Donald Evans

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Mr. Evans represents a wide spectrum of telecommunications fields, including major commercial mobile radio service providers, Broadband Radio Service companies and affiliated EBS (educational) providers, broadcasters, equipment vendors, and domestic and international telecommunications carriers.

Articles By This Author

Reasonableness and Roaming Charges: In Search of More Definite Standards

Sometimes even nationwide carriers need a little reasonableness.

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

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

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

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

FCC sets ambitious $10.5 billion reserve price.

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

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

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

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FCC Clearing the Decks of Long-Pending Applications for Review

FCC breaks logjam on appeals of Audio Division decisions.

Along with spring daffodils, there has been a refreshing burst of FCC activity in the last few weeks on applications for review relating to decisions (mainly FM matters) from the FCC’s Audio Division. An “application for review,” in FCC parlance, is the pleading by which one asks the full Commission to review an adverse decision by one of the Commission's delegated authorities, such as the Wireless Bureau or Media Bureau. This allows the five Commissioners to review a decision by their subordinates and either approve it or correct any errors that might have been made. The presidentially-appointed Commission is, after all, the body charged with fulfilling the regulatory functions under the Communications Act, so it naturally has the last word when it comes to agency actions. In fact, an FCC action is technically not “final” (and, therefore, ripe for judicial review) until the full Commission has passed upon the matter one way or another.

Unfortunately, in recent years – in fact, as long as we can remember – the five Commissioners have seemed to regard applications for review much as Superman regards Kryptonite. The matters at issue tend to concern issues of local interest and small importance to most: should this site change be approved, should this waiver be granted, did this application have a defect? These issues, though often vitally important to the parties out in the hinterlands, must seem of small consequence compared to the Great Issues of Our Day that typically fill the Commissioners’ ex parte meeting schedules. Net neutrality, spectrum access, auction policy – these are the grave and weighty issues that our philosopher-Commissioners prefer to debate and ponder in their offices up in the clouds of the 8th floor.

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AWS-3 Takes Center Stage

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

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

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

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And Then There Were Four (Nationwide Wireless Carriers)

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

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

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

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

Clearly, mergers make strange bedfellows.

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Out for Comment: Globalstar Proposal to Expand ATC Operation

Shared use of adjacent 2473-2483.5 MHz unlicensed band could raise objections.

Last November, at the urging of Globalstar, Inc., the FCC proposed to modify the Ancillary Terrestrial Component (ATC) of the rules governing the Mobile-Satellite Service (MSS) system operating in the Big Low-Earth Orbit (LEO) S band. Now, after an inexplicable three-month delay, that proposal has made it into the Federal Register, so comment and reply comment deadlines have been set.

Globalstar is the licensee of a Big LEO S band MSS system. It proposes ATC use of its licensed 2483.5-2495 MHz spectrum for a low power broadband network. That is not especially controversial because use of satellite spectrum for ATC service has been approved by the FCC for more than a decade as a way of expanding the use of satellite spectrum for terrestrial communications while maintaining the primary usage for satellite service.

The quirk in Globalstar’s proposal is that it would incorporate the adjacent 2473-2483.5 MHz segment of the 2.4 GHz unlicensed band into its operation. While the 2.4 GHz unlicensed band as a whole is widely used for Wi-Fi and Bluetooth, this particular segment at the upper end is unused by standard Wi-Fi operations in the U.S. because of the need to protect Globalstar’s adjacent satellite operations. Globalstar figured it could appropriate, in a practical sense, that 11.5 MHz in order to give it an effective full 22 MHz of bandwidth for its terrestrial operations.

But there are some complications.

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A Curmudgeon Looks at Terms and Conditions

With tongue totally planted in his cheek, our Curmudgeon-in-Residence re-imagines Contracts 101.

Blogmeister’s Note: In light of on-going developments in the law of privacy and users’ rights, our current Curmudgeon-in-Residence, Don Evans, has prepared the following sample list of Terms and Conditions. These should be suitable for most, if not all, business arrangements in which one side (ideally, you) is holding all the cards. The reproduction below is, for the limited purpose of making them legible to you this one time only, magnified approximately ten times beyond the recommended type size. Once you have read them, they should never be presented to any third party in a type size of more than one point.

Terms and Conditions  

Please review the following terms and conditions carefully before your use of the Service.   These constitute a legally enforceable Agreement between you and the Company which will govern our mutual rights and responsibilities. 

1. Your Privacy. Your privacy rights are important to us. While we cannot guarantee that the Private Information we become aware of in connection with the Service will not be hacked by Unauthorized Third Parties, we commit that we will not intentionally supply your Private Information to anyone other than (i) persons who duly pay us for the information, (ii) Governmental Authorities or persons purporting to be Governmental Authorities, (iii) our friends, and (iv) lawyers. We may make use of your Private Information for marketing purposes, to develop new products, to locate your assets in the event we ever have to sue you, to examine your tax returns, or for any other purpose. 

2.   Intellectual Property. The content you supply us in connection with the Service is called "Intellectual Property" (IP). Once you enter it into our database, you abandon all rights to the IP and irrevocably assign all of your right and title in the IP to us. We may re-publish it, revise it, punch it up, substitute other people in your photographs, or simply sell the IP as our own. Thank you. To the extent there is any liability for defamation resulting from your IP, you will remain the "author" of the IP and agree to indemnify for us for any damages we suffer from your carelessness or intentional misconduct.  

3. Free Use.   As advertised, your initial use of the Service is provided free of charge. We do reserve the right, however, to change this policy in the future at any time without notice or warning to you. In that event, you authorize us to make small monthly withdrawals from your checking and savings accounts which will appear on your bank statements as "service charges" that you will probably never notice or question. We may make such withdrawals in perpetuity. 

4. Your Rights in the Event of a Dispute Regarding this Agreement. The purpose of this Agreement is to ensure that you have no rights under this Agreement, but should you choose to assert rights, you will be responsible for paying all of our legal fees, regardless of whether we are found to be in the wrong. 

5. Limitation on Damages. In no case shall you be entitled to any damages greater than
25 cents, which, together with an additional two dollars, may get you a cup of coffee. On the other hand, in the event that you are found liable, we may elect to be compensated by either (i) money damages, including punitive, special, consequential, direct and indirect damages, or (ii) your first born child.
 

6.   Waiver of Rights. To the full extent permitted by law, you hereby waive all rights you can possibly waive, including, without limitation, the right to a trial by jury, the right to habeas corpus, the right to remain silent, and the right to life, liberty and the pursuit of happiness. 

7.  Governing Law. The law governing this Agreement shall be the law of the Island Commonwealth of Togo, which happens to be an investor in the Company. 

8. Acceptance. By clicking “I accept” below, you are certifying that you have carefully read this Agreement in its entirety, that you have gone over it in detail with your personal attorney, that you fully understand its consequences, and that you think it is perfectly fair. You will not later claim to have just clicked on the "I accept" button without actually having read this, and if you do so claim, you agree that in addition to other remedies available to us, we or our agents may inflict physical punishment upon you, up to and including the fracture of limbs. 

[__] I accept!

H Block Update: Auction Scheduled

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

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

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

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

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

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

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

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

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Foreign Ownership Rules Loosened For Common Carrier and Aeronautical Licensees

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

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

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

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

Here are some of the highlights of the new rules:

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Older Entries

March 7, 2013 — 700 MHz Recons Rejected

January 9, 2013 — Administrative Alchemy Yields Gold for DISH

November 11, 2012 — The FCC Wants to Know: How Much Spectrum Is Too Much Spectrum?

September 12, 2012 — FCC Approves Verizon Acquisition of Cable AWS Holdings

September 5, 2012 — War of the Words: Coalition Urges Greater Alien Welcome

August 22, 2012 — FCC Complicates, Simplifies Foreign Ownership Rules

June 1, 2012 — The App of Invulnerability

May 7, 2012 — Phase I Mobility Fund Reverse Auction Rules Set

April 17, 2012 — FCC Gives T-Mobile an Earful

April 13, 2012 — FCC Seeks Further Input on Foreign Ownership Rules

March 26, 2012 — 700 MHz Interoperability Issue Reaches Primetime

February 22, 2012 — Congress Requires State/Local Rubber Stamp Approval of Some Wireless Tower Modifications

February 3, 2012 — FCC To Proceed With Mobility Phase I Auction

January 27, 2012 — FCC "Shot Clock" Presumptions for Wireless Tower Permitting Upheld

January 5, 2012 — FCC to Convenience Stores: Oops!

December 15, 2011 — FCC's USF/ICC Order: How It Affects Wireless Providers

November 9, 2011 — When is a Requirement Not a Requirement?

October 31, 2011 — Update: MORE WCS/SDARS Rules Go Into Effect . . . Finally

October 27, 2011 — FCC Launches Historic Reform of USF and Intercarrier Compensation Regimes

October 19, 2011 — "Bill Shock" Off the Docket

September 19, 2011 — Update: WCS/SDARS Rules Go Into Effect . . . Finally

August 16, 2011 — Welcome Mat Out for Aliens?

July 14, 2011 — MORE New E-911 Rules: Can You Find Me NOW?

April 11, 2011 — FCC To Mobile Browsers: Roam, Roam On The Range

April 5, 2011 — Government Shut Down Highly Possible

March 23, 2011 — Come 'n' Get it: RUS Ready To Open Coffers Again

March 21, 2011 — A Look At The FCC's Proposed Overhaul Of USF And Intercarrier Compensation Regimes

March 1, 2011 — FCC Provides Guidance on BRS/EBS Substantial Service Filings

February 25, 2011 — Caution: With Possible Government Shut-Down On Horizon, Early Renewal Filing May Be A Good Idea

February 16, 2011 — The End Is Near For EBS Licensees - But Maybe Not As Near As You Think

February 9, 2011 — Next Candidates For Extreme Make-Overs: USF And ICC

January 27, 2011 — Effectively Ineffective Effective Date?

January 19, 2011 — What Hath The Hearing Aid Rules Wrought?

December 16, 2010 — Repo Madness: Assorted 700 MHz Licenses To Go (Back) On Auction Block

October 28, 2010 — FCC Proposes Distribution Mechanism For USF Windfall

September 26, 2010 — New E-911 Rules: Can You Find Me Now?

August 10, 2010 — Listen Up!

August 2, 2010 — Most WCS/SDARS Rule Revisions Become Effective September 1

June 28, 2010 — Transparency, Shmansparency

May 7, 2010 — The FCC Acts In Mysterious Way

April 26, 2010 — Roamin' Forum

April 23, 2010 — FCC Proposes Tough Love For 2.3 GHz Licensees

April 8, 2010 — NBP: The FCC Springs Into Action

March 21, 2010 — The National Broadband Plan: An Overview

January 18, 2010 — Bureau Says 7-Eleven Is A (Super Big Gulp!) Telecom Reseller

November 16, 2009 — Stimulus Czars Provide Environmental Guidance, Seek Input on Next Funding Round

November 10, 2009 — Inactive PCS Systems Face Automatic Cancellation - But When?

September 24, 2009 — FCC's New Motto: All Broadband, All the Time

September 14, 2009 — Educational Broadband Service Issues Resolved

September 2, 2009 — Jailhouse Block

July 15, 2009 — Broadband Stimulus 101: Intro to the RUS/NTIA NOFA

June 24, 2009 — Broadband Division to Process Late-Filed EBS/BRS Renewal Applications

June 17, 2009 — Movin' On Up To The East Side

March 25, 2009 — Deadline for FCC Stimulus Package Comments: April 13

February 25, 2009 — The Great Broadband Land Rush of 2009

February 12, 2009 — Do FCC Auction Participants Have An Enforceable Contract With the FCC?

January 5, 2009 — Step Away From Your Cell Phone, Sir

December 8, 2008 — Paperwork Reduction Act Alive and Kicking

October 7, 2008 — FCC Takes Another Crack at D Block Rules

July 10, 2008 — FCC Dissed by Appeals Court

June 13, 2008 — FCC's Solution to Lack of Broadband Access: File More Reports!

May 13, 2008 — FCC Caps USF High Cost Funding for CETCs

March 28, 2008 — Commission Ties Up Some BRS/EBS Loose Ends, Unties Others

December 19, 2007 — Is Interference in Our SDARS or in Our Selves? FCC Seeks Input On New Interservice Interference Criteria

November 20, 2007 — FCC Gives Some Comfort to Potential D Block Bidders

August 1, 2007 — 700 MHz Ruling Pleases, Vexes, Almost Everyone

July 27, 2007 — International roaming deemed to be subject to FCC regulation

June 26, 2007 — Rail Network Waiver Derailed

June 18, 2007 — FCC Grants Cellular Carrier a Waiver of Analog Carriage Requirement

June 2, 2007 — Calling All Cars