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

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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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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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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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.

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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.

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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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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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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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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.

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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.

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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.)

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From our Better Late Than Never File: Build-out reports for 700 MHz licensees now in effect

The November 21, 2011 Federal Register includes a notice of the effectiveness of certain record-gathering rules adopted by the FCC in July, 2007.   The 2007 Second Report and Order established substantive service requirements for 700 MHz licensees, but also required those licensees to file a report on the progress of their efforts to build out their market. Oddly, there was an impressive four-year gap between the adoption of the Second Report and Order and publication of the required notice that the Office of Management and Budget had approved the new paperwork burden. (Without that approval, the requirement could not become effective.) The terse Federal Register notice sheds no light on why, exactly, it took more than four years to wrap this seemingly ministerial chore up.  This is disturbingly reminiscent of the situation involving Form 477, which we recently reported on, in which the Commission failed for some two years to notify the public of OMB approval of a reporting requirement.

The initial build-out report required by the rules was to have been submitted on June 13 of this year, but the FCC had to delay that filing due to the ineffectiveness of the rule. 700 MHz licensees can now expect the Wireless Bureau to issue a Public Notice establishing a new date for the filing of the status report. We’ll let you know when that happens.

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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.

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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.

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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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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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“Effective dates” can be hard to pin down,  thanks to contradictions, omissions and an overall lack of clarity by the FCC – take Form 477 as an example

The November 7, 2011 edition of the Federal Register contained what appeared at first blush to be a fairly routine notice that certain rules had received approval from the Office of Management and Budget (“OMB”) and were therefore going into effect as of the publication of that notice.   But when we lift up that seemingly innocent flat rock of a notice, we observe a swarm of ugly questions about just how and when FCC rules become effective. Because FCC regulations have the force of law and are enforceable by fines in thousands and even hundreds of thousands of dollars, it is critical that the public know exactly when compliance is required. Yet that seemingly simple detail – when do we have to obey a new rule? – can be hopelessly obscure, as was certainly the case in the proceeding referenced in the November 7 notice.  

That proceeding involved amendments to Form 477, but the same question – i.e., when does a requirement become “effective” – applies to many other FCC proceedings.

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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.

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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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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.

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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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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.

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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.

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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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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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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.

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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.

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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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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.

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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.

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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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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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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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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.

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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.

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A couple of weeks ago we reported that all but one of the new rules embracing Long Term Evolution (LTE) as the broadband technology for public safety networks had taken effect. The one lingering loose end was Section 90.1407(f), which requires public safety broadband network operators to submit a certification of compliance prior to deployment of any Radio Access Equipment. The hold-up? That section included an “information collection” and, therefore, needed to be run past the Office of Management and Budget for approval under the Paperwork Reduction Act. But now the FCC can cross that off its to-do list: in a notice published in the Federal Register, the FCC reports that OMB has signed off on the certification requirement, and that requirement has taken effect as of September 6, 2011.

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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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Last February we reported on the Commission’s adoption of new rules embracing a specific broadband technology, Long Term Evolution (LTE), for public safety broadband networks. With the publication of those rules in the Federal Register, they have become effective (with one minor exception) as of August 18, 2011. The one exception? That would be Section 90.1407(f), which requires public safety broadband network operators to submit a certificate of compliance prior to deployment of any Radio Access Equipment. Since that requirement constitutes an “information collection”, it has to be run through the Paperwork Reduction Act drill (i.e., review and approval by the Office of Management and Budget) before it can become effective. We’ll let you know when that happens.

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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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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.

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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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The Commission’s 2011 reg fees still aren’t technically effective, and the FCC has yet to announce the deadline for paying those fees . . . but the Fee Filer system is ready – NOW – to take your reg fee payments.

If you’re the type of person who prefers to pay bills early to avoid pesky late charges and the like, here’s your chance. The Commission has opened up its Fee Filer system to accept payments of 2011 regulatory fees. The Pay Here/Pay Now window on the FCC’s website was apparently opened for reg fees as of sometime on August 12, even though there doesn’t appear to have been any formal announcement to that effect – just a fine-print notice at the top of the Fee Filer page reading “Fee Filer is presently ready to accept filings for 2011 regulatory fees.” 

Of course, the 2011 reg fees adopted by the Commission last month won’t be effective until September 9 (that’s according to the Federal Register notice that popped up a couple of days ago), so technically the new fees aren’t yet really on the books. But niggling details like that probably won’t stop the Commission from accepting your payment now.

The Commission has also not yet officially announced the deadline by which reg fees must be paid. Our sources indicate that that date is likely to be September 14, but we won’t know for sure until the Commission spreads the official word. We’re guessing that could happen this coming Monday, August 15.  Check back here for updates.

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Commission adopts certification requirements for providers, limits on toll-free numbers for users

In an effort to reduce unnecessary costs while assuring that deaf and hard-of-hearing people will still enjoy essentially the same access to telecommunications services as everybody else, the Commission has adopted several changes to the rules governing Internet Telecommunications Relay Services (iTRS).

iTRS is the short-hand term for a couple of related services – Video Relay Service and IP Relay – that permit deaf and hard-of-hearing folks to communicate by telephone, over the Internet, with persons with or without normal hearing. iTRS provide those folks a modern alternative to the crude “TTY” typewriter-like keyboards through which they previously interconnected with the phone system. The basic concept is that, with inexpensive webcams and broadband connections, deaf/hard-of-hearing users can access the services of interpreters who can not only type words but also speak with sound to hearing persons and with American Sign Language to deaf persons. (Want to know more about iTRS? Check out the FCC’s information page on the subject.)

The cost of providing iTRS service is picked up by federal and state governments (which in turn get the funds by including a surcharge on everybody’s telephone bill). With annual costs running close to $740 million, there’s a boatload of money at stake – and, needless to say, with opportunities to game the system in great supply, temptation abounds.

Until now, that is – if the FCC has its way.

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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.

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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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No significant changes from May proposals; look for a September filing window

Sometimes the best surprise is no surprise at all. And the FCC has surprised at least some of us with its release of the final 2011 regulatory fee schedule. The surprise? As it turns out, with one very minor exception, the final fees are identical to the fees the Commission proposed back in May. (The one exception: the fee associated with satellite TV construction permits is $670, which is a whopping $5 less than the fee that was proposed back in May.)

Click here for a handy table listing the final 2011 reg fees. We’ve also included in the table listings of the differences between this year’s fees and last year’s, in case you’re interested in that kind of thing.

If you wade into the fine print of the Report and Order accompanying the new fee schedule, you find some routine caveats. For instance, you’ll be expected to use the FCC’s Fee Filer system to pay your reg fees (no real surprise there), and the Commission will not be sending out hard copy “pre-bills” to let everybody know what they’re on the hook for (ditto). (Helpful tip: the information that you would have received in a paper pre-bill will be available at Fee Filer, but don’t forget to doublecheck that information – the Commission has been known to make mistakes, and its calculations have historically not included fees for any auxiliary licenses you might have.)

The Report and Order does include an interesting statement relative to low power TV/Class A/TV translator fees.

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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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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.

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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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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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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.

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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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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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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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Proposed extension of outage reporting requirements beyond traditional wireline and wireless providers underscores increasing significance of VoIP and Internet providers.

When communications systems go down, bad things can happen. Network system outages – be they wireless, wireline, satellite or cable – are more than an inconvenience. Those systems provide a vital link between consumers and the public safety services they depend on, particularly in emergencies.  Largely because of that, the Commission has, for nearly 20 years, sought to stay informed about network system outages. Starting with wireline carriers (in 1992) and expanding to include wireless, satellite and cable folks 12 years later, the Commission has required carriers to report network outages that reach certain levels of seriousness. According to the Commission, these reports permit the Commission to “address communication system vulnerabilities and help prevent future outages.” (The reporting requirements are set out in Part 4 of the FCC’s rules.)

As a further indication of the increasing significance of VoIP on the communications landscape -- and, consequently, VoIP's increased potential exposure to regulation -- the Commission has issued a Notice of Proposed Rulemaking (NPRM) which would extend its Part 4 outage reporting requirements to interconnected VoIP and broadband Internet access service providers (including Internet backbone network providers). The Part 4 rules require providers to report outages or serious degradations that last 30 minutes or longer and meet certain other thresholds (such as number of calling minutes affected).

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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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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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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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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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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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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.

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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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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.)

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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.

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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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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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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.

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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.

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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.

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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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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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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).

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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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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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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.

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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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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.

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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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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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Tach it up! Tach it up! FCC moves to DefCon1 in anticipation of government shutdown

We’ve posted a couple of alerts about the possible shutdown of the federal government and the effect that that could have on licensees (read them here and here). Now the FCC itself is getting into the act. It has just posted on its website a “Plan for Orderly Shutdown Due to Lapse of Congressional Appropriations”. The Commission’s plan allots a total of four hours to complete “orderly” shutdown procedures. (The clock on that four-hour period apparently will start with the issuance of a “notice of decision to furlough” that will be emailed to all Commission employees to be sent home. Comforting factoid: All five Commissioners will stay on board through the shutdown.)

 

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Proposed changes, and consequent delays, may stick in some craws

Looking to build a new tower, or maybe make changes to an existing tower? If your proposal involves an antenna structure that requires an Antenna Structure Registration (ASR), you can expect delays ahead if new procedures recently proposed by the Commission are adopted.

This latest development is just one more wrinkle in the years-long effort by a number of bird-loving groups to force the Commission to consider the impact of its ASR program on birds. We have written about that effort – which the birders appear to be winning – previously. The Commission is already in the middle of its own (court-ordered) Programmatic Environmental Assessment (PEA) relative to the ASR program. And while the Commission wades through the PEA process, it is now proposing new processing rules and interim procedures designed to give the public an opportunity to comment on proposed ASR-dependent towers (and proposed changes to existing towers) even before they’re formally proposed!

All of this is set out in a Public Notice recently published in the Federal Register.

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 After much handwringing in February about a possible shut down of the government due to an inability by Congress to pass a federal budget, the union has been saved by a series of stopgap spending measures. The most recent one expires on April 8. While it appeared a couple of weeks ago that Congress lacked the will to actually shut the government down as it did during the Clinton administration, it is now looking more and more that no compromise is in the immediate offing. While life as most licensees know it will be unaffected, it is very important that licensees with licenses set to expire in the immediate future get their renewal applications in before the close of business on April 8. This is important because as long as a timely renewal application is on file, a licensee’s operating authority continues past the license expiration date. But if the government is shut down when your license expires and you haven’t yet filed your renewal application, you can’t file it and your operating authority ceases. Don’t paint yourself into that corner.

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Initial net neutrality appeal dismissed as premature

So much for creativity in appellate litigation. The U.S. Court of Appeals has determined that Verizon jumped the gun when they filed notices of appeal of the FCC’s net neutrality decision last January. As a result, Verizon’s appeal has been dismissed. (A similar appeal by MetroPCS was also dismissed in the same order.)

As faithful readers will recall, Verizon made a two-pronged effort to insure that the D.C. Circuit would be the court to review the net neutrality approach adopted by the Commission in late 2010. (Verizon’s motive in that effort isn’t hard to guess: the D.C. Circuit had slammed a similar regulatory approach in the 2010 Comcast decision.) But one prong of that effort – a request that Verizon’s appeal be assigned to the same panel of judges who decided Comcast – was rejected in less than two weeks. And now the second shoe has fallen.

The Court’s latest order is terse. Offering no substantive analysis, it merely concludes that

[t]he challenged order [i.e., the net neutrality decision] is a rulemaking document subject to publication in the Federal Register, and is not a licensing decision “with respect to specific parties.”

The theory of Verizon’s approach was that it was a “licensing decision” affecting “specific parties”. So much for that theory. As a result of the Court’s order, judicial review cannot be sought until the agency’s decision is published in the Federal Register, something that hasn’t happened yet. 

The good news for Verizon is that dismissal of its initial appeal does not foreclose it from seeking judicial review again once net neutrality finally makes it to the Register. (No word yet as to when that might be. Trade press reports a couple of months ago indicated that Federal Register publication was then imminent. Those reports were apparently wrong.)

The bad news for Verizon is that, when the opportunity to file does arise, there will be no way to guarantee that the case lands in the D.C. Circuit. If other parties file their petitions for review in other Circuits, a “judicial lottery” system kicks in. While it would seem to make sense for the D.C. Circuit to hear the next round of net neutrality appeals – that Court, after all, is very familiar with administrative law issues generally and issues arising from the Communications Act in particular – at this point it’s anybody’s guess where the case will ultimately land.

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Last week we posted about an NPRM proposing to expand the requirement that VoIP providers contribute to the Telecommunications Relay Service (TRS) Fund.  The requirement, already applicable to connected VoIP operators, would be broadened to include non-VoIP as well. See the original post for details.

The NPRM has now been published in the Federal Register, which sets the deadlines for comments on the proposals. Comments are due on May 4, 2011, and reply comments on May 19, 2011. And if you feel like commenting on the “information collection” aspects of the proposal (as you are entitled to do, thanks to the Paperwork Reduction Act), you’ve got until June 3, 2011, to do so.

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“Incentive Auction Incentive Program” could eliminate need for Congressional authorization

Proving yet again that where there’s a will, there’s a way, the FCC has announced that it is proceeding with incentive auctions “promptly”. This is noteworthy, of course, because Congress still hasn’t gotten around to authorizing the sharing of auction proceeds – and the conventional wisdom has been that, without such authority, incentive auctions were a non-starter.

So much for the conventional wisdom.

As outlined in a public notice, the Commission has devised a novel work-around: an Incentive Auction Incentive Program. Instead of promising broadcasters actual cash payments from auction proceeds in return for relinquishing their spectrum, the FCC will offer its own currency, “in the form of scrip”, which can then be redeemed for various “non-cash resources” already available to the Commission.

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More burdens just up the road, thanks to two Congressionally-ordered NPRMs

The FCC’s release of two Notices of Proposed Rulemaking (NPRMs) on March 3 will give VoIP providers a familiar sinking feeling – that is, the feeling of sinking ever deeper into the quicksand of FCC regulation.   At Congress’s direction, the FCC is looking both to expand TRS contribution obligations and to impose additional accessibility rules on all VoIP providers. As we describe below, the new accessibility standard for VoIP (as well as email and video conferencing) will be even higher than that already imposed on most telecommunications services.

The NPRMs (along with the video description NPRM about which we’ve already reported) are some of the first regulatory offspring of the 21st Century Communications and Video Accessibility Act of 2010 (CVAA). Because the CVAA is clear in its mandate, the Commission has little choice with respect to the major points on the table – but it does have discretion relative to a number of the ancillary and administrative aspects. (And, given the scope of CVAA’s ambition to modernize the nation’s accessibility laws, we expect more NPRMs to follow in the months to come.)

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A week ago, we posted about a “range war” in the spectrum around TV channel 51. The wireless providers who bought spectrum just above channel 51 at auction must configure their operations to protect channel 51 TV reception. They have since asked the FCC to limit channel 51 licensing so as to minimize their own burden. See the original post for details.

The FCC has now requested comment on the wireless companies’ request.   Comments are due on April 27, 2011, and reply comments on May 12, 2011. Note also that the FCC has made this a “permit-but-disclose” proceeding, which means that face-to-face meetings between interested parties and the Commission’s staff are OK, as long as the niceties imposed by the FCC’s ex parte rules are honored.

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Weighing in at 228 pages (not including an extra 61 pages of appendices and separate Commissioners’ statements), the NPRM illustrates the complexity of the problems facing the Commission.

A journey of a thousand miles begins with a single step. As reported here, last month the FCC began its own long, long march to the Promised Land of USF/ICC reform by issuing a massive 289-page tome that promises to revisit, reassess, restructure and revitalize virtually every aspect of universal service support and intercarrier compensation as we know it.  

The task is a daunting one. Perhaps for that reason, the Commission has been putting it off for more than a decade, tweaking this or that and putting out small brushfires as they’ve arisen, but never tackling the fundamental reform that virtually everyone agrees is desperately needed.   Complicating the task is the fact that USF reform and ICC reform are inextricably related – you can’t reform one without reforming the other.   So the FCC has correctly chosen to attack the two behemoths – each of which has proven remarkably impervious to reform – in a single charge.   This multiplies the complexity and size of the proceeding exponentially, but is the intellectually honest way to approach the matter.

In truth, just reading the Notice of Proposed Rulemaking (whose formal, if somewhat redundant, title is “Notice of Proposed Rulemaking and Further Notice of Proposed Rulemaking”) (NPRM) was a major undertaking. The document inquires into literally scores of existing policy issues, from questions as fundamental as the FCC’s jurisdiction to regulate VoIP to details as granular as benchmark rate levels. So far-reaching is the inquiry that we estimate that more than a thousand distinct questions or issues were posed for industry input.  Recognizing the logistical problem of arranging the myriad number of meetings necessary to garner the expected input from all parties, the Commission has taken the unusual step of establishing formal procedures for scheduling meetings with the staff.

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Wireless companies in spectrum adjacent to TV channel 51 want their neighbors to vamoose.

In the Old West, even the vast wide open spaces were not vast enough and wide enough for everybody. Farmers and cattle ranchers fought over scarce resources, like water and grazing rights.   These conflicts were known as range wars.

The tradition lives on, but the turf in dispute today is spectrum, particularly TV channel 51. The wireless companies want to ease out the TV broadcasters, who may want to stay put. Better hunker down; the legal papers are going to fly.

The dispute is a by-product of the digital TV transition a few years ago. Digital technology allowed the geographic repacking of TV stations into fewer channels than before. That freed up 108 MHz of spectrum in the 700 MHz band, part of which the FCC auctioned off to wireless broadband providers for almost $20 billion. Even here in Washington, that counts as real money. The government got the cash; the broadcasters got to quadruple their video capacity; and the wireless companies got more bandwidth, over which customers could download more videos of cats riding on vacuum cleaners.

Now the happy honeymoon is over. Reality has settled in. The domestic-bickering phase has begun.

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FCC pillories telecom provider with $600K+ fine as the Form 499-A deadline draws near. Coincidence? We suspect not. 

With less-than-subtle timing, the FCC has fined ADMA Telecom, Inc., a Florida telecommunications company, more than HALF A MILLION DOLLARS for Universal Service Fund (USF)-related violations.  The message is clear: telecom companies that ignore the FCC’s paperwork requirements run the risk of hefty financial penalties. So get out your calculator, look through your books,  and get those 499-A’s on file by April 1, 2011.

As we all know, Congress has long required the FCC to establish and oversee a number of programs aimed at assuring the provision of telecommunication services to all Americans. Those programs are for the most part funded by consumers, through telecom providers. The FCC has developed an extensive set of reporting requirements so that it can keep track of all providers and determine how much each of them owes to the various programs. (Those programs include the USF, the Telecommunications Relay Service (TRS), and the North American Numbering Plan (NANP).)

The reporting requirements include an initial registration (to let the FCC know that the telecom provider has started providing telecom services) and then annual (and, in most cases, quarterly) worksheets – either Form 499-A or 499-Q – from which USF contributions are calculated. These filing chores apply to most telecommunications carriers, including resellers and interconnected VoIP providers.  Limited exceptions include government-only providers, broadcasters, certain non-profits, and systems integrators that derive less that 5% revenue from telecoms resale. Carriers owing less than $10,000 are considered de minimis and do not have to contribute, but still must file the form and pay any TRS and NANP contributions.

Since these programs involve billions of dollars, the Commission has an obvious incentive in riding close herd on the players, to make sure that everybody pays what they owe. And it has an equally obvious incentive to make examples of those who come up short. 

ADMA, for example.

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 Last December we reported on a Notice of Proposed Rulemaking (NPRM) in which the Commission proposed to overhaul the experimental licensing rules. The deadline for comments on the various proposals has come and gone (it was March 10), but you still have time to file reply comments, which are due by April 11. Be careful, though. The Office of Engineering and Technology has just released an Erratum to its NPRM advising that one of the two docket numbers listed in the caption of the NPRM was wrong. According to the text of the Erratum, the second of the two numbers should read “ET Docket No. 06-155”. 

This information may be important to anyone planning to file reply comments: having the correct docket number in the caption should help to get the filing into the proper bureaucratic pigeonhole in the FCC’s filing system.

Of course, this doesn’t help folks who filed comments using, presumably, the incorrect docket number – although there’s a reasonable chance that, if they used the correct lead docket number (that would be ET Docket No. 10-236), there shouldn’t be any problem.

Now that the Commission has spread the word to the public about the mistaken docket number, it might also want to do the same internally. The caption of the Erratum still includes the incorrect number.

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Proposals would authorize FCC to share auction proceeds with broadcasters as part of spectrum re-purposing process

It’s no secret that: (a) the FCC would like to re-purpose already-occupied broadcast TV spectrum for broadband use; (b) many (if not most) of the folks who currently occupy that spectrum are not particularly keen on the idea; and (c) the FCC figures that any broadcaster resistance to spectrum re-purposing might be softened by the siren song of a big payday, with the cash coming out of the proceeds of an auction of the re-purposed spectrum.

The FCC’s problem (also not a secret) is that the Commission doesn’t have the statutory authority to promise any auction proceeds to licensees who relinquish their spectrum.

It’s obviously time (with apologies to Stephen Sondheim) to . . . send in the legislators!

Already, three bills have been introduced this year that would allow the Commission to spread the spectrum wealth around; reports of still more bills in the works continue to surface. (This is in addition to several bills introduced last year.)

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Effective date TBD

On the same day that it was cranking out hundreds of pages of Very Important Documents (including an NPRM on retransmission consent, a Report and Order on rural radio and related items concerning spectrum opportunities for Native Americans, updated rules governing accessibility for citizens with disabilities), the Commission also managed to slip out, with virtually no fanfare, a new schedule of application fees. It’s been more than two and a half years since the last revision to that schedule was announced. Since the Commission is required to review its fees every two years, this latest update is a tad late – but the last revision didn’t take effect until April, 2009, so if things move smoothly this time around, the process should be back on its biennial track.

It should come as no surprise to anybody that, at least on the broadcast side, almost all fees will be going up. In general, the increases are in the 3%-3.5% range – a figure tied to the Consumer Price Index. Note, however, that the fees for Ownership Reports ($60 per station), call sign changes ($95 per change), TV Translator/LPTV renewals ($60 per application) and AM remote control applications ($60 per) won’t be changing at all.

The Commission’s announcement left up in the air precisely when the new rates will kick in.  Historically, this is where the fun begins. Long-time readers may remember our “Pursestrings” series of posts, starting in September, 2008, and stretching out until mid-May, 2009. That series began with a simple announcement that new fees had been adopted and would be taking effect 90 days after notice of them was given to Congress. Easier said than done, apparently. After a number of odd twists and turns, those fees didn’t take effect until April 28, 2009, and weren’t incorporated into CDBS’s fee calculator until a couple of weeks after that. Read all about it in our archives.

This year’s notice specifies that the effective date of the rates will be 30 days after the order is published in the Federal Register. Perhaps so, but Section 158(b) of the Communications Act appears to require that the Commission notify Congress of application fee adjustments “not later than 90 days before the effective date”. Since the announcement of the new schedule is included in an Order and Notice of Proposed Rulemaking, with the comment dates on the proposed rulemaking portion tied to Federal Register publication,  our guess is that the Commission would like to get that order into the Register sooner rather than later. But if the order is published less than 90 days before notice of the new fees is sent to Congress, . . . well, you see where this could end up. We’ll keep an eye out for developments. Check back here for updates.

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Last month we reported on the FCC’s adoption of a “Notice of Proposed Rulemaking and Further Notice of Proposed Rulemaking” (NPRM/FNPRM) kicking off a proceeding which looks to overhaul, from top to bottom, both the Universal Service Fund and the Intercarrier Compensation system.  The NPRM/FNPRM has now been published in the Federal Register, which sets the deadlines for comments and reply comments.  Get out your pencils and papers -- there are more deadlines than usual (probably because of the vast scope of the proceeding). 

If you want to comment on Section XV ("Reducing Inefficiencies and Waste by Curbing Arbitrage Opportunities"), you have until April 1, 2011 to file comments and April 18, 2011 to file replies.  [Note: Section XV comprises Paragraphs 603-677 of the original NPRM/FNPRM.  The summary of the NPRM/FNPRM as it appears in the Federal Register does not contain the full text of the NPRM/FNPRM and does not include the same paragraph numbering or section labeling as the original.]

Comments on the remaining sections are due no later than April 18, 2011; reply comments are due no later than May 23, 2011.  There's also a separate comment date for State Members of the Federal-State Joint Board on Universal Service -- that would be May 2, 2011.  And finally, if you'd like to offer the FCC comments on the information collection aspects of the proposal (in connection with the Paperwork Reduction Act), you have until May 2, 2011.

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Another peek at what spectrum re-purposing might look like

In what appears to be an ongoing effort by the Media Bureau to soften the ground on the spectrum re-purposing front in advance of an eventual all-out assault, Bureau Chief William Lake recently spoke to the National Alliance of State Broadcasters Associations, preaching the gospel of incentive auctions. His message: We come in peace, with broadcasters’ interests at heart. Submit to our plans and everything will work out for the best. Honest.                                                               

Maybe theirs is the path to the ultimate win-win-win situation. As we have previously urged, broadcasters should keep an open mind and give careful consideration to any final plan the Commission eventually comes up with.

But broadcasters might also be forgiven if, at least for now, they opt for skepticism over unquestioning acceptance.

In his speech (the text of which may be found here), Lake lays out five basic points. Let’s take a look at them.

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Washington is all abuzz with the possibility of a shut-down next week if Congress is unable to get its act together and approve a continuing resolution to keep the government funded. As matters currently stand, it looks like March 4 would be the last day routine business might get done before the budget impasse closes down the government. Such a shut-down would affect the FCC along with all other federal agencies. This could have a disastrous impact on licensees whose licenses are expiring after 11:59 p.m. on March 4. (The vast majority of licensees likely to be affected would be in the non-broadcast services. That’s because the next routine expiration date for any broadcast license is October 1, 2011 – and if the government is not back in operation by then, we will all have much bigger problems than license renewal to worry about. But heads up: The caveat below could apply to broadcasters who have, for example, an STA which is set to expire shortly after March 4.)

The Administrative Procedure Act provides that licensees continue to have operating authority even after the expiration of their licenses as long as they have a renewal application on file. However, in order to take advantage of that automatic extension of your license, you must have actually filed a renewal application – and there’s the rub. A shut-down would theoretically extend the time for you to file a renewal application until the government re-opens, but it would not automatically extend your operating authority beyond the expiration date. So a licensee whose license expires on, say, March 10, 2011 might not be able to file a renewal application until some later date when the government gets going again. In the meantime, the licensee would not have any authority to be operating.   (At this point we don’t know whether the FCC’s on-line filing systems – e.g., ULS, CDBS – would remain in operation during a shut-down.) 

The FCC could address this problem by granting a blanket special temporary authority to licensees who are caught in that situation, but it would have to do so before the shut-down in order for that order to have effect. While it might also provide after-the-fact relief once the government re-opens, there is no guarantee of that – so there is at least some risk, and possibly a considerable risk, in not taking protective action before a possible shut-down. BOTTOM LINE: licensees with license expiration dates coming up in the next month or two would be well advised to get their renewal applications in BEFORE March 4 to avoid the possibility of losing their operating authority for the duration.

From previous shut-down experience we expect that, should the government close up, the FCC would still retain a skeleton crew of “essential” personnel to be available to respond to any situations that might arise involving public safety. But these individuals tend to interpret “public safety” literally. They are unlikely to help unless your situation is both unforeseeable and involves genuine and imminent threats to people or property, such a tornado taking down a tower needed for critical communications.

If in doubt, act now.

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Earlier this month we reported on the FCC’s adoption of a Third Report and Order and Fourth Further Notice of Proposed Rulemaking (“R&O/NPRM”) in its efforts to establish an interoperable broadband network for public safety agencies in the 700 MHz band. In the notice of proposed rulemaking portion of that item the Commission posed a raft of technical questions relative to the design and implementation of that network. With the publication of the R&O/NPRM in the Federal Register, the deadlines for comments and reply comments in response to those questions have been set. Comments are due no later than April 11, 2011; reply comments are due no later than May 10, 2011.

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Use of unlicensed transmitter on non-certified frequency brings fine for operation without a license

The FCC has proposed a $25,000 fine against AT&T for the offense of . . . well, let’s talk about that.  In its zeal to protect the spectrum, the FCC may have charged AT&T with the wrong offense.

A little background may help.

The FCC allows unlicensed operation in a band up above 5 GHz. The applications tend to be a lot like Wi-Fi, but under a different set of rules, called U-NII, for “unlicensed national information infrastructure.” (No, that won’t be on the exam.)

A few years ago the FCC expanded the U-NII band into a region of the spectrum also used by airport weather radars. The radars are used to detect wind shear in the vicinity, important to flight safety. In careful collaboration with the FAA, the FCC added rules that require U-NII devices to listen for the radars and avoid their frequencies – a capability called dynamic frequency selection, or DFS. The band is now popular for wireless Internet access service, among other applications.

But the technical rules did not work as planned.

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Announcement promotes series of webinars targeting TV broadcasters

As far as the Commission’s concerned, it’s apparently all systems go and full speed ahead with the effort to encourage TV broadcasters to relinquish their spectrum so that it can be used to further the National Broadband Plan. The latest evidence of this is the following announcement sent by Commission reps to state broadcast associations:

FCC Webinar for Television Broadcasters

Please join FCC Media Bureau Chief Bill Lake and Rebecca Hanson, Senior Advisor, Broadcast Spectrum, in a live webinar that describes the financial opportunities offered by voluntary incentive auctions, as proposed in the FCC’s National Broadband Plan.  Incentive auctions for TV spectrum seek to offer broadcasters new business model options involving their voluntary contribution of some or all of their licensed spectrum, including options that allow broadcasters to participate and continue to broadcast. This webinar will give an overview of those opportunities and will provide an opportunity for the FCC representatives to respond to questions, including questions about the need to repack the remaining television channels following the auction. Specific topics will include:

-- How would an incentive auction work?

-- Broadcaster Opportunities, channel-sharing, and

-- VHF Repacking Implications

Station owners, managers, key personnel, and station attorneys are invited to participate - so please forward this notice to others who have interest.  Stay tuned for details about registration for this event.

Thank you.

A total of 15 separate presentations have apparently been scheduled from March 10 – April 6. We don’t know if this is the final number. Nor have we yet gotten the scoop on how to access any of the webinars (URL’s, dial-in phone numbers, access codes, etc.), but when we do, we’ll be sure to pass along what we learn, so check back here for updates.

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A week or so ago the FCC released a Report and Order and Further Notice of Proposed Rulemaking (R&O) addressing changes in its ex parte rules – an area so arcane that even we here at CommLawBlog have refrained from blogging about it so far. The R&O is a healthy 37-page item, complete with a detailed table of contents that looked like this when it was originally issued:

But now the Commission’s General Counsel has issued a one-page Erratum, the sole stated purpose of which is to “correct[ ] the paragraph numbers listed in the Table of Contents of the R&O.” The corrected version is reproduced below:

We’re glad they took the time to get that all straightened out  . . .

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FCC proposes major overhaul of Universal Service Fund, Inter-Carrier Compensation Systems

Perhaps inspired by the protesters in Egypt demanding the end to an outdated, bloated, aging, inefficient, and economically unsustainable regime, the FCC has finally taken up the task of systemic reform of the Universal Service Fund (USF) and Inter-Carrier Compensation (ICC).    These two mechanisms – one a product of the 1996 Telecom Act and the other a result of the break-up of the Bell System back in the ‘80s – allocate billions of dollars in telecommunications charges and revenues among carriers.   As with many grand failures, these systems were well intended. They were designed to compensate carriers fairly for routing traffic to and from each other, while also providing transparent subsidies to carriers who provide service in “high cost” areas.

Virtually everyone agrees that the systems do not accomplish their intended purposes either fairly or efficiently. But because there are so many parties that benefit one way or another – to the tune of billions of dollars – from the existing system, the FCC has been paralyzed for over a decade in its efforts to effect meaningful reform.   Now, flying the pennant of the National Broadband Plan (NBP) in which reform of these mechanisms was called for, the FCC has launched a top- to- bottom overhaul of the two systems.   The Commission’s original NBP action agenda called for these reforms to be initiated by the fourth quarter of 2010, but in the glacial scheme of action in Washington, a three-month delay counts as on-time. 

The full text of the catchily-titled “Notice of Proposed Rulemaking and Further Notice of Proposed Rulemaking” has just been released. It weighs in at a hefty 289 pages – which explains why we haven’t sifted through it in detail yet. (We plan to do so shortly and will report on our findings, of course.)

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But effectiveness of the new rules is still months away, at least

The Commission’s Open Internet (a/k/a Net Neutrality) initiative has taken a tangible step forward with the announcement that the FCC is getting ready to ship two “information collection” aspects of the rules over to the Office of Management and Budget (OMB) for its review. But don’t hold your breath – it’ll take at least a couple of months to get there.

OMB review is mandated by our old friend, the Paperwork Reduction Act, which requires agencies to quantify and justify “information collection” burdens before imposing them on regulated industries or the public. The idea is that OMB may perceive regulatory excess that the FCC has somehow overlooked and slam the brakes on the process.

The two Net Neutrality information collections in question? First, there are the formal complaint procedures to be used to resolve “open Internet disputes” when other, less formal, means don’t do the trick. And second, we have the requirement that broadband providers disclose their network management practices. Unfortunately, the FCC’s Federal Register notices concerning its proposals afford no particular insight into just what the complaint and disclosure requirements will involve. That may complicate the task of preparing comments on the proposals.

But wait – doesn’t the Net Neutrality order itself fill in some of the gaps in the notices? Some, maybe . . . but not all.

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Nine companies will compete while sharing responsibilities and data.

You know those T-ball games for very young children where everyone is declared a winner and everyone takes home a trophy?

Keep that in mind for a few minutes.

The FCC, as our readers know by now, has authorized wireless TV Band Devices (TVBDs) that will operate in the “white spaces” on the TV frequency map – i.e., on TV channels that have no local TV station. Proponents, who like to call these devices “Wi-Fi on steroids,” claim they will boost the availability of wireless services with extended range, fewer dead spots, and improved speeds, promote rural broadband, aid education and medicine, and further spectrum efficiency. And create jobs. And also clear up that annoying rash.

As a condition of operation, the millions of expected TVBDs will have to avoid causing interference to active TV stations, the many wireless microphones that share the TV band, and certain TV reception sites. To do this, most will consult a complex and changing database that indicates where TVBDs can safely operate. The existence of a database in turn presupposes one or more “database administrators.” Last November, the FCC invited interested parties to submit applications for that role.

Nine companies responded. Some, like Google and Comsearch, have enormous expertise in constructing and maintaining large databases. The qualifications of some others are less obvious.

The FCC made its choice by not making a choice: It approved all nine applicants as database administrators, with the expectation they will compete among themselves for business.

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A couple of months ago we reported on a Notice of Proposed Rulemaking (NPRM) which could lead to dramatic changes in the experimental licensing processes. The NPRM has now been published in the Federal Register, which in turn establishes the deadlines for comments and reply comments relative to the NPRM.  Comments are due by March 10, 2011, and reply comments by April 11, 2011.

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With FS wireless backhaul stations a strong likelihood, a veteran consulting engineer recommends review of BAS records in ULS – and we second that emotion

Last August we reported on a Commission proposal to make more spectrum available for wireless backhaul linking mobile signals back to the core network. As of yet we haven’t heard anything more on this from the Commission, but it’s a reasonable assumption – particularly given the FCC’s fixation on all things wireless – that all or most of its proposals will be adopted eventually, probably sooner rather than later. 

One central element of the proposal would open up the 6875-7125 MHz and 12.7-13.2 GHz bands for backhaul on Fixed Service (FS) stations. But heads up – those bands are currently used for Broadcast Auxiliary Services (BAS), including studio-transmitter links. If new FS stations are allowed into those bands, they would presumably be required first to prepare and submit coordination studies to demonstrate appropriate protection to incumbent licensees, including BAS stations. No problem so far.

But as our friend Dane Ericksen, a well-known and highly-respected consulting engineer, has pointed out, the FS coordination efforts will be based on information currently available in the FCC’s ULS database. And, according to Dane, that information is in many instances less than complete and accurate. He cites figures that are pretty amazing.

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Inadvertent errors in applications draw $20K fine for Cricket

FCC enforcement procedures continue to baffle us.

Take the case of Cricket Communications. They are a cell phone company, as you probably know – their ads are hard to miss. To move their phone traffic from place to place, they operate dozens of microwave stations. The FCC rules require licenses for these. If you want one, you have to apply for it, but you need not wait for the license to be granted. Rather, you can begin operating as soon as the application is filed, assuming certain conditions are met. Once the FCC does grant the license, the licensee has 18 months to get its station built and on the air (if it isn’t already), and has 15 days beyond that to certify to the FCC that it has done so. Without that certification, the license cancels automatically.

Cricket had trouble with two of its microwave licenses.

As to one, it filed the construction certification on time, stating it had built the station within the 18 months allowed. But it later found the certification was in error, and had to amend. The new certification showed it had built and begun using the station much earlier, before it had even filed the license application. That amounts to unauthorized operation, which is a violation of FCC rules.

As to the other license, Cricket got the contents of the construction certificate right the first time. But it filed the certificate late, after the 18-months-plus-15-days had elapsed. And this certificate likewise showed that operation had commenced before the application was on file.

The Enforcement Bureau has proposed a fine of $20,000, which is exactly the expected penalty for two instances of unauthorized operation.

That should be the end of the story.

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FCC crowns LTE as technology of choice for public safety broadband

With the release of a combination Third Report and Order and Fourth Further Notice of Proposed Rulemaking (“R&O/NPRM”) the FCC has taken a big step toward ensuring that public safety agencies relying on future wireless broadband networks will be able to communicate across jurisdictional boundaries.   Current public safety radio networks often suffer from a lack of “interoperability” which can endanger the lives of first responders and the public. The new broadband networks will be deployed in the 700 MHz band and are expected to provide police, fire, emergency medical, and other personnel with secure and reliable access to a wide range of data and video capabilities.

The Commission took the first step by endorsing a specific broadband technology, Long Term Evolution (LTE), for public safety broadband networks. While the FCC generally avoids picking technologies, it has done so when necessary to promote interoperability for public safety. Absent a standard, there is a risk that one jurisdiction will deploy technology A, and a nearby jurisdiction will deploy technology B, preventing communications between public safety personnel from those jurisdictions when responding to emergencies.

In this case, picking a standard was an easy call, as the public safety community and the vast majority of vendors and wireless carriers are solidly in support of LTE. The selection of LTE will also allow public safety to piggyback on the widespread commercial deployment of LTE in adjacent frequency bands. That should reduce equipment costs and open up the potential for network sharing arrangements.

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FCC OKs terrestrial cell-type service using satellite spectrum

Satellite service without using a satellite?  In the FCC’s world, all things are possible.

Mobile satellite service (MSS) seemed like a good idea at the time: a cell-type voice service delivered through satellites, rather than local towers, so it could work over very wide areas. True, it looked expensive: over $1,000 for a handset, and several dollars per minute for airtime. But cell service was expensive, too, at the time MSS was being planned, and had spotty coverage to boot, concentrated mostly near cities.

It took some years to build and launch the satellites, during which the phone companies stayed busy. By the time MSS went on the air, only the most out-of the way places in the country lacked cell service, and the price had dropped to a dime or two per minute. MSS, priced many times higher, found a few niche markets in servicing off-shore oil platforms and such, but a mass demand for the service never materialized.

That was problem one.

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Comcast panel denies Verizon motion to assign net neutrality appeal to it

Well, that didn’t take long. On February 2, less than two weeks after Verizon filed its unusual motion asking that its appeal of the net neutrality decision be assigned to the same panel that trashed the Commission in the Comcast opinion last April, that panel has denied the motion. Don’t count on sifting through a detailed opinion to obtain subtle nuances of potential significance. The panel’s order consists of a single sentence: “Upon consideration of the appellant’s motion to assign the case to the panel that decided Comcast Corp. v. FCC, it is ordered that the motion be denied.”

Ouch.

Verizon’s appellate strategy has thus suffered a serious blow, but an important element of that strategy is still alive, at least for the time being. Its “notice of appeal” is still pending, although the FCC has moved to dismiss that as well. If the Court denies the FCC’s motion to dismiss and accepts the appeal, then Verizon will at least have secured review by the D.C. Circuit (as opposed to any other federal circuit court of appeals). Chances of that happening? You never know. (Note that the legal arguments underlying Verizon’s “notice of appeal” are separate and distinct from those advanced in its motion for the Comcast panel. In other words, the denial of the latter is not necessarily the kiss of death for the former.)

And even if the Court grants the FCC’s motion and tosses Verizon’s appeal on the theory that Verizon jumped the gun, Verizon will still presumably be able to file a “petition for review” along with any other party unhappy with the net neutrality order once that order is published in the Federal Register. But there is no guarantee that that review proceeding would necessarily end up in the D.C. Circuit. Check back here for updates as developments warrant.

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(Blogmeister’s Note: FHH Telecom Law welcomes back guest commentator Catherine McCullough. This month she provides her perspective on the impact recent committee appointments are likely to have on communications issues in the 112th Congress. Catherine is a principal in Meadowbrook Strategic Government Relations, LLC and a specialist in Congressional relations.)

January is over, and the House and Senate Committees that oversee telecom issues have officially organized – issuing full lists of members, deciding on the rules by which the committees will work, and dividing up the budgets between Democrats and Republicans (thus setting the tone for how well the parties will work together in the 112th Congress).

So what will the legislative priorities of these committees be? The two themes of love and money – constituent votes and budget issues – that we identified in an earlier post still dominate. However, now that we know who all of the players are, including the subcommittee chairs, we can take these policymakers’ legislative pasts into account, and perhaps identify which specific bills we should see introduced in the coming months.

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Back in early December we reported on the release of the Notice of Proposed Rulemaking (NPRM) which kicked off the long-anticipated push to free up prime blocks of TV spectrum for broadband use. The NPRM has now been published in the Federal Register, which sets the comment and reply comment deadlines. Comments are currently due by March 18, 2011, and reply comments are due by April 18, 2011. Needless to say, this is a proceeding of major league significance to a wide array of current and potential spectrum users. Attention most certainly should be paid.

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Heads up, all you telecommunications carriers and interconnected VoIP providers! Your annual reports certifying compliance with the Customer Proprietary Network Information (CPNI) rules are due by March 1, 2011. And you don’t have to take our word for that: the Commission has issued a helpful reminder notice to make sure that you’re on top of this chore. The Commission has also helpfully provided a copy of an acceptable template for CPNI certifications, as well as a series of Frequently Asked Questions (FAQ). 

As we have explained before (here and here, for example), the CPNI rules are designed to safeguard customers’ CPNI against unauthorized access and disclosure. 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.

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FCC either grabs or misses relinquished USF monies

As we reported here a few weeks ago, on December 30 the FCC adopted an Order that permits it to re-purpose the monies that are relinquished by carriers who are no longer ETCs in particular states. From the text of the Order, we thought the Commission wanted to make the Order “effective” as of December 30. Now we’re not so sure.

The back-story here starts in 2008. Under the Interim Cap Order adopted in May of that year, the FCC temporarily “froze” the amount of funds available for distribution to CETCs (including wireless carriers) at then-existing levels. The FCC emphasized at that time that the pool of funds would not change depending on the number of ETCs who were dipping into it – the FCC seems only to have been thinking about increases in the numbers of participants since it designated a lot of new ETCs at the same time as the Interim Cap Order, thus immediately reducing the pro rata funding available to participating ETCs.

In 2008, however, Sprint and Verizon both committed to relinquish their USF funds in certain states as a condition of getting mergers approved.   One would have thought that these funds would then have been available for re-distribution to the remaining ETCs since the amount of funding was to remain fixed. This would have relieved at least a portion of the hit that CETCs took when the combination of the cap and new ETC designations reduced their support well below authorized levels.

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2011 threshold triggers for federal scrutiny of mergers and acquisitions announced

Broadcasters and telecommunications operators contemplating possible deals for the coming year should remember that, as far as the federal government is concerned, there may be such a thing as Too Big. The Feds will step in to review an anticipated deal for potential antitrust problems if the deal exceeds certain threshold dollar amounts.  The law mandates that those threshold amounts be revised every year for inflation. The 2011 thresholds have just been announced, and will take effect on February 24, 2011. If your deal exceeds one of the revised thresholds, you should plan for increased government scrutiny, with all the additional hassle, expense and delay that such scrutiny entails.

Under federal antitrust law, certain mergers or acquisitions which exceed the specified thresholds must be submitted to the Federal Trade Commission (FTC) and the Department of Justice for Uncle Sam’s review before the transaction can be consummated.  (The theoretical basis for federal concern here: any transaction big enough to pass the thresholds is presumably big enough to affect interstate commerce.) The government’s internal process for adjusting these thresholds – based on the traditional measure of the gross national product – has been on the books for decades.

The newly-adjusted thresholds require pre-transaction notification if either:

• the total value of the transaction exceeds $263,800,000; or
• the total value of the transaction exceeds $66 million and one party to the deal has total assets of at least $13.2 million (or, if a manufacturer, has $13.2 million in annual net sales) and the other party has net sales or total assets of at least $131.9 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 time, expense and hassle to navigate the federal review process is a virtual certainty.

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Another appellate round before the Comcast panel? Could be, if Verizon gets its way

Wasting no time, Verizon has taken a bold move designed to herd the next round of appeals in the Net Neutrality proceeding back before the same panel of judges who slammed the FCC in the Comcast decision last April. Verizon has filed a “notice of appeal” with the U.S. Court of Appeals for the D.C. Circuit relative to the Commission’s latest Net Neutrality decision. That alone might raise some eyebrows. But taking it one step further, Verizon has filed a separate motion asking that the Comcast panel be assigned to Verizon’s appeal.

Appellate litigation aficionados take note.

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Wireless Bureau solicits input on the efficacy of Hearing Aid Compatibility rules

The Wireless Telecommunications Bureau has opened a proceeding that is a refreshing – and rarely seen – step in a positive direction: assessing whether certain of its rules are actually accomplishing their intended purpose.  Regular readers of this blog are aware that the FCC imposed very rigorous obligations on wireless carriers and handset manufacturers back in 2008. Those rules broadly require manufacturers to make, and carriers to sell, a certain percentage of hearing aid compatible (HAC) handsets as part of their cell phone product lines. 

The FCC-mandated percentage of HAC products has risen over the years, as has the required percentage of more sophisticated inductive coupling-capable devices. And as is often the case with FCC rules, the HAC requirements include paperwork: along with the substantive requirements, the FCC also requires a detailed annual report on the devices which have been offered during the last year and how many qualify as HAC. The FCC has enforced these new rules with extraordinary zeal, levying heavy fines on carriers right and left who either failed to file the annual report or failed to offer the required percentage of handsets. It’s even cited such companies as Circle-K and 7-Eleven – neither generally known as a telecom provider – for failing to file HAC reports. In the Commission’s view, the mere fact that both happen to market prepaid handsets subjects them to the HAC requirements.

The Bureau is now asking a good question: Are these far-ranging (and rather onerous) efforts actually accomplishing their intended purpose of ensuring the availability of HAC cell phones to consumers?

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C-SPAN calls on CommLawBlog contributor

If you had the bad judgment to stick with the Saints-Seahawks game on Saturday of Wildcard Weekend, you may have missed our friend and occasional contributor, Catherine McCullough, who appeared on C-SPAN’s “The Communicators” program. Catherine was one of two former Hill staffers (and current lobbyists) discussing likely developments in telecom and technology policy in the 112th Congress. (If you did miss it, no worries – the whole 30-minute show is available at C-SPAN’s site.) Props to C-SPAN for its excellent judgment in bringing Catherine on.

Props, too, to Catherine for her useful insights. No surprise there, though – regular readers of CommLawBlog are accustomed to such insight from Ms. M. Check out her previous posts here, here and here.

And speaking of our readers, we couldn’t help but notice how the C-SPAN moderator set up his opening question of the program: “You wrote in a recent blog on CommLawBlog.com . . .” Hey, that’s us! Schweeet! Needless to say, we’re grateful for the shout-out, and we’re happy to be a go-to place for folks like C-SPAN who want to stay on top of developments in the law of communications.

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The FCC’s new net neutrality rules won’t work. Unfortunately, there are no better alternatives in sight.

(The opinions below are those of the author. He formerly advocated network neutrality; a glimpse of what it might actually look like has prompted him to change his mind.)

Net neutrality is one of those issues that sharply divide the country. Those who take sides in the debate, do so passionately. To call it a “debate,” though, is misleading. In a debate, people listen to each other before responding. On network neutrality—as in health care, financial reform, and other key national issues—people just shout at each other. Making matters worse, the two sides not only hold conflicting opinions, but deal in conflicting facts.

You know the facts are up for grabs when both sides claim the same slogan: “Keep the Internet Free”! To some, this means keep the Internet free of regulation; to others, keep the Internet free of discrimination by the Verizons and Comcasts that connect us to the world.

One fact is inescapable: when the local Internet data load exceeds capacity, someone will decide whose traffic gets held back. It might be Comcast, making a business decision; if might be the FCC, controlling Comcast through regulation. If both keep their hands off—Keep the Internet Free!—the decision gets made anyway, by the kid down the street supplying bootleg hi-def movies through  his parents’ connection. We know when he’s home from school, because service for everybody else on the street drops to a crawl.

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FCC acts quickly to facilitate re-purposing of USF payments left behind by Verizon Wireless and Sprint-Nextel

Last September we reported that the FCC had proposed to grab hold of certain Universal Support Fund (USF) moneys that would no longer be distributed to competitive eligible communications carriers (ETCs) when Verizon Wireless and Sprint-Nextel gave up their ETC status in certain markets (in fulfillment of conditions placed on approvals of their mergers).  And as we reported in October, the expectation is that the relinquished funds will be used for a new mobility broadband support fund.

The FCC has quickly adopted its proposal and made it effective immediately, to take advantage of anticipated relinquishment of ETC status in several markets by Sprint-Nextel on December 31, 2010.

Each state has a cap on ETC support from USF.  Historically, when a carrier gave up support, for whatever reason, the cap stayed unchanged.  With the same number of dollars available in the state, but fewer supported carriers, the remaining ETCs claimed the right to an increase in their own payments.  But the FCC had other ideas, seeing an opportunity to fund part of its planned mobile broadband support program.  It proposed not to allow the remaining ETCs to get any of the relinquished funds.

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Spectrum auction participants – especially for FM permits – should be on the look-out for potential FAA hang-ups before the bidding opens

With an auction of new FM construction permits in the pipeline, we offer this word of caution: potential participants should be careful to do their homework before they bid. As the FCC makes incredibly clear in its auction announcements (check out Paragraphs 30 and 34 of the recent Auction 91 announcement, as an example), there are no guaranties that actual stations can be built by the “winners” of the auction.

What’s the worst case scenario, you ask? Consider the story of a guy who, in 2004, was the successful bidder for an FM CP in beautiful, scenic Pacific Junction, Iowa. The bidder bid – and, more importantly, paid – big bucks ($4.4 million) for the permit. He also ran up considerable additional costs in upgrading the CP once it was issued and paying to move another station out of the way. 

But when he went to build the station, he got the bad news: it couldn’t be built.

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Bureaus seek comments on possible auction preference for those who have “overcome disadvantage”

Holy Horatio Alger!! If you’re a modern day Ragged Dick, looking to pull yourself up by the bootstraps through grit, determination, clean living, etc., your kind benefactor may be none other than the FCC. The Commission (or at least one of its Advisory Committees and two of its Bureaus) is considering the establishment of a spectrum auction “preference” for individuals or entities who have “faced substantial disadvantages and overcome those disadvantages”.

But don’t get your hopes up yet. The idea is in its earliest stages, and raises a host of conceptual and practical problems. Despite that, the Media and Wireless Bureaus have asked for comment on the notion.

The idea was propounded by the Commission’s Advisory Committee on Diversity for Communications in the Digital Age, which submitted recommendations to the Commission back in October. (You can find a link to the recommendations here.) According to the Advisory Committee, the suggested preference would “expand the pool of well-qualified applicants for FCC licenses” and, in the case of broadcast services, possibly enable “applicants who otherwise might not be able to obtain FCC licenses to compete in auctions for broadcast licenses and if successful, contribute to viewpoint diversity”. As the Advisory Committee sees it, folks who have “faced and overcome substantial disadvantage” have certain “unique strengths” that might be “underrepresented and undervalued” in the Commission’s application processes absent some preference program.

If all this sounds just a little vague to you, you’re not alone.

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Who says the Christmas spirit didn’t survive the 20th Century? Not us! And, apparently, not the FCC, which took the time – on the eve of Christmas Eve – to release the full text of its Net Neutrality decision. All 194 pages. Actually, the decision itself is only 87 pages long, but then there are the Commissioners’ separate statements, the rules themselves, and a bunch of other stuff that brings the total count close to the 200-page level.

What with last minute Christmas shopping, decorating, baking, and other seasonally-appropriate festivities, we confess that reading the decision has not been a top priority. We do expect to delve into it promptly and will report on our findings, but in the meantime we’re providing the link (above) to the decision for those who want to check it out themselves.

If you’re worried about the immediate effects of the decision, you can breathe a little easy – none of the new rules will take effect until: (1) the Office of Management and Budget has had a chance to give them the once-over (as required by the Paperwork Reduction Act); (2) OMB has given them the thumbs up; (3) notice of the OMB’s approval has been published in the Federal Register; and (4) 60 days have gone by after that publication. In other words, you should be able to enjoy the year-end holidays.

And we here at CommLawBlog do wish all our readers the best of the holiday season.

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New rules, solidly endorsed only by the Chairman, seem to displease everybody else; Nagging problem of statutory authority (or lack thereof) persists

The FCC, nominally a five-member organization, proved to be more of a one-man band in the adoption of net neutrality rules. While the official record reflects a 3-2 vote in favor of the rules imposing “open Internet” limitson broadband Internet access service providers, closer inspection reveals that only one member actually favored the rules which have been adopted. The vote tally was: one in favor; two strongly opposed; and two unhappy-with-the-rules-but-willing- to-sort-of-go-along-with-Chairman-Genachowski. 

And with that ringing endorsement, net neutrality has become the law of the land . . . at least for the time being.

The full text of the rules (along with the accompanying order explaining them) has not yet been released. (Check back here for more in-depth analysis once the actual rules and order are available for review.) But from the FCC’s public notice announcing its decision, and from the separate statements of the Commissioners, we can report that, as anticipated, the key provisions of the rules are:

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Twelve 700 MHz licenses to be up for bids – again – come July, 2011 in Auction 92

The FCC has announced plans to auction a grab-bag of 700 MHz broadband licenses. The 16 licenses on the auction block include six in Puerto Rico, three in North Dakota, and three in the Carolinas, plus odds and ends in Texas, West Virginia and Virginia. If any of these licenses looks familiar to you, there’s a reason: all were previously up for grabs in Auction 73 almost three years ago, at which time they either went unsold or were defaulted on by winning bidders.  

The proposed terms of the recently-announced auction (dubbed Auction 92) are unremarkable, except for one slightly unusual feature: the Commission is proposing to set the minimum opening bid for all channels based on Auction 73 numbers. That is, the minimum bid amount would be the greater of (1) the minimum opening bid amount for the same license in Auction 73 or (2) 10% of the highest bid amount received for the license in Auction 73. The hope is that, by upping the minimum opening bids somewhat, the Commission may be able to shorten the auction process, since it will presumably take fewer bidding rounds to get to the final auction prices.

With two exceptions, all of the licenses are for 12 MHz of spectrum for Cellular Market Areas (CMA’s) in the B Block.   (The two exceptions: the Wheeling and Lubbock licenses are for 12 MHz in larger Economic Areas (EA's) in the A Block.)   Comments on the proposed auction procedures are due no later than January 12, 2011; reply comments may be filed by January 27.   The auction is scheduled to begin on July 19, 2011.

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As we reported last August, the FCC had adopted new rules governing hearing aid compliant handsets. Those rules – most of which became effective back on October 8 – closed some loopholes that had allowed manufacturers like Apple to sell iPhones without having to comply with certain regulatory chores applicable to the sale of broader lines of handsets. But one element of the new rules did not take effect back in October: specifically Section 20.19(f), which requires manufacturers to disclose to consumers if handsets operate over air interfaces or frequencies for which no technical standards have been established. Since the disclosure requirements of that section (and related revisions to FCC Form 655, the Hearing Aid Compatibility Status Reporting Form) needed prior approval from our friends at the Office of Management and Budget (OMB), those particular aspects of the new rules have been in a holding pattern for several months. But OMB finally gave the FCC’s changes the old thumbs up (on December 7), a fact which the FCC has now duly published in the Federal Register . As a result, Section 20.19(f) has become effective on December 14, 2010.  

Handset sellers take note.

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Frequency-by-frequency licensing of the last hundred years will go the way of the vacuum tube.

In an obscure and largely overlooked Notice of Inquiry, the FCC has begun to overhaul the very foundations of radio communications.

The first practical radio transmitters, early in the 20th century, used a simple “spark gap” technology that spread signals over a wide swath of frequencies. This was not a problem when few transmitters existed, but as their numbers increased, the then-useful part of the spectrum soon became crowded.

Within a few years, engineers were using recently-invented vacuum tubes in conjunction with a circuit that limits a radio signal to a specific frequency. That solved the immediate congestion problem, as each transmitter could be assigned a frequency different from others in the vicinity.

Now, a century later, we still use that same system. Every licensed transmitter, whether flea-powered walkie-talkie or megawatt TV station, is assigned a specific frequency. Over the decades, as more transmitters came into use, the licenses gradually filled up each part of the spectrum. The engineers, though, kept finding ways to use ever-higher frequencies, and thus steadily pushed the supply of spectrum ahead of the demand. Back in 1984, when I started doing FCC work, there were plenty of unallocated frequencies below 1 GHz, open spaces up to 40 GHz, and almost nothing above. Today everything up to 40 GHz and beyond is filled in solid, with active use extending up to 95 GHz.

Worse, the tactic of opening ever-higher frequencies has now run out. Those pesky laws of physics limit the frequencies above 95 GHz to short distances, straight lines, and dry climates. The spectrum is effectively full and there is nowhere else to go, say the supposed experts.

But wait.

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At Chairman's insistence, Commission will vote on new net neutrality rules in December despite shaky legal foundations and opposition in Congress.

On December 1, Chairman Genachowski announced that he has circulated a draft net neutrality order to be voted on at the Commission’s December 21 meeting. While the draft has not been made public, the Chairman’s announcement provides some insight into its contents. Here is an overview of the Chairman’s proposed approach, the Commission’s authority to implement that approach, and the likelihood of its success.

The Proposed Rules 

Genachowski’s remarks indicate that the current proposal is broadly similar to the one he introduced last Fall (you can read our report on that earlier effort here), with some refinements on specific issues like usage-based pricing and wireless. The draft is reportedly modeled on a net neutrality bill developed by departing House Commerce Chairman Henry Waxman (D-CA) earlier this Fall in an unsuccessful attempt to help the FCC out of its Comcast hole through legislative compromise. In particular, it appears that the proposed rules would include:

• a transparency provision, with a requirement to provide consumers with information regarding network management;
• a non-discrimination clause prohibiting the blocking of lawful content, apps, services, and devices as well as “unreasonable discrimination in transmitting lawful network traffic”.  The non-discrimination clause would allow for “reasonable network management”, taking into account the nature of the network in determining what is reasonable; and
• some latitude for usage-based pricing to consumers and other measures to match price to cost. 

For wireless, the proposal would include transparency and a “basic” no blocking rule. The FCC would monitor the mobile market and take such further steps as may be necessary to counteract any “anti-competitive” or “anti-consumer” behavior.

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New kinds of licensing promise innovators easy access to nearly all of the radio spectrum.

The FCC has always been friendly to experimenters, whether they are basement hobbyists or industrial researchers. Since 1934 the Communications Act has enjoined the FCC to “[s]tudy new uses for radio, provide for experimental uses of frequencies, and generally encourage the larger and more effective use of radio . . . .” Just as important, many of the engineers at the FCC who began as teenage hams and tinkerers are eager to encourage the next generation. The FCC imposes only minimal regulation on amateur radio equipment, allows DIYers to design and operate home-brew transmitters with hardly any regulation at all, and offers “experimental licensing” so researchers and commercial innovators can test out new devices.

Nonetheless, while the pace of innovation accelerates, the rules on experimental licensing have stagnated. They require, among other things, separate FCC approval for each individual project. Ironically, considering their purpose, the rules are highly hospitable to minor variations on established uses of radio, while experimental licenses for more creative technologies can be hard to obtain. The FCC staff who do this work are technically capable and usually sympathetic to the applicants, but they are bound by the rules on the books.

In a burst of candor that may surprise equipment manufacturers and scientists, the FCC now concedes that the process for issuing these licenses can be a “roadblock to innovation.”  With this new self-awareness comes a comprehensive Notice of Proposed Rulemaking (NPRM) on experimental licensing rules so the FCC can (in its own words) “inspire researchers to dream, discover, and deliver” innovations to promote “a better way of life for all Americans.” The path to this Norman Rockwell ideal entails both updating the current rules and creating new licensing arrangements for research and development.

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* but NOT “information collection” rules or, as a practical matter, any white spaces rules dependent on existence of any FCC-blessed white spaces database

As we reported last September the Commission disposed of 17 petitions for reconsideration of its white spaces rules, and thereby set the stage for getting those rules up and running. Or so many folks may have thought. But no job is ever done until the paperwork is wrapped up, and the mere release of the Second Memorandum Opinion and Order didn’t do the trick – such items must first be published in the Federal Register.

That publication has now happened . . . so most – but not all – the white spaces rules are now officially set to take effect on January 5, 2011.

Why not all? Because a number of the rules – specifically, §§15.713, 15.714, 15.715 and 15.717 – involve “information collections” which can’t be implemented before the OMB approves them. So those particular rules are not subject to the January 5 effective date.

But even though we now have an official effective date, we probably won’t be seeing white spaces gear screaming off the shelves and improving all of our lives right away. That’s because the white spaces rules depend in large measure on the existence of a national white spaces database compiled and maintained by a manager . . . and the Commission has yet to sign off on a database system or select a manager. While there have been some indications that progress is being made on those fronts and that we might see some developments real soon, the roll-out of virtually all white spaces devices will, as a practical matter, be on hold until the FCC wraps up the necessary paperwork on that part of the process.

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At Court’s direction, FCC examining the environmental effects of its tower registration process

The worm is turning.

Having long required various applicants to undertake “Environmental Assessments” (EAs) in connection with their proposals, the Commission now finds itself in the unenviable position of having to do its own EA relative to the effects of its Antenna Structure Registration (ASR) Program on migratory birds. The Commission has kicked off its EA with a public notice announcing a series of three public meetings and an opportunity to submit written comments.

Not surprisingly, this is not something the FCC seems particularly eager to dash into. In fact, its obligation to perform the EA came about when the Commission lost a case in the U.S. Court of Appeals for the D.C. Circuit nearly three years ago – and before then, the issue of the impact of towers on birds (or vice versa) had already been a subject of considerable controversy for at least five years. In 2009 the Commission solicited comments on bird-related issues, and earlier this year a private compromise was reached by a number of tower-related groups and bird-related groups; that compromise was submitted to the FCC, which has taken no action on it to date.) But now, at long last, the Commission is moving forward to comply with the National Environmental Policy Act (NEPA).

The first step in this process is an EA, which is a preliminary investigation of the likely environmental impact of the ASR program. If the EA indicates that the program will result in no significant environmental effects, the Commission will issue a Finding of No Significant Impact (that’s right, a FONSI – not to be confused with Fonzie from Happy Days). But if the EA indicates that any “significant” environmental impacts might result from the ASR program, then the Commission must carry out a more extensive analysis – the dreaded Environmental Impact Statement (EIS).

Why has the FCC been sucked into the NEPA vortex?

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Proposed changes would pave the way for broadband occupation of TV bands

That muffled sound you might have heard on November 30 was the opening barrage in the long-anticipated struggle to revamp the TV spectrum. More than a mere warning shot but still well short of a coup de grâce, the FCC’s Notice of Proposed Rulemaking (NPRM) is certain to shake the foundation of the television industry – an industry which is still re-building itself in the wake of the DTV Transition tsunami that crested in 2009.

The FCC’s goal in the NPRM is to “lay important groundwork” (in Chairman Genachowski’s words) toward the ultimate goal of permitting fixed and mobile broadband use in the TV band. Such use is thought by the Commission to be necessary to deal with the all-but-certain “spectrum crunch” which is expected to result from burgeoning mobile broadband demands. 

The FCC’s ultimate game plan appears to include coaxing existing TV broadcast licensees off their current channels in order to free up blocks of prime spectrum which would then be auctioned off for broadband use. While the Commission does not have the authority to “incentivize” broadcasters through, e.g., the sharing of the proceeds from such auctions, a couple of bills pending in Congress would provide such authority. The NPRM is intended to put the Commission in a position to move as quickly as possible toward effective spectrum repurposing if and when Congress gives it the power to share auction proceeds with displaced broadcasters.

The NPRM proposes three significant changes to the FCC’s rules.

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Usage alerts, other steps proposed to prevent unexpected phone charges 

After much public hand-wringing, the FCC has released a Notice of Proposed Rulemaking (NPRM) proposing new rules that would require mobile service operators to provide usage alerts and information to assist consumers in avoiding unexpected charges on their bills. 

Data indicate that many mobile consumers experience “bill shock,” a medical condition in which a sudden, unexpected increase in one’s monthly cellular bill causes massive trauma to a consumer’s wallet. Typically the increase results from unintentional usages outside the scope of the consumer’s service plan. According to the results of an FCC-conducted survey, as many as 30 million Americans have experienced bill shock, a condition which medical professionals believe could be prevented by timely and easily accessible usage information. Unfortunately, this condition does not fall within the new Health Care Law, so millions of consumers have been left unprotected.

The GAO released a report to Congress which estimated that 34 percent of wireless phone users received unexpected charges on their bills. Many of these consumers were not alerted by their provider before they incurred the charges even though the technology to prevent bill shock exists. That technology is not uniformly utilized by mobile service providers. 

As the Commission sees it, consumers are entitled to baseline information allowing them to control the costs they incur for mobile services. Accordingly, the FCC proposes requirements that will provide timely information to consumers about their usage, such as:

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Commission persuades itself that waiver of the original deadline is warranted.

With Thanksgiving less than 36 hours away, the Commission has given us all something to be thankful for: it has extended until September 30, 2011, the deadline for all EAS participants to implement the Common Alerting Protocol (CAP) reception requirement. As we reported last month, that deadline originally fell on March 29, 2011, which would have given all affected parties precious little time to make the necessary arrangements. The additional six months provides some breathing room – but whether it will be enough remains to be seen. If you have questions about the CAP requirement, check out our posts from last month and from last April for background and related links.

Interestingly, the Commission says that it is waiving the March 29, 2011 deadline “on its own motion”. That’s interesting because not only had a bunch of folks questioned the adequacy of the original deadline months ago, but a petition specifically seeking extension of the deadline was filed in October.

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Another view on the FCC’s efforts to repurpose broadcast spectrum for broadband-only use

FCC Chairman Julius Genachowski’s Op-Ed piece in the Washington Post shows his exceptionally energetic devotion to making broadband available to all Americans. But his perceptions of the need for broadband and how to meet it are both misguided and backward-looking. 

No one disputes the importance and value of broadband in education, health care, and economic growth or the Chairman’s devotion to improving broadband access. But it does not follow that all broadband must be wireless or that TV services must be curtailed, stifling innovations like HD, multiple program channels, and 3D. On the contrary, if it will be possible at all to satisfy the seemingly insatiable public appetite for wireless services within a finite amount of spectrum, the best, if not the only, way to do it will be by marrying broadcasting and broadband into a combined service. 

That means promptly unleashing broadcasters from today’s TV technical standards, which the FCC can do on its own, with no Congressional action. Freeing broadcasters from technical constraints will produce a much faster and more effective broadband result than the Chairman’s spectrum “repurposing” plan. In other words, the question is not whether spectrum should be used for broadband OR broadcasting, but whether and when the FCC will allow it to be used for broadband AND broadcasting.

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Love and money are likely to be the keys to the game. 

[Blogmeister’s Note: CommLawBlog welcomes back Catherine McCullough, who provides us with the following insight into the upcoming Congressional session. Catherine, who has guest-blogged for us previously, is a principal in Meadowbrook Strategic Government Relations, LLC and is a specialist in Congressional relations.]

Welcome to the 112th Congress. Notice anything missing? Like a third of the House Energy and Commerce Dems? Or a Congressional mandate on net neutrality? Or Chairman Boucher? Me too. So let’s take a few minutes to figure out what it all means.

Let’s start with the larger picture. This year’s midterms have put Members on notice that voters are not afraid to fire them. And each party is looking to 2012 to capture complete control of both houses of Congress and the White House.

So in the upcoming Congress look for Members to be feverishly competing for two things: love and money. Love in the form of votes (from an unusually angry electorate, eager to hold officials accountable). And money in the form of, well, money, i.e., the ability to spend government funds on their preferred projects (without, of course, looking fiscally irresponsible).

As we shall see, both love and money can be found in telecom policy. So it’s likely that telecom issues will get considerable attention from Congressional leadership, including precious “floor time” for debate. Here is how I see the 112th playing out.

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Pending OMB approval still keeping some of the new rules in limbo for now

A couple of months ago we reported on two FCC actions involving E911 accuracy standards. In separate decisions released simultaneously, the Commission (a) accepted an industry/public safety community compromise on those standards and (b) proposed to expand the reach of those standards. As we reported a couple of weeks ago, it took the Commission more than a month to get the deadlines for comments and replies about the proposed rules established (by publishing the NPRM in the Federal Register). 

For some unexplained reason, it has taken even longer for the Commission to get the rules it adopted back in September published and, therefore, effective. Never fear, though – today, just in time for Thanksgiving, the Second Report and Order in the E911 location accuracy proceeding has finally made it into the Federal Register. That means that the new rules will become effective in 60 days. Wait, don’t bother to reach for your calendar – we’ve already done the calculation: the effective date will be January 18, 2011 (which is actually 62 days from publication -- presumably that's because the 60th day, January 16, is a Sunday, and the next day, January 17, is Martin Luther King Day).

Note that §§ 20.18(h)(1)(vi), 20.18(h)(2)(iii), and 20.18(h)(3) – all of which were changed in the Second Report and Order – will not necessarily take effect on January 18. That’s because they involve information collections which have yet to be approved by OMB first. OMB approval might be obtained before January 16, but it hasn’t happened yet, so we still can’t say for sure when those particular rules will kick in.

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Spectrum re-purposing process underway with release of Ten-Year Plan and Fast Track Evaluation

Those of you awaiting the FCC’s November 30 meeting (when the Commission is scheduled to unveil its plan for repurposing of TV spectrum) may want to get warmed up for that experience by leafing through two reports just issued by the National Telecommunications and Information Administration (NTIA). (Nit-picky observation: while the covers of both reports bear an “October 2010” date, both were first posted on the NTIA website on November 15.)

One – titled “Plan and Timetable to Make Available 500 Megahertz of Spectrum for Wireless Broadband” (Ten-Year Plan) – outlines in 23 pages of text (with some dazzling charts and tables) the overall process by which the government plans to jigger with existing spectrum usage in order to wring out 500 MHz for wireless broadband. 

The second – with a formal title even more prosaic than the Ten-Year Plan’s (we’ll just refer to it as the Fast Track Evaluation) – lays out over more than 250 pages of text, tables, lists (and a two-and-a-half page glossary of abbreviation and acronyms) the analytical process through which the Feds have identified 115 MHz of their own spectrum which they would like to feed to the Voracious Broadband Beast within five years. 

NTIA has also issued a more digestible five-page “fact sheet” summarizing the two longer items.

The Fast Track Evaluation illustrates a couple of things. 

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But Board balks because big, basic broadband questions left unasked

Acting in response to a request by the Commission, the Federal-State Joint Board on Universal Service (Joint Board) has adopted a Recommended Decision concerning implementation of the Low Income component of the Universal Service Fund (USF).   Not stopping there, the Joint Board took the time to vent a bit about some broader issues about which the FCC didn’t ask it to comment.

(The Joint Board is composed of representatives from the FCC, state public utility commissions, and one consumer advocate. It was established in 1996 to provide recommendations on the implementation of the universal service provisions of the 1996 Telecommunications Act of 1996.)

Back in May 2010, the Commission asked the Joint Board to take a look at the Link Up and Lifeline components of the USF’s Low Income Program. The Link Up Program helps low income consumers defray the initial hook-up costs for telephone service; the Lifeline Program helps them defray the monthly costs of such service. Both programs are funded through the USF, which in turn is funded by telecom companies paying in a percentage of their interstate end-user revenues, which is in turn paid for by consumers. 

In its May Order, the Commission asked the Joint Board to address three particular administrative aspects of the Link Up/Lifeline Programs: eligibility (who should get the money), verification (how to make sure the money is in fact going to the right people), and outreach (telling people the money is available). 

In response, the Joint Board offered the following:

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FCC’s November 30 agenda also includes proposals affecting experimental licenses, short-term spectrum use.

The FCC is preparing itself for an exciting 2011.

Here in the CommLawBlog bunker, we usually wait for things to happen before reporting on them. But the FCC’s recent release of the planned agenda for its November 30 meeting serves up items likely to cause such a huge stir that we all might need a little advance warning.

First is a Notice of Proposed Rulemaking on “TV Spectrum Innovation.” Remember the DTV transition when, among other changes, almost all TV stations switched their channels? The FCC wants to do it again. The shift to DTV freed up 108 MHz of prime spectrum, half of which the FCC auctioned off for $20 billion. It’s hard to argue with that many zeroes, so it’s back to the well for another dip. 

The idea is to take away still more TV spectrum and auction that off, too. In theory, a displaced broadcaster could walk away with some of the auction money and open an aromatherapy boutique, or whatever his/her life’s dream is. Or he/she might double up with another broadcaster on a surviving channel. Although the FCC can authorize the channel sharing itself, sharing the auction money would require action by Congress. (As we have previously reported – here (about S. 3610) or here (about H.R. 5947), or here (about S. 3756) – that legislation is already in the works.) While the FCC has made no secret of its aim to scavenge TV spectrum for broadband use, the precise mechanics have not yet been spelled out. On November 30 we should get a clearer picture of what the FCC has in mind.

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The holidays are still a few weeks off, and the FCC just can’t wait.

The FCC is opening a new “Technology Experience Center.” Its purpose? To give “FCC employees and invited guests hands-on experience with the latest communications devices and solutions.”

Let us explain what this is really about.

Part of our job here at FH&H is persuading the FCC to adjust its technical rules, when needed, to accommodate new technologies. This can be a slow and difficult process.   We find it helps, when visiting the FCC, to put on the table a specimen of the gadgetry at issue, preferably smooth and shiny with blinking lights. The FCC engineers inevitably play with the item, push the buttons, and pry off the cover to see the insides. (Interestingly, most lawyers refuse all hands-on contact.) Once the staff gets a close-up, first-hand look at the technology, the rule changes seem to come more easily.

Apparently, though, people like us are not bringing in new gadgets often enough. So the FCC is asking for more.  Sure, they dress up the request by calling it a “Technology Experience Center”, whatever that is. But we think the real purpose is plain: more toys. Manufacturers and vendors who want to donate devices now have a phone number to call. Of course, the FCC tells contributors not to expect any benefit, and warns that acceptance of a gadget does not constitute endorsement. But even so, we think UPS is going to see a lot more boxes than usual headed for the Portals. We picture a big playroom with lots of shelves filled with blinking lights.

For us, the goal will be, somehow, to get on the list of “invited guests.”

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Deadlines have been set for comments and reply comments in the proceeding aimed at devising a mechanism for distributing the “Mobility Fund” realized through the FCC’s re-direction of USF funds left on the table by Sprint and Verizon. We described the Notice of Proposed Rulemaking last week. Now the NPRM has been published in the Federal Register, which means that comments are due by December 16, 2010, and replies are due by January 18, 2011.

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Proposal: Dole out up to $300 million through reverse auction to bring 3G to underserved areas

As we have reported, the FCC decided last month that, instead of re-distributing to CETC’s the $500 million or so in USF funds which Verizon and Sprint renounced as a condition of getting their mergers approved, it would keep the money in a rainy day fund to support broadband mobility. The FCC’s action in that regard was highly suspect on legal grounds (full disclosure: FHH represented the lead proponent of re-distribution of the money to CETCs). Nevertheless, the Commission initiated a rulemaking to try retroactively to justify its unprecedented action.   And now it has opened another rulemaking to determine where and how the so-called “Mobility Fund” will be distributed.  

This proceeding may be a classic case of pre-natal chicken enumeration, since the Commission’s original palming of the Verizon/Sprint funds remains very much in contest. A spate of petitions for reconsideration have been filed, and the matter is likely to go to the Court of Appeals if the FCC remains unmoved. That process could easily take two years, maybe longer.   So no matter what happens in the new rulemaking, Mobility Fund dollars are not going to be finding their way into anyone’s pockets soon, if ever.

That said, the Commission’s proposal for distributing the Mobility Fund is a solid step forward in tailoring the distribution of Universal Service Fund support to those precise areas that most need it without wasteful duplicative support payments. The FCC proposes to distribute $100-$300 million dollars from the Fund by conducting a reverse auction. Bidders would propose to offer 3G-level service in census tracts around the country that have been designated by the FCC as underserved.  The bidder who proposes to provide the service with the lowest amount of support from the Mobility Fund would be awarded the subsidy at that level. There would be only one recipient in each census tract. 

Some specifics from the Commission’s proposal:

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To coordinate or not to coordinate, that is the question . . . and when to coordinate – that’s another question. Oh yeah, when to include proof of coordination – let’s not forget that one, too.

The Wireless Bureau has issued a declaratory ruling clarifying when prior coordination is required for Broadcast Auxiliary Service (BAS) microwave applications above 2110 MHz – facilities generally used by TV stations for studio-transmitter links or relays linking other locations. The coordination requirement is based on whether a change could affect other licensees and not whether the change is “major” or “minor.”

New BAS fixed microwave links and major changes in existing links must go through a formal coordination process, where existing licensees and applicants who may be affected are notified and given an opportunity to protest, before a license application is filed with the FCC.  

Coordination is also required for “major” changes, which are changes in:

• location of more than five seconds of latitude or longitude;
• area of operation;
• frequency tolerance; transmission bandwidth;
• emission type (including conversion from analog to digital);
• EIRP (power), if increased by more than three decibels;
• antenna beamwidth or polarization; or
• antenna height, if increased by more than three meters.

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It’s okay; we all make mistakes.

The FCC’s recent order on white space devices, which we reported on here, and followed up on here, had a few glitches. The FCC has now released a longer-than-usual erratum clearing them up.

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 Back in August we reported on a wide-ranging “Policy Statement and Second Report and Order and Further Notice of Proposed Rulemaking” (Order) aimed at expanding the reach of the Commission’s rules governing hearing aid compatibility. And just yesterday we reported on the recently-signed-into-law Twenty-First Century Communications and Video Accessibility Act of 2010. Recognizing that that far-reaching law could have an impact on the proposals the Commission has put on the table in its Order, the Wireless Bureau has now published a notice in the Federal Register expressly asking commenters to address the effect of the 21CenComVidAccAct on the FCC’s proposals. Anyone planning to try to help the Bureau out in assessing the Act’s impact better get cracking, though: the Bureau is not altering the previously-established comment/reply comment deadlines. That means that you have until October 25, 2010 to file comments and November 22, 2010 to file reply comments. Since the 21CenComVidAccAct consists of 26 pages of fine-print legalese, time may already be running short.

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Wide-ranging legislation looks to expand access for blind and visually-impaired across the 21st Century communications videoscape.

Get set for a new set of sweeping changes cutting across all components of the communications universe, broadband and broadcast alike. On October 8, President Obama signed the Twenty-First Century Communications and Video Accessibility Act of 2010  (21CenComVidAccAct) into law. The new law dramatically expands disability access law to include accessibility requirements for a wide range of equipment and services, such as VoIP phones, browser-enabled smartphones, email and text messaging services, webcasts of TV programs, video and navigation devices, and others. 

While the debate over the FCC’s authority to generally regulate broadband rages on, in this area at least the discussion is over. As one FCC official noted during a panel discussion on broadband adoption, the 21CenComVidAccAct “ventures into broadband access like no legislation ever has” by giving the FCC an “enormous mandate” to ensure that various communications are accessible to people with disabilities.

And the implications of the Act may go beyond communications-for-the-disabled policy. 

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Last chance for opponents to seek overturn of rules

The FCC order ending the ultra-wideband rulemaking appeared in the Federal Register on October 12, and takes effect November 12. After 12 long years of lawyerly and technical bickering, the proceeding is finally over.

Or maybe not. The same parties who have already filed four petitions for reconsideration – that is why we’ve been at it for 12 years – have the right to file yet again. But if they do, they are unlikely to prevail. For one thing, the FCC’s last order showed off the agency’s defensive drafting skills to good effect, with its lawyers carefully closing off each legal argument through which opponents might seek reconsideration. For another, the FCC’s procedural rules disfavor recidivist reconsideration petitioners. In cases where an earlier petition for reconsideration failed, as happened here, “a second petition for reconsideration may be dismissed by the staff as repetitious.” This rarely stops a determined serial petitioner – read about an extreme case here – but it may be enough to deter the cell-phone and satellite interests that have kept the proceeding going for so long.

Disgruntled ultra-wideband opponents have another option: an appeal to the federal courts. That would take about two years and, if the court decides the FCC should take another look, an additional year or two past that.

But the opponents are probably safe in spending their lawyers’ fees on something else instead. Their concern all along has been the supposed threat of interference from hundreds of millions of ultra-wideband consumer devices polluting the spectrum. Those have failed to materialize, for the reasons we explained here.   Unless ultra-wideband device sales pick up dramatically, opponents won’t have much to worry about.

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EAS participants now have 180 days to prepare for CAP-based EAS alerts

That muffled noise you might have heard in the distance last week was the starting gun in the race to comply with new Emergency Alert System (EAS) standards announced by the Federal Emergency Management Agency (FEMA). With FEMA’s September 30 announcement of the applicable Common Alerting Protocol (CAP) standards, all EAS participants now have 180 days to prepare themselves to accept CAP-based EAS alerts.

There’s something of a handicap for the racers, though: the FCC still hasn’t amended its own rules to provide for CAP-based emergency messaging.

Our colleague Davina Sashkin saw all this coming last Spring, when she reported on an inquiry issued by the Public Safety and Homeland Security Bureau (PSHSB). The Commission itself had, back in 2007, announced that all EAS participants would have to get on board the CAP train within 180 days of FEMA’s announcement of the applicable CAP standards. Aware that FEMA was looking to make that announcement as early as third quarter of 2010, last March the PSHSB sought comments on how the FCC’s EAS rules would have to be modified to accommodate new CAP standards. (According to a quick check at ECFS, a relatively small handful of commenters responded to PSHSB’s invite.)

But since then, we have heard nothing from the Commission in the way of a formal proposal for amended rules to address the conversion to a CAP system.

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Protection of TV STAs overlooked; Potential protection of LPTV, TV translator, cable, etc. OTA-receive sites expanded

Poring over the fine print of the FCC’s “white spaces” decision we wrote about last week, we have found two issues that merit the attention of TV broadcasters.

White spaces devices, of course, will operate on vacant TV channels and will have to protect TV broadcast stations. Each device will consult a database to determine which TV channels can be safely used at the device’s location. Devices may have to change channels as necessary from time to time to afford the required protection.

Since the selection of vacant channels will be a dynamic process, the FCC wants to make sure that only channels actually in use by TV stations are marked as off-limits. So, for example, channels occupied by unbuilt TV construction permits would be available for white spaces devices, since, being unbuilt (and, thus, inoperative), the TV CPs would not be subject to any actual interference. With that in mind, the new rules provide that the white spaces database need recognize only granted or pending license applications for both full and low power TV stations.

Whoops.  What about Special Temporary Authorizations (STAs)?

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FCC tightens location accuracy standards, provides relief for rural settings, inquires into possible additional steps

After two years of reflection on the matter, the FCC has decided to accept an industry/public safety community compromise on E-911 accuracy standards. At the same time, it has proposed to expand the reach of those standards to new categories of service providers while tightening the standards even further.

When last we talked about E-911, the FCC had adopted rules that required wireless carriers to achieve a high level of “ALI” accuracy (the ability to identify the location of a call) at the public safety answering point (PSAP) level. This development came about because the rules required emergency call location information to be provided with a high degree of accuracy (within 100 meters) for 67% of the calls received and within 300 meters for 95% of the calls, but the standard was being diluted by carriers calculating their level of compliance over large areas.

To plug this loophole, the FCC ordained that the requisite degree of reliability now had to be met on a PSAP level rather than the larger geographic areas which the rules previously permitted. This requirement was deemed difficult or impossible of compliance by many in the mobile communications industry. Carriers who used the “network” solution (which relies on triangulation of signals to achieve accuracy) complained that in areas with few cell sites, the necessary triangulation was simply not available. Appeals to the Court were duly filed, but before the Court could rule, the Public Safety community (APCO and NENA) indicated that they were amenable to liberalizing the measuring standard to a county level rather than the PSAP level. Further discussions with the largest carriers resulted in agreement by Public Safety that some additional leeway was appropriate in areas where heavy forestation impeded the ability to get extreme accuracy. Given the growing consensus that the standard which had been adopted might need revision, the FCC sought and was granted a remand from the Court so it could re-visit the issue.

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Proposal would dramatically restrict iTRS-provider-provided toll-free numbers

In a move that may at first seem counter-intuitive, the Commission is proposing to restrict the issuance of toll-free telephone numbers affording access to deaf and hard-of-hearing people for use with the Internet-based Telecommunications Relay Service (iTRS). But even though the restrictions might appear to deprive deaf and hard-of-hearing people of a possible benefit, there is method to the FCC’s madness – and it has the support of a number of groups representing deaf and hard-of-hearing people, to boot.

The government subsidizes services which allow people with hearing disabilities to communicate by telephone with persons with or without normal hearing. Those services (generically known as “Telecommunications Relay Service”, or TRS) have been greatly improved by the advent of home computers and now for the most part come in two flavors of Internet-based access – “Video Relay Service” and “IP Relay” – which the FCC refers to collectively as iTRS. (Click here for an overview of TRS generally.)

Prior to 2008, iTRS users (i.e., deaf and hard-of-hearing persons) could be reached on the Internet through IP addresses, proxy or alias phone numbers, or toll-free phone numbers. iTRS providers routinely would give iTRS users a toll-free number which the provider controlled. Most people seeking to reach an iTRS user would dial that toll-free number, and the iTRS provider would route the call to the iTRS user with which the iTRS provider had associated the called number in the provider’s database. But back then, providers didn’t share their databases, which meant that people calling the iTRS user were forced to use the service of the iTRS provider that issued the toll-free number to the iTRS user. Such arrangements ran counter to the FCC’s policy to allow users to pick different iTRS providers without changing equipment.

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