Wednesday, December 12, 2012

Q1 USF Contribution Factor

The FCC released a Public Notice setting the proposed universal service contribution factor for Q1 of 2013 at 0.161, or 16.1 percent. 

The rate is calculated based on a ratio of (a) the total projected quarterly costs of universal service support mechanisms to (b) the contributors’ total projected collected end-user interstate and international telecommunications revenues.  The projected cost of universal service support is $2,258,560,000.  The projected industry revenue is adjusted to $14.036528 billion.  If the Commission fails to act within 14 days following the release of the Public Notice, then the calculation is deemed to be approved.
If you have any questions regarding the Public Notice, please feel free to contact the TLP Team.

FCC Approves AWS-4 Order and H Block NPRM

The FCC has unanimously approved two items that it was scheduled to consider at today’s Open Meeting.  The Commission approved a Report and Order and Order of Proposed Modification to free up 40 megahertz of underutilized satellite spectrum for land-based mobile broadband.  DISH had requested the change so that it could launch a new wireless broadband service.   DISH has since commented, “Following a more thorough review of the order and its technical details, DISH will consider its strategic options and the optimal approach to put this spectrum to use for the benefit of consumers.”

The Commission also approved a Notice of Proposed Rulemaking to grant new licenses for the H Block through an auction in 2013.  Auction revenues will help fund a nationwide Public Safety Network and be used to reduce the federal deficit. 

The Commission has not yet released either document, but here is a News Release announcing the votes.  Once they are released, we will circulate more detailed summaries of the items.  If you have any questions regarding the above, please feel free to contact the TLP Team.

Thursday, December 6, 2012

FCC December Open Meeting

The FCC released the agenda for its Open Meeting on December 12.  The meeting will include considerations of:

  • Developing the capability for Americans to contact 911 via text message, and providing Americans with automatic notifications when text to 911 is not supported;
  • A Report and Order (“R&O”) and Order of Proposed Modification that would adopt service rules for 40 megahertz of spectrum in the 2 GHz band in order to increase the supply of mobile broadband spectrum;
  • A Notice of Proposed Rulemaking (“NPRM”) that would grant new licenses for the H Block through competitive bidding;
  • A NPRM that would create a shared access broadband service in the 3550-3650 MHz band for small cell use; and
  • A R&O that would reform the Rural Health Care Support Mechanism for broadband access.
The meeting will begin at 1 PM in Room TW-C305, at 445 12th Street, SW in Washington, D.C.  The meeting will also be shown live at  Should you have any questions regarding the meeting, please feel free to contact us

Tuesday, December 4, 2012

TLP Represents MetroPCS in Successful Defense of FCC’s Data Roaming Order

Today, the DC Circuit Court of Appeals issued an opinion in Cellco Partnership v. FCC upholding the FCC’s Data Roaming Order.  TLP represented MetroPCS on the joint intervenors’ brief, as well as on a separate MetroPCS intervenor brief that encouraged the adoption of a narrow ruling using 47 C.F.R. § 303(b) as a the sole basis for upholding the Data Roaming Order, a view that the Court largely adopted.

The Data Roaming Order required mobile data providers to offer roaming agreements on commercially reasonable terms and conditions.  Verizon challenged the Order, arguing that the Commission lacks statutory authority to issue the rule, that the rule unlawfully treats mobile-internet providers as common carriers, that the rule effects an unconstitutional taking, and that the rule is arbitrary and capricious.  The DC Circuit rejected each of these arguments.

The DC Circuit ruled that Title III of the Communications Act “clearly affords the Commission the ability to promulgate the data roaming rule.”  It held that the Commission rightly relied on its broad Title III authority to manage spectrum “in the public interest” because it grounded its action in “particular delegations of authority in Title III, such as section 303(b)” and 303(r).  The DC Circuit found that 303(b) authorizes the Commission’s rule because the rule “merely defines the form mobile-internet service must take for those who seek a license to offer it,” and that, “[l]ike any other entity, Verizon may choose not to provide” mobile data services.  In response to Verizon’s argument that Title III does not give the Commission authority to make fundamental changes to the terms of existing licenses, the Court reasoned that “imposing a limited obligation to offer data-roaming agreements to other mobile-data providers” can reasonably be considered a modification of existing licenses and “cannot be said to have wrought such a ‘fundamental change.’”

The Court further found that the data roaming rule does not treat mobile-internet providers as common carriers.  Although the FCC had previously found a voice roaming rule to impose a common carrier obligation, the Court said that “automatic-roaming requirements [do not] necessarily entail common carriage.”  The Court recognized that even though the data roaming rule “plainly bears some marks of common carriage,” those marks did not “so predominate as to” relegate mobile-internet providers to common-carrier status.  Instead, this is a case where determining whether a service is a common carrier or a private carrier service falls into a “grey area” between “per se” categories.  Therefore, “the Commission’s interpretation and application of the term ‘common carriage’ warrants Chevron deference,” and the Commission reasonably concluded that “the data roaming rule imposes obligations that differ materially from the kind of requirements that necessarily amount to common carriage.”  Specifically, the data roaming rule’s commercially reasonable standard “leaves substantial room for individualized bargaining and discrimination in terms” and does “not amount to a duty to hold out facilities indifferently for public use.”  The Court cautions, however, that the rule’s “more permissive language could, as applied, turn out to be no more than ‘smoke and mirrors.’”  In that case, Verizon could bring an “as applied” challenge if the Commission’s rule treats it, in practice, as a common carrier. 

The DC Circuit also rejected Verizon’s argument that the data roaming rule results in an unconstitutional taking because “as required by the rule,” Verizon would “be compensated by a ‘commercially reasonable’ payment.”  The Court also found that regulating voice-roaming but not data-roaming as a common carrier service was not an arbitrary and capricious decision because the distinctions in the rules “more than suffice to justify the Commission’s different classifications of the two rules.”  The Court also points out that “every commenter besides Verizon and AT&T” thought a data-roaming rule was necessary, so the Commission had a sufficient basis to promulgate one.  Lastly, the Court held that the “Commission performed a thoughtful and nuanced balance of the costs and benefits of the data roaming rule.”  For all of these reasons, the Court rejected Verizon’s challenge and upheld the Data Roaming Order

Wednesday, November 28, 2012

Mobility Fund Phase II Public Notice

The FCC released a Public Notice requesting additional comments on implementing Phase II of the Mobility Fund, which was created in the USF/ICC Transformation Order.  Phase II of the Mobility Fund will award $500 million annually on an ongoing basis to ensure the availability of mobile broadband and high quality voice services in areas where such services would not otherwise be available.  

The Public Notice requests comment on how the Commission should target Phase II support to areas that need it.  The Commission previously proposed to use Mosaik Solutions data to exclude all census blocks where an unsubsidized carrier provides 3G or better service, but it asks whether it could use any other data sources to better identify eligible areas.  The Commission also previously proposed determining whether census blocks are eligible for support on whether the physical centers of the blocks have service.  The Public Notice asks if the Commission should consider alternative eligibility standards, like whether less than 50 percent of a census block is unserved. 
The Public Notice also requests comment on how and if the Commission should prioritize support for eligible areas.  It asks if prioritization should be given to areas that lack all coverage, lack a designated level of coverage, or if other measurements should be used.  As to coverage requirements and bidding units, the Commission asks whether road miles are the best metric to use.  When it comes to requirements for the winners of Phase II support, the Commission asks whether and how it should modify performance metrics or adopt an evolving performance standard, given anticipated advances in technology.  The Commission also asks whether it should provide Phase II support for a period of 10 years or for a shorter period of time, taking into consideration the timeframes for deployment, private investment, the pace of new technology, and marketplace developments. 
Similarly, the Public Notice seeks comment on how the Commission can prevent carriers from receiving redundant support for the same service areas.  Clarity on this standard will allow participants to know whether they should bid in the Phase II auction.  The Commission also asks whether bidding credits are still important to help smaller carriers compete for support and whether Tribal priority units should be offered.  Regarding payments, the Commission asks whether support should be disbursed upon the completion of certain milestones or on a regular basis.   
Comments are due on December 21, 2012, and Reply Comments are due on January 7, 2013.  Please feel free to contact TLP should you have any questions.

Wednesday, November 21, 2012

House Hearing on Music Licensing Legislation

The House Judiciary Committee's Subcommittee on Intellectual Property, Competition and the Internet, which is chaired by Rep. Goodlatte (R-VA), will be holding a hearing entitled "Music Licensing Part One: Legislation in the 112th Congress" on Wedensday, November 28, 2012, at 11:30 a.m. EST.

The hearing will mainly focus on the Internet Radio Fairness Act legislation, which was introduced in the House and Senate in late September. Appearing as witnesses at the hearing will be: Mr. Joseph J. Kennedy (Chairman and Chief Executive Officer, Pandora Media, Inc.), Mr. Bruce T. Reese (President and Chief Executive Officer, Hubbard Radio, LLC, on behalf of the National Association of Broadcasters (NAB)), Mr. David B. Pakman (Partner, Venrock), Mr. Jimmy Jam (Chair Emeritus, The Recording Academy, Record Producer, Songwriter, Recording Artist), Dr. Jeffrey A. Eisenach (Managing Director and Principal, Navigant Economics) and Mr. Michael J. Huppe (President, SoundExchange, Inc.).

If you have any questions regarding this hearing as well as any legislation or activity in Congress that could impact the telecommunications, media and technology sectors, please contact Vance Schuemann or any member of the TLP team.

Monday, November 19, 2012

Congress to Examine The Role of Receivers in a Spectrum Scarce World

On Thursday, November 29, 2012, the House Energy and Commerce Committee's Communications and Technology Subcommittee will hold a hearing entitled "The Role of Receivers in a Spectrum Scarce World."  The hearing will start at 10:00 am EST. The following witnesses will appear before the Subcommittee at the hearing: Brian Markwalter (Senior Vice President, Research and Standards, Consumer Electronics Association (CEA), Ron Repasi (Deputy Chief, Office of Engineering and Technology, Federal Communications Commission (FCC)) and Pierre de Vries (Senior Adjunct Fellow, Silicon Flatirons Center, University of Colorado, Boulder).

The Chairman of the Subcommittee, Rep. Greg Walden (R-OR), has indicated over the past several months that they would be looking into the role of receivers in ensuring the efficient use of limited supply of spectrum.

The following is from the Committee staff's briefing memoradum for the hearing.


II. Overview

With Americans’ thirst for wireless services increasing by leaps and bounds, and with particular broadband technologies and business models evolving at an accelerating clip, how can spectrum users inhabit increasingly close quarters without stepping on each other toes? Good fences make good neighbors, as the adage goes, but how do you know how high to build your fence or what materials to use if you don’t know who your neighbors might be in the future or precisely what they will be doing on their lot? Can smart engineering and forward-looking spectrum strategies account for the possibility of unanticipated technologies and uses in adjacent spectrum bands and help prevent today’s decisions from limiting flexibility in the future? How do we promote such flexibility without unreasonably increasing the cost of services and devices? These are the questions to be addressed at Thursday’s hearing, with an emphasis on receiver design and performance.
III. Background

In the wireless world, the two main "fences" for protecting services from interfering with each other are guard bands and filters. Guard bands are bands of spectrum with restrictions on use to protect adjacent users from interference. Filters are components integrated into the transmitters and receivers of wireless devices to control the amount of energy they emit or receive, minimizing or eliminating the need for guard bands.

In the case of receivers, filters control what part of the electromagnetic spectrum the device can hear. This allows the device to listen for the signals it is looking for and ignore the "noise" coming from the many other uses of spectrum around it. Sunglasses present another analogy. The sun is a high-energy source of light. Using the lenses of sunglasses to filter out some of the energy makes it easier to see the relatively low-light energy reflecting off of all of the objects around us. As a result, we can drive on a sunny day with less distraction and still see the cars in front of us we want to pay attention to. By forcing the receivers in wireless devices to ignore frequencies that are outside the range the devices are listening for, filters help the devices make sense from signals in a crowded spectrum environment.

In the absence of filters capable of adequately screening out energy from adjacent bands, receivers experience "overload" that can prevent a device from operating properly. Because this can cause a device to fail, issues of potential receiver overload are starting to concern more than just spectrum engineers and are garnering the attention of policy makers and even the general public. Below are some recent cases in which receiver overload was at least one factor:

- LightSquared and GPS: In the most recent example of potential receiver overload, the GPS community objected to the terrestrial use of L-band satellite spectrum by LightSquared. Many GPS devices use receiver filters that extend beyond the GPS spectrum into LightSquared’s licensed spectrum. When the L-band is used only for low-power satellite systems, the filters are adequate to permit proper GPS device operation. However, because the filters in GPS receivers are not limited to the GPS spectrum, higher-power terrestrial use by LightSquared could result in some GPS devices ceasing to function properly. Filters tuned specifically to the GPS spectrum may have ameliorated this problem. Compounding the matter is the lack of a direct, ongoing relationship between the GPS signal provider, the retail device manufacturer and the end user that is present with smartphones. As a result, tracking and resolving issues with retail devices becomes more difficult. This issue is pending at the FCC, but LightSquared is not permitted to operate as a terrestrial licensee unless this issue is resolved. 

- AWS-3 and M2Z Networks: Seeking to use the spectrum at 2155-2180 MHz, M2Z Networks petitioned the FCC to permit time division duplexed operation (transmitting and receiving in the same channel, but at different times). Existing commercial wireless providers, however, had deployed devices in the immediately adjacent AWS-1 band with receiver filters designed to the international standard (2110-2180 MHz), not the U.S. allocation (2110-2155 MHz). As a result, had the Commission authorized M2Z, M2Z customers transmitting in 2155-2180 MHz could have disrupted operations for existing wireless customers by transmitting in a band designed for mobile receivers. Filters tuned to the U.S. allocation may have eliminated the interference concerns. The FCC denied M2Z’s request (for a variety of reasons, not just interference concerns).

- WCS and SDARS: The Wireless Communications Service (WCS) and the Satellite Digital Audio Radio Service (SDARS, or satellite radio) share the 2.3 GHz band. As satellite radio began to gain commercial adoption, the relatively weak satellite signal had reception problems in some areas, particularly urban areas where skyscrapers prevented a line-of-sight connection to the satellites. To address this, the SDARS licensees (then XM and Sirius) deployed terrestrial repeaters (at higher power) to provide signals to satellite radio receivers. WCS licensees now had to contend with significantly higher power operations in adjacent spectrum. The FCC resolved this issue by placing conditions on the merger of XM and Sirius and changing the operating rules for WCS licensees.

- Broadcast Television and White Space Devices: In its proceeding to authorize the use of unlicensed wireless devices in the UHF television band, the Commission confronted the challenge of authorizing mobile or nomadic transmitters in a band that is used by fixed broadcasters and received by over-the-air television tuners. To protect the installed base of televisions in the United States relying on over-the-air signals, the FCC required the new users—white spaces devices—to use filters on the transmitter side to limit emissions.

IV. Discussion

How to tackle potential receiver interference issues has long been a topic of discussion between and among engineers and regulators. For example, the Commission has long used band-plan design to reduce the chances of interference between services and licensees. Guard bands, duplex gaps (the separation between the spectrum used to emit and receive signals in devices that use two separate channels to transmit to and listen for another device or network —called frequency division duplexing), and the placement of similar services near each other are all tools the Commission has used to reduce the chances of receiver overload. Band plan management tools do not work in every circumstance, however, and will fall short with growing frequency in an increasingly spectrum-constrained and technologically complex environment. Many also argue that using guard bands to mitigate interference is less efficient because they represent underutilized spectrum.

The FCC also tries to address potential interference by regulating the power levels at which devices may transmit and limiting their level of out-of-band emissions (OOBE). Because the FCC must inspect and authorize each device that emits radio energy, the Commission has traditionally used this type of regulation to control the spectrum environment. Many argue, however, that looking at transmitters but not receivers ignores half the equation when trying to maximize the use of scarce spectrum resources.

Traditionally, discussion of how to handle receiver overload has focused on whether to strictly regulate receivers in the same way the Commission currently regulates transmitters. More recent proposals, on the other hand, have examined whether defining receiver interference rights would better balance efficient spectrum use and innovation. Under this approach, the FCC would define the maximum level of interference that a device manufacturer should expect users to experience, but would not mandate specific receiver performance. Manufacturers would then be free to develop devices to operate within that environment mandate, but with the understanding that they would not have any recourse at the FCC for interference below the FCC’s maximum interference threshold.

Opponents of defining receiver performance levels argue that if the defined levels exceed those that exist in the real-world spectrum environment, manufacturers will be forced to over-engineer devices — raising the cost to manufacture the devices, and thus the cost to consumers. In essence, device manufacturers would be forced to design devices for the worst case, not the use case. Proponents argue that receivers are currently under-engineered to cope with a changing spectrum world and that establishing receiver performance levels will solve the receiver problem without a technology mandate or cumbersome FCC oversight of device manufacturing. Moreover, they argue that the certainty of knowing what level of interference a device will tolerate will make it easier for the FCC to reallocate spectrum for new and innovative technologies without fear of disrupting existing users.

Recently this topic has also been the discussion of multiple government convened advisory groups. The President’s Council of Advisors on Science and Technology (PCAST) released a report on spectrum use in September 2012 that strongly recommended that the FCC and NTIA establish minimum technical standards for receivers. Additionally, the Commission, in order to examine how it can promote strategies and practices by wireless device makers to increase the resiliency of receivers, has convened its Technological Advisory Council (TAC) to work on recommendations for Commission action. Its recommendation is expected this December 2012.


If you have any questions regarding this hearing or any other activity in Congress that could impact the telecommunications, media and technology sectors, please contact Vance Schuemann or any member of the TLP team.

Friday, November 16, 2012

Sprint and SoftBank File Public Interest Statement

Yesterday, Sprint and SoftBank filed a joint Public Interest Statement at the FCC to support their proposed transaction.  They also filed a Petition for Declaratory Ruling to allow SoftBank’s indirect foreign ownership of Sprint to exceed the FCC’s 25% benchmark.  The Public Interest Statement asserts that the transaction will “stimulate economic growth and provide substantial public interest benefits with no countervailing public interest harms” because SoftBank is not currently active in the US market.  It says that the transaction will enable Sprint to offer “a wider range of devices and services to customers” and that Sprint “anticipates taking advantage of other market opportunities to enhance its ability to provide superior service to its customers.”

Please feel free to contact us with any questions.

Thursday, November 15, 2012

12/12/12 House Hearing Planned on Oversight of the FCC's Implementation of Spectrum Auction Legislation

House Communications and Technology Subcommittee Chairman Walden (R-OR) has announced that all five FCC Commissioners will be testifying at an oversight hearing before the House Energy and Commerce Committee's Communications and Technology Subcommittee on December 12, 2012.   The title of the hearing will be “Keeping the New Broadband Spectrum Law on Track,” and the hearing will focus on oversight of the FCC's implementation of the spectrum auction provisions which were enacted by Congress "as part of the Middle Class Tax Relief and Job Creation Act of 2012 and originated in the House Energy and Commerce Committee as Chairman Walden’s Jumpstarting Opportunity with Broadband Spectrum (JOBS) Act."

In late September, the FCC adopted two Notices of Proposed Rulemaking regarding the Broadcast TV Incentive Auction and Mobile Spectrum Holdings, which attempt to implement the spectrum provisions enacted by Congress that pertain to the voluntary incentive auctions for the TV broadcast spectrum, limitations on unlicensed use on the incentive auction spectrum, eligibility for auction participation, and the FCC's ability to limit spectrum holdings to ensure competition. Those two proceedings are currently out for public comment. In addition, the FCC has pending proceedings that relate to spectrum that is required by Congress to be auctioned in the next couple years. This includes the AWS-III spectrum that many in Congress would like to be paired with the 1755-1780 MHz block, which needs to be reallocated from Federal government use. The FCC will need to work with the Administration and the NTIA to ensure that the auction deadlines are met.

In a press statement announcing the hearing, Chairman Walden stated "[o]ur subcommittee carefully crafted the legislation to create jobs by getting more spectrum into the pipeline to meet consumer demands for more mobile broadband, and to allocate a portion of auction proceeds toward build-out of a public safety broadband network, while ensuring broadcasters are treated fairly." Further, he indicated that he looks "forward to the testimony of all five FCC commissioners as we examine what the FCC can do to advance those goals, and what it should avoid."

If you have any questions regarding this hearing or any other activity in Congress or at the FCC that could impact the telecommunications, media and technology sectors, please contact Vance Schuemann or any member of the TLP team.

Public Notice on Next Generation 911 Development

The FCC released a Public Notice seeking comment on the legal and statutory framework for next generation 9-1-1 (“NG 911") services.  The Next Generation 9-1-1 Advancement Act of 2012 directed the Commission to issue a report containing recommendations for developing and transitioning to NG 911 services.  Pursuant to that command, the Commission seeks comment on several issues, including:
  • the ability of states to effectively coordinate the transition to NG 911, and whether Congress should create incentives or requirements for state or regional coordination;
  • what role the federal government should play in NG 911 oversight, and whether Congress should enact legislation defining the federal government’s role;
  • whether Congress should take steps to provide for liability protection to promote the development of NG 911;
  • whether Congress should ensure that 9-1-1 funding mechanisms are technologically neutral, and whether VoIP or IP-enabled services should contribute to the 9-1-1 fund;
  • whether existing state laws and regulations could hinder the development of NG 911, and whether Congress should require states to remove them; and
  • whether federal regulations may inhibit the development of NG 911, and what actions are needed to modify or eliminate them.
Comments in response to the Public Notice are due on December 13, 2012, and Reply Comments are due on January 14, 2013.  Please contact us know if you have any questions.

Thursday, November 1, 2012

TLP Recognized in U.S. News & Best Lawyers "Best Law Firm" Rankings

TLP is pleased to have been recognized by U.S. News Media Group and Best Lawyers in their 2013 "Best Law Firms" rankings.  The list, which may be found on U.S. News & World Report’s Website, ranks TLP in Tier 2 for Communications Law in Washington, DC and in Tier 3 for Communications Law on a National Level.    

The U.S. News – Best Lawyers “Best Law Firms” rankings showcase leading law firms ranked nationally or by metropolitan region.  The rankings are based on an assessment of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process.

Friday, October 26, 2012

TLP Mentioned in National Journal for Legislative Lobbying Work

Today, National Journal magazine mentioned Telecommunications Law Professionals (TLP) for its lobbying work related to high profile legislative activity in Congress.

If you need assistance with legislative issues before the House and Senate or have any questions regarding any legislation or activity in Congress that could impact the telecommunications, media and technology sectors, please contact Vance Schuemann and the TLP team. 

Tuesday, October 23, 2012

RTG's Proposed Spectrum Cap Denied

In an Order released today, the Commission dismissed the Rural Telecommunications Group’s (“RTG”) 2008 petition requesting a rulemaking to impose a 110 MHz-per-county cap on the amount of commercial terrestrial wireless spectrum below 2.3 GHz that one entity can hold.  When the Commission released its recent Mobile Spectrum Holdings Notice of Proposed Rulemaking, it declined to initiate the rulemaking RTG requested in favor of a broader and more comprehensive review.  In this Order, the Commission formally denies RTG’s Petition and terminates the proceeding.   

Wednesday, October 17, 2012

FCC October Open Meeting

Today, the FCC held its October Open Meeting where it unanimously approved an Order on Reconsideration to free up 30 MHz of Wireless Communications Service (“WCS”) spectrum for broadband use.  The Commission also heard a presentation on the state of voluntary bill shock alerts by wireless carriers, and it unanimously approved a Report and Order establishing a Do-Not-Call Registry for Public Safety Answering Points (“PSAPs”).

The WCS Order on Reconsideration revises the Commission’s rules to enable WCS licensees to use a total of 30 MHz of underutilized spectrum in the 2.3 GHz band for wireless broadband services while protecting the adjacent Satellite Digital Audio Radio Services (“SDARS”) from harmful interference.  20 MHz of the spectrum may be used for mobile broadband services and 10 MHz may be used for fixed broadband services, and it is possible that the 10 MHz could be used as downlink spectrum for mobile broadband devices in the future.  The Order on Reconsideration will lengthen and restart WCS construction periods so that licensees can deploy LTE networks.  The Order on Reconsideration was generated by a compromise between AT&T and SiriusXM regarding their interference concerns for wireless broadband operations in the band.  Commissioner Rosenworcel said that strong build-out requirements paired with active secondary markets will speed broadband deployment.  Commissioner Pai added that he hopes the pending secondary market transactions involving AT&T will be resolved by Thanksgiving so that the spectrum can start being used. 

An FCC presentation on CTIA’s voluntary bill shock program revealed that all of the participating carriers have satisfied their obligations to provide at least two kinds of usage alerts to consumers and that all of the carriers are on track to provide all four of the required alerts by the next deadline in April 2013.  Chairman Genachowski said he was pleased that carriers are living up to their commitments and empowering consumers.  Commissioner McDowell called the voluntary agreement a success story showing that cooperative efforts are better than government mandates.  Commissioner Pai commented that the FCC should continue its hands-off policy for usage-based billing in the wireless world.  Commissioner Rosenworcel suggested that the Commission track future bill shock complaints and produce a report one year after the requirements go into effect.  Commissioner Clyburn said that she hopes the Commission will still pursue enforcement actions when they are necessary to protect consumers. 

The Report and Order establishing a Do-Not-Call registry for PSAPs prohibits autodialed non-emergency calls to those numbers and imposes monetary penalties for autodialing or disclosing registered PSAP numbers.  The FCC was directed to establish the registry by the Middle Class Tax Relief and Job Creation Act of 2012 in order to prevent robocalls from tying up emergency phone lines. 
The Commission has not yet released the Order on Reconsideration or the Report and Order, but copies will become publicly available.  Please feel free to contact the TLP team with any questions.


Monday, October 15, 2012

Reminder: FCC Form 499-Q Due November 1st

This is a reminder that the deadline for filing the FCC Form 499-Q and supporting documentation is coming up in a few weeks.  All telecommunications carriers that provide interstate telecommunications services are required to file an FCC Form 499-Q Telecommunications Reporting Worksheet with the Commission on or before November 1, 2012.  Carriers must provide revenue information for July 1 through September 30 and projections for January 1 through March 31 of the coming year.  Additionally, to the extent that interconnected VoIP and CMRS providers rely on a traffic study to report interstate revenues for the November 1 filing of the Form 499-Q, the traffic study relied upon must be included with this filing.

The form and filing instructions may be found at:  If have any questions regarding the form, filing instructions, or the upcoming deadline, please feel free to contact the TLP team

Wednesday, October 10, 2012

FCC Announces October Open Meeting Agenda

The FCC announced the agenda for its October Open Meeting, which will take place on October 17th at 10:30 AM.  The meeting agenda sets out the following items:

  • The Commission will consider an Order on Reconsideration that revises the wireless communications services (“WCS”) rules to facilitate the use of 30 megahertz of spectrum for wireless broadband service while protecting satellite digital audio radio services (“SDARS”) from harmful interference. 

  • The Commission will consider a Second Report and Order to streamline reporting requirements on international telecommunications service providers.  The Second Report and Order will reduce reporting requirements for phone traffic while ensuring the collection of data that is needed to protect consumers and competition in international markets. 

  • The Commission will consider a Report and Order to establish a do-not-call registry that will protect public safety answering points (“PSAPs”) from autodialed calls.  The Report and Order will impose monetary penalties for autodialing or disclosing registered PSAP numbers.  The FCC will enact the rules in accordance with the Middle Class Tax Relief and Job Creation Act of 2012. 
The Open Meeting will be held in Room TW-C305, at 445 12th Street, S.W., Washington, D.C.  It will also be broadcast live at feel free to contact us with any questions.

Tuesday, October 9, 2012

Summary of NPRM on Mobile Spectrum Holdings

The dates have been announced for interested parties to comment on the FCC’s Notice of Proposed Rulemaking on Policies Regarding Mobile Spectrum Holdings (“NPRM”).  Comments are due November 23rd, and Reply Comments are due December 24th. 
The NPRM was published in the Federal Register on October 9th. 
Please feel free to contact the TLP team with any questions. 

Friday, October 5, 2012

Above The Law Recognizes TLP

Above The Law, a legal blog, has also recognized TLP’s role in the T-Mobile/MetroPCS merger in its “Morning Docket” Report:

“A handful of Biglaw firms advised on the T-Mobile and MetroPCS merger, but Telecommunications Law Professionals, a boutique firm, showed up to prove it could hang with the big boys.”

Wednesday, October 3, 2012

TLP Advises MetroPCS on T-Mobile/MetroPCS Merger

Today, Deutsche Telekom and MetroPCS Communications, Inc. (“MetroPCS”), announced that they have signed an agreement to combine T-Mobile USA and MetroPCS.  The combined company, which will retain the T-Mobile name but will maintain the MetroPCS business model and brand, will have the expanded scale, spectrum and financial resources to aggressively compete with other national U.S wireless carriers.  Based on analyst estimates for 2012, the combined company is expected to have approximately 42.5 million subscribers, $24.8 billion of revenue, $6.3 billion of adjusted EBITDA, $4.2 billion of capital expenditures and $2.1 billion of free cash flow in 2012.

The combined company is expected to be a strong national competitor by:
·         Combining T-Mobile and MetroPCS’ complementary spectrum to provide greater network coverage, deeper LTE network deployment and a path to at least 20x20 MHz of 4G LTE in many areas;
·         Increasing scale, which allows the combined company to secure more compelling handsets, content and applications;
·         Projecting approximately $6-7 billion (net present value) of cost synergies and additional upside from revenue synergies;
·         Capitalizing on its leading position as a provider of fast growing no-contract services;
·         Offering a wider selection of attractive, competitively priced plans to better serve the marketplace, including contract, no-contract monthly, SIM-only, pay-as-you-go and mobile broadband services;
·         Introducing MetroPCS’ plans and services to a larger number of new areas to complement T-Mobile’s offerings; and
·         Using its stronger network to advance it B2B offerings and MVNO Platform.

TLP has been advising MetroPCS on this merger and other regulatory issues related to the transaction.  The transaction is subject to MetroPCS shareholder approval as well as approval from the Federal Communications Commission (“FCC”) and Department of Justice (“DOJ”), among other customary closing conditions.  The transaction is expected to close in the first half of 2013.

If you have any question, please feel free to contact TLP.   

TLP Featured in The New York Times DealBook

 In connection with the T-Mobile/MetroPCS proposed transaction, TLP was featured in a New York Times DealBook article “A Law Firm Name With a Curious Ring.”  The article interviews TLP Member Michael Lazarus and provides an overview on the firm’s history, as well as highlights TLP’s involvement in the T-Mobile/MetroPCS merger. 

If you have any comments or questions feel free to contact us.

Friday, September 28, 2012

FCC Adopts Incentive Auction and Mobile Spectrum Holdings NPRMs at September Open Meeting

Today, the FCC held its September Open Meeting where it unanimously approved both a Notice of Proposed Rulemaking (“NPRM”) to launch an incentive auction that will repurpose broadcast television spectrum for mobile broadband and a second NPRM that will initiate a comprehensive review of the Commission’s policies on mobile spectrum holdings. 
The incentive auction NPRM will describe three stages of the proposed auction: (1) a reverse auction where broadcast television licensees submit bids to voluntarily relinquish their spectrum for payment; (2) a repacking of the broadcast television bands in order to free a portion of the ultra-high frequency band for other uses; and (3) a forward auction for flexible use of the newly available spectrum.  The NPRM will seek comment on how each portion of the auction should be designed, what options broadcasters should be able to choose from to make spectrum available, how to repack television stations so their audiences are preserved and disruption to viewers is minimized, whether a proposed band plan for reclaimed spectrum using 5 megahertz blocks and 6 megahertz guard bands is advisable, and how to make spectrum available for unlicensed uses.  After the meeting, the FCC issued a News Release that announces and summarizes the incentive auction NPRM.
The NPRM on mobile spectrum holdings will launch a comprehensive review of the Commission’s current policies on this matter, which have not been reviewed in over a decade.  In this NPRM, the Commission will seek comment on the effectiveness of the current case-by-case analysis approach to transactions and auctions and will ask whether bright-line limits should be adopted in these situations.  The NPRM will also consider the possible thresholds to be applied to the spectrum screen, such as the bands to be included, the geographic markets, and whether there should be differential treatment of different spectrum bands. 
The Commission has not yet released either NPRM, but we will circulate copies of each document as they become publicly available. 
If you have any questions regarding the topics discussed in this meeting, please feel free to contact the TLP Team

Thursday, September 27, 2012

Bipartisan Internet Radio Fairness Act introduced in Congress

On September 21, 2012, the Internet Radio Fairness Act (H.R. 6480/S. 3609) was introduced in the House by Reps. Chaffetz (R-UT) and Polis (D-CO) and in the Senate by Senator Wyden (D-OR). The legislation attempts to level the playing field for Internet radio services by allowing those services to use the same market-based standard used to establish royality rates for other digital services, including cable and satellite radio.  
The sponsors of the legisation point out that "[w]hile Internet radio services compete directly with all audio platforms for listeners in every place you find music – at home, in the car, at the office, and on the go – they are subject to a surprisingly disproportionate royalty burden compared to these other formats." Accordingly, the current "rules discriminate against Internet radio, hamper innovation, and frustrate the goals of the Copyright system." As such, "Internet radio companies today pay more than 55% of revenue in royalty rates when other forms of digital radio such as cable and satellite pay between 7 and 16% of revenue for performance royalties."      

According to the sponsors, the Internet Radio Fairness Act will:
- Provide for Presidential nomination and Senate confirmation of Copyright Royalty Board (CRB) judges. 
- Put Internet radio under the 801(b) standard of the Copyright Act.  The 801(b) standard helps strike the appropriate balance to promote the creation of copyrighted works and encourage copyright users to develop new markets for these works.  The 801(b) standard is used for all other forms of statutory royalty rate setting, including for cable and satellite radio and for determining the royalties paid by the recording industry to music publishers and songwriters, and has worked successfully since 1976.
- Promote a competitive marketplace by making it easier for artists and labels to negotiate directly with the digital radio services and arrive at a negotiated rate outside the CRB process.
- Structure the proceedings consistent with due process under the Federal Rules of Civil Procedure and Federal Rules of Evidence and provide for appellate review comparable to that afforded federal district court adjudications of similar magnitude.         

The legislation is supported by Clear Channel, Salem Communications, Pandora, the Webcaster Alliance, the Digital Media Association (DiMA), Engine Advocacy, the Computer and Communications Industry Association (CCIA), and the Consumer Electronics Association (CEA).

If you have any questions regarding any legislation or activity in Congress that could impact the telecommunications, media and technology sectors, please contact Vance Schuemann or any member of the TLP team 

FCC's October Open Meeting Agenda

The FCC has released a tentative agenda for its October Open Meeting.  The Commission plans to consider:

  • An Order on Reconsideration that will revise its wireless communications service rules to facilitate the use of 30 megahertz of that spectrum for LTE mobile broadband service while protecting satellite digital audio radio services from harmful interference;

  • A Second Report and Order that modernizes international data reporting requirements, which will significantly reduce overall filing burdens and ensure the collection of data that is needed to protect consumers and competition in international markets; and

  • A Report and Order that establishes a Do-Not-Call Registry for Public Safety Answering Points ("PSAPs"), prohibits autodialed non-emergency calls to those numbers, and imposes monetary penalties for autodialing or disclosing registered PSAP numbers.

The Open Meeting is scheduled for October 17th at 10:30 AM.  It will be shown live at 
Please feel free to contact us with any questions.

Tuesday, September 25, 2012

TLP Member Michael Lazarus Speaks on Incentive Auctions, Spectrum Sharing, at the CCA Convention

TLP Member Michael Lazarus was invited to speak at the Competitive Carriers Association ("CCA") Convention on a panel entitled, "Spectrum, Incentive Auctions and the FCC's Path Forward" on Monday, September 24, 2012.  The panel focused on two notices of proposed rulemaking on rules for an incentive auction of broadcast spectrum and spectrum aggregation - both to be voted on during Friday's Open Commission Meeting

On the subject of concurrent auctions, Mr. Lazarus warned that if the two auctions were placed too close together, it would make it more difficult for wireless carriers to fully participate in the auctions.  He told the audience, "if you've ever filled out an auction application or participated in an auction, it's not a short or easy process.  If carriers go through that without knowing what exactly they're going to be bidding on . . . it's going to be very difficult to prepare."  

With respect to spectrum sharing, Mr. Lazarus emphasized that wireless carriers want to own their licensed spectrum in that they want to "build what they want to build on it."  Mr. Lazarus noted that "if you talk too much about sharing, particularly with respect to government spectrum, it sort of gives a number of agencies in government a way out.  I don't think that's what we should be focusing on just yet, at this point." 

Also participating in the panel discussion were the following individuals: Rick Kaplan, former chief of the Wireless Bureau; Bryan Tramont of Wilkinson Barker Knauer, and James Barker of Latham & Watkins.

If you have any questions, please feel free to contact the TLP Team.         

Broadcast TV Incentive Auction and Mobile Spectrum Holdings NPRMs on Agenda for FCC Open Meeting

The FCC has released a meeting agenda for its open Commission meeting on Friday, Sept. 28.  The Commission will consider three Notices of Proposed Rulemaking to:

·         Implement an incentive auction of broadcast TV spectrum;
·         Initiate a review of its policies governing mobile spectrum holdings; and
·         Update or eliminate earth and space station licensing requirements in order to reduce regulatory burdens on licensees and accelerate delivery of new satellite services to consumers

The meeting will take place at 10:30 AM and will be broadcast live at 
Please feel free to contact us if you have any questions.

Wednesday, September 19, 2012

Petition for Carriers to Disclose 4G Speed

Consumer Watchdog filed with the FCC a Petition for Rulemaking, proposing to require mobile carriers to disclose the speeds of their 4G networks in advertisements and at points of sale.   The Petition notes that although almost all wireless broadband advertisements promise faster 4G speeds, the ads do not disclose what those speeds are.  Because of this missing information, Consumer Watchdog says consumers are unable to effectively comparison shop.  The Petition has not been put on notice by the FCC, but we will notify you if the Commission chooses to take action on this issue. 

Consumer Watchdog’s Petition notes that carriers market LTE, HSPA+, and WiMax technologies as 4G even though each of the technologies is capable of reaching different peak data speeds.  The Petition also alleges that carriers increasingly use 4G to describe technologies that are “basically just evolutions of 3G technologies.”  Consumer Watchdog points out that “the iPhone 4S is considered a 3G device by every wireless carrier that sells [it] for use on its network, except for AT&T,” which describes it as a 4G phone. 

Specifically, Consumer Watchdog’s Petition wants carriers to:

  • Disclose average data speeds in the networks being advertised or in the geographic region where ads appear
  • Disclose national average data speeds that subscribers experience while using the advertised network or device
  • Support advertised average data speed claims with data
  • Disclose for each device, at the point of sale, the national average data speeds and average data speeds within each city or area covered by the carriers’ networks
  • Express all data speeds in Megabits per second
Relatedly, the Commission will hold its first open meeting to discuss its new Measuring Mobile America program, which will study mobile broadband performance throughout the United States with the assistance of wireless carriers, public interest and research communities, and other stakeholders.  The Commission has received commitments to cooperate in this program from AT&T, Sprint, T-Mobile, Verizon, and CTIA.  The meeting will be held in the Commission Meeting Room on Friday, September 21 at 9:30 AM, and it will be streamed live at

Please feel free to contact the TLP team with any questions. 

Tuesday, September 18, 2012

FCC Order Allowing Cable and CLEC Transactions

In an Order released yesterday, the Commission grants in part the National Cable and Telecommunications Association’s (“NCTA”) petition for forbearance from Section 652(b) of the Communications Act, which prohibits cable operators from acquiring more than a 10 percent interest in competitive local exchange carriers (“CLECs”).  The Order harmonizes the provision with the rest of Section 652, which allows CLECs to acquire cable operators.  The Commission believes that the competitive effects of each kind of transaction will be similar. 

Specifically, the Order finds that forbearance will “serve many pro-competitive goals” by “enhanc[ing] facilities-based competition and spur[ring] technological innovation and investment that will benefit consumers.”  The Commission reasons that “forbearance from applying section 652(b) to acquisitions of [CLECs] is warranted” because it will “likely speed the entry of cable operators into the market for telecommunications services provided to business customers and will foster increased facilities-based competition for these services.”  The Order elaborates that such transactions can provide CLECs with access to additional capital and allow them to migrate from leased to owned facilities.  Similarly, cable companies can gain access to CLECs’ back office infrastructure and established relationships with business customers.  The Order also says that “mergers among non-dominant providers in a specific market are unlikely to raise competitive concerns” and that the Commission will continue to conduct a case-by-case public interest analysis of proposed transactions under Section 214. 

Please feel free to contact us if you should have any questions.