT&T and Verizon have significant holdings in the 700 MHz band. Verizon has many licenses in the Lower A and B Blocks and the entire Upper C Block, while AT&T has Lower B and C Block licenses and all or most of the Lower D and E Blocks.   The 3GPP (i.e., 3rd Generation Partnership Project) standards setting body has established Band Class 12 to cover operation over the entire lower 700 MHz band and Band Class 17 to cover operation in only lower B and C Blocks. This means that user devices manufactured for Band Class 17 will not be able to operate on the A Block where the licenses are held mostly by smaller entities, though the A Block licensees will be able to operate on the B and C Blocks.

You might think that it would be the Verizon and AT&T customers who would have the most to lose from this situation, since they would have Class 17 handsets and would not be able to roam in many of the smaller rural areas where A Block licensees will be building out.   To be sure, AT&T and Verizon customers will find that they are unable to get 700 MHz service in places where only A Block service is available. But the thing that gives A Block licensees nightmares is not so much the loss of that significant roaming revenue, but the inability to get handsets at all.

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Update: OMB Sets Comment Deadline for Tower Registration Regimen Revisions

Last month we reported on changes to the FCC’s tower registration process that have been adopted, but not yet fully implemented. One of the hold-ups in the implementation process is the need for OMB approval (thanks to our old friend, the Paperwork Reduction Act). Never fear. The Commission is working on taking care of that detail. The first step of the PRA review process has been wrapped up and, according to a notice in the Federal Register, OMB has now invited comments on the FCC’s tweaks to the tower registration process. The deadline for those comments is April 18, 2012. The notice does not contemplate any reply comments, so once Patriot’s Day comes and goes, OMB will be in a position to sign off on the changes (assuming that everything is in order – and at this point, there seems little reason to doubt that that’s the case). Once OMB has given them the thumbs up, the FCC will publish a notice alerting us all to that and establishing an effective date. Check back here for updates.

CMAS Reminder!!!

CMS providers who opted into the CMAS are looking at a fast-approaching deadline; so are providers who didn’t opt in.

Four years ago the Commission devised the Commercial Mobile Alert System (CMAS). You may know CMAS as the “Personal Localized Alerting Network” (PLAN) or “Wireless Emergency Alerts” (WEA). Whatever you call it, it’s a voluntary service through which wireless providers deliver emergency alerts and warnings from FEMA to their customers. In 2009, the Commission announced the timetable for roll-out of CMAS – a 28-month period that just happens to end in about three weeks, on April 7, 2012.

About 98% of all commercial mobile services (CMS) providers have signed up to be part of the CMAS. If you’re one of them, heads up. You’ve got until April 7 to begin sending the alerts out to cell phones and other mobile devices. Since the 28 months since the timetable announcement have supposedly been devoted to an extended process of development and testing (over the first ten months) and implementation and deployment (the last 18 months) involving all concerned, the fast-approaching deadline shouldn’t be a big surprise. But if this particular chore has somehow slipped off your to-do list, now would be a good time to put it back on the list, probably toward the top.

And those 2% of you who chose not be CMAS participants, you’re not off the hook. The CMAS rules require that you notify your customers and prospective customers that you will not be providing emergency alerts throughout all or part of your service area. And those notifications have got to be in place by May 15, 2012, according to a recent notice from the Public Safety and Homeland Security Bureau

The Commission’s rules provide the specific language to be used for these notifications. With respect to new or prospective customers, non-participating CMS providers who are not participating at all in CMAS must provide “clear and conspicuous” notice, at the point-of-sale, as follows:

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More Steps Toward TV Band Clearing

Sixteen more Class A stations face the loss of their Class A status.

The thinning of the ranks of Class A TV stations continues.  We reported recently that the FCC has started to propose the downgrading of a number of Class A television stations to LPTV status, presumably to make room for the almighty broadband to take over TV spectrum.  The stations targeted in the first round of that effort had (a) failed to file Children’s TV Reports and (b) failed to respond to FCC’s inquiries about the whereabouts of those reports.  (The Commission later fined a number of other stations which had also failed to file kidvid reports; they escaped the dreaded downgrading because they had at least responded to the FCC’s inquiries.)

Another 16 Class A’s now face the prospect of being demoted to LPTV status. 

Like the stations we’ve already reported on, the latest batch of targeted Class A’s got onto the FCC’s radar by not filing Children’s TV Reports.  In response to the FCC inquiry about those missing reports, each of the three licensees (one holding 13 licenses, another two, and a third one) acknowledged their respective failures to file.  Each also acknowledged that their stations had operated, at most, only sporadically over the last several years.  Two blamed the economy for the extended darkness; one claimed that its non-operation – its two stations had operated a total of less than four months in the last five years – arose from a “need to locate permanent transmitter sites”.   Two of the three licensees’ responses also indicated that their stations no longer had main studios (much less public files located their main studios).

In order to qualify for Class A status, a licensee must maintain a main studio and broadcast a minimum of 18 hours per day, with an average of at least three hours weekly of locally-produced programming and three hours of children’s programming.   From the responses described above, the Commission concluded that none of the 16 stations still qualified to be Class A – accordingly, they’re looking to be downgraded.

The FCC suggests that Class A stations who find themselves temporarily unable to meet the minimum regulatory requirements for Class A status may, in some circumstances, be eligible for special temporary authority to operate at variance from those requirements.  But such STA would be only temporary, and would not cover extended time periods of noncompliance, particularly when the reason for the STA is financial distress.  The Commission is particularly skeptical about stations that close their main studios and/or de-construct their transmission facilities. The result of this strict approach, of course, is to impose the greatest hardship on the most vulnerable. 

The other side of the argument is that no one is proposing to take away licenses; rather, all that’s involved here is a status downgrade (from Class A to LPTV), which still allows the stations to resume operation.  Whether there is a difference between taking away the license and taking away only Class A status remains to be seen after we know more about the prospects of space remaining for LPTV stations after implementation of the FCC’s plan to truncate the TV spectrum by 10-20 channels.

FCC Reminder: Cell Phone Jammers are Illegal

FCC warning follows much-publicized incident on a Philadelphia bus.

The FCC has issued one of its periodic warnings against selling or using jammers to interfere with cell phones, GPS, Wi-Fi, or any other radio-based service.

The story this time begins with a guy named Eric who rides the buses in Philadelphia. Whenever someone on the bus disturbed his tranquility by talking on a cell phone, Eric fired up his pocket-sized cell phone jammer. The caller’s phone stopped working, and Eric resumed his internal dialogue undisturbed. “A lot of people are extremely loud,” explained Eric, “no sense of just privacy or anything.  When it becomes a bother, that’s when I screw on the antenna and flip the switch.”

One of Eric’s fellow passengers works for a local TV station. “He’s blatantly holding this device that looks like a walkie-talkie with four very thick antennae,” she reported to her colleagues in the news department. “I started to watch him and any time somebody started talking on the phone, he would start pressing the button on the side of the device.”  A news crew went undercover and caught Eric in the act.

It must have been a slow news day in Philadelphia. The story went semi-viral, drawing both support and condemnation. Some people, along with Eric, believed that jamming cell calls is not illegal. 

The FCC wants you to know that’s wrong.

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Telecom Companies Take Note: Your Form 499-A Deadline Is Less than a Month Away

It’s that time of year again – all telecoms and VoIP providers must file their annual Form 499-A by April 2.

That “other” April deadline is right around the corner: all telecommunications carriers are required to file FCC Form 499-A by April 2, 2012. If you’re an intrastate, interstate or international provider of telecommunications in the U.S., this probably means YOU (but check below for the short list of exemptions).

 Form 499-A is used to true up the carrier’s Universal Service Fund contributions reported during the previous year. The revenues reported on the form will also be used to calculate upcoming 2012 contributions to the Telecommunications Relay Service, the North American Numbering Plan, and the Local Number Portability Fund.  (For 2012, the proposed “contribution factor” – i.e., percentage of revenues that must be paid – will be a whopping 17.9 percent, up from 15.3 percent in the last quarter of 2011. Ultimately, these contributions come from consumers, who are assessed a surcharge as a percentage of their phone bill.)

The new 2012 form was released on March 5, giving carriers less than a month to get on file. It’s mostly the same as last year, except that now non-interconnecting VoIP providers must file to fulfill their new obligation to contribute to the Telecommunications Relay Service Fund. (That new obligation comes courtesy of the Twenty-First Century Communications and Video Accessibility Act of 2010.)

A reporting company’s initial 499-A filing must be paper and ink; after that, carriers can file online through USAC’s website.

Before starting to fill out the form, a reporting company will need to pull together some financial information – i.e.,billed revenues for 2011, broken down into various categories. There is a safe harbor percentage available for entities that have difficulty separating their telecommunications versus bundled non-telecoms revenues. There is also a safe harbor for cell and VoIP providers to use in breaking out their interstate versus intrastate revenues.

Additionally, carriers with a lot of international revenue should take note of the “limited interstate revenues exemption” (LIRE). That allows companies whose interstate revenues are 12% or less than their international revenues to exclude international revenues in their “contribution base” (the amount upon which their contribution is assessed). Don’t look for this exemption in the Form 499-A instructions; it’s buried in a worksheet in an appendix.

If you’re not sure whether you’re a telecommunications carrier or not, you probably are. The category of mandatory 499-A filers is broad, including resellers, non-common carriers and VoIP providers. However, there are limited exemptions for:

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Net Neutrality Update: The D.C. Circuit Goes Through the Motions

Court resists FCC efforts to delay judicial review.

It’s been several months since that Hot Topic Of All Hot Topics, net neutrality, graced our space here. When last we reported on the subject, the net neutrality order had finally made it into the Federal Register, a number of parties had sought judicial review in a number of federal courts of appeals, the D.C. Circuit had been picked as the lucky court that will hear arguments on the matter, and a lone petition for reconsideration of the order had been filed with the Commission.

Then things got quiet.

It turns out that, despite the silence, things have been happening down at the D.C. Circuit. Earlier this month the court acted on a couple of FCC motions. While the court’s order consists of a whopping three sentences, it at least provides some tea leaves for us to study while we wait for further developments.

At issue were (a) the FCC motion to dismiss Verizon’s “notice of appeal” and (b) an FCC motion to have the court hold the case in abeyance while the Commission addresses the one petition for reconsideration of the net neutrality decision that was filed with the agency. [Spoiler alert: the court denies the abeyance request, but leaves the motion to dismiss in limbo.]

You can find the background on the Verizon notice of appeal in this series of posts from last year. As we indicated back then, Verizon filed both a “notice of appeal” (pursuant to Section 402(b) of the Communications Act) and a “petition for review” (pursuant to Section 402(a)) in an apparent effort to boost the chances that the D.C. Circuit would be the U.S. Court of Appeals to decide the fate of net neutrality. The Commission moved to dismiss the former almost immediately, presumably in the hope that, if the Verizon appeal were dismissed, the case might ultimately land in some other circuit.

Before Verizon even got a chance to oppose the FCC’s motion last fall, the Joint Panel on Multidistrict Litigation (JPML) had selected the D.C. Circuit to hear the case, so the Commission’s motion was moot.

Or maybe not.

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Update: Comment Deadlines, Some Effective Dates in Lifeline Rulemaking Set

The Commission’s magnum opus setting out new rules for the Lifeline program – and proposing more new rules for that program – has been published in the Federal Register. (Click here for the portion containing the proposed rules; click here for the portion containing the new rules that have already been adopted.)

This publication establishes the deadlines for comments and reply comments relative to the proposed rules. If you would like to submit comments, you have until April 2, 2012; reply comments are due by May 1.

The Federal Register publication also establishes the effective dates of some (but not all) of the adopted rules. Get a pencil and paper out – you may need to take notes. Sections 54.411, 54.412, 54.413 and 54.414 will take effect April 1, 2012. Section 54.409 will take effect June 1, 2012. What about Sections 54.202(a), 54.401(c), 54.403, 54.407, 54.410, 54.416, 54.417 54.420 and 54.222? They all involve “information collections” and thus must first be blessed by the Office of Management and Budget thanks to our old friend, the Paperwork Reduction Act before they can take effect.

Can Your Local Police Shut Down Cell Phone Service?

An FCC inquiry follows a transit authority’s deliberate disabling of passengers’ wireless phones.

The FCC has always been interested in preventing interruptions to telephone service. Usually it focuses on failures due to natural disasters, and plain old equipment breakdowns. But now it has a new concern: deliberate service stoppages implemented at the request of a state or local government. Yes, it sounds like something out of protests in the Middle East. But it happened at least once in the United States, and now the FCC is looking for policy guidance, hopefully before it happens again.

Last August, the folks who run the Bay Area Rapid Transit (BART) system in San Francisco/Oakland had word that protesters, objecting to BART police having shot and killed a man wielding a knife, planned to disrupt train service. (See a contemporaneous news account.) The protesters intended to use mobile devices, according to BART officials, to coordinate their activities and share information on the deployment of BART police. Fearing platform overcrowding and other unsafe conditions, and hoping to disrupt the disruptions, the BART people pulled the plug on underground cell phone service. (Protesters nonetheless managed to briefly shut down three stations.)

The BART system is something of a special case, in that BART itself owns the underground wireless network in its tunnels. Its actions consisted merely of turning off its own equipment.

Or maybe the matter is not that simple.

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FCC Tightens up Lifeline Program

Looking to rein in fraud, waste, and abuse in the federal Lifeline program, the FCC has pulled out almost every bureaucratic tool in the box.

As we all know, the federal Lifeline program, overseen by the FCC, provides subsidized phone service to low-income households. In 2010, the Government Accountability Office released a report revealing a significant lack of direction and control within the Lifeline program. In response, the FCC has now adopted comprehensive measures to combat fraud, waste, and abuse in the program. By doing so, it hopes to trim “up to” $200 million from the Lifeline program this year and $2 billion over the next three years.

The FCC’s Report and Order and Further Notice of Proposed Rulemaking (R&O/FNPRM) spans 231 pages (and another 100 pages or so of appendices). Eligible telecommunications carriers (ETCs) will want to familiarize themselves with the many specific requirements detailed in the R&O/FNPRM in order to assure compliance. The following provides an introductory overview of the highlights of the FCC’s action. (Important note: this post does not address (a) Lifeline issues specific to Tribal lands or (b) state-conducted eligibility review.)

The R&O/FNPRM focuses on two main problem areas: (1) support for more than one person per household; and (2) support for ineligible consumers.

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First Steps Toward TV Band Clearing Start

Commission moves to downgrade primary Class A stations to more vulnerable secondary LPTV status.

With the spectrum auction legislation now in effect, the FCC is turning to the task of clearing TV spectrum for wireless broadband.  As we all know, that will involve some shuffling, since full power and Class A television stations have rights as primary spectrum licensees and must therefore be accommodated somewhere on the band. 

But the auction legislation specifically recites that it does not change the status of Low Power Television stations,which presumably continues their secondary status. That gives the Commission a lot more flexibility in dealing with LPTVs because it does not have to take LPTVs into account when it plays chess with full power and Class A channel assignments.  While LPTVs will likely be given an opportunity to find, and file for, some alternate channel, they may need good luck to find one in the anticipated cramped condition of the post-repurposing TV band.

So, from the Commission’s perspective, the chore of repacking existing stations would probably be much easier if Class A stations could be downgraded to LPTV status.

Where there’s a will, there’s a way: the downgrading effort has begun.

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Update: Incentive Auction Act Signed Into Law

It’s official! The White House website indicates that President Obama signed the Middle Class Tax Relief and Job Creation Act of 2012 into law on February 22. That clears the way for the FCC to start crafting – and then implementing – the elaborate incentive auction process intended to free up spectrum (including TV spectrum) for mobile broadband. As we previously indicated, this is likely to be a long and complicated process – but at least now (and for the immediate future) the game will be played out primarily in a single venue, i.e., the FCC. No more having to keep one eye on the Commission and the other on Congress to see who was doing what spectrum repurposing-wise at any given moment.

And heads up, all you states and localities – the requirement that you green-light non-substantial changes to wireless towers and base stations is now in effect, too.

Congress Requires State/Local Rubber Stamp Approval of Some Wireless Tower Modifications

Payroll tax cut extension law gives modest relief to wireless tower industry; Congress to localities: States’ rights? What states’ rights?  

In a little noticed section of the landmark Middle Class Tax Relief and Job Creation Act, Congress has thrown the wireless industry – or, more specifically, the folks who build towers for the wireless industry – a small measure of relief in the on-going struggle to get tower modifications approved and constructed. Buried in a collection of odds and ends dumped, seemingly as afterthoughts, at the end of the law, Section 6409 requires state and local governments to approve modifications of wireless towers and base stations as long as those modifications don’t substantially change the dimensions of the existing structures.

The wireless industry has long complained that local authorities hold up approval of new tower construction either out of either misplaced concern for interference issues or simply as a revenue-generating mechanism. That problem has increasingly spread to tower modifications as well.

The streamlining of needed approvals is a big inducement to licensees to collocate on existing structures, saving considerable time and money in getting a station up and operating. Most federal rules properly treat minor modifications of existing structures as non-events that require little or nothing in the way of prior approvals. Local authorities, by contrast, have come to see such collocation applications as an additional opportunity to interpose themselves into the process, usually not to the financial or operational benefit of the carriers.

Congress moved to correct this abuse. In Section 6409 it simply pre-empts states and local authorities from being able to deny eligible facilities requests, i.e., requests involving:

  • the collocation of new transmission equipment;
  • the removal of transmission equipment; or
  • the replacement of transmission equipment.  

Once the President signs the act into law, these seemingly innocuous alterations of existing structures will be safe from state and local meddling.  (The law does leave all applicable environmental rules with respect to such towers in effect.)

At least two questions remain.

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Telecom Tickler 2012 - CPNI Certifications Due By March 1

It’s that time of year again – that is, if you happen to be a telecommunications carrier or interconnected VoIP provider. If you’re one of them, your Customer Proprietary Network Information (CPNI, for short . . . but you already knew that) certifications are due at the Commission by March 1, 2012. 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. 

 As we have explained before (last year, for example), the CPNI rules are designed to safeguard customers’ CPNI against unauthorized access and disclosure. (If you’re a glutton for punishment and want to read the actual rules, you can find them in Subpart U of Part 64 of the Commission’s rules. Here’s a link that will take you there, but don’t say we didn’t warn you.) Since 2008, the rules have required that telecommunications carriers and interconnected VoIP providers have an officer sign and file with the Commission a compliance certificate, annually, 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 also provide: (a) a statement accompanying the certification explaining how its operating procedures ensure that it is or is not in compliance with the rules; and (b) 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.  

The Commission takes this reporting requirement very seriously – so seriously, in fact, that it has in many instances initiated forfeiture proceedings against carriers who, as it turned out, had fully complied with the rules.

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Revised Tower Registration Regimen Ready (But Not Yet In Effect)

FCC adopts changes in ASR processes for the birds; OMB approval still needed

It looks like new bird-friendly procedures for proposed tower construction could be with us by summer. If you’re thinking about building a tower 200 feet tall (or taller) – and especially if you’re planning to build something taller than 450 feet – you might want to get that proposal on file sooner rather than later. The longer you wait, the more likely it is that you’ll end up subject to considerably more burdensome processes.

The new procedures have been years in the making. (We previewed them last April, shortly after the Wireless Bureau solicited comments on a preliminary version.) They arise from concerns raised by a number of conservation groups (e.g., the American Bird Conservancy, the National Audubon Society) who urged that the Commission should afford more opportunity for public comment about proposed tower construction. According to the conservation groups, towers pose risks to birds (particularly migratory birds).

Accordingly, the groups (with a boost from a 2008 decision of the U.S. Court of Appeals for the D.C. Circuit) have pressed the Commission to modify its Antenna Structure Registration (ASR) program. Those chickens will soon be coming home to roost.

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Congress Opens Door for Spectrum Repurposing, Incentive Auctions

With passage of the Middle Class Tax Relief and Job Creation Act, incentive auctions for spectrum repurposing take a great leap forward.

After more than a year of back-and-forth, it looks like our friends on Capitol Hill have finally come to terms on a plan to encourage – through “incentive auctions” – the so-called “repurposing” of spectrum now occupied by TV broadcasters to make it available for wireless broadband services. Snuggled in the middle of the payroll tax cut extension act, the long-awaited spectrum auction authority has been enacted and sent to the President who has said that he will sign it promptly.

(In signature Washington style, the curiously-named “Payroll Tax” bill – formal name: the Middle Class Tax Relief and Job Creation Act of 2012 – dedicates a mere three sentences to tax issues and more than 250 to other matters, like Medicare reimbursements, unemployment benefits, federal employee retirement rules . . . and the federal spectrum policy and telecommunications funds.)

Title VI of H.R. 3630 of the Act includes the particular provisions authorizing incentive auctions of broadcast spectrum and creating an interoperable public safety network. (We plan to provide a link to the Act as finally signed by the President when it’s available.)

The good news is that most, but not all, parties with some stake in the game received at least part of what they were hoping for. Of particular interest to broadcasters: the act requires the FCC to make “all reasonable efforts” to preserve existing coverage of TV stations; prohibits the involuntary moving of broadcasters from UHF to VHF, or from high-band VHF to low-band VHF; provides for a one-time auction and a relocation fund of $1.75 billion; and requires coordination with Canada and Mexico on border concerns.

The bad news, at least for low power TV licensees: the definition of “broadcast television licensee” for the purposes of incentive auctions is limited to full-power television stations and “Class A” television stations. LPTV licensees get only a single provision stating that nothing alters their spectrum usage rights. That language will provide little comfort to some in view of the secondary nature of LPTV operations. Still, the language can be cited by LPTV interests as a Congressional directive to the FCC not to ignore the fate of LPTV stations if and when the TV broadcast spectrum is truncated.

Also of note:

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FCC Seeks Comment on Proposed Withdrawal of LightSquared Waiver

Action follows opposition of federal GPS users.

Yesterday we reported that federal spectrum users had decided there was no way to mitigate interference from LightSquared into GPS, a finding that led the FCC to announce it would withdraw LightSquared’s conditional waiver to offer terrestrial service on mobile satellite frequencies.

The FCC has since issued a public notice seeking comment on its intended withdrawal of the waiver. We detect a note of irritation. The public notice relates how the FCC and LightSquared had moved forward through several stages of approval that culminated in the conditional waiver. Yet the GPS users were silent for most of that process, only to come forward with their objections at a relatively late stage.

The FCC has also made available the letter from National Telecommunications and Information Administration (NTIA) which, on behalf of federal spectrum users, prompted the FCC to propose terminating LightSquared’s authority. Along with that letter is one from the National Space-Based Positioning, Navigation and Timing Executive Committee (EXCOM), a test report commissioned by NTIA and EXCOM, a cover letter from EXCOM accompanying a test report from the National Space-Based Positioning, Navigation, and Timing Systems Engineering Forum, and a cover letter from the Federal Aviation Administration introducing an FAA test report. Some of these documents are redacted for public consumption. It is possible that other reports, not made publicly available, also influenced NTIA’s decision to come out against LightSquared’s plans.

Comments on the proposed withdrawal of the LightSquared waiver are due on March 1, 2012. There is no provision for reply comments.

Federal GPS Users Nix LightSquared

U.S. spectrum agency finds there is no practical way to mitigate interference to GPS.

LightSquared Inc. holds mobile satellite licenses that it wants to use for delivering terrestrial (tower-based) broadband service. But probably not for much longer.

LightSquared’s proposal is controversial in part because its frequencies are close to those transmitted by GPS satellites, and so can threaten interference to GPS receivers. Two weeks ago, we reported on LightSquared’s request for an FCC ruling that GPS users are not entitled to protection from LightSquared’s interference. We noted then that the federal government, which both operates the GPS satellites and also uses GPS for many safety-critical operations, had not yet weighed in, and that when it did, its views could well settle the issue.

The federal government has now spoken. What it said was: No. In the FCC’s words, “NTIA, the federal agency that coordinates spectrum uses for the military and other federal government entities, has now concluded that there is no practical way to mitigate potential [LightSquared] interference at this time.”

LightSquared holds a provisional waiver that authorizes it to provide terrestrial service, conditioned on its first resolving the GPS interference issues. With NTIA having determined  that those issues cannot be resolved to its satisfaction, the FCC will soon release a formal proposal to terminate LightSquared’s authority.

The Fat Lady has not sung, quite yet. But she is warming up backstage.

FCC To Proceed With Mobility Phase I Auction

FCC plunges ahead despite pending appeals and reconsideration petitions

The FCC has released a Public Notice announcing proposed ground rules for its planned “reverse auction”  to award $300 million in funding for mobile service to under-served parts of the country.    In a reverse auction, bidders vie to accept the lowest payment from the FCC to provide a slate of designated services by a certain date. The Commission is inviting comments on its proposed approach, but interested parties will have to act fast (as will the Commission): the auction is tentatively scheduled for September 17, 2012, but there is a lot of work to be done before the auction can actually take place. 

No one can say the FCC isn’t moving quickly on this auction – perhaps too quickly. It issued this public notice only a month after the new Mobility Phase I process became effective as part of the watershed USF/ICC reform order adopted last fall. The problem is that petitions for reconsideration were filed in December challenging the timing and structure of the proposed auction. Until those are resolved, the FCC can hardly proceed too far with the auction.  

At the same time, the source of the funds to be distributed in the auction remains up in the air. Long-time observers of this space will recall that the FCC in 2010 took the unusual step of “re-purposing” some $500 million dollars that has been designated under the USF program for CETCs.   (When Verizon and Sprint agreed to forgo USF payments that would have been due to them over the next five years, the FCC decided to put that money into a rainy day fund for broadband build-out rather than distributing it to the remaining CETCs.) That highly unusual and suspect action remains under review by the U.S. Court of Appeals for the D.C. Circuit. Depending on the outcome of that case, there may not be any money to hand out. 

Curiously, the FCC failed to alert folks interested in the auction that the auction and the money are both still very much up in the air.

Assuming that the auction proceeds in something like its present form, however, the FCC’s notice sheds some light on what is likely to be in store.

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LightSquared Seeks FCC OK to Interfere with GPS

The FCC must decide who will suffer the consequences of inferior GPS receivers.

In the ongoing dispute between LightSquared Inc. and the GPS industry, LightSquared has requested an FCC ruling that GPS users are not entitled to protection from LightSquared’s interference. And the FCC’s International Bureau, in turn, has asked for the public’s input on LightSquared’s request.

Back in January, 2011, the FCC gave LightSquared a waiver authorizing it to provide terrestrial, tower-based mobile data service on frequencies once set aside exclusively for mobile satellite communications. The waiver was (and remains) subject to some conditions – one of which requires LightSquared to satisfy a formal “Interference-Resolution Process” to address concerns about potential interference to GPS receivers. Meeting that condition has been a problem for LightSquared.

Because LightSquared’s frequencies are just below those coming down from the GPS satellites, GPS users feared interference. So the FCC set up a working group to run tests. 

The working group, which includes people from both LightSquared and the GPS industry, subsequently filed a report that found that LightSquared’s operations resulted in “potentially significant interference” into various GPS devices in the upper 10 MHz portion of LightSquared’s band (i.e., the portion that closely abuts the GPS frequencies). The report also identified interference issues in the lower 10 MHz portion of the band, which is farther from GPS. One chilling example: “LightSquared deployment plan[s] are incompatible with aviation GPS operations absent significant mitigation, and would result in a complete loss of GPS operations below 2000 feet above ground level (AGL) over a large radius from the metro deployment center.”

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FCC "Shot Clock" Presumptions for Wireless Tower Permitting Upheld

Less than hard-and-fast 90- and 150-day time limits for state/local actions on wireless tower permit requests affirmed

Cellular tower builders and wireless companies can breathe a sigh of relief: the “shot clock” presumptions imposed by the FCC on local government permitting processes have been upheld by the U.S. Court of Appeals for the Fifth Circuit. As a result, those presumptions – i.e., that state and local officials should ordinarily take no more than 90 days to act on wireless “collocation” applications and 150 days to act on all other wireless siting applications – remain in effect. But in affirming the Commission’s judgment in the face of challenges brought by two Texas communities, the Fifth Circuit acknowledged that local governments may still be able to rebut the presumptions – and, thus, drag out the permitting process – in individual cases.

The issue of local foot-dragging in antenna siting processes got on the Congressional agenda back in the 1990s. Out of concern that local governments might be reluctant to authorize new or modified transmission facilities in their particular bailiwicks (can you spell NIMBY?) and that such reluctance might in turn stymie the spread of wireless services, Congress weighed in. In the 1996 Telecom Act, Congress required that state and local governments act on requests to “place, construct, or modify” wireless facilities “within a reasonable period of time” after the filing of such requests. 

That statutory mandate, however, proved less than effective because – here’s a surprise – tower builders, wireless operators and municipalities tended to differ over what constituted a “reasonable period of time”. Is a year too short? Is ten years too long? In 2008, more than a decade after the 1996 Telecom Act, CTIA-The Wireless Association® asked the Commission to tie down the concept of “reasonableness” a bit tighter than Congress had. 

After soliciting and considering a broad range of comments, the Commission obliged.

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Big Deal? Size Still Matters to M&A Regulators

Feds revise triggers for automatic merger and acquisition review

Last year saw some successful (NBC/Comcast) and some not so successful (AT&T/T-Mobile) merger applications in the communications sector.  And with hope for continued improvement in the overall economic climate springing eternal, it’s possible that more large scale mergers may be in the pipeline. With that in mind, potential merger/acquisition candidates should be aware that the federal government has performed its annual ritual of announcing the thresholds it will use for automatic federal review of mergers and acquisitions

If a transaction exceeds a certain amount, both the Department of Justice and the Federal Trade Commission must scrutinize the deal and render an opinion about any anti-trust concerns raised by the deal.  In addition, as AT&T is acutely aware, when a large merger involves communications assets, the FCC also has no problem sticking its nose into the deal.  In fact, the FCC has its own SWAT team (formally called the Office Of General Counsel Transaction Team) to review deals.  Unlike the DoJ and the FTC, the FCC’s team is not automatically required to review deals of certain size; they could theoretically refrain from involving themselves in deals that pass the triggers described below. Note, though, that the FCC’s SWAT team – as well as DoJ and FTC – can choose to investigate smaller deals coming in below the triggers.

Readers considering a merger or acquisition should bear in mind that after February 27, 2012, 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 $272,800,000; or

the total value of the transaction exceeds $68.2 million andone party to the deal has total assets of at least $13.6 million (or, if a manufacturer, has $13.6 million in annual net sales) and the other party has net sales or total assets of at least $136.4 million

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.

Update: FCC Invites Comments on Recon re New iTRS Rules

Last August we reported on new rules imposing a number of restrictions on providers of Internet Telecommunications Relay Service (iTRS). Those rules took effect in October, but if you have an interest in iTRS, heads up. A petition for reconsideration of the new rules was filed, and the deadline for commenting on, or opposing, the petition has just been announced.

Among other things, the new rules put an end to the previous practice of some iTRS providers of assigning free “800” numbers to iTRS users. While iTRS users may still have toll-free numbers, they now have to obtain those numbers like everyone else – from the same companies that provide them to the public at large, subject to whatever fees may be involved (unless a hardship waiver is granted).  Each toll-free number must be mapped to a regular “plain old telephone service” (POTS) number and be portable from one carrier to another; numbers that aren’t so mapped must be removed from directories. 

The sole petitioner seeking reconsideration – Sorenson Communications, Inc. (Sorenson) – says that the FCC put an unjustified burden on its back.Sorenson, which controls the lion’s share of the iTRS market, complains that iTRS service providers should not be responsible for mapping toll-free numbers to POTS numbers. According to Sorenson, if an iTRS provider doesn’t issue the toll-free number, the provider won’t know (other than by burdensome case-by-case investigation) whether a number provided by its customer is legitimate.  The number might not work at all, it might be discontinued after a while, or it might be used for spoofing or other deceptive practices.  If the FCC won’t let iTRS providers issue the numbers, it would be better just to take toll-free numbers out of the iTRS database, in Sorenson’s view.

Oppositions to Sorenson’s petition may be filed by January 24, 2012; replies may be filed by February 3.

FCC to Convenience Stores: Oops!

Procedural stumble results in withdrawal of citations and proposed fines

We reported last year on FCC citations against convenience store chains Circle-K and 7-Eleven. We don’t usually think of convenience stores as being subject to FCC regulation. But because the stores stocked prepaid cell-phone handsets, the FCC designated them “resellers of wireless services,” and went on to fault them for failing to file certain reports relating to compatibility of the handsets with hearing aids.

The FCC has now withdrawn those citations along with eight others, plus nine proposed fines.

When the FCC or any federal agency adopts a rule that imposes new paperwork burdens, the hilariously-named Paperwork Reduction Act requires the rule to be approved by the Office of Management and Budget (OMB) before it can go into effect. The FCC ships the newly-adopted rule over to OMB for review, a process which normally takes just a few weeks. OMB almost always approves the rule, even if it triggers staggering amounts of new paperwork, and gives the rule a “control” number. The FCC then puts a notice in the Federal Register saying the rule is effective.

Unfortunately, this seemingly simple process has been breaking down with increasing frequency.

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AT&T Gets More Spectrum with Buy from Qualcomm

In wake of rejection of T-Mobile acquisition, AT&T extends its holdings in the Lower 700 MHz band, with a few strings attached.

The march toward spectrum consolidation continues. In a Christmas week action, the Commission has approved AT&T’s purchase of a potential treasure chest of spectrum from Qualcomm. How much treasure? $1.925 billion worth.

In green-lighting the deal, the FCC may have been trying to avoid accusations that it is suffocating the growth of AT&T’s wireless services. The Commission had, after all, just slammed the regulatory door on AT&T’s attempt to buy T-Mobile (that would be AT&T’s only GSM cellular competitor), saying that the transaction would not be approved without a hearing. Whatever the Commission’s motivation, though, the AT&T/Qualcomm decision was released on December 22, just in time to keep lawyers busy over the Christmas weekend. Holiday notwithstanding, the deal has already closed.

In return for its $1.9B, AT&T got access to what used to be TV Channel 55 on a nationwide basis and TV Channel 56 in New York, Boston, Philadelphia, Los Angeles, and San Francisco. Qualcomm had originally obtained some of this spectrum from Aloha Partners and the rest at an FCC auction. They used it to launch their MediaFLO mobile video service, which did not live up to expectations and was shuttered earlier this year.

The spectrum is unpaired. In other words, it does not include blocks separated by a gap that facilitates interference-free two-way traffic. AT&T plans to use it for one-way downlinking only, to deliver data-intensive services like movies and other video material requiring little or no uplink interaction. (Editorial aside: That kind of one-way heavy data dump could also be provided by broadcasters, if the FCC would only let them. A number of broadcast organizations – Sinclair Broadcast Group and SpectrumEvolution.org, for two – have formally proposed such use. Their proposals, however, have thus far been met by nothing but stony silence, and in some cases hostility, from the FCC.)

This purchase is not AT&T’s first.

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FCC's USF/ICC Order: How It Affects Wireless Providers

A semi-brief overview, from the wireless perspective, of the massive order overhauling the Universal Service Fund and Intercarrier Compensation system

The FCC released its historic 751-page Report and Order and Further Notice of Proposed Rulemaking on the Universal Service Fund (USF) and Intercarrier Compensation on November 18, providing a sumptuous repast for the communications industry to feast on over the Thanksgiving holiday.   It took many readers a few weeks to fully digest the vast smorgasbord of items resolved by the Commission in this one proceeding.   But having pushed ourselves away from the table at last, we can now comment on particulars of the Order that most affect wireless providers.   The Order also very radically affects the rules governing intercarrier compensation and USF for wireline service, but we are reporting on those developments separately out of compassion for our readers.

Definition of Supported Services. The first big step taken by the Commission was to bring broadband within the universe of services supported under the USF umbrella. The FCC chose not to simply define broadband as a supported service, but instead to expand its definition of supported “voice telephony” to include VoIP. At the same time, the FCC is requiring supported voice telephony providers to provide broadband.  

This awkward dance permits the Commission to continue ducking the issue of whether broadband should be re-classified as a “telecom” service regulated under the common carrier regime of the Communications Act or an “information” service regulated only under the FCC’s ancillary jurisdiction. But this dance creates problems of its own.

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Update: Comment Deadlines Set re Proposed Standards for Hearing Aid Compatible Wireless Phones

Last month we reported on the FCC’s proposal to update its technical standards for evaluating the compatibility of wireless devices and hearing aids. As noted there, updating to the new standard is important. It will improve testing procedures, and also expand the standard to cover frequencies (including the new 700 MHz band, which some wireless carriers have recently begun using to provide 4G data service) beyond basic cellphone bands. Without the update, new technology products soon expected on the market might be exempt from compatibility requirements. (The FCC allowed the iPhone to be exempt when it first appeared.) Issues in the rulemaking include a cut-off date after which the current standard may no longer be used, and whether manufacturers must apply one standard or the other, rather than cherry-picking parts of each.

The Commission’s Second Further Notice of Proposed Rulemaking has now been published in the Federal Register, which in turn sets the comment and reply comment deadlines. Comments are due by January 13, 2012, and reply comments by January 30, 2012.

Update: Interim 700 MHz Report Date Set

Last month we reported on the much delayed publication of approval by the Office of Management and Budget of the reporting requirement that applies to certain 700 MHz licensees.  Now (just like we predicted in last month's post), the FCC has announced the new date by which interim status reports are due: January 13, 2012. By that date, licensees in the EA Block A, CMA Block B, EA Block E and REAG Block C must advise the FCC of the status of construction and operation of their systems.   While no penalty attaches to failure at this point to have made progress, the interim report serves as a reminder and prod to 700 MHz licensees to get cracking. By June 13, 2013, they will be expected to have met some pretty serious build-out and service obligations (35% of their geographic area in the case of the CMA licensees).   With that deadline only a year and a half away, it’s not too early to start worrying if your system is not up or in the planning stages.

Update: TV Pickup Station Registration Requirement Out for Initial PRA Comments

Last August, in connection with its review of wireless backhaul regulation, the Commission announced that folks holding TV pickup licenses in the 6875-7125 MHz and 12700-13200 MHz bands would be required to register their stationary receive-only sites in the Commission’s Universal Licensing System (ULS). (You can read our report about the wireless backhaul overhaul here.) That new registration requirement, set out in Section 74.605 of the Commission's rules, has not yet kicked in – as with so many things, it’s subject to the Paperwork Reduction Act (PRA), so it needs the thumbs-up from OMB before it can take effect. And that thumbs up is still probably at least 90 days away, since the FCC has only just now started the PRA drill, which normally mandates an initial 60-day comment period at the FCC and a separate, follow-up 30-day comment period at OMB. 

In a notice published in the Federal Register, the Commission has gotten the ball rolling by requesting PRA-based comments on the ULS registration requirement for TV pickup stations in the 6875-7125 MHz and 12700-13200 MHz bands. Comments are due to be filed with the Commission by January 27, 2012. After that, it’ll be on to OMB.  (Note: the Federal Register notice refers at one point to Section 74.405.  Don't be fooled.  That appears to be the kind of typo anybody can make.  We're all talking about 74.605 here.)

FCC Issues Behemoth USF Order

759-page tome hits the streets, with surprisingly brief comment periods

Call me Ishmael! 

That’s how the Commission might have opened its leviathan Report and Order and Further Notice of Proposed Rulemaking (R&O/FNPRM) in the proceeding to overhaul the Universal Service Fund.  Weighing in at a hefty 489 pages – with an additional 16 appendices and four separate Commissioners’ statements bringing the total package to a whopping 759 pages – the document is physically daunting.  And to be perfectly honest, we haven’t read it yet.  But we plan to, and we expect to get a summary of it posted as soon as possible.

However, in a time-honored Washington tradition, the Commission unleashed the R&O/FNPRM at about 6:00 p.m. on a Friday evening.  That would be the Friday before Thanksgiving.  So the prospects for getting a post up in the next couple of days are limited. 

But we have previously reported on an “executive summary” released by the Commission last month, describing the outlines of the ambitious R&O/FNPRM, so interested readers may use that as a sort of Cliff’s Notes intro to the full version for the time being.  And anyone interested in participating in the proposed rulemaking portion of the proceeding better get reading.  Comments on some aspects of the FNPRM are currently due to be filed by January 18, 2012, with replies by February 17.  Comments on other aspects aren’t due until February 24, with replies by March 30.  With Thanksgiving and the year-end holidays fast approaching, those deadlines will arrive sooner than you know it.

Check back here for updates and further information.

Net Neutrality Update: One Lonely Reconsideration Petitioner

Could a single petition for reconsideration delay judicial review?

The Commission has announced that it has received one – and, apparently, only one – petition for reconsideration of its Open Internet order released last December (but not published in the Federal Register until September). For the curious among you, the seven-page petition – which is actually titled "Petition for Clarification or Reconsideration" – may be found here.  (It asks the Commission to clarify the "special services" aspect of the net neutrality order, particularly as that aspect would affect "enterprise customers".)

The import of this filing lies not so much in the substance of the arguments it presents, but rather in the effect that it might have on the timing of judicial review. As we have previously reported, multiple petitions for review of the Open Internet order have been filed with various federal courts of appeals */; all those petitions are set to be heard in a consolidated proceeding before the U.S. Court of Appeals for the D.C. Circuit. So the train heading toward Judicial Resolution is loaded up and ready to leave the station. 

But with the filing of the recon petition, there is now a lingering bit of business still pending before the Commission.  Theoretically, the FCC’s disposition of the petition for reconsideration could alter – maybe even eliminate – some arguments that might otherwise have to be resolved by the court on appeal. When such circumstances arise, it is routine – but not absolutely required – for the court to hold its processes in abeyance pending agency action on the reconsideration issues. The abeyance approach often seems the most efficient way of handling such situations.  Indeed, if the court steps in and tries to rule before the agency's action has stopped moving around, the result can be (and, in some cases has been) far more disruptive than if the court had chosen to wait.  It will be interesting to see whether the FCC (or some other party) files a request for the Court to hold the appeal in abeyance in light of the petition for reconsideration.

In dealing with the recon petition, the Commission will next publish a notice in the Federal Register, alerting the public to the filing of the petition and inviting responses to it. What with the time it will likely take to get that notice into the Register, and then the additional time for responses and replies, the matter won’t be ready for the Commission even to begin to think about it until early next year, at the soonest.

Whether the single petition for reconsideration in the Open Internet proceeding will slow down – or stop entirely – the appellate process is not clear. It’s hard to imagine that a relatively terse recon effort can, or should, delay judicial resolution of the broad range of issues likely to be presented on appeal. But stranger things have been known to happen. We’ll try to keep an eye on things, so check back here for updates.

*/  Speaking of those multiple petitions for review filed in multiple circuits, we note that three of the petitioners are bailing out of the proceeding.  The three – People's Production House, Media Mobilizing Project and Mountain Area information Network – had filed their petitions in the 2d, 3d and 4th Circuits, respectively.  On October 28, each filed a Motion for Voluntary Dismissal asking the D.C. Circuit to dismiss its respective petition.  No reason for the early departures was given (and, truth be told, the Court's rules do not require any such explanation).  Suspicious minds might guess that these petitioners filed their initial petitions largely, if not exclusively, in an effort to keep the case out of the D.C. Circuit – but as they hustle out the door now, we'll probably never know for sure.

FCC Proposes to Update Standards for Hearing Aid Compatible Wireless Phones

Commission looks to incorporate latest ANSI standard; in the meantime, strong enforcement continues for failure to offer enough compatible handsets

The FCC has proposed to update the technical standard by which it evaluates the compatibility of wireless telephones and hearing aids.

In times past, many people with hearing aids had trouble using the telephone. It was necessary to hold the telephone earpiece close to the microphone in the hearing aid. But the hearing aid picked up a lot of stray noise, and sometimes produced squealing feedback.

The first technical fix was a special coil of wire in the hearing aid that couples electromagnetically to the earpiece or another coil in the telephone. Instead of the telephone receiver converting the incoming voice signal to sound, and the hearing aid microphone converting it back to electricity for amplification, the signal passes in electrical form directly from one coil to the other. This largely eliminates background noise and feedback, and gives far clearer reception. A telephone equipped with the right kind of coil is said to be “hearing aid compatible.”

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Hill's Bills Drill Process Ills

House, Senate proposals – S.1784, H.R.3309, S.1780 and H.R. 3310 – look to increase transparency, efficiency, predictability of Commission’s activities

On November 2, Rep. Greg Walden (R-OR), Chairman of the Energy and Commerce Subcommittee on Communications and Technology, and Senator Dean Heller (R-NV) took the wraps off  legislation aimed at improving regulatory process at the Federal Communications Commission (FCC).  Just how might that be accomplished? According to the bills’ sponsors, by imposing a number of procedural constraints on the Commission that would force it to act more transparently, more efficiently, and within more predictable time frames.

As we’ve previously reported, over the last several years FCC process has at times been a source of bipartisan frustration.  Concern about the absence of certainty in how – and how fast – the process will run has developed into a mini-movement to revisit agency process.  Agency practices that have given rise to this alarm include: texts of orders not being released until weeks or months after their nominal adoption; “shot clocks” for agency action that are inconsistently applied (when they exist at all); unilateral control of the Commission’s agenda being wielded by the Chairman (allowing the Chairman to prevent action on matters that a majority of Commissioners might prefer to vote).

And, perhaps, the attention of a divided Congress is more easily attracted to an agency that asserts itself into areas where its statutory authority is at best indirect and, in the eyes of some, even nonexistent (hard to believe? check out the D.C. Circuit’s 2010 Comcast decision on net neutrality).

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Update: MORE WCS/SDARS Rules Go Into Effect . . . Finally

We reported last month that a few of the FCC’s new rules for Wireless Communications Service (WCS) and Satellite Digital Audio Radio Service (SDARS) licensees finally went into effect – a mere 16 months after the FCC had adopted them.   The bizarre delay in getting the rules approved by the federal Office of Management and Budget (OMB) – which must approve agency rules that impose paperwork burdens on people – has never been explained, as far as we can tell. But, after most of the implicated rules finally made it over to OMB for review last summer, those rules were quickly blessed and went into effect on September 19, 2011. 

It turns out, however, that a handful of these star-crossed rules were omitted from the original packet sent to OMB for approval. So yet another trip to OMB was necessary. The final seven rules were duly approved by OMB on September 26, 2011, and have become effective as of October 31, 2011 through publication in the Federal Register. The rules in question deal with coordination or certification by or between WCS and SDARS licensees and other parties. (For those of you keeping track, those rules are Sections 27.14(p)(7), 27.72(b), 27.72(c), 27.73(a), and 27.73(b), all of which have now become effective, and Sections 25.202(h)(3), 25.214(d)(2), and 27.53(a)(10), which will now be enforced.)

While this situation may have been anomalous – let’s hope so, at least – it is clearly unacceptable for rules, once formally adopted by an administrative agency, to remain in regulatory limbo for a year and a half pending perfunctory review by another government agency. If the rules were worth adopting in the first place, they should be worth putting into effect right away.   Here the notification and coordination requirements established by the rules have not been effective and therefore have not been able to serve their intended purpose for no good reason.

FCC Launches Historic Reform of USF and Intercarrier Compensation Regimes

After one of the most hotly and intensely lobbied proceedings in its history, the FCC has adopted a framework by which to (a) reform and re-purpose the distribution of billions of dollars in Universal Service Fund (USF) money and (b) revise the financial arrangements governing the exchange of traffic between all categories of carriers. The stakes in this game are huge, because the FCC’s action upsets, albeit gradually, a generation of expectations about who receives and who pays for hundreds of billions of dollars in telecommunications services -- and how they pay for it. The sweep of the FCC’s action is so broad that there is something almost every industry player will love and something they will hate just as much.

At this writing, the FCC has not yet issued its magnum opus, a tome likely to reach Moby Dick-like proportions. The FCC’s action included both a Report and Order (R&O) adopting many new rules that will go into effect after publication in the Federal Register, and a Further Notice of Proposed Rulemaking (FNPRM) seeking comment on some important loose ends left hanging by the Report and Order.   A myriad of the details of the plan will be known only when the full text of the R&O is released; in the meantime, however, the FCC has released a brief Executive Summary outlining the most important provisions of the new regime. These include:

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Update: Comment Deadlines in Alien Ownership Proceeding Set

In August we reported on an FCC proposal to liberalize its approach to alien ownership of common carrier and aeronautical radio station licenses. The Commission’s Notice of Proposed Rulemaking has now been published in the Federal Register. As usual, that means that the deadlines for comments and reply comments have been set. If you’re inclined to file comments on the proposal, you’ve got until December 5, 2011; reply comments may be filed by January 4, 2012.

"Bill Shock" Off the Docket

FCC proceeding placed on hold as wireless industry adopts voluntary measures to reduce bill shock

As we reported a little less than a year ago, the FCC released a Notice of Proposed Rulemaking proposing that wireless carriers be required to take steps to avoid “bill shock”.  Readers with good memories will recall that in the summer of 2010, Congress, the Administration and the FCC were highly exercised about the heartbreak of bill shock. Numerous complaints were rolling in from parents of teenagers and international travelers, among others, who were shocked to discover that they had somehow exceeded their plan limits or incurred international roaming charges which they had not expected. Horror stories of phone bills of $34,000 and $18,000 prompted our trusty regulators to leap into action with a plan to make carriers warn consumers of impending danger before it strikes.

That was then; this is now.

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Update: Data-Roaming Complaint Process Now In Effect

Back in April, we reported on an FCC decision mandating that all facilities-based providers of “commercial mobile data service” (CMDS) make available automatic data roaming to other such providers (with some exceptions). As part of that decision, the Commission also established a procedure by which folks could complain about possible violations of the new data-roaming obligation. The data-roaming complaint process is in large measure identical to the process for voice-roaming complaints which has been on the books for some time. (The Commission figured that it was more efficient for all concerned to utilize the same procedures for both types of complaint – particularly since it’s entirely possible that some complainants may have both voice- and data-roaming issues to raise. In that latter case, the complaint process will allow such complainants to initiate a single proceeding, rather than having to file two separate complaints.)

The new CMDS rules became effective last June . . . except for the complaint process, which had to be run through OMB’s Paperwork Reduction Act drill. But OMB signed off on the complaint process last month and, with that milestone now duly noted in the Federal Register, the complaint process, too, has become effective.

Net Neutrality: Verizon Lucks Out in Circuit Lottery

Leaving the gate at five-to-one odds, D.C. Circuit lands in Victory Lane

The Joint Panel on Multidistrict Litigation (JPML) wasted no time in conducting a circuit lottery with respect to the FCC’s net neutrality order and the winner is (drum roll, please) – the D.C. Circuit! As we reported yesterday, petitions for review of that order were filed in six different U.S. circuit courts of appeals. And as was common knowledge, Verizon was doing everything it could to make sure that the case landed in the D.C. Circuit – up to and including filing a Section 402(b) notice of appeal as well as a Section 402(a) petition for review there. 

Turns out Verizon needn’t have worried. Lady Luck was smiling on it when the JPML folks reached into their drum, pulled one of the six entries, and came up with D.C.  Sorry to the First, Second, Third, Fourth and Ninth Circuits -- better luck next time.

Presumably this will obviate the need for Verizon to respond to the FCC’s motion to dismiss Verizon’s 402(b) notice of appeal, but who knows?

The moral of this story is simple. If you’re standing behind Verizon in the line to buy a Powerball ticket, take a look over its shoulder and be sure to buy the same numbers that it does.

Net Neutrality: The Circuits are Jammed!

Verizon’s Plan C? Plan A Redux!

Judicial junkies and appellate aficionados everywhere, rejoice! The next round in the net neutrality donnybrook has started, and it’s already delivering the kind of rock ‘em/sock ‘em litigation observers could have expected. 

Leading the action is Verizon, which picked up where it left off last April . . . literally. As readers will recall, in January – just weeks after the FCC released the full text of its net neutrality order – Verizon lobbed a “notice of appeal” relative to that order into the U.S. Court of Appeals for the D.C. Circuit. (It also filed a separate motion asking that a specific three-judge panel – the same panel that had trashed the FCC in the 2010 Comcast decision – be appointed to hear its appeal.) This was an effort to secure a kind of home-court advantage, since Verizon obviously figures that the D.C. Circuit is likely to be receptive to its arguments.

But the D.C. Circuit rejected that ploy. In a terse order, the Court noted that the net neutrality order was a “rulemaking document” that, under the fine print of the FCC’s own procedural rules, could not be deemed to have been “released” until published in the Federal Register. Since the right to seek judicial review of any FCC order generally doesn’t kick in until the agency’s decision has been “released”, Verizon’s notice of appeal was premature. Court to Verizon: Concentrate and ask again later.  The Court left open – sort of – the question of whether review of the net neutrality order could or should be sought under Section 402(a) or 402(b) of the Communications Act.

That last question is of crucial importance, at least as far as Verizon and the FCC seem to think.

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Closed Captions for the Open Internet?

The FCC proposes to require closed captioning for TV programming transmitted via the Internet; comment deadlines already set

The FCC has launched a rulemaking to implement the closed captioning sections of the 21st Century Communications and Video Accessibility Act (CVAA). The new rules will impose closed captioning requirements on certain online television programming; they will also require captioning capability for a wide variety of devices that are designed to receive or play back video, potentially including smartphones, computers, tablets, game consoles, video recorders, and set-top boxes.

Closed captioning is the text on a television screen that transcribes the audio portion of the program. (“Closed” means that viewers can turn the captioning on and off at will.) Today most television programming, whether delivered via broadcast, cable, or satellite, must carry closed captioning, and television sets 13 inches or larger must be capable of displaying the captions. But online television – think Hulu – has not been subject to these rules. And the rapidly-proliferating variety of non-television video display devices, like tablets, have not been required to have the technical capability to display captioning.

That’s about to change. Congress gave the Commission until January 12, 2012, to bring the closed captioning rules into the era of mobile and Internet television.

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Update: New E911 Rules to Take Effect in November

Can you find me NOW? Come November, the chances may be better.

Back in July we reported on the adoption of some new rules designed to make it easier to monitor your location (ours too, but we're more concerned about our readers than ourselves) more precisely through your personal communications devices. The Commission’s Report and Order has now been published in the Federal Register, establishing November 28, 2011 as the effective date of the new rules (not including Section 20.18(h)(2), which has to go through OMB's Paperwork Reduction Act drill first). Some of those rules will be phased in over a multi-year period; others may have a more immediate impact on carriers subject to the more stringent testing regimen and the higher level of location-finding accuracy. Whether or not you the mobile device user will notice any difference is not clear, and probably won’t be until (a) you want to be located or (b) somebody wants to locate you. If the former, let’s hope the new rules work; if the latter, well, it probably depends on who wants to locate you and why.

Update: Effective Dates Set For Wireless Backhaul, iTRS Revisions

Last August we reported on some changes, and proposed changes, relating to the Commission’s wireless backhaul rules. Both the Report and Order component of that action (addressing the rule changes that were actually adopted) and the Notice of Proposed Rulemaking component (addressing the changes that are only proposed at this stage) have now been published in the Federal Register. As a result, we now know that the effective date of the new rules will be October 27, 2011. The only loose end is Section 74.605, which mandates registration (in the Commission’s Universal Licensing System) of stationary receive sites for TV pickup stations in the 6875-7125 MHz and 12700-13200 MHz bands. That registration requirement is an “information collection” subject to the Paperwork Reduction Act, so the Commission will be shipping that particular aspect of the new rules over to OMB for its review before the requirement can be finally imposed.

Federal Register publication also establishes the comment deadlines relative to the proposed rules, but those deadlines (October 4, 2011 for comments, October 25, 2011 for reply comments) had already been announced by the Commission back in August; the Register notice confirms them.

Elsewhere in the Federal Register, the Commission has also published the revised rules it adopted last August to align the use of local and toll free numbers by Internet Telecommunications Relay Service (iTRS) users more closely with the way that hearing users use such numbers. (We reported on that decision here.) Those revisions are now set to take effect on October 27, 2011, except for several sections (§§64.611(e)(2), 64.611(e)(3), 64.611(g)(1)(v), 64.611(g)(1)(vi), and 64.613(a)(3), if you’re keeping track) that still need OMB/Paperwork Reduction Act approval.

Trial Balloon: FCC Looks Skyward for Disaster Relief

Staff-written white paper explores airborne technologies to maintain communications in the face of major disruptions.

The sequence is predictable: first the disaster, then the finger-pointing over the failure of emergency communications. We saw it on 9/11, Hurricane Katrina, and even the eventful Mineral VA earthquake, the one that toppled plastic lawn chairs miles away.

Now the FCC has issued a white paper aimed at solving the problem of communications in the aftermath of a disaster. The new acronym is DACA, for “Deployable Aerial Communications Architecture”: a set of techniques for hoisting a communications system to an altitude suitable for relaying signals. The paper mentions four specific approaches.

  • Small unmanned aerial vehicles: hand-launched, battery-powered aircraft that fly at an altitude of about 500 feet. Think of those model helicopters they sell at the mall, but bigger.
  • Weather balloon technologies that can carry a six-pound repeater package, although only for short periods of time.
  • High altitude long distance unmanned vehicles that can operate for longer durations with heavier payloads. 
  • Deployable “suitcase systems” that use pre-packaged portable transceivers loaded onto low-flying aircraft.

The white paper, though, leaves a lot of questions unanswered. The biggest omission, to us, is a failure to mention that none of the proposed DACA systems would operate on its own. Each of the options, rather, is a mechanism for relaying communications from the ground. But those ground-based communications in turn must depend on the same facilities that are vulnerable to damage, flooding, or power failure. The white paper does mention the importance of satellite communications in disaster scenarios, but satellite systems likewise merely relay signals between ground-based earth stations. Thus, even with DACA in place, communications systems remain vulnerable.

Also missing from the white paper is any detailed discussion of frequencies DACA systems might use without causing interference to whatever terrestrial systems remain operating. And we hope that future work acknowledges the important contributions of amateur radio operators to post-disaster communications, with provisions to improve the reliability of their efforts.

The white paper does contain an interesting new idea.

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Net Neutrality Rules Make It to Federal Register

As predicted on CommLawBlog, effective date is November 20, 2011 . . . but don’t hold your breath

It’s official! The Commission’s Report and Order on the “Open Internet” – a/k/a the net neutrality order – has finally been published in the Federal Register. As we indicated in our post yesterday, the effective date of the new rules is November 20, 2011.

For a refresher course on just what the order includes, check out our posts here, here and here, for starters.

To paraphrase Churchill, Federal Register publication is neither the end nor even the beginning of the end, but it may be the end of the beginning. The scene will now shift to one or another U.S. Court of Appeals, although not necessarily right away: it’s possible that some parties may go back to the Commission for reconsideration of some aspects of the order. That latter scenario could complicate matters, as the courts might be inclined to hold off on considering challenges to the new rules if any administrative reconsideration might lead to changes in the rules. Courts in general prefer not to have to deal with moving targets, and can you blame them? Plus, the Commission would likely prefer to have the courts hold off while the Commission tries to smooth out any rough edges in the rules through the reconsideration process, so you can probably expect the FCC to try to discourage the courts from moving forward pending agency reconsideration if reconsideration is sought. But even one or more parties does petition for reconsideration, the judicial review might still proceed apace. You never know.

Another possible complication could arise if any party seeks a stay of the rules’ effectiveness pending judicial review. It is notoriously difficult to convince either the Commission or the courts to issue stays, but in a hotly contested proceeding of national importance like net neutrality, it might make the most sense to maintain the status quo until the legal issues have been resolved. While there are deadlines for filing for reconsideration (30 days from Federal Register publication of the rules -- but heads up -- in this case it'll be 31, because the 30th day falls on a Sunday) and judicial review (60 days from publication), there is no technical deadline for seeking a stay. As a result, a stay request could be filed pretty much any time – although it would obviously make the most sense to file it far enough in advance of the effective date (November 20) to give the Commission or (more likely) the courts enough time to complete their review of the stay arguments and act before that date.

Stay tuned to CommLawBlog for updates on further developments.

Net Neutrality: Effective November 20?

It looks like Federal Register publication of the net neutrality rules is set for September 23.

A couple of days ago we confirmed some movement on the net neutrality front, and also noted trade press reports that final publication of the FCC’s magnum opus on the “open Internet” might be coming up soon. Sure enough – CommLawBlog understands that Federal Register publication of the net neutrality order has been teed up for tomorrow, September 23, with an effective date of November 20, 2011 for the new rules. Of course, nothing will be official until the actual publication occurs, but it’s looking like tomorrow will be the day.

Whenever Federal Register publication does occur, it will mark the beginning (but only the beginning) of the next phase of the process. Publication is the starting gun for petitions for reconsideration (due at the FCC within 30 days of Federal Register publication) and initiation of appellate review (due at any U.S. Court of Appeals within 60 days of publication). It’s also possible that some parties may seek a stay of the effectiveness of the rules – obviously, those efforts would have to be cranked up prior to the effective date.

We know for sure that Verizon is likely to take the rules to court. It already tried back in January, 2011 – but found itself on the outside looking in when the D.C. Circuit dismissed its initial notice of appeal as premature. And given the loud and extended debate about the question of governmental regulation of the Internet – a debate ably addressed and, to a degree, deflated by our colleague Mitchell Lazarus last January – the odds are good that Verizon will not be alone.

As we have previously pointed out, there’s also a good chance that petitions for judicial review will be filed with a number of different circuits. Anyone planning on filing such a petition should be sure to review the helpful public notice issued by the FCC’s General Counsel back in January, laying out the important steps to be taken to assure that your entry is included in any judicial lottery that might have to be conducted to pick the circuit that will ultimately hear the appeal. (Call us crazy, but we suspect that that notice was issued in anticipation of multiple petitions going to multiple circuits with respect to the net neutrality order.)

Check back with us here at CommLawBlog for further developments on the net neutrality front.

OMB: Thumbs Up for Net Neutrality Provisions

After months of quiescence, net neutrality is on the move

The net neutrality rules have cruised past another hurdle: the Office of Management and Budget (OMB) has approved the two “information collection” aspects of the “open Internet” rules that the FCC shipped over there last July (as required by the Paperwork Reduction Act). While OMB approved those aspects almost two weeks ago (on September 9), the official announcement of the approval didn’t make it into the Federal Register until September 21.

OMB approval often marks the end of the rulemaking process in many instances; not so here. New rules generally cannot take effect until their full text has been published in the Federal Register. In many other rulemakings, the Commission takes care of that full-text publication first, and then follows up with getting OMB approval for any incidental “information collections” that may be involved.  As a result, OMB approval of such collections is often the last development in the rulemaking process.

It hasn’t gone down that way with net neutrality.

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Update: WCS/SDARS Rules Go Into Effect . . . Finally

Sixteen months after adoption, the new rules kick in

In May, 2010, we reported that the FCC had adopted a set of rules designed to promote technical harmony between the Satellite Digital Audio Radio Service (SDARS) operators and their immediately adjacent electromagnetic neighbors, the Wireless Communications Service (WCS) licensees. A few of the new rules involved a paperwork burden and therefore had to go through the often perfunctory gauntlet of being approved by the Office of Management and Budget (OMB). The process, mandated by the Paperwork Reduction Act (PRA), can often be completed in less than four months.

Not this time.

The first step in the PRA process calls for the FCC to solicit comments from the public about the “information collection” aspects of the new rules. That solicitation involves a pro forma notice in the Federal Register. For some reason it took the Commission eight months to get that less-than-one-page notice into the Register

The PRA requires a 60-day comment period at that point, a period that wrapped up on March 22. After that, the Commission is supposed to bundle up all the comments it receive, tack on a “supporting statement” explaining everything to OMB, and ship it all over to OMB for its review. In significantly more complicated proceedings we’ve seen the Commission accomplish this hand-off within 24 hours of the close of the 60-day comment period.

Not this time.

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White House Would Send $5 Billion Bill to Spectrum Users

American Jobs Act calls for spectrum fees

As it waves a metal detector over every inch of the country’s economy, looking for any stray nickel or dime with which to fund its ambitious American Jobs Act (Jobs Act), the Obama Administration apparently thinks it’s hit a minor jackpot: spectrum fees. That’s probably not good news for spectrum users of any stripe (although TV broadcasters may get a pass, at least initially). As the national debate on the proposed bill develops, all spectrum users should keep their eye on this particular detail. Things could get pricey if this proposal finds its way into law.

 The issue arises in Section 278, which would require the Commission to collect nearly $5 billion over the next ten years through such fees. The fees would come in through annual assessments for spectrum use. The universe of fee payers would include pretty much anybody who holds any kind of spectrum license – except broadcast television and/or public safety licensees, and initial licensees/permittees who got their authorizations through the competitive auction process. (But note – that last exemption for auction winners gets them only through the initial license term or until their license is modified, at which point they join the ranks of the fee-eligible.)

The Jobs Act doesn’t say anything about the regulatory fees that licensees already pay, so presumably the proposed user fees would be in addition to reg fees. The likely rationale: regulatory fees are supposed to cover the cost of the FCC’s regulatory operations; spectrum user fees, by contrast, constitute a tax on the commercial benefits licensees can realize through utilization of their spectrum.

How exactly would the spectrum fee be calculated for licenses in the various services?

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CAP Compliance Postponed Until June 30, 2012

Last minute reprieve gives FCC, EAS participants nine extra months of breathing space

The Commission has announced that the deadline for complying with the Common Alerting Protocol (CAP) requirements has been extended until June 30, 2012. Good thing, too, since the previous deadline was September 30, 2011, a scant two weeks away. Of course, given the number of still unresolved issues on the CAP front, most observers figured that an extension was an odds-on mortal lock, but “most observers” don’t carry quite the same clout as five (or even just three) Commissioners.

If you’re still a little hazy on what CAP entails, check out our post from April, 2010. The fact that all EAS participants are going to have to be CAP-ready eventually has been a given since at least 2007. However, the transition to CAP technology has involved both the FCC and the Federal Emergency Management Agency (FEMA), a lethal mixture when it comes to scheduling anything. Both agencies had to adopt new rules and standards, and before the FCC could do its thing it had to wait for FEMA to do its thing. As a result, while the Commission’s rules currently mandate that “all EAS Participants must be able to receive CAP-formatted alerts”, even the Commission admits that nobody can comply with that requirement just yet, because the Commission still hasn’t finalized the specs which will establish precisely what it means to “receive CAP-formatted alerts”.

The Commission may be on the final lap of its work, but until it hits the finish line, loose ends will remain. Because of that, the deadline for EAS participants to comply has been put off twice already – from the original March, 2011 date to September 30, 2011, and now to June 30, 2012. While that should be plenty of time for the Commission to wrap things up, you never know. Still, for planning and budgeting purposes, all affected folks should probably assume that the June, 2012 deadline will stick this time. We’ll let you know of any further developments.

One word of caution. Since the Commission doesn’t have its new CAP rules in place, it also is not in a position to certify any particular equipment as CAP-compliant. But that hasn’t stopped some equipment suppliers from marketing “intermediate” devices designed to provide some CAP capabilities. With such devices in mind, the Commission has “reminded” all EAS participants that

equipment that meets the definition of an encoder or a decoder under our rules must be certified under Section 11.34 of the Commission’s current rules. In addition, equipment used to receive CAP-formatted EAS alerts must, at a minimum, comply with the CAP requirements the Commission adopted in the Second Report and Order.

Bottom line – anybody that has bought some such “intermediate device” should be sure to verify, with the gear’s manufacturer and/or vendor, that the gear does in fact comply with Commission rules that are already on the books.

Two More Days! Two More Days! Reg Fee Deadline Extended

This just in: the FCC has extended the deadline for the 2011 regulatory fees! If you haven’t paid yet, no problem: you now have until 11:59 p.m. ET on September 16, 2011, to get the cash into the Commission’s hands. The terse public announcement of the extension provides no insight into why the deadline is getting pushed back two days – but who cares? If you didn’t get your fees in by the original deadline (i.e., September 14), you can still avoid that pesky 25% late charge if you just can scrape together enough to cover what you owe the Feds by the extended deadline. Good luck.

FCC Seeks Status Reports from Hurricane-Affected Communications Providers

 The FCC has activated its Disaster Information Reporting System (DIRS), to enable it to monitor damage to broadcast and telecommunications facilities during Hurricane Irene. 

 If you are located in the North Carolina counties of Beaufort, Bertie, Brunswick, Camden, Carteret, Chowan, Craven, Currituck, Dare, Gates, Hyde, Jones, Martin, New Hanover, Onslow, Pamlico, Pasquotank, Pender, Perquimans, Pitt, Tyrrell and Washington, or the South Carolina counties of Beaufort, Berkeley, Charleston, Georgetown, Horry and Marion, the FCC asks you to log into https://www.fcc.gov/nors/disaster/ and to provide contact information and report the status of your facilities, including whether you are remaining on the air using emergency power.

If you lose internet access, several FCC staff members involved in disaster preparedness have published their cellphone numbers:

   Jeffery Goldthorp (202) 418-1096, (202) 253-1595 (cell), jeffery.goldthorp@fcc.gov

   Julia Tu (202) 321-4399 (cell), julia.tu@fcc.gov

   John Healy (215) 847-8094 (cell), john.healy@fcc.gov

   Michael Caiafa (202) 418-1311, (202) 277-5690 (cell), michael.caiafa@fcc.gov

   David Ahn (571) 232-8487 (cell), (202) 418-0853, david.ahn@fcc.gov

   Jane Kelly (202) 418-2832, (202) 503-0398 (cell), jane.kelly@fcc.gov

If you are in the path of the hurricane but are not in any of the North or South Carolina counties listed above, check the FCC’s home page, www.fcc.gov, for further additions to the list of reporting areas.  The FCC’s first request for reporting is at:  http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-11-1464A1.doc.

Satellite earth station operators needing to operate emergency facilities may apply electronically at http://licensing.fcc.gov/myibfs; or if they cannot access that system, they may apply by letter, e-mail, and even by telephone.  All requests should provide the technical parameters of the proposed operation and a contact point.  Requests not made through myibfs should be re-filed through that system as soon as possible.  More details are at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-11-1465A1.doc.

Wireless vs. Broadcast: Chalk One Up for Wireless

FCC moves to protect broadband licensees from TV Ch. 51

Perhaps frustrated at the slow pace of Congressional cooperation in passing incentive auction legislation to allow it to take a meat cleaver to the TV spectrum and serve up a chunk to wireless operators, the FCC is starting to chip away at TV with a small ice pick. The first move is to put Channel 51, the uppermost TV channel, on ice, imposing an immediate freeze on applications for new stations and improvements in existing stations on that channel.

As we wrote back in March, Channel 51 is immediately adjacent to the 698-746 MHz band (formerly TV Channels 52-59), which have been reallocated to wireless services. Channel 52 has been auctioned, and the winning bidders don’t like the idea that the high power used by TV stations might blast their smaller wireless devices into oblivion. They asked the FCC to, in effect, create a guard band on the TV side of the border rather than the wireless side by stopping any growth on Channel 51.

The FCC has obliged, with a combination of steps that freeze and thaw at the same time, apparently intended both to stop growth on, and to encourage abandonment of, TV Channel 51.

Remember that while the FCC is considering how much of the TV band it can chop off for wireless use, it has already frozen growth in the entire TV band. No new applications or channel changes are allowed for full power stations, and no new applications are being accepted for low power TV stations on any channel. All of this is to ensure a fixed database when the FCC is ready to use the cleaver. 

But clearing Channel 51 has risen to a higher priority than having a fixed database, so the scramble is on.

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Welcome Mat Out for Aliens?

NPRM proposes lower hurdles for alien ownership -- and alien investment.

With the issuance of an extensive Notice of Proposed Rulemaking (NPRM), the FCC is looking to liberalize its approach to permitting alien ownership of common carrier and aeronautical radio station licenses. While it’s not exactly a re-opening of Ellis Island, the plan should significantly expand opportunities for aliens to acquire or increase license ownership. The FCC correctly recognizes that its current policies and processes are burdensome to prospective foreign investors, unnecessarily impeding, delaying and obstructing the ability of aliens to buy, or buy into, FCC licensees – and thus also creating barriers to investment capital that could benefit U.S companies and U.S. consumers.

The starting point for any discussion of alien ownership of domestic U.S. communications interests is Section 310(b) of the Communications Act, a provision that dates back to the original 1934 version of the law.  Drafted in an era when foreign Fascists and Communists had to be prevented from acquiring control of our communications media, Section 310(b) strictly prohibited – and continues to prohibit – aliens from directly owning a broadcast, common carrier, or aeronautical radio license or even from owning more than 20% of a company that holds such a license. 

However, having erected a seemingly impenetrable fortress against evil foreign influences, Congress left the back door wide open.

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2011 Reg Fee Deadline Announced: September 14, 2011

Get out your calendars . . . and your checkbooks! The Commission has announced the deadline for filing this year’s regulatory fees. And that deadline is (drum roll, please): 11:59 p.m. ET on September 14, 2011.  (Ahem -- that would be the date our colleague Davina Sashkin predicted in her post a couple of days ago . . . not that we're looking for any credit or anything just because she had it right.)  As Davina reported there, the payment window opened as of August 12, 2011 (when the Fee Filer system started accepting reg fee payments), for those of you who want to (a) avoid any last-minute rush, and thereby also (b) avoid the 25% late fee that gets tacked on for folks who miss the deadline. Of course, the 2011 reg fees (formally announced last month) won’t technically become “effective” until September 9, since the order establishing those fees didn’t make it into the Federal Register until August 10. But it appears that the FCC isn’t going to let its knickers get wadded up about that kind of hyper-technical detail when cash coming into the Commission’s coffers is involved.

You can find a table of broadcast-related fees here. The entire list of fees for all services is included in Attachment C at the end of the Commission’s order

As we have previously cautioned, the Commission has stopped sending out any hard copy “pre-bills” to remind you that reg fees are due. If you want to know what the Commission thinks you owe, there’s a handy feature in Fee Filer that should give you the information that would, in the olden days, have been included in the “pre-bill”. But as we have also previously cautioned, heads up there – the Commission has been known to make mistakes, so “trust but verify” should be the order of the day. And in that vein, let’s not forget that the Commission does NOT routinely include the fees for auxiliary licenses in its own determination of fees owed – even though it still expects you to pay reg fees for such licenses. So don’t forget to inventory all your auxiliaries before you start the payment process, just to be sure that you’re paying everything you owe.

Enjoy the rest of your summer.

Overall Backhaul Overhaul Update: New Rules Adopted, More on the Way

Newly adopted and proposed fixed service rules add flexibility, especially in rural areas.

We wrote last summer about how the proliferation of wireless devices has created a corresponding need for wireless backhaul capacity – “backhaul” being a term that refers generally to the “middle mile” links that move end-user traffic between cell towers and the core network. Traditionally, backhaul was carried on copper wires or fiber, but that 20th Century approach isn’t necessarily the most practical, particularly in rural and remote locations. In those situations, a wireless approach, using point-to-point links on microwave frequencies allocated by the FCC for “fixed service”, does the trick better.  The FCC has now adopted the proposals it put forth a year ago to facilitate the use of fixed service spectrum for wireless backhaul. In a concurrent notice of proposed rulemaking (NPRM), the Commission seeks comment on additional wireless backhaul matters.

During the meeting at which the Commission adopted the new rules, Chairman Genachowski admitted that when he first heard about the proposals to change the fixed service rules, his eyes “glazed over.”  Now, however, the subject is generating a lot of enthusiasm at the FCC. At the meeting, Genachowski and the other Commissioners rhapsodized that more flexible fixed service rules will increase rural buildout, spur 4G deployment, create jobs, and stimulate technical innovation.

Specifically, the new rules will:

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Update: Comment Deadlines Set re Proposed E-911 Rules

Last month we reported on the Commission’s proposal to enhance the location-identification accuracy of E-911 calls. That proposal has now been published in the Federal Register. As a result, the deadlines for comments and reply comments on that proposal have been established: comments are due by October 3, 2011; reply comments are due by November 2, 2011.

FAA Tower Review - Up In The Air?

Requests for “no hazard” determinations still being processed . . . in some cases

What with the FAA being pretty much shut down thanks to Congressional bickering, and with that bickering not likely to stop until sometime in September (at the earliest), we got to wondering – what’s up with any pending requests for Determinations of No Hazard?  If, for example, we happen to need such a determination in order to get an FCC construction permit granted, can we expect to get the determination despite the FAA shut-down, or should we just close up shop and go fishing for a month or two – until Congress, tanned, rested and ready, toddles back to DC post-recess and swings back into action?

Going straight to the source, we called the FAA – fully expecting to get a recording telling us to leave a message (only to then learn that the voice-mailbox was full). Were we wrong! We called a listing for the FAA’s Obstruction Evaluation Group and, lo and behold, somebody actually answered the phone. Even more surprising, it turns out (at least according to that person) that requests for Determinations of No Hazard are in fact still being processed.

That’s the good news.

The bad news: if your particular request requires the FAA folks in DC to consult with any local airport officials in the hinterlands, and if that consultation didn’t happen prior to the start of the FAA shut-down late last month, your request probably won’t be going anywhere soon. In those circumstances it looks like you’ll have to wait until the FAA shut-down is ended and the necessary airport personnel get back on line. 

Whether any “no hazard” request might require consultation with local airport officials depends on the particulars of the request. Anyone with such a request in the hopper should check with their aeronautical consultant (or engineering consultant).

Re-Auctioned AWS Licenses Bring in $20 Million in High Bids

Final gavel comes down in déjà vu Auction No. 92. 

It took the FCC less than a week of bidding to unload 16 Advanced Wireless Service licenses in Auction No. 92. The auction, which wrapped up July 25, attracted $20,402.000 in high bids for spectrum previously occupied by TV Channels 52-69. The handful of licenses on the block cover a few small areas scattered around the county. 

If the 16 licenses looked a tad familiar, that’s not surprising.  It was the second time that these particular licenses had been up for grabs. They had been offered to bidders in the initial AWS auction in 2008.  Readers may recall that that auction lasted several weeks and raked in $19.6 billion for the U.S. Treasury. What readers may not recall is that, when the 2008 auction ended, these 16 licenses stayed put with the FCC: the high bidders either withdrew their bids or never got around to paying for the licenses. (Alltel was the high bidder for five of the licenses. Seven others, mostly in Puerto Rico, would have gone to VentureTel 700, if it had paid the FCC for them.)

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AstroTurf ® Filings Condemn AstroTurf ® Filings

Group that decries hidden interests keeps its true interests well hidden.

Here in Washington, we’re used to a certain amount of hypocrisy. It’s part of the atmosphere, like exhaust fumes from the high school tour buses.

But once in a while even we get taken aback. No, not about the debt-limit debate, although that also strains our tolerance. We are referring to an unusual spate of filings in one of the FCC’s rulemaking dockets.

The rulemaking itself is an inside-the-Beltway matter. The FCC allows interested parties to file views on its proceedings even after the published comment schedule has expired. These late submissions are called “ex parte” filings, from the Latin for “one-sided,” which they generally are. In the past, they offered a way to put useful technical and policy information before the FCC staff. With the advent of electronic filing, the ex parte process has also become a way for special interest groups speaking through complaisant individuals to flood the FCC with dozens, sometimes hundreds, of nearly identical statements.

The rulemaking in question asks for comment on whether groups filing ex parte statements should have to identify who they really are. After all, an organization called “Citizens for Better Phone Service” may in fact be a telephone company seeking relief from regulation. “Coalition for a Free Internet” may be a front for a cable company opposed to network neutrality rules. And so on. Such groups are often called “AstroTurf®” entities: an artificial construct masquerading as a grass-roots organization. (AstroTurf ® is a registered trademark, even if the registration doesn't cover this particular use of the term.)

In addition to the usual suspects – lobbying groups that make frequent ex parte filings with the FCC – this rulemaking has attracted well over 200 identical submissions signed by individuals. They all read as follows:

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Update: Effective Date of Anti-Spoofing Rules Set

Earlier this month we reported on the adoption of the FCC’s new “anti-spoofing” rules. Those rules, mandated by Congress in the Truth in Caller ID Act, make it unlawful to transmit misleading or inaccurate caller ID information – that is, to “spoof” – if the goal is “to defraud, cause harm, or wrongfully obtain anything of value”.

The Commission’s Report and Order has now been published in the Federal Register. As a result, we can report that the new rules will take effect on August 19, 2011.

While the new rules may have been initially conceived as a protection primarily for consumers, the Commission has expressly acknowledged that spoofing committed to “wrongfully avoid payment of intercarrier compensation charges would be a violation” of the rules. That would include spoofing by the originating provider or an intermediate carrier, among others. Thus, when the new rules become effective, they should provide a weapon through which carriers can seek to discourage other carriers from attempting to use spoofing to duck their intercarrier obligations.

FCC Bidding Adieu to International Settlements Policy?

The FCC giveth and the FCC taketh away as it proposes elimination of International Settlements Policy while continuing to monitor competitiveness, possibly through new or expanded reporting requirements

The FCC has proposed to eliminate its 80-year-old International Settlements Policy (ISP) (except as it applies to Cuba – that would require the State Department’s blessing). The ISP is intended to prevent monopolistic foreign carriers from charging U.S. carriers non-competitive rates for the termination of foreign traffic, leading to high international rates for U.S. consumers.

In its very simplest terms, the policy dictates a uniform bargaining position for U.S. carriers: they must accept the same rates as other carriers on that route, are entitled to terminate their proportionate share of incoming traffic from a foreign carrier, and have to split termination rates (a/k/a/ “accounting rates”) 50/50 with the foreign carrier.

The ISP does not apply where carriers pay below a certain set benchmark rates for that route. There are only a few dozen routes to which the ISP still applies, so it’s no longer an active key component of international regulation. The Commission is concerned that the policy itself may be preventing carriers from negotiating benchmark or lower rates on ISP routes because foreign carriers have little incentive to negotiate symmetric rates when they can re-originate traffic at lower rates.

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MORE New E-911 Rules: Can You Find Me NOW?

Never mind – the Man will know where you are, even if you don’t

Even as privacy advocates are getting increasingly nervous about the extent to which our communications devices keep tabs on our whereabouts, the FCC is looking to make it easier to monitor our location more precisely and over a broader range of devices.   In a combined Notice of Proposed Rulemaking, Third Report and Order, and Second Further Notice of Proposed Rulemaking (let's just go with R&O/NPRM for short), the FCC has taken steps to enhance E-911 accuracy in two respects.  

The new measures build upon rules adopted last year in which the FCC tightened and clarified the accuracy requirements for carriers who employ “handset” and “network” solutions for achieving specified location accuracy levels. (Handset carriers rely on the GPS capabilities of the customer’s handset to establish his or her location.   Network carriers rely on triangulation of radio signals among cell towers to find their customers.) By requiring accuracy levels to be met at the county or PSAP level, the Commission indirectly raised the accuracy bar by ensuring that high accuracy is achieved in all parts of a carrier’s service area. (The FCC provided exceptions for areas where dense forestation or the lack of triangulation would not permit these high levels to be reached.)   These accuracy requirements are to take effect over an eight-year period.

In the R&O/NPRM released July 13, the FCC has ordained that, following that eight-year implementation period, the Commission will do away with the separate network-based accuracy standard entirely.

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Net Neutrality Lands at OMB

Next round of Paperwork Reduction Act review of the “open Internet” information collection requirements starts at OMB.

We have progress to report on the net neutrality front!  Well, sort of.

The Commission has shipped two “information collection” aspects of the “open Internet” rules over to the Office of Management and Budget for its review. Yes, we know that we expected the Commission was going to take care of this chore a couple of months ago – but let’s get past that. The fact is: OMB review of net neutrality has begun, as required by the Paperwork Reduction Act (PRA).

(If you’re confused about the whole OMB review process and how it fits into the plan to effectuate the net neutrality rules, check out our earlier post addressing such things.)

Interested parties may submit their comments on either the net neutrality formal complaint process and/or the mandatory disclosure of network management practices, performance and commercial terms of access. You can find directions on how to do so in the notices (linked in the preceding sentence) published in the Federal Register. This round of comments will go to OMB, rather than the Commission (which fielded the last round of such comments starting back in February). You’ve got until August 8, 2011 to fill the OMB in on your views.

When the PRA review process started back in February, we observed that the information the FCC had made available up to that point provided less than clear guidance about just what the various new net neutrality requirements will entail. The latest notices announcing OMB review don’t add anything – which means that would-be commenters are still flying at least somewhat blind.

Note that the Federal Register notices announcing this next step in the PRA process do NOT mean either that the net neutrality rules are now effective, or that they are now subject to judicial review. Before anybody will be able to appeal the new rules, those rules will have to be published in toto in the Federal Register. 

And before the new rules can be effective, they not only will have to have been published, they will also have to have been approved by OMB. That won’t happen before August 8 for sure – but it could happen very soon after that date, if OMB has no problem with the rules. We’ll keep you posted.

FCC Targets Spoofing

It’s not nice to try to fool caller ID services – in fact, it’s now illegal, with violators looking at possible $10K penalties.

“Spoofing” a phone call – that is, hiding your true identity from caller ID services – may sound like a harmless prank, but it’s a serious enough problem to have attracted the attention of Congress. Last year Congress passed (and, in December, President Obama signed) the “Truth in Caller ID Act”, making it unlawful to transmit misleading or inaccurate caller ID information “with the intent to defraud, cause harm, or wrongfully obtain anything of value.” The law charged the FCC with responsibility for enforcing the new prohibition. In late June, the Commission dutifully revised its own rules to reflect the new law;  it also issued a report (ordered up by Congress) on caller ID in new telephone technologies.

The upshot of all this: a new anti-spoofing regulation with a potentially stiff penalty (max $10K for each violation) and a request that Congress broaden the FCC’s authority to reach more spoofers.

Spoofing provides many opportunities well beyond the merely mirthful; in fact, it affords the motivated criminal plenty of ways to wreak serious damage. A malicious caller might, for example, elicit a social security number from an individual by appearing to be from a bank or government office. Or circumvent a bank’s security screening by appearing to be the account holder, calling from the number of record. Or, in a really creepy use, make threatening calls from the recipient’s own number, thus appearing to be actually in the house. Nothing mirthful there.

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The FCC and Net Neutrality: "Reducing" Paperwork

Bureau releases tentative – and temporary – guide for compliance with transparency rules

When the FCC adopted network neutrality rules, back in December (full text of the Order is here), almost nobody was happy. Verizon immediately tried to challenge the rules in court, but was deemed premature. More challenges are sure to follow. And even some net neutrality supporters condemned the new rules as vague.

One particularly vague rule concerns transparency. A broadband Internet access provider must

publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for consumers to make informed choices regarding use of such services and for content, application, service, and device providers to develop, market, and maintain Internet offerings.

Back in February, as required by the Paperwork Reduction Act (PRA), the FCC asked for comment on the burden this rule would impose. Broadband providers expressed concerns about difficulties in complying, particularly for smaller providers having limited resources. As we discussed then, the rule cannot take effect until the FCC and the Office of Management and Budget (OMB) complete a complicated procedural dance, which includes a finding that the rule complies with the PRA notwithstanding the providers’ comments.  The Commission’s request for comments in February started that PRA dance; while the next step (i.e., sending the rules and comments over to OMB for its review) could have been taken as early as April, it hasn’t happened yet.

In the meantime, the FCC’s Enforcement Bureau and Office of General Counsel  have tried to address the charges of vagueness with an “Advisory Guidance for Compliance With Open Internet Transparency Rule.” Some highlights:

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Update: FCC Invites Comments on LightSquared/GPS Interference Question

An FCC-created working group has concluded that LightSquared operations would result in “potentially significant” interference to GPS; LightSquared has responded with some ideas of its own.

Several months ago we reported on an unusual FCC waiver. The recipient, a company called LightSquared, holds the license to a chunk of spectrum allotted for the Mobile Satellite Service (MSS), a service that, contrary to its name, never really got either moving or off the ground. It was supposed to provide nationwide telephone service delivered by satellite. Perhaps a good idea when first conceived, MSS was ultimately surpassed by the speedy expansion and falling prices of terrestrial wireless phone service.

The LightSquared waiver appeared to pave the way for LightSquared to market its system more as a ground-based system with some satellite capability, rather than as a satellite service with limited “ancillary” terrestrial operation. That alone was surprising, particularly in view of the facts that (a) LightSquared hadn’t even asked for a waiver in the first place and (b) the Commission hustled its approval through in just a couple of months. (Non-routine waivers like this one typically take at least a year or two to process.)

In granting the waiver, the Commission acknowledged a potential problem posed by the proximity of (a) LightSquared’s spectrum and (b) spectrum used for Global Positioning System (GPS) operations, with the consequent risk that LightSquared could interfere with GPS. That would disrupt not only the gadgets in our cars, but also more consequential systems like those used for landing airplanes safely. To scope out just how big the problem might be, the Commission created a technical working group to run some tests. The group – composed of representatives of LightSquared and GPS-related industries – was charged with:

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FCC Hammers Crammers

Companies billing for unauthorized services are fined $11.7 million.

The FCC has proposed multi-million dollar fines against four companies for allegedly “cramming”: billing telephone customers for services they did not ask for. At the same time, the FCC issued guidelines to both telephone companies and the public about how to detect and prevent cramming, and plans to offer new rules against the practice.

Cramming problems usually relate to charges by third-party companies for services supposedly ordered by the phone company’s customers, and included on the phone bill. The FCC’s “Truth-in-Billing” rules require phone bills to include clear descriptions in plain language for each service, with a toll-free number for customers to question or dispute the charges.  Until a customer complains, though, the phone company has no way of knowing whether the charges are legitimate. This leaves it up to customers to review their bills for suspect charges. Knowing this, crammers sometimes try charging just two or three dollars a month, hoping that busy consumers won’t notice. The FCC’s Enforcement Bureau says thousands of people have fallen victim. 

The FCC and the Federal Trade Commission (FTC) share responsibility for protecting consumers from cramming. The FCC has jurisdiction over the telephone carriers and other communications service providers. The FTC has jurisdiction over the third-party service providers whose charges (for things like chat lines, diet plans, etc.) are wrongly added to a telephone customer’s bill. The two agencies coordinate their enforcement activities to protect the public.

In the most recent cases, the FCC proposed fines ranging from $1.5 million to $4.2 million against four companies. (The individual “Notices of Apparent Liability” are here, here, here and here.)

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"I See Dead Proceedings."

With FCC’s blessing, CGB proposes to toss 1,000 – 1,500 (or so) “dormant” proceedings.

In February, 2010, the Commission issued a low-profile Notice of Proposed Rulemaking addressing a number of procedural issues of seemingly minor interest to most of us. In a section titled “Management of Dockets”, the Commission observed that it has more than 3,000 open dockets on its books, many of which “have seen little or no activity in years.”  No surprise there. Conjuring dark images of Docket Death Panels, the Commission ominously opined that “some open dockets may be candidates for termination.” The Commission then proposed to authorize its Consumer and Governmental Affairs Bureau (CGB) to “review all open dockets”, identify “candidate[s] for termination”, consult with the relevant Bureaus and then, WHACK, pull the plug on dockets in which, for example, “no further action is required or contemplated.” 

Fast forward to February, 2011. In a similarly low-key order, the Commission did indeed empower CGB to euthanize what the FCC now characterized euphemistically as “dormant proceedings”. In doing so it gave CGB virtually no guidance to help it identify such proceedings. Candidates for termination with prejudice “might include dockets in which no further action is required or contemplated and dockets in which no pleadings or other documents have been filed for several years” – but would not ordinarily include “proceedings in which petitions addressing the merits are pending”, unless the parties consent.

Armed with that nebulous mandate, CGB has released for comment its initial list of “dormant proceedings” which, absent objection, will be summarily flushed down the tubes in a couple of months. That list is set out in a 97-page table containing more than 1,000 separate line entries. When you dig into them (see below for how you can do this – the process is not as simple as you might think), you find that a fair number of those individual line entries in turn contain as many as 30 or 40 separate and distinct items. From a casual back-of-the-hand calculation, we’d say that CGB is proposing to dump somewhere close to 1,500 separate and distinct proceedings.

So the FCC could be relieving itself of up to half of its open dockets with little more than a single perfunctory notice.

One question: When can we get CGB to come to our office to work its magic with our backlog?

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EAS: FCC Asks Questions, Suggests Extension Of CAP Compliance May Be In Store, Sets Date For National Test

Deadlines for comments on Third Further Notice of Proposed Rulemaking now set: comments due July 20, replies August 4; Nation-wide test set for November 9

The future of the Emergency Alert System (EAS) is here . . . almost. With the release of a Third Further Notice of Proposed Rulemaking (3rd FNPRM), the Commission has raised a welter of questions which, once resolved, should set the penultimate stage between the 20th Century’s Emergency Broadcast System and the 21st Century’s Next Generation EAS (NG-EAS). Perhaps the most important immediate question for broadcasters: should the current September 30, 2011 deadline for implementing the Common Alerting Protocol (CAP) for emergency messaging be extended? (Hint: In view of the number of open questions, the preferred answer is “Yes”.)  The deadlines for comments on that and the rest of the questions posed by the Commission have now been announced.

And on a separate but related note, the date for the long-awaited national EAS test – which we wrote about back in February – has now been set. Mark your calendars: November 9, 2011 at 2:00 p.m. EST. (Everybody take note: that date occurs just after the switch back to standard time.)

The process of converting from old-school, broadcast-centric EAS to a more ambitious NG-EAS, which will feature simultaneous messaging across multiple platforms (including cellular, internet, satellite and cable television providers, as well as broadcast radio and TV), has been in the works for several years. (Check out this post for more details.) The goal is to implement the CAP across the board. CAP is “an open, interoperable, data interchange format for collecting and distributing all-hazard safety notifications and emergency warnings to multiple information networks, public safety alerting systems, and personal communications devices.”  It’s part of the federal government’s deployment of the Integrated Public Alert and Warning System (IPAWS). 

Plain language: The Commission wants to move emergency messaging from the historic but limited analog approach to a digital system that can take advantage of all modes of electronic communication.

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S.911: Senators Set Sights On Spectrum

Bipartisan bill provides most detailed glimpse to date into possible spectrum re-purposing and incentive auction mechanism - but leaves many questions unanswered

The Senate Commerce Committee has approved S.911, a bill – co-sponsored by the Committee’s Republican and Democratic leaders – which provides perhaps the most detailed legislative effort advanced thus far to move incentive spectrum auctions closer to reality. (Check out our posts on previous incentive auction bills here.) The bill now goes to the full Senate for its consideration, which is far from guaranteed at this point. Additionally, action on some corresponding bill (which has not yet surfaced) in the House will be necessary before S.911 becomes law.  So we still have a ways to go before incentive auctions become reality.

But given its bipartisan origins and the fact that it’s already made it to the full Senate, S.911 is probably the horse to watch in the race among incentive auction bills.

The bill’s primary focus is the creation of a public safety wireless network which would be controlled by a new governmentally-created corporation (the “Public Safety Broadband Corporation” (PSBC)). TV spectrum re-purposing enters into the picture as a potential source of funding, mainly through the sale of "reclaimed" spectrum to wireless companies. (The bill spreads out over more than 100 pages; the spectrum re-purposing/incentive auction portion takes up only about 20 pages or so.)  For purposes of this post, let’s focus on the TV spectrum re-purposing/incentive auction aspects of the bill.

Among other things, the bill as originally advanced by Senators Rockefeller and Hutchison provides that:

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Rural Interconnection Direction Correction

FCC clarifies interconnection obligations of rural carriers and role of state commissions.

Telecommunications carriers are required to interconnect, directly or indirectly, with the facilities and equipment of other telecommunications carriers. Congress said so, in Section 251(a) of the Communications Act. In addition to fostering competition as much as possible, the goal is to assure that our telephone calls are all completed no matter which carrier we use to make the call or which carrier serves the destination number.   

A couple of subsections later, though, in Section 251(f)(1) Congress created a limited exemption from some, but not all, interconnection-related obligations. The so-called “rural exemption” is available to rural local exchange carriers (LECs) under certain circumstances. It exempts eligible LECs from, among other things, the obligation (contained in Section 251(c)) for incumbent LECs to negotiate in good faith the terms of interconnection agreements.

But if you aren’t required to negotiate, how can you be expected to reach agreement on interconnection arrangements? If exempt rural LECs don’t have to negotiate interconnection agreements, does that relieve them of the obligation to interconnect at all? 

The Commission has recently answered that question in a Declaratory Ruling, and the answer is: No way.

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Update: Comment Deadlines Set In BRS/EBS Rulemaking

Last week we reported on a proposal to relax out-of-band emission limits for the Broadband Radio Service (BRS) and the Educational Broadband Service (EBS), operating in the 2496-2690 MHz band (a/k/a the 2.5 GHz band). Acting with impressive speed, the Commission has now published that NPRM in the Federal Register. That, in turn, sets the dates for comments and reply comments. As we indicated in our original post, the comment periods seem somewhat abbreviated – comments are due by July 7, 2011, reply comments by July 22 – so if you’re of a mind to submit some thoughts to the Commission, you should probably get on it sooner rather later.

Broader Broadband For 4G Networks?

FCC contemplates relaxation of out-of-band emission limits in the 2.5 GHz band.

The FCC has proposed to relax out-of-band emission limits for the Broadband Radio Service (BRS) and the Educational Broadband Service (EBS), operating in the 2496-2690 MHz band (a/k/a the 2.5 GHz band). These services were formerly known as MMDS and ITFS. Their spectrum is now largely leased to Clearwire, Nextwave, and others for 4G mobile broadband services.

Clearwire is the largest current user of the band. It relies on WiMAX technology, which typically utilizes 10 MHz channels. But Clearwire and other service providers are thinking that wider bandwidths might be in order. Clearwire would like to migrate to WiMAX2, while other service providers (and maybe Clearwire as well in the future) are considering Long Term Evolution-Avanced (LTE). Both WiMAX2 and LTE contemplate channel bandwidths of 40-100 MHz.

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The Chill Is On For TV Channel Changes

Media Bureau announces freeze on TV channel change rulemaking petitions – effective May 31, 2011

For more than a year – since the FCC first started making noises about possibly “re-purposing” their spectrum as part of the National Broadband Plan – television broadcasters have been living under an ominous sense of impending doom . . .  or, if not “doom”, at least, major disruption. 

That ominous sense just got more ominous. 

In a terse public notice, the Media Bureau has announced a freeze on “the acceptance of rulemaking petitions to change television channels”, effective immediately (i.e., as of May 31, 2011). The purpose of the freeze is to “permit the Commission to evaluate its reallocation and repacking proposals and their impact on the Post-Transition Table of DTV Allotments”. The Bureau also points out that licensees have been able to submit channel change petitions since May, 2008 (when the last pre-DTV transition freeze was lifted), so it figures that everybody’s had plenty of time to determine whether they might prefer a different channel.

The freeze could indicate that the Commission is already narrowing down its re-purposing options; alternatively, it might mean merely that the Commission hopes to minimize any complications that would arise from a continually changing DTV Table of Allotments. Whatever may be the case, if you’re a full-power TV licensee, it looks like the channel you happen to be on now is the channel you’re going to be on for the foreseeable future. Presumably, the Commission will eventually decide how it can shuffle spectrum around to squeeze 120 MHz or so out of the TV band. In that event, assuming that Congress goes along with things, you may find yourself moved around in what’s left of the TV band. (Rulemaking petitions that were already on file with the Commission’s Secretary as of May 31 will continue to be processed, but no others. So if you are hoping to change and were lucky enough to get your proposal on file before May 31, congrats.)

Pursestrings 2011: Effective Date Of New Application Fees Announced

Effective date: June 20, 2011 (but check back for possible updates)

According to a notice published in the Federal Register, the new schedule of application fees first announced by the Commission a couple of months ago will take effect on June 20, 2011. That’s good news for all those radio licensees in Maryland, D.C., Virginia and West Virginia, whose renewals are due by June 1; not so good news for other broadcasters, who will end up shelling out $5 more per renewal application than their radio confrères in MD/DC/VA/WV.

A list of the new fees (all of which are going up by 3%-3.5% or so) is included in the Federal Register notice linked above. Also, be on the lookout for a new Application Fee Filing Guide to be posted on the FCC’s website. Historically, the Commission provides such guides in connection with the biennial changes in fees.

Whether June 20 will really be the effective date may be open to question. The last time the Commission modified its application fee schedule, it ran into considerable complications in implementing an effective date. (The final effective date turned out to be several months after the initially-announced date.) You can read about that saga in the posts (going back to 2008-2009) linked here. The problem appeared to involve a combination of factors which may be absent this time around, so we’re hoping that things go a bit more smoothly this year.

Under Section 158 of the Communications Act, the Commission must notify Congress of new fees “not later than 90 days before the effective date”.  Since the Commission initially announced the new fee schedule on March 3, and the recently announced effective date isn’t until June 20, it would appear that that requirement may have been met . . . if the Commission did in fact notify Congress sometime before March 22 (i.e., 90 days prior to June 20). The FCC may have done so, but the most recent Federal Register notice doesn’t specifically confirm that. 

Ruh-roh. Closer perusal reveals that, to the contrary, the notice says that the Commish “will send a copy of th[e] Order in a report to be sent to Congress . . . pursuant to the Congressional Review Act.” Hmmm. Does that mean that the Commission has not yet let Congress in on the new fees, or does it just mean that the FCC has to send Congress a second report reminding them of the first report that may or may not already have been sent? (When it comes to sending reports to Congress, you really can't send too many.)

For now, it’s probably best to assume that the new fees will take effect on June 20. If you have any applications that you’re getting ready to file, you might save a few bucks if you can get them on file by that date. But, based on what happened back in 2009, you might want to check back here for any changes in the effective date.

Court To FCC: OK To Defer To State Rate Determinations Re Intrastate Call Terminations

D.C. Circuit will not require Commission to set intrastate termination rates in first instance.

When it comes to setting “reasonable compensation” rates for the termination of intrastate phone traffic, the FCC normally defers in the first instance to state authorities.  And now, in the case of MetroPCS California v. FCC (No. 10-1003), the D.C. Circuit has confirmed that that deferential approach is permissible – even if it means that the result may be a “patchwork of regulatory schemes” facing phone service providers across the country, with each state fashioning its own approach to “reasonable compensation”.

The question arose when a local exchange carrier (LEC) in California unilaterally set a rate for terminating purely intrastate phone traffic from MetroPCS California (MetroPCS), a California commercial mobile radio service (CMRS) provider.  MetroPCS objected to the rate, and the LEC complained to the FCC that MetroPCS wasn’t paying like it should. 

The FCC didn’t resolve the complaint; instead, it held the complaint in abeyance to give the California Public Utilities Commission (CPUC) a chance to set the appropriate rate.  Unhappy with that approach, MetroPCS asked the U.S. Court of Appeals for the D.C. Circuit to step in and require the Commission to set the rate itself.  The Court stepped in but, presumably to the chagrin of MetroPCS, the Court sided with the Commission.

MetroPCS thought that the FCC is statutorily obligated to set the “reasonable compensation” intrastate termination rates itself, or at least to provide “guidance” to the CPUC on “how to set a reasonable rate”.  It appears that MetroPCS has at least one more think coming.

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Consent Decree Is Beginning, Not End, Of Licensee's Troubles

When you agree to pay a fine, the FCC really does expect you to pay the fine.

It turns out that, sometimes, the job’s not over even after the paperwork is done. An AM licensee found that out the hard way when it got slapped with a $25,000 notice of apparent liability for failing to take care of a couple of items on a to-do list that it had promised the Enforcement Bureau it would take care of.

The story starts back in 2005, when the licensee (real name: “A Radio Company, Inc.”) received a notice of apparent liability for a short laundry list of problems, including incomplete public file, inadequate tower fencing, and operating with unauthorized facilities (seems the directional AM was using its daytime directional pattern at night). Total damage: $15,000.

The licensee dickered over the details and managed to get the fine backed down a grand (in 2007), but it kept the ball in play by appealing parts of the remaining $14K fine. In 2008, the licensee entered into a Consent Decree with the Enforcement Bureau that shaved another $6,000 off the bottom line. So at that point the licensee was looking at an $8,000 fine, a bit more than half the original amount. According to the Consent Decree, all the licensee had to do was pay the fine, set up a “Compliance Plan” designed to prevent future violations, and file three (count ’em, three) “compliance reports” with the Commission – one 90 days after the Consent Decree, the second a year after, the third two years after – confirming that the Compliance Plan was up and running. Good deal, right?

Apparently not good enough.

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Update: Comment Deadlines Set In Wireless Signal Booster Rulemaking

A couple of weeks ago we reported on an Notice of Proposed Rulemaking (NPRM) proposing to allow consumers to purchase and use boosters to improve their wireless reception.  The NPRM has now been published in the Federal Register, which sets the deadlines for comments on the proposals. Comments are due on June 24, 2011, and reply comments on July 25, 2011.

Update: New Roaming Rules To Take Effect June 6

Last month we reported on changes in the Commission’s rules governing automatic data roaming. The effective date of most (but not all) of those rules has just been announced. Mark your calendars: the new roaming rules will take effect on June 6, 2011. However, revised Section 20.12(e) will not become effective just now. That section – which provides for the filing of formal or informal complaints about possible violations of the data roaming rules – involves “information collections”, so it’ll have to wait until OMB has signed off on it.

Update: FCC Process Reform Hearing Date Set

And so it begins . . . on Friday the 13th.

A couple of weeks ago we reported about Congressional interest in FCC process reform, and the likelihood that hearings on that subject might be just around the corner. And sure enough – the Communications Subcommittee of the House Energy and Commerce Committee has announced that it will hold a hearing on FCC Process Reform, May 13 at 9:30 a.m. (if you’re in town and want to pop in for a look-see, stop on by Room 2123 in Rayburn Building).  Note that this is a rescheduling – the hearing was originally set for May 3.  The listed witnesses are Chairman Genachowski and the four commissioners. 

As noted in our earlier report, Subcommittee Chairman Greg Walden (R-OR) believes basic reforms can be addressed in a “positive and constructive way.”  With issues such as net neutrality, merger review (AT&T/T-Mobile anyone?) and agency sunshine rules in play, the upcoming hearing will provide an early public test of that theory.

2011 Reg Fees Proposed: Going Up!

Remember last Spring, when the FCC issued its proposed 2010 reg fees and they had all gone down from the previous year, so we got all excited, and then when the final 2010 fees were announced, they had gone back up again and we were disappointed? Good news! This year, the FCC is sparing us that emotional whipsaw. It has just released its proposed 2011 regulatory fees, and with only few exceptions, they reflect increases – in some cases, significant increases – over last year’s numbers. This way, we won’t be surprised and disappointed in a couple of months when the final fees are announced.

While pretty much everybody’s fees are proposed to go up, the folks who would get hit hardest are full service UHF TV in Markets 11-25 and Market 26-50. Their fees would increase by 9.5% and 10.8%, respectively. We have prepared a table reflecting the proposed 2011 reg fees here. The numbers in parentheses reflect the amount of the proposed changes from last year’s fees – as a visual aid, we have indicated proposed fee increases in red, and proposed reductions in cool green.

As always, the Commission is giving everybody a chance to comment on this year’s proposed fees, but you’ll have to act fast. The deadline for comments on the proposed fees is May 24, 2011; reply comments may be filed through June 1.

This year’s notice includes a couple of noteworthy points.

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Ex Parte Follow-Up Paperwork Requirements Expanded

Additional proposals for increased reporting after ex parte meetings out for comment

Folks trying to get their way at the Commission routinely engage in what we professionals refer to as “ex parte” contacts – which usually consist of face-to-face, one-on-one meetings with Commissioners or Commission staff. Such meetings theoretically provide an up close and personal opportunity for the outside party to pitch its side of some issue to the regulators.

Ex parte meetings can be useful, but they also can be problematic from the perspective of due process and fairness. The term “ex parte”, after all, derives from the Latin for “one-sided”. If the issue which the private party is pitching in the meetings is contested, what are the chances that the other side of that issue will be fairly and accurately presented? (Non-FCC illustration: how would you feel if you found out that your soon-to-be-ex-spouse had had a private tête-à-tête with the judge presiding over your hotly-contested divorce case?)

In order to assure itself maximum access to potentially useful information (through, e.g., ex parte contacts) while still preserving at least the illusion of fairness and openness in the decision-making, the Commission has crafted a number of rules to govern the ex parte process. Those rules prohibit ex parte contacts in certain types of proceedings; in other types, such contacts are permitted as long as the private party follows up the meeting by submitting a notice summarizing the gist of the meeting (including any written materials that might have been handed out during the meeting). That notice is then placed in the FCC’s public files so that, theoretically, anyone with an interest in the proceeding at issue will be alerted to the meeting.

As happens periodically, the Commission has now adopted new rules clarifying, and expanding, the post-ex parte disclosure requirements.  Although the Commission announced the new rules back in February, they aren’t scheduled to take effect until June 1. (A couple of the changes involve “information collections” and, as a result, won’t be effective until approved by the Office of Management and Budget.) Additionally, the Commission has proposed further changes to those requirements.

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Update: Effective Date Set For Remaining Revised E911 Accuracy Rules

Last September we reported on steps the Commission had taken to increase the E911accuracy standards. While many of the changes adopted by the Commission back then took effect in January, several – specifically, §§20.18(h)(1)(vi), 20.18(h)(2)(iii), and 20.18(h)(3) – did not, because they involve “information collections” that had to be approved by the Office of Management and Budget. That approval has now made its way through the bureaucracy, and the FCC has published a notice concerning that approval in the Federal Register. And with that, those rules became effective as of April 28, 2011 (the date the notice made it into the Federal Register).

FCC Process Reform: Change In The Air?

Key Congressional figures signal interest in examining the way the FCC does business

Have any thoughts on how the FCC could operate better? Increasingly, a number of influential members of Congress seem to believe they do. Momentum continues to build on Capitol Hill for reform of the Federal Communications Commission with recent statements – and hints of action – from key members of the House Energy and Commerce Committee.

Speaking at the American Cable Association’s annual summit on April 13, House Communications Subcommittee Chairman Greg Walden suggested there would be a hearing and movement on legislation on FCC reform in the near future. Expectations are that the five FCC commissioners will be called to testify before the subcommittee within a few weeks of Congress’ return from recess.

Walden made a strong pitch for Congress to actively oversee the agency, stating: “Failure to do that only gives them license to do other things they don't have the authority to do.” Walden, of course, introduced a House-passed resolution to invalidate, as an overreach of FCC authority, the Commission’s recent net neutrality rules.

Walden expressed his belief that both the Democrat and Republican FCC commissioners agree on the basic need to improve how the agency functions (see, e.g., “Copps, Commissioner, sunshine rules” and “Baker, Commissioner, merger review”) and that such reform can be done in a “positive and constructive way”.

And Walden is not alone in his interest in Commission process reform.

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FCC Proposes To Give Cell Phones A Boost

Unlicensed boosters could improve reception but could also increase interference

When you’re trying to make a cell phone call, have you ever been thwarted by those pesky laws of physics? You know, those ones that cause signals to fade at long distances from base stations or impede signals in tunnels, buildings or dense foliage. If so, the FCC thinks it may have an answer to your problems – wireless consumer signal boosters. While signal boosters have been an option for certain FCC wireless licensees for a while, the FCC recently issued a Notice of Proposed Rulemaking (NPRM) kicking off a proceeding designed to allow individual consumers to purchase and use such boosters. 

The NPRM was released both in response to a number of petitions filed by private parties and as part of the Commission’s overarching effort to deploy wireless and broadband services. In it, the Commission recognizes not only the potential value in signal boosters, but also the significant potential for interference created by poorly designed or installed boosters. To attempt to ensure that boosters are deployed effectively and safely, the Commission proposes to impose requirements on the manufacture and marketing of boosters themselves, rather than adopting a licensing regime for their use. The NPRM seeks comment generally on this approach, as well as on a number of more discrete issues.

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FCC Seeks Input On Broadband Consumer Information

Goal is to keep buying public informed.

Recall the FCC’s shock, last June, at discovering that 80% of Americans do not know their broadband speeds. It took almost a year, but the FCC is now striving to bring the light of knowledge into the darkness of consumer ignorance. Its lantern of truth (we’ll stop the metaphor soon) is a public notice.

What information, asks the FCC, should providers supply to consumers? The Commission proposes not just the usual megabits-per-second, but matters like latency, jitter, peak-hour performance, and short-term speed increases. (The public notice does not explain these.) Which of these kinds of data should broadband providers disclose? Should the information come in standardized formats? How often should it be updated? And so forth. Read the details here.

We suspect the people who care about latency and jitter probably know how to ask about it. But most of us – are you sitting down, FCC? – most of us just don’t care.

Broadband service has become a utility, like electricity, gas, water, telephone, or cable. The average consumer has no interest in how many gallons per minute his water service can deliver. The water either works, or it doesn’t. Ditto for electricity, gas, and so on. We care mightily when any of these fails, including broadband service. But as long as it stays on, and more or less meets our needs, the technical details are of little concern.

We do have a couple of suggestions for the FCC. Although to most people reliability matters more than latency or jitter, it is not in the FCC’s proposed list of disclosures. It should be, with significant rate rebates when outages go over the advertised limit. We also want to see an absolute, unconditional ban on the phrase “up to” in ads for broadband speeds. Providers can specify a minimum, or a range, or a guaranteed average, but claiming speeds “up to” some number is just an exercise in creative writing.

Those wishing to respond to the FCC’s public notice should file comments by May 26, 2011, and reply comments by June 16, 2011.

Update: Reply Comment Deadline Extended In TV Spectrum Re-Purposing Proceeding

If you’ve been planning on filing reply comments in response to the FCC’s TV spectrum re-purposing NPRM but you haven’t gotten around to it yet, you’re in luck! Everybody’s been given an extra week, thanks to an extension that pushes the reply comment deadline to next Friday, April 25. The extension comes at the request of several broadcasters and state broadcast associations concerned that the original reply comment deadline fell immediately after the close of the NAB convention in Las Vegas. 

Spectrum auctions and repacking were among the biggest items on the convention agenda for all concerned – FCC staff, Commissioners and industry alike. As a result of that opportunity to share information and insights, many interested parties are now in a better position to formulate reply comments that can contribute significantly to the Commission’s on-going consideration of the complicated issues on the table.

The last chance to say your piece (at least at this stage of the proceeding) is now fast approaching.

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Update: New Comment Deadlines In VoIP/Accessibility Proceeding

On March 31 we reported on a couple of VoIP-related NPRMs, including one item looking toward making VoIP and similar services easily accessible to and usable by persons with disabilities.  Despite the fact that that NPRM proposes sweeping changes in the nature of VoIP obligations and even the scope of the FCC’s regulatory reach (which would be extended into considerable technical minutiae), the deadline for comments on the proposals was originally set for April 13. But now, at the request of a number of organizations, the Commission has extended the comment deadline to April 25, 2011, and the reply deadline to May 23, 2011. That’s still not a lot of time, but it does provide some breathing room.

FCC To Mobile Browsers: Roam, Roam On The Range

FCC mandates data roaming – sort of – with new rules for roaming rights for new universe of providers, but with strings attached

In a widely anticipated move, the FCC has mandated that all facilities-based providers of “commercial mobile data service” make available automatic data roaming to other such providers – with some important exceptions. This mandate was strongly lobbied for by almost everyone in the industry – except AT&T and Verizon (collectively, The Big Two), who strongly opposed it. The issue of data roaming has become more and more pressing as mobile communications have rapidly morphed from a voice-centric, common carrier-centric, circuit-switched-centric system to one where voice applications are a small subset of packet-switched data offered by carriers and non-carriers. The Internet is all.

The old mandatory roaming rule which the new requirement supplements applied only to CMRS carriers who are interconnected with the public switched telephone network. The new rule expansively applies to a new species – facilities-based providers of “commercial mobile data services”. (The Commission appears resistant to embracing the obvious acronym, i.e., CMDS, for that universe of services – but we’re not.) 

The operative characteristics of this hitherto undiscovered species are notable both for what they include and what they don’t.  The inclusions and exclusions reflect a careful balancing of the policy issues that raged beneath the surface of this decision.

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Spectrum Inventory Tools: Touts And Doubts

Mixed messages on means for determining spectrum availability

When the issue of spectrum re-purposing pops up, the related issue of spectrum inventory tends to pop up as well. Some members of Congress have been calling for the Commission to conduct such an inventory since 2009. The Commission has not initiated any formal proceedings along those lines, although it has repeatedly insisted that it has a good handle on the whole spectrum thing and that its assessment of the need for re-purposing is valid.

In February, 11 Members of Congress sent Chairman Genachowski a letter observing (again) that it would be a good idea to conduct an inventory so that we can all have “a complete picture of who is licensed to use what airwaves and how effectively they are being used”.

In a response dated March 18, Genachowski advised that the Commission has “inventoried the spectrum over which it has jurisdiction”, thereby producing “one of the most substantial and comprehensive reviews of spectrum in [the Commission’s] history”. He then waxed eloquent about two “tools” – “LicenseView” and “Spectrum Dashboard” – that “reflect our understanding of where the most significant spectrum opportunities lie”. I’ll let the Chairman describe those “tools”:

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