Tuesday, November 22, 2011

FCC Announces Tenative December Agenda

The FCC has announced its tentative agenda for the December Open Meeting.  The Commission will consider a Report and Order that protects consumers by implementing the Commercial Advertisement Loudness Mitigation (CALM) Act to prevent digital television commercial advertisements from being transmitted at louder volumes than the program material they accompany.  

The Meeting is Scheduled for Tuesday, December 13, 2011 at 10:30 a.m.  It may be viewed at http://www.fcc.gov/live 

FCC Announces Conversion to 2010 Census Tracts for Future Form 477 Filings

Today the Wireline Competition Bureau announced a conversion to 2010 census tracts for broadband subscribership reporting in future FCC Form 477 filings.  The Commission requires facilities-based wired, terrestrial fixed wireless, and satellite broadband service providers to report on FCC Form 477 the number of broadband subscribers they have in each census track they serve.   This change will go into effect for the March 1, 2012 Form 477 deadline, which collects information about operations as of December 31, 2011.    

Wednesday, November 9, 2011

FCC Announces Tentative Agenda for November Open Meeting

Today, the Commission released a tentative agenda for the FCC’s next Open Meeting scheduled for Wednesday, November 30, 2011. 

Additional Spectrum for Medical Radiocommunication Devices: The Commission will consider a Report and Order that allocates spectrum in the 413-457 MHz band and adopts service and technical rules to allow the use of new types of implanted medical devices that use functional electric stimulation to, among other things, restore sensation, mobility, and function to paralyzed limbs and organs.

Presentation on Commission Efforts to Address Barriers to Broadband Adoption: Commission staff will provide a presentation on the Commission’s recent broadband adoption efforts, including a first-of-its-kind national effort to address the barriers to broadband adoption, digital literacy and the employment skills gap.

The meeting is scheduled to begin at 10:30 a.m. and will be broadcast live at www.FCC.gov/live

Thursday, November 3, 2011

FCC requests information for its 16th Annual Report on the State of Mobile Wireless Competition

The Commission has released a Public Notice seeking input and data on mobile wireless competition for its 16th Annual Report on the State of Competition in Mobile Wireless (“Sixteenth Report”) (attached).  The Commission is interested in obtaining data and metrics that quantify the importance of mobile data and mobile broadband services.  These would include detailed, comprehensive, historical measurements of mobile data traffic, usage, subscribers, and devices.  For the Sixteenth Report, the Commission requests that commenters submit data and statistics for the calendar-year 2010 time period, as well as information on any trends and developments that have occurred during 2010 or 2011.  Comments are due December 5, 2011 with Reply Comments due December 20, 2011.

Tuesday, October 25, 2011

Consumer Code Bill Shock Provision

CTIA has posted the Bill Shock language as added to the Consumer Code for Wireless Service (Section Eleven).  It states that signatories will provide a notification:

1)      To consumers of currently-offered and future domestic wireless plans that include limited data allowances when consumers approach and exceed their allowance for data usage and will incur overage charges;
2)      To consumers of currently-offered and future domestic voice and messaging plans that include limited voice and messaging allowances when consumers approach and exceed their allowance for those services and will incur charges;
3)      To consumers without an international roaming plan/package whose devices have registered abroad and who may incur charges for international usage.

Wireless providers will generate the notifications to postpaid consumers based on information available at the time the notification is sent.  These notifications are to be free of charge as well as automatically provided to the consumer.  Wireless providers will provide at least two of these alerts by October 17, 2012 and all of these alerts by April 17, 2013.  Wireless providers are also directed to clearly and conspicuously disclose tools or services that enable consumers to track, monitor and/or set limits on voice, messaging and data usage.

These rules were developed through industry-led efforts, rather than FCC regulation, and represent a compromise between CTIA and the FCC.  The Commission has agreed to take a “trust, but verify” approach to this issue, and therefore puts any rulemaking on hold.  The FCC, however, will be closely monitoring industry practices to make sure that all carriers provide this information to consumers, and if the Commission does encounter non-compliance, it promises to take action.

Monday, October 17, 2011

CTIA and FCC announce Bill Shock Rules

On Friday, CTIA filed a written ex parte notice with the Commission regarding CTIA’s Bill Shock Rules, which were introduced today, but have yet to be released to the public.  The notice informs the FCC that CTIA adopted as part of its “Consumer Code for Wireless Service,” a new usage alerting initiative for subscribers with limited voice, data and messaging plans, and for subscribers that use their devices internationally.  The notice explains that under this initiative, participating wireless providers will generate free notifications to help wireless subscribers manage their usage to avoid billing surprises, while allowing providers to competitively differentiate their offerings and business practices.  The notifications will cover data, voice, text messaging and international roaming.  Specifically notifications will be provided to consumers with limited allowances as they approach and exceed their allowance limits for such covered practices.  Finally, these notifications will be automatic in the sense that customers will not have to opt in for these services. 

By October 17, 2012 participating carriers will be required to provide customers with at least two out of the four notifications for data, voice, text and international roaming and must provide all of the alerts by April 17, 2013.  Compliance guidelines for wireless carriers are going to be posted on the FCC’s website, along with CTIA’s code of conduct, which will reflect the bill shock agreement. 

For CTIA's offical press release, click here.

Wednesday, October 12, 2011

NPRM on Text-to-911 Published in Federal Register

Today, the NPRM on Facilitating the Deployment of Text-to-911 and Other NG911 Applications was published in the Federal Register, setting the comment deadline for December 12, 2011, with reply comments due January 10, 2012.

The NPRM examines short-term and long-term options for enabling consumers to send texts to 911, including the advantages and disadvantages of different approaches.  The FCC is seeking comment on long-term development of multimedia NG911 technology that would support delivery of photos, videos, and data to 911, in addition to texting.  The Commission is also considering the appropriate role for the agency in facilitating and possibly accelerating, the rollout of these capabilities.

The NPRM asks whether 911 call centers should have to first demonstrate a “threshold level of NG911 technical capability” as a precondition of a requirement that carriers are capable of delivering text messages and other data as part of 911.  The notice also asks whether this capability should be established at the state or regional level, and recognizes that all call centers nationwide won’t be able to accept the same date, therefore prompting inquiry about how to educate consumers about the limitations of text-to-911 services.  It also seeks guidance on establishing a priority system for texts during a catastrophic disaster.     

Friday, October 7, 2011

Tentative Agenda Announced for 10/27 FCC Open Meeting

The tentative agenda has been announced for the October 27th Open Commission Meeting:

Connect America Fund/Intercarrier Compensation Reform: The Commission will consider a Report and Order and Further Notice of Proposed Rulemaking to comprehensively reform and modernize the universal service and intercarrier compensation systems to ensure that all Americans have access to robust, affordable broadband and mobile services.

Modernizing Television Broadcaster Requirement to Make Information Available to the Public: The Commission will consider an Order on Reconsideration of the 2007 Enhanced Disclosure Report and Order and a Further Notice of Proposed Rulemaking proposing to replace television broadcast stations' public files with online public files to be hosted by the Commission.

National Emergency Alert System Preparation Update: The Public Safety and Homeland Security Bureau will provide a brief update on the status of preparations for the national test of the Emergency Alert System to be held on November 9, 2011, at 2 p.m. EST.
The Open Meeting is scheduled to commence at 10:30 a.m. in Room TW-C305, at 445 12th Street, S.W., Washington, D.C. The event will be shown live at FCC.gov/live.  

Thursday, October 6, 2011

Genachowski Announces FCC ICC/USF Reform Proposal

Today, Chairman Genachowski announced the Commission’s proposal for ICC/USF Reform.  The FCC did not “rubber stamp” fully adopt any of the USF and ICC reform proposals that have been discussed over these past few months.  Below please find a summary of the proposed FCC plan, which has been distributed to the Commissioners for review:

Intercarrier Compensation
-     Arbitrage: Overall, the plan proposes to reduce the hidden subsidies paid by consumer by closing loopholes such as phantom traffic and traffic pumping, however, it also proposes to eliminate “CMRS-in-the-middle where some carriers divert wireline traffic to wireless networks to avoid paying ICC charges.” (pg. 9).
-     VoIP: VoIP calls that either begin or end on the PSTN will be treated the same, therefore providing certainty about the compensation of VoIP calls for stakeholders.
-     Access Rates: Rates will be phased down over a measured, but certain, multi-year transition path, starting by bringing intrastate access rates in line with interstate rates.  The plan proposes to begin with terminating charges.  
-     Recovery Mechanism: This will be tightly controlled, and will permit some companies to receive transitional support from the CAF, but such support would be accompanied by obligations to serve the public, as well as strong oversight and accountability.
-     IP Interconnection: The plan will acknowledge the importance of efficient IP interconnect and “will put forth specific proposals in that area.”

Universal Service Fund
-     Connect America Fund:  The fund will be constrained with a five-year transition beginning in 2012.  Funding will be targeted exclusively at areas without an unsubsidized competitor and where support is needed to extend/sustain broadband. 
-     Mobility Fund:  This fund will be dedicated to deployment of mobile broadband to more than 100,000 road miles, as well as providing significant ongoing support for rural mobile broadband.
-     Competitive Bidding Process: This process will be built into the first phase of the Mobility Fund in 2012 and implemented over a transition period among providers for obtaining universal service support.  During the transition, the Commission will base support on a cost model which estimates costs of deploying broadband (model will be subject to note-and-comment period).  
-     Rate-of-Return:  Will ensure provider incentives to invest efficiently and receive predictable support.  It will include improving accountability, using benchmarks to ensure reimbursable expenditures are reasonable and extending limits on reimbursements for corporate operating expenses.
-     Carrier of Last Resort: Obligations will remain in FCC plan.
-     State Role: States will continue to be responsible for designating universal service-eligible telecommunications carriers.  States will  also continue to play a role by ensuring accountability for broadband buildout obligations.  

Throughout the Speech, the Chairman emphasized the significant benefits that will be realized by consumers due to the proposed reform, and stated “by eliminating billions of dollars in hidden subsidies that are currently built in to wireless and long-distance bills, consumers can expect reduced costs, better value for their money, or both.”  The Speech also emphasized job creation and economic growth.

As noted above, the plan has been circulated to the other Commissioners and has been placed on the Commission’s October 27th Open Meeting agenda.  The plan itself, has not been released to pubic as of yet.  

Wednesday, September 28, 2011

Comment Deadline Extended: Draft PEA of ASR

The FCC has released a public notice extending the comment deadline for the Draft Program Environmental Assessment of the Antenna Structure Registration Program.  The new comment deadline is now November 2, 2011.

Thursday, September 22, 2011

Open Commission Meeting on Public Safety

Today the Commission held its monthly open meeting with an agenda focused on public safety.  Public Safety and Homeland Security Bureau representatives were in attendance to discuss NG911 and the role of deployable aerial communications during times of emergency.

NG911: The Public Safety and Homeland Security Bureau presented a white paper on NG911 network connectivity costs that ultimately determined that NG911 has the potential to be more cost-effective to operate and upgrade than the legacy 911 system.  The study offers two models for NG911 deployment: a baseline model and a cost-effective model that assumes cost savings from a reduction in the total number of 911 call centers nationwide and a greater percentage of call centers sharing NG911 infrastructure as opposed to operating their own dedicated systems.  The baseline model concluded that the network connectivity and call routing costs to transition to NG911 will be approximately $2.68 billion over 10 years while the cost-effective model estimated approximately $1.44 billion.

Aerial Communications Architecture: The Public Safety and Homeland Security Bureau also presented a white paper outlining a vision for how “deployable aerial communications architecture” (“DACA”) can be used to provide communications following a catastrophic event when the terrestrial communications infrastructure is severely damaged or unavailable.  The white paper found that DACA is deployable 12 to 18 hours after a catastrophic event to restore critical communications, including broadband, temporarily for a period of 72 hours or more.  The Bureau recommended the following steps for further Commission action: (1) open an inquiry by the end of the year to gather data and address the role of DACA; (2) host a workshop on DACA solutions by the end of the year; (3) share findings with FEMA, FAA, and other federal agencies to initiate discussions regarding pilot programs and implementation; and (4) work with the Department of State and other appropriate Federal agencies to explore any international implications of these issues.

Wednesday, September 21, 2011

Federal Register Publishes OMB Approval of Information Collections for Net Neutrality

Today, the Federal Register published the Office of Management and Budget’s (“OMB’s”) approval of the information collections necessary for the Open Internet rules (also known as Net Neutrality rules).  According to the FCC’s Open Internet Order, these rules will become effective 60 days from today, on November 21, 2011.  Appeals of the Open Internet Order, however, may not be filed until the full text of the Open Internet Order is published in the Federal Register, which we expect to occur over the next one to three weeks.

Pursuant to the Commission guidance circulated earlier this year, the rules adopted by the Open Internet Order require that “a person engaged in the provision of broadband Internet access service shall 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.” (¶ 54 of the Order).  In addition, mobile broadband providers will also be required to “disclose their third-party device and application certification procedures, if any; to clearly explain their criteria for any restrictions on use of their network; and to expeditiously inform device and application providers of any decisions to deny access to the network or of a failure to approve their particular devices or applications.” (¶ 98). 

The Open Internet Order further states that “a person engaged in the provision of mobile broadband Internet access service, insofar as such person is so engaged, shall not block consumers from accessing lawful websites, subject to reasonable network management; nor shall such person block applications that compete with the provider’s voice or video telephony services, subject to reasonable network management.” (¶ 99).    

Please feel free to contact us if you have any questions, or would like assistance in complying with these rules.

Monday, September 19, 2011

Competition Data Requested in Special Acess NPRM

Today the FCC released a Public Notice inviting voluntary submissions of data to assist the Commission in evaluating the various issues that have been raised in the Special Access NPRM.  Generally, the Commission is seeking detailed information on special access pricing, revenues, and expenditures and other related competition data for the calendar-year 2010.  The Notice also seeks data about the nature of terms and conditions for special access services.
  
The Commission requests that data is submitted by December 5, 2011.

Tuesday, September 13, 2011

Public Notice Released on LightSquared's Request for ACT Commercial Operating Authority

The FCC has released a Public Notice on the status of testing in connection with LightSquared’s Request for Ancillary Terrestrial Component (“ATC”) Commercial Operating Authority (attached).  The FCC has determined that additional targeted testing is needed to ensure that any potential commercial terrestrial services offered by LightSquared will not cause harmful interference to GPS operations.

Due to industry concerns, the Commission conditioned a January 26, 2011 Order and Authorization on LightSquared sufficiently addressing the potential for harmful interference that its planned commercial terrestrial service could cause to GPS devices.  This Order also required LightSquared to help organize and to fully participate in a technical working group to address potential GPS interference.  

The technical working group, comprised of more than 120 participants including representatives from various federal agencies, identified the potential for harmful interference from LightSquared’s original deployment proposal based on the operation of terrestrial transmitters in both the upper and lower 10 MHz portions of its spectrum.  LightSquared submitted proposed mitigation techniques to remedy the interference to GPS operations, and specifically, it proposed to revise its planned deployment to operate terrestrial transmitters only in the lower 10 MHz of its spectrum.  The FCC notes that the results thus far from the testing using the lower 10 MHz showed significant improvement compared to tests of the upper 10 MHz, although continued interference concerns necessitate additional testing.

Monday, September 12, 2011

CellAntenna Petition for Rulemaking

CellAntenna, a company that makes devices that jam wireless signals, filed a Petition for Rulemaking with the FCC on Sept. 2.  In addition to producing jamming devices, CellAntenna has also developed a program to detect and identify contraband wireless devices within correctional facilities by serial number.  This system will also identify the carrier providing service to the device.

In its Petition, CellAntenna responds to the NTIA May 2010 NOI  on the use of contraband cell phones in prisons, which asked for comments on technological approaches to help corrections officials block or reduce unauthorized use of wireless devices by inmates, specifically, jamming, managed access and detection.  

·       CellAntenna supports efforts to allow jamming wireless device signals “as a comprehensive solution” that may be implemented without the cooperation of the CMRS providers. 
·       CellAntenna argues that managed access must include all frequencies and frequency ranges being accessed by the wireless devices, legitimate and contraband, within the facility. This approach would require CMRS providers cooperation by entering a spectrum lease agreement with the correctional facility.
·       CellAntenna believes that out of the three approaches, detection is the least technologically invasive, however, better use of detection equipment can be made with the CMRS provider’s cooperation.

CellAntenna’s proposed three step plan:
1)      Correctional facility performs a sweep electronically using equipment that identifies certain unique characteristics of a wireless device through radio frequencies.  
2)      By email or fax, the warden transmits to CMRS provider identifying the contraband wireless device by serial number.
3)      CMRS provider must a) send a warning to the identified contraband device by SMS that the device is operating illegally and b) suspend service to the contraband wireless device within one hour after receipt of the notice of contraband device.  
 
 
CellAntenna stresses the importance of CMRS provider cooperation and cites recent Facebook cooperation - “Facebook has agreed to shut down inmate pages, citing its user agreement that prohibits illegal activity on Facebook.  Each of the CMRS providers includes a similar clause in its customers agreements.” (pg. 9).  CellAntenna further notes that Title 18 has been amended to criminalize possession of a wireless device in a federal correctional facility and that most states have similar laws.

CellAntenna proposes that the FCC amend its rules to ultimately place the responsibility for management of contraband wireless devices in the hands of CMRS providers by requiring carriers to suspend the service of all subscribers whose cellphones are detected to be operating in a prison in violation of the institution’s rules. (pg. 10). 

Thursday, September 1, 2011

FCC Seeks Comment and Announces Public Meeting on Draft PEA of ASR

A Public Notice was released announcing the FCC’s Draft Programmatic Environmental Assessment (PEA) which was prepared to evaluate the environmental impacts of the Antenna Structure Registration (ASR) program.  The ASR Program is the process under which each antenna structure that requires FAA notification must be registered with the FCC by its owner.  The Draft PEA reviews the existing ASR program and National Environmental Policy Act (NEPA) compliance procedures to evaluate their effects on migratory birds and other environmental resources.  Generally, environmental impacts from towers are dependent on a variety of factors including location, height, structural support system, and lighting scheme.   However, in this Draft PEA the FCC finds that the impact of the ASR program at the national level on all resources are not significant. 

The FCC is inviting comment on the Draft PEA through a public meeting and filings. 

Public Meeting Date: September 20, 2011, 2:30 -5:00 ET, www.fcc.gov/live
Comment Date: October 3, 2011

Cramming NPRM Comment Dates Set

Last month, the Commission released an NPRM on Cramming that proposes to require both wireline and wireless carriers to notify subscribers on all bills and on their Web sites that subscribers may file complaints with the Commission, provide the Commission’s contact information for the submission of complaints, and include on Web sites a link to the Commission’s complaint Web page.

The NPRM has been published in the Federal Register and Comments are due by October 24, 2011 and Reply Comments are due November 21, 2011.


Monday, August 22, 2011

Channel 51 Freeze Order

A Public Notice was released in response to CTIA and RCA’s joint petition urging the FCC to “promote deployment of wireless broadband service in the Lower 700 MHz A Block by taking action to prevent further interference caused by TV broadcast stations on channel 51.” In this Public Notice, the Commission:

1.     Announces a general freeze, effective immediately, on the filing of new applications on channel 51 and the processing of pending applications on channel 51;
2.     Lifts the existing freeze as applied to, and will accept, petitions for rulemaking filed by full power television stations seeking to relocate from channel 51 pursuant to a voluntary relocation agreement; and
3.     Opens a 60-day window for parties with pending low power television station applications on channel 51 to amend their applications to request an alternate channel assignment.

Channel 51 Application Freeze
  • Freeze is temporary and affects only the submission of applications for new or modified facilities. Does not affect existing full power or low power television stations on channel 51.  The freeze applies to the following filings:
    • Applications for Low power TV, TV translator, replacement translators and Class A TV facilities on channel 51 (including flash-cut, digital companion channels, displacement applications).
    • Applications for Minor change for low power and full power TV stations on channel 51.
  • FCC authority for freeze comes from prior precedent- procedural, thus, no note-and-comment period, also good cause exists for not delaying effect of freeze until 30-days after Federal Register publication hold.
  • “Freezing the acceptance of channel 51 applications will ‘stabilize the channel 51 environment’ and ‘create the necessary conditions’ to allow the Commission to consider the matters raised in the Petition in an ‘effective, efficient and meaningful manner.’”
  • Waiver of Freeze:
    • FCC will, however, consider applications for minor modification where applicant can demonstrate that a waiver is necessary to make changes to the station’s existing facility for technical/other reasons to maintain quality service to public. (“critical modifications”)
    • Applications eligible for freeze only if the proposed changes will not expand the station’s existing coverage area and merely propose to replace existing service (unless some expansion is necessary to preserve existing coverage/quality of service)
      • i.e., Full power TV apps will not be eligible for waiver if they increase a station’s DTV service in one or more directions
      • i.e., Low power apps will not be eligible for waiver if they increase the station’s protected service contour

Channel 51 Application Amendment Window 
  • Applicants for low power TV on channel 51 must submit an amendment to pending applications to specify another permissible channel below 51 within 60 days of the release date of public notice (by Oct. 21)- if applicants fail to do so, they will be subject to the freeze.

There is also an Appendix to this notice that lists pending channel 51 applications.  If you have any questions about this proceeding, please feel free to contact us.

Wednesday, August 17, 2011

FCC Extends Deadline for Reply Comments on an NOI on Rights of Way and Facility Siting

In an Order released by the Federal Communications Commission ("FCC" or "Commission") on August 16, the Commission extends the deadline for Reply Comments on a Notice of Inquiry ("NOI") on Rights of Way and Facility Siting to September 30, 2011. 

In the NOI the Commission seeks "to update our understanding of current rights of way and wireless facilities siting policies, assess the extent and impact of challenges related to these matters, and develop a record on potential solutions to these challenges."

Please let us know if you have any questions on this proceeding.

Monday, August 15, 2011

Chairman Genachowski Introduces 5-Step Plan for NG911

At the 2011 APCO Conference in Philadelphia on August 10, Federal Communications Commission (“FCC” or “Commission”) Chairman Genachowski introduced a five step plan to chart the transition to Next Generation 9-1-1 (“NG911”) services (attached).  NG911 supports seamless, end-to-end IP-based communication of emergency-related voice, text, data, photos, and video between the public and public safety answering points (“PSAPs”).  The FCC maintains that NG911 benefits the public by expanding accessibility to give all consumers more calling options in emergencies.  In addition, NG911 provides enhanced information for first responders allowing them to assess emergencies more quickly and respond more efficiently.  These benefits are due, in part to the IP-based architecture that makes up the NG911 networks, as it allows for more flexibility and resiliency than the legacy circuit-switched 911 system.

The FCC’s Five-Step Action Plan to Deploy Next Generation 911 is as follows:
1)      Developing location accuracy mechanisms for NG911.  The FCC has already launched this development through its Location Accuracy proceeding last month. 
2)      Enabling consumers to send text, photos and videos to PSAPs.  The Commission will be considering an NPRM next month that will examine this issue, and provide the Commission with information on this implementation. 
3)      Facilitating the completion and implementation of NG911 technical standards by working with NG911 stakeholders to resolve any standards issues and to facilitate a consistent and coordinated deployment.
4)      Developing a NG911 governance framework which will be accomplished through cooperation between the FCC, state 911 authorities and other federal and government agencies. 
5)      Developing a NG911 funding model to assist 911 authorities as well as Congress in considering NG911 funding options.

The Chairman also noted some recent actions that the FCC has taken to improve public safety such as:
1)      Launching the Personalized Localized Alerting Network (“PLAN”), a new public safety system that allows customers to receive geographically-targeted, text-like messages alerting them of imminent safety threats in their area;
2)      Strengthening the existing Enhanced E-911 location accuracy rules for all wireless carries;
3)      Laying the groundwork for a nationwide, interoperable public safety broadband networking, including adopting a standard air interference for such a network; and
4)      Granting waivers for jurisdictions to begin building out the public safety interoperable broadband network.  As of this meeting, the FCC had already granted 22 waivers.

FCC Form 477 Broadband Report due September 1, 2011

As a reminder, the FCC Form 477 broadband report is due September 1, 2011.  The purpose of the report is to provide the FCC with information regarding broadband connections provided to end-user locations.  The FCC Form 477 must be submitted by: (i) Facilities-based providers of broadband connections to end-user locations; (ii) Providers of wired or fixed wireless local exchange telephone service; (iii) Providers of interconnected Voice over Internet Protocol (VoIP) service; and (iv) Providers of mobile telephony services.

The FCC Form 477 is required to be filed electronically, and the filing can be made at https://specialreports.fcc.gov/wcb/Form477/.  Instructions, tutorials and information on using the FCC Form 477 electronic filing system are available at http://www.fcc.gov/form477/.  Please feel free to contact us if you have any questions.

FY 2011 Annual Regulatory Fees

The FCC has announced that the annual regulatory fees are due to be paid by 11:59 p.m., ET, September 14, 2011.  The Report and Order, released in July, provides information on the assorted fees as well as the fee filing process.

For further information, you may visit the FCC's Regulatory Fees website, or feel free to contact us if you have further questions.

Friday, August 12, 2011

Order, FNPRM Released on Wireless Backhaul

In the August 9 Open Commission meeting, the Federal Communications Commission ("FCC" or "Commission") adopted and released a Report and Order, Further Notice of Proposed Rulemaking, and Memorandum Opinion and Order regarding wireless backhaul (collectively, “Order”).  The Order removes regulatory barriers to make additional spectrum available for Fixed Service (“FS”) use and provide additional flexibility to enable FS licensees to reduce operational costs, increase reliability, and facilitate the use of wireless backhaul in rural areas. 

In the Report and Order, the FCC takes the following actions: permits FS operators to share the 6875-7125 MHz and 12700-13100 MHz bands currently used for Fixed and Mobile Broadcast Auxiliary Service (“BAS”) and Cable TV Relay Service (“CARS”), making 650 MHz of additional backhaul spectrum available in areas where TV pickup operations are not licensed (pg. 6);  grants broadcasters greater access to microwave spectrum by eliminating the ‘final link’ rule (pg. 17); allows licensees to use adaptive modulation which will allow operators to maintain critical communications during periods of fading (pg. 19); declines to permit FS licensees to coordinate and deploy auxiliary links because there is no basis for concluding that auxiliary stations could coexist with primary FS stations without causing interference (pg. 24).

In the Further Notice of Proposed Rulemaking (beginning on page 29 of the Order), the FCC proposes the following: to liberalize the federal regulations to allow smaller antennas in the 6, 18, and 23 GHz bands without materially increasing interference; to exempt licensees in non-congested areas from the efficiency standards and to allow licensees in other areas to seek relief from the standards upon making a special showing; to allow microwave operators to create higher capacity links by licensing 60 and 80 MHz channels in the 6 and 11 GHz microwave bands; to limit the circumstances where a waiver is required for microwave stations pointing near the geostationary arc, and conforming the rule to International Telecommunications Union (ITU) regulations;  to modify the definition of payload capacity in the Part 101 rules to account for Internet protocol radio systems.

In the Memorandum Opinion and Order (beginning on page 41 of the Order), the FCC mentions various other proposals that it does not intend to consider further at the this time.  These proposals address: local multipoint distribution service; wireless communications service; multichannel video and data distribution service;  revising technical rules in bands above 15 GHz; modifying existing licensing practices and procedures; siting issues; universal service.   

Comments are Due October 4, and Reply Comments are due October 25, 2011.

Please feel free to contact us if you have any questions about this proceeding.

Wednesday, August 10, 2011

FCC Releases NPRM on Foreign Ownership

In yesterday's Open Commission meeting, the Federal Communications Commission ("FCC" or "Commission") released a Notice of Proposed Rulemaking to initiate review of policies and procedures that apply to foreign ownership of common carrier radio station licensees and of aeronautical en route and aeronautical fixed (collectively “aeronautical’) radio station licensees ("NPRM").  The emphasis of the NPRM is to reduce “regulatory costs and burdens imposed on wireless common carrier and aeronautical applicants, licensees and spectrum lessees; provide greater transparency and more predictability with respect to the Commission’s filing requirements and review process; and facilitate investment from new sources of capital, while continuing to protect important interests related to national security, law enforcement, foreign policy, and trade policy.” (¶ 1). The Commission estimates that if the proposed rules are implemented, it would result in a more than 70% reduction in the number of section 310(b)(4) petitions for declaratory ruling filed with the Commission annually. (¶82).

The proposed framework is as follows:
  • Continue requiring common carrier and aeronautical radio station licensees to obtain FCC approval under section 310(b)(4) (by filing a petition for declaratory ruling) before the aggregate direct or indirect foreign ownership of their controlling U.S. parent companies exceeds 25% (measured as a percentage of the equity and/or voting interests in the U.S. parent).  (¶¶  11, 37).
    • Section 310 of the Act requires the Commission to review foreign investment in radio station licenses, with specific restrictions on who may hold certain types of radio licenses.

Distinction between WTO and Non-WTO Investment (pg. 14)
  • Retaining the distinction between WTO and non-WTO Member investment, but reduce associated regulatory burdens, or in the alternative, eliminate the distinction.  If the distinction was eliminated, the FCC would presume, subject to rebuttal, that direct or indirect foreign ownership of a wireless carrier’s U.S. parent company does not pose competitive concerns in the U.S. market regardless of the nationality or principal place(s) of business of the U.S. parent’s foreign investor(s). (¶¶ 28, 29).
    • Currently, the FCC uses an “open entry standard” to foreign investment from WTO Member countries, and an “effective competitive opportunities” standard to foreign investment from non-WTO Member countries. (¶12). 

Standards for Section 310(b)(4) Determinations (pg. 19)
  • Changing the current practice of issuing 310(b)(4) rulings in the name of the subject licensee to now issue the ruling in the name of the lower-tier, controlling U.S. parent. ( 39).
  • The main objective of the changes in this section “is to reduce the need for U.S. parent companies to return to the Commission after receiving an initial ruling, to obtain prior approval for subsequent changes in their foreign ownership, including increased interest by foreign investors that have already been approved in the parent’s initial ruling and interest to be acquired by new foreign investors.” (¶ 41).
  • No longer requiring  U.S. parent companies to obtain specific approval of named foreign investors, unless a foreign investor proposes to acquire a direct or indirect equity and/or voting interest in the U.S. parent that exceeds 25%, or a controlling interest at any level.
    • The U.S. parent company would be required to monitor and stay ahead of changes in ownership of its approved foreign investors. ( 42).
  • Providing the petitioning U.S. parent with the option of requesting specific approval in its petition for any named foreign investor to increase its equity an/or voting interest in the U.S. parent from existing levels up to a no-controlling 49.99 percent equity and/or voting interest.
    • The Commission believes that this would facilitate investment in wireless carriers by eliminating the need for U.S. parents to return to the Commission to allow an already-approved foreign investor to increase its minority investments incrementally. ( 44).
  • Providing foreign transferees with the option of seeking approval at the outset, in the section 310(b)(4) petition that is filed in connection with the transfer application, to acquire 100% of the equity and/or voting interest in the licensee’s U.S. parent company. (¶ 45).
  • Authorizing the U.S. parent to have, on a going-forward basis, 100% aggregate foreign ownership (including those foreign investors for which the parent did not request specific approval in its petition), provided that no single foreign investor or “group” of foreign investors acquires, directly or indirectly, an ownership interest that exceeds 25% of the parent’s equity or voting interest or a controlling interest at any level. (¶¶ 46, 50).
    • If this is adopted, the FCC notes that the 25% aggregate allowance that is currently included in section 310(b)(4) rulings would effectively increase to 100%.
  • Allowing for automatic extension of the U.S. parent’s ruling to cover any of the parent’s subsidiaries or affiliates, whether existing at the time of the ruling or formed or acquired subsequently, provided that the parent remains in compliance with the terms of its ruling. (¶ 56)
  • Permitting the insertion of new, controlling foreign-organized companies at any level in the vertical ownership chain above the U.S. parent that has received a foreign ownership ruling without prior Commission approval, provided that any new foreign-organized company(ies), either alone or together, are under 100% common ownership and control with the controlling foreign parent for which the U.S. parent has received prior Commission approval. (¶57).
Section 310(b)(4) Petitions for Declaratory Rulings (pg. 33)
  • Require that section 310(b)(4) petitions  for declaratory ruling identify any individual or entity, regardless of citizenship, that holds or proposes to hold, directly or indirectly, 10% or more of the equity and/or voting interest in the U.S. parent or controlling interest at any level.
  • Continue to make FCC rulings subject to the separate and independent requirement (public notice/formal written order) in section 310(d) that licensees obtain Commission approval for the assignment or transfer of control of a radio license.  (¶73)
  • Continue to act on petitions in coordination with the appropriate Executive branch agencies and accord deference to their views in matters related to national security, law enforcement, foreign policy and trade policy.

Proposed Rules appear in the Appendix on pages 45 – 55 of the NPRM.

Comments will be due 45 days after publication in the Federal Register and reply comments due 75 days after publication. 

Please feel free to contact us if you have any questions regarding this proceeding.

3 Petitions for Reconsideration: Mobile Satellite Service Spectrum for Terrestrial Broadband Networks

The Federal Communications Commission ("FCC" or "Commission") has requested comments on three Petitions for Reconsideration of an April 2011 Report and Order making additional spectrum available for terrestrial mobile broadband networks by using spectrum currently allocated to the Mobile Satellite Service (MSS) in the 2 GHz band.  The objective of that action is to remove regulatory barriers to terrestrial use of this spectrum to promote additional investments in mobile broadband networks and services, while retaining sufficient market-wide MSS capability.  Summaries of the Petitions may be found below.  


EIBASS states that the Report and Order (“Order”) ignored or overlooked the EIBASS comments regarding grandfathered Broadcast Auxiliary Services (“BAS”) operations on TV BAS Channel A10 at 2,483.5-2,500 MHz.  EIBASS was “profoundly disappointed” to see the Order lacking any mention of these operations, and argues that it was a violation of the FCC’s own rules governing rulemaking proceedings, as well as being inconsistent with fundamental fairness.   

To stress the importance of this issue, EIBASS notes that since it filed its comments, it has learned of an actual case of harmful interference by MSS/ATC operations to grandfathered TV BAS Channel A10 operations.  EIBASS states that it has been repeatedly assured in IB and OET rulemakings  that grandfathered TV BAS operations on Channel A10 would not receive interference from co-channel S-Band MSS/ATC operations through frequency coordination, but it has yet to be explained how this will be accomplished. 

EIBASS requests that the Commission issue an Order on Reconsideration that “acknowledges the existence of indefinitely-grandfathered, co-primary, and earlier-in-time TV BAS Channel A10 operations that newcomer 2,487.5-2,495 MHz S-Band MSS/ATC licenses are obligated to protect.” In addition, EIBASS believes that the Commission should adopt the band re-farming proposed by SBE in 2005 to solve the frequency conflict.

CTIA requests that the Commission clarify and/or reconsider paragraph 28 of the Order, in which the Commission “emphasize[s] that responsibility for protecting services rests not only on new [MSS/ATC] entrants but also on incumbent users themselves, who must use receivers that reasonably discriminate against reception of signals outside their allocated spectrum.”  CTIA believes that the Commission’s decision appears to adopt a partial shift in the burden of interference protection from MSS/ATC licensees to incumbent users, in direct conflict with the Commission’s existing rules.

CTIA notes that the FCC previously adopted specific rules, as part of the original grant of ancillary terrestrial authority, which placed the full responsibility for any interference mitigation on the MSS/ATC licensee.  CTIA is requesting that the Commission clarify it did not intend to limit these interference protections, or impose new interference protection obligations on non-MSS/ATC services.  If the Commission did intend to do so, CTIA asks that the FCC reconsider this action as this apparent revision to the FCC’s interference protection policies was not discussed in the NPRM that preceded this order.

The Council argues that certain statements from the Order which purport to set forth historical fact and established Commission policy, are demonstrably inaccurate and fundamentally at odds with a decade of Commission policy pronouncements concerning a MSS/ATC.  The Council requests that the Commission revise the Order to remove these unfounded statements “without delay.” 

The first issue lies with the Commission’s assertion concerning anticipation of “extensive terrestrial operations” in the L-Band.  The Council believes this statement is factually incorrect as well as completely unrelated to the 2 GHz MSS rulemaking proceeding.  The Council notes that the MSS/ATC rules have been clear since their inception that this service add-on is intended to be ancillary to primary MSS operations, and therefore there has been no understanding that such use could be “extensive” or would predominate over the allocated MSS use.

The Council also states that the Commission’s statement regarding the need for GPS Receiver discrimination is at odds with the established L-Band spectrum operating environment.  The Council notes that the ITU spectrum allocation table does not display any allocation of spectrum for terrestrial Mobile use of any kind in the frequency range of 1535-1660.5 MHz, even on a secondary basis.   The Council argues that “[t]his arrangement of allocations limits the potential for interference from ubiquitously-deployed, high-powered, mobile terrestrial transmitters to space-based services, including GPS receives, which must be highly sensitive in order to detect faint satellite signals across a range of frequencies.”

Finally, the Council believes that statements regarding L-band Spectrum Use in the Order are procedurally improper.  The Council finds it “disappointing” that the FCC suggests that GPS receivers and GPS-enabled devices were designed or manufactured without due regard for the allocation environment or without due accord for the technical state of the art.  Further, the Council alleges that “there was no basis in the NPRM itself, or in the record . . . for the Commission to make any changes in the allocation status or coordination obligations of L-band spectrum users.”    

The Council asks that the Commission revise its decision to remove the aforementioned erroneous statements on reconsideration.                           

Oppositions to the Petitions must be filed with the FCC by August 25, and replies to an opposition must be filed by September 6.  

Please feel free to contact us if you have any questions regarding this proceeding.

AmLaw Daily article on TLP

Telecommunications Law Professionals (TLP), a five-lawyer boutique based in Washington, D.C., opened its doors last week.... 
The new boutique's managing partner is Carl Northrop, the former telecom practice leader at Paul Hastings,reports sibling publication The National Law Journal.
  
Joining Northrop at TLP are five former Paul Hastings colleagues. Retired Paul Hastings partner John Griffith Johnson, Jr., is joining as of counsel, while former Paul Hastings associates Michael Lazarus and Andrew Morentz are joining as partners. Another former Paul Hastings advisor, Vance Schuemann, is joining TLP as a senior public policy advisor, and the boutique is also bringing on Jessica DeSimone as an associate from another firm.

To read the full article please visit:

Monday, August 8, 2011

FCC Releases Order on Reconsideration regarding Foreign Ownership

On August 4, 2011, the Federal Communications Commission ("FCC" or the "Commission") released an Order on Reconsideration in the Cellco Partnership d/b/a Verizon Wireless (“Verizon Wireless”) Application with Rural Cellular Corporation (“RCC”), and Application with Atlantis Holdings LLC (“Alltel”) , for Consent to Transfer Control of Licenses, Authorizations, and Spectrum Manager Leases, and Petitions for Declaratory Ruling that the Transaction is consistent with Section 310(b)(4) of the Communications Act (“Order”).  

This Order is considering two petitions filed by Chatham Avalon Park Community Council (“Chatham”) of the declaratory rulings in two adjudicatory proceedings where the Commission granted Verizon Wireless the authority to acquire control of the licenses and authorizations of subsidiaries of RCC and Alltel in two separate transactions.  The Commission dismissed Chatham’s petition for reconsideration in the Verizon Wireless-RCC proceeding on procedural grounds, but considered Chatham’s petition in the Verizon Wireless-Alltel proceeding.  The FCC ultimately denied the petition in this proceeding. 

Listed below are some pertinent points from the Order. 

Chatham raised the argument that “it did not participate in a timely fashion because it was unaware that the Commission would adopt what it characterizes as a ‘special Verizon Wireless-only test for foreign ownership.’”  The FCC rejects this claim noting that Verizon Wireless submitted a letter to the public record specifically explaining its use of beneficial owner addresses obtained from third-party securities processing and investor communications firms to determine the citizenship of shareholders of Verizon and Vodafone.  Therefore, the Commission concluded that Chatham had public notice of the Verizon Wireless petition, and was not permitted to claim surprise at the decision after its failure to comment on the issue.  (pg. 6).  The FCC also rejects Chatham’s claim that Verizon Wireless received the benefit of a ‘special rule.’ (pg. 15).  

Chatham also petitions for reconsideration of the Commission’s 2008 finding that the foreign ownership of Verizon Wireless remained in compliance with the prior foreign ownership ruling (issued in 2000). The Commission concluded that the Verizon Wireless data “did not rely on the addresses of custodian banks and brokers that hold shares for those beneficial owners electing not to possess stock certificates, but rather relied on the addresses of record of nearly 100 percent of the beneficial owners of the stock of Verizon and Vodafone, the partners in the Verizon Wireless venture.”  Chatham asserts that the FCC “afforded special treatment to Verizon Wireless’ showings regarding its compliance with section 310(b)(4).” The FCC notes that it had previously “permitted public companies to use methods other than random surveys, including the collection of shareholder addresses, on a fact-specific, case-by-case, basis” and Chatham had not provided any basis for concluding the information Verizon Wireless provided was inaccurate, could not be relied on, or was insufficient for purposes of demonstrating compliance with” the foreign ownership ruling. (pg. 8). 

The FCC reiterates that in the Verizon Wireless-RCC Order, the Commission outlined the rationale for “permitting Verizon Wireless to rely on beneficial owner addresses of record collected and verified by third-party investor communications firms as proxies for citizenship of the shareholders of its constituent partners, both of which are publicly trade, widely held companies,” and this precedent was following in the Verizon Wireless-Alltel Order as well. (pg. 10).  Chatham’s argument “that reliance on beneficial owner addresses of record contradicts established policy and precedent,” is rejected by the FCC by distinguishing prior cases (specifically, the América Móvil proceeding) where the information used was taken from addresses for the holders of less than one percent of the company’s total capital stock, and consisted mostly of broker and bank addresses rather than beneficial owner addresses. (pg. 12).

In its Order, the FCC notes several facts that they “considered relevant to their decisions to accept beneficial owner addresses as a proxy for citizenship of Verizon’s and Vodafone’s shareholders.  Shares of both companies were publicly traded and widely held.  Both companies had a very large number of shares . . . .” (pg. 13).  The Commission therefore affirms its conclusion “that it would be difficult and costly for Vodafone and Verizon to determine the citizenship or principal place of business of their beneficial owners other than by using the beneficial owner’s address of records, and that it would be equally if not more difficult to also trace the direct or indirect foreign ownership of the beneficial owners themselves given the widely-held nature of Verizon and Vodafone shares.  Buttressing these findings is the fact that requiring use of a survey would have necessitated that Vodafone and Verizon each perform a survey at a cost to each company’s shareholders.” (pg. 14).

Summarizing their findings, the Commission states, they “clearly spelled out the facts and circumstances underlying [their] decision in the Verizon Wireless-Alltel Order, properly distinguishing [their] prior precedent, and made a reasoned public interest determination . . . .” (pg. 16).

If you have any questions on this proceeding please feel free to contact us.

FCC Releases 8th Broadband Progress Notice of Inquiry

On August 5, the Federal Communications Commission ("FCC" or "Commission") released the Eighth Broadband Progress Notice of Inquiry ("NOI").   In the most recent Seventh Broadband Progress Report, the Commission found that broadband was not being deployed to all Americans in a reasonable and timely fashion.  The Commission notes that many steps have been taken to improve the general state of broadband deployment since the 2011 Seventh Broadband Progress Report.  These steps include, but are not limited to, the adoption of the Open Internet Order, the launching of the Broadband Acceleration Initiative, and several open proceedings that promise to encourage and accelerate broadband deployment upon completion of the proceeding.

In the NOI, the FCC is specifically seeking comment on the following issues:
1)   An appropriate benchmark for ‘advanced telecommunications capability,’ specifically whether there have been enough changes in technology and other factors that would warrant revising the current threshold;
2)   The assessment of broadband deployment and identification of unserved areas using potential data sources such as SBDD Data and Form 477 Data;
3)   The general progress that is being made to bring broadband to all Americans, and whether there is a lack of access to broadband that is particularly pronounced for certain groups of Americans;
4)   Whether broadband is being deployed in a reasonable and timely fashion;
5)   The form of assessment of broadband availability in the next broadband report;
6)   Other potential data sources and ways of conducting analysis to improve the annual broadband progress reports; and
7)   Actions that may accelerate deployment if the Commission finds that broadband is not being deployed in a reasonable and timely fashion.

The Commission also invites commenters to bring new issues concerning broadband to the FCC’s attention.

Comments are due September 6 and Reply Comments are due October 4.  If you have any questions regarding this proceeding, please feel free to contact us.