BloostonLaw Private Users Update Published by the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP [Portions reproduced here with the firm's permission.] www.bloostonlaw.com |
| Vol. 10, No. 8 | x August 2009 |
 FCC Issues Further Notice On Remanded BPL Issues The FCC has issued a Further Notice of Proposed Rule-making (FNPRM) to address certain issues from its Report and Order on rules for broadband over power line (BPL) systems and devices that was remanded back to the FCC by the U.S. Court of Appeals for the District of Columbia Circuit. In the BPL Order, the Commission established technical standards, operating restrictions, and measurement guidelines for Access BPL systems to promote the development of such systems while ensuring that licensed radio services are protected from harmful interference. In ARRL v. FCC, in response to an appeal by the American Radio Relay League (an association of amateur radio operators), the court remanded the BPL Order to the Commission for further consideration and explanation of certain aspects of its decision. Specifically, the court directed the Commission to provide a reasonable opportunity for public comment on unredacted staff technical studies on which it relied to promulgate the rules, to make the studies part of the rulemaking record, and to provide a reasoned explanation of the choice of an extrapolation factor for use in measurement of emissions from Access BPL systems. The FCC has placed the unredacted staff technical studies into the record of the proceeding and is requesting comment on the information in those studies as it pertains to the BPL decisions. The FCC is also placing into the record certain additional materials that contain preliminary staff research and educational information that was not previously available. In response to its remand of a portion of the BPL measurement procedure, the FCC is also providing an explanation of its reasons for selecting 40 dB per decade as the extrapolation factor for frequencies below 30 MHz. The FCC further explains why it believes the studies and technical proposal submitted earlier by the ARRL do not provide convincing information that the FCC should use an extrapolation factor that is different from that which the Commission adopted. As the several studies now available show and as the FCC has observed previously, there can be considerable variability in the attenuation of emissions from BPL systems across individual measurement sites that is not captured in the fixed 40 dB per decade standard. To address this variability, the FCC is requesting comment on whether it should amend its BPL rules to (1) adjust the extrapolation factor downward to 30 dB or some other fixed value and, or (2) as an alternative, also allow use of a special procedure for determining site-specific BPL extrapolation values using in situ measurements. The special in situ procedure the FCC is proposing is based on a concept under consideration by the Institute of Electrical and Electronics Engineers (IEEE) working group on power line communications technology electromagnetic compatibility (EMC). In addition, the FCC is clarifying that parties testing BPL equipment and systems for compliance with emissions limits in FCC rules may measure at the standard 30 meter distance rather than only the shorter distances recommended in the BPL measurement guidelines. The FCC requests comments on the unredacted staff studies, the FCC decision for selecting an extrapolation factor for BPL systems based on slant range method and its proposal to allow use of site-specific extrapolation factors as an alternative to the standard extrapolation factor. In the interim, the FCC will continue to apply the standard as adopted in the BPL Order. Comments in this ET Docket No. 04-37 proceeding are due 30 days after publication in Federal Register, and replies are due 15 days thereafter. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Cary Mitchell. FCC Favors Sprint In 800 MHz “Touch” Dispute In a mediation by the 800 MHz Transition Administrator (TA) involving a dispute between the County of Flagler, Florida, and Sprint Nextel, the FCC resolved the dispute in Sprint’s favor and disallowed Flagler’s claimed expense for a third “touch” to its retuned portable and mobile radios. In the rebanding context, a radio “touch” refers to any time the radio is reprogrammed or otherwise modified to add or subtract channels or channel groups. The parties had been unable to resolve their dispute relating to Flagler’s request for Sprint to pay the costs associated with a third touch of Flagler’s mobile and portable National Public Safety Planning Advisory Committee (NPSPAC) radios. In the parties’ original Frequency Reconfiguration Agreement (FRA), Sprint and Flagler agreed that the radios in the Flagler system would be touched twice, the first time to program in Flagler’s new post-rebanding channels, and the second time to remove Flagler’s old pre-rebanding channels after the system had commenced operation on the new channels. The FRA further provided that as part of the second touch, all of the pre-rebanding NPSPAC mutual aid channels as well as Flagler’s individually assigned pre-rebanding channels would be removed from the radios. The reconfiguration of Flagler’s radios initially proceeded in accordance with the FRA, i.e., Flagler completed the first touch in which post-rebanding channels were programmed into its radios. When Flagler implemented the second touch of the radios, however, it removed only the individually assigned pre-rebanding channels in the radios but did not remove the old mutual aid channels as provided for in the FRA. Flagler did not notify Sprint or seek a change to the FRA prior to taking this action. Only after the second touch was completed did Flagler submit a Change Notice to Sprint seeking an additional $82,316.92 to touch the radios a third time to remove the old mutual aid channels. The TA Mediator recommended that the FCC find that Sprint is not responsible for paying for a third touch of Flagler’s radios. The Mediator’s recommendation rests in part on Flagler’s non-compliance with the FRA, i.e., its failure to notify Sprint that it was deviating from the agreed-upon reconfiguration procedure. The Mediator also found that Flagler had not shown that the proposed cost of a third touch would be the “minimum necessary” to complete rebanding in a reasonable and prudent manner. The FCC found in favor of Sprint on this issue, determining that the record indicated that Flagler unilaterally deviated from the terms of the FRA in deciding not to remove the old mutual aid channels as part of the second touch; and there was no dispute that Flagler failed to give Sprint notice or seek a change order prior to taking this action. Instead, Flagler sought a change order only after the second touch had already been completed. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino. FCC Denies El Segundo’s Application To Modify Public Safety System The FCC has denied the City of El Segundo, California’s application to modify its public safety radio communications system in order to construct and operate two repeaters in the 470-512 MHz band as part of Conventional Public Safety Pool Station KDA289, El Segundo, California. Station KDA289 is currently licensed for operation on paired frequencies 470/473.3875 MHz, 470/473.6375 MHz and 471/474.1125 MHz, among others, for base and mobile transmissions. The FCC denied El Segundo’s application because it purportedly failed to satisfy the separation criteria of Section 90.313(c) of the Commission’s rules and lacked frequency coordination required under Section 90.175. In 1975, El Segundo, along with other cities, entered into a frequency sharing pool agreement with the South Bay Regional Public Communications Authority (SBRPCA). As a member of the SBRPCA, El Segundo was entitled to use repeaters licensed to and operated by the SBRPCA. In March 2000, El Segundo notified the SBRPCA of its election to withdraw from the SBRPCA. When El Segundo officially withdrew from the SBRPCA in June 2000, it retained authorization for the Channels, among others, on a shared basis. Because El Segundo no longer has access to the facilities of the SBRPCA, El Segundo filed its application to modify its license for the Channels in order to operate its base station channels in a repeater mode and its mobile units for control stations at two sites in areas already served by South Bay. Specifically, El Segundo sought authority to establish its own repeaters on the lower half of the channel pairs at two locations. El Segundo stated that, although the distribution of mobile units will change from fifty-seven vehicular units to twenty vehicular units and thirty-seven portable units, it planned to retain the same number of total mobile units. The FCC denied El Segundo’s application because it did not satisfy the distance separation criteria of Section 90.313(c), and for failure to obtain frequency coordination. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino. Resort Fined $5,000 For Unlicensed Operation Despite Reliance on Equipment Vendor for Compliance The FCC has issued a monetary forfeiture in the amount of $5,000 to Bear Creek Mountain Resort for willfully and repeatedly operating radio transmitting equipment on the frequency 462.500 MHz without a license. The fine was issued even though Bear Creek was operating with equipment purchased from a radio vendor without warning of the need for a FCC license, and thus was in the shoes of an “innocent third party purchaser”. On February 18, 2008, the Philadelphia Office received a complaint from a member of the Personal Radio Association that Bear Creek was operating radio communications equipment on several frequencies without a license. On February 19, 2008, an agent from the FCC’s Philadelphia Office conducted a search in the Universal Licensing System (ULS) database and found no evidence that Bear Creek was authorized to operate radio transmitting equipment on any frequencies in the Macungie, Pennsylvania area. On February 21, 2008, an agent from the FCC’s Philadelphia Office, using a mobile digital direction finding vehicle, monitored several frequencies near Bear Creek. The agent observed and recorded several transmissions on 461.3500 MHz, 462.5000 MHz, 464.4250 MHz, and 467.7625 MHz. On 462.500 MHz, the agent heard an individual request assistance bringing a girl with a broken wrist down the mountain. The individual stated that the girl is located at the top of the “Broadway” trail near the exit of the “F” chairlift. Later that day, an agent interviewed a Bear Creek employee, who listened to the agent’s audio recordings and confirmed that the conversation transmitted on the frequency 462.500 MHz was between employees of Bear Creek. During a subsequent phone interview the employee acknowledged that Bear Creek had been operating radio transmitting equipment since 2001 on the frequency 462.500 MHz and others. The Commission’s Philadelphia Office subsequently issued a Notice of Apparent Liability for Forfeiture (NAL) to Bear Creek for a forfeiture in the amount of $10,000 for willful and repeated violation of Section 301 of the Act. Bear Creek filed a response to the NAL, requesting a cancellation of the NAL on three grounds. First, Bear Creek states that, prior to the inspection by FCC agents on February 21, 2008, it did not know that a license was required for operation of its private land mobile system. Bear Creek reports that it purchased its radios from Global 2-Way.com in Marco Island, Florida and that Global 2-Way never advised Bear Creek that it needed a license. Second, Bear Creek claims that cancellation of the NAL is warranted because Bear Creek personnel immediately applied for a license once the FCC agents advised them that a license was required. Third, Bear Creek submits that the absence of prior FCC violations warrants cancellation of the NAL. The FCC concluded that Bear Creek willfully and repeatedly violated Section 301 of the Act. However, the FCC said that Bear Creek’s unlicensed operation was not analogous to the intentional unlicensed operation of a "pirate" station operator who operates its station in flagrant violation of Commission rules. The FCC therefore downwardly adjusted the $10,000 base forfeiture amount to $5,000. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino. FCC Declines To Act On Complaint Regarding Sea Rescue Incident In a letter to Jean Pierre de Lutz of France, the FCC said that it has declined to take action on his complaint regarding ACR Electronics. According to the FCC, Mr. de Lutz stated that ACR duplicated the hexadecimal code for his 406 MHz Emergency Position Indicating Radiobeacon (EPIRB), and that this duplication caused him and his crew to be placed in life-threatening storm conditions at sea unnecessarily. By way of background—EPIRBs are carried on board ships to alert others of a distress situation, and to assist search and rescue units in locating those in distress. Specifically, the EPIRB transmits a digital signal, detected by satellite, that provides distress alerting, homing assistance, type of emergency, country and identification code of the station in distress, and other pertinent information. The identification code programmed into each 406 MHz beacon is a unique fifteen-character code, including a three-digit country code. Owners of EPIRBs on United States vessels must register them with the National Oceanic and Atmospheric Administration (NOAA), and provide emergency contact information. Upon receiving a 406 MHz distress signal, search and rescue authorities use this contact information to determine whether the activation was inadvertent or reflects a genuine distress situation. According to the FCC, Mr. de Lutz indicated that in 2002, he purchased an ACR EPIRB from a vendor in the United Kingdom, and immediately registered it with NOAA. In 2007, he activated the EPIRB when his vessel encountered storm conditions during an Atlantic crossing. The FCC said Mr. de Lutz stated that a duplication of the code between his EPIRB and that of another vessel resulted in a potentially disastrous delay in the dispatch of Coast Guard personnel to rescue him and his crew. The FCC noted that the events regarding this incident are well-documented in news reports, and have been confirmed by representatives of the Coast Guard. The identification code of Mr. de Lutz’s EPIRB was associated in NOAA’s database only with the other vessel’s EPIRB. Upon receipt of the distress alert, the Coast Guard contacted the owner of that vessel, who reported that he was not in distress. Consequently, that EPIRB’s distress alert was initially dismissed as a false alarm (but the Coast Guard has indicated that Mr. de Lutz’s subsequent rescue was timely due to the Coast Guard’s response to the signal from a redundant older 406 EPIRB on board his vessel that was simultaneously transmitting). The FCC said the vendor where Mr. de Lutz purchased his EPIRB changed the country code from that of the United Kingdom to that of the United States prior to delivery, because he had indicated that he was planning to register it in the United States. This resulted in his EPIRB having the same fifteen-character code as a different ACR EPIRB in the United States. When the other vessel’s EPIRB subsequently was registered with NOAA, Mr. de Lutz’s contact information associated with that identification code was overwritten. Mr. de Lutz asserts that ACR is responsible for this duplication of identification codes. The FCC disagreed; the two ACR beacons in question had unique hexadecimal codes until Mr. de Lutz’s beacon was altered by the vendor. While the FCC is concerned that this situation occurred, it finds no basis to conclude that ACR violated FCC rules. Any complaint regarding the vendor’s alteration of the hexadecimal code should be referred to United Kingdom authorities. In addition, comments regarding EPIRB registration procedures in the United States should be addressed to NOAA, which the FCC understands has changed the procedures to ensure that similar duplications do not go undetected, and that the correct user registration information is retained. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino. New FCC Chairman Announces Senior Staffers New FCC Chairman Julius Genachowski has announced four members of the senior leadership of the Wireless Telecommunications Bureau, who will join the other senior staff in WTB. The announcement includes: Bureau Chief Ruth Milkman, Senior Deputy Chief James Schlichting, Deputy Chief Renee Roland Crittendon, and Deputy Chief John S. Leibovitz. The Chairman also announced that Jamie Barnett will be the Chief of the Public Safety and Homeland Security Bureau, and David Furth and Jennifer Manner will serve as Deputy Chiefs. Chief, Wireless Telecommunications Bureau, Ruth Milkman: Ms. Milkman is currently Special Counsel, leading the transition effort in the Chairman’s office. Ms. Milkman served at the Commission between 1986 and 1998 in a variety of positions, including Deputy Chief of the International and Common Carrier Bureaus, and Senior Legal Advisor to Chairman Reed Hundt, with responsibility for wireless issues and spectrum policy. Senior Deputy Chief, Wireless Telecommunications Bureau, James Schlichting: Mr. Schlichting has been at the FCC for nearly 24 years, most recently as Deputy Chief and Acting Chief of WTB, and previously as Deputy Chief of the Office of Engineering and Technology, Deputy Chief of the Common Carrier Bureau, Chief of the Pricing Policy Division in the Common Carrier Bureau, and Chief of the Policy and Program Planning Division of the Common Carrier Bureau. Deputy Chief, Wireless Telecommunications Bureau, Renee Roland Crittendon: Ms. Crittendon has been at the FCC for eight years. She most recently served as Chief of Staff and Senior Legal Advisor in the Office of Commissioner Jonathan S. Adelstein where she was responsible for spectrum, broadband, international and public safety issues. Before joining the Commissioner’s office in 2007, Ms. Crittendon served as Deputy Bureau Chief in the Wireline Competition Bureau. Prior to that, she was Chief of the Wireline Bureau’s Competition Policy Division. Ms. Crittendon also served as Associate Division Chief of the Mobility Division of the Wireless Telecommunications Bureau. Before joining the Commission, Ms. Crittendon served as Deputy Chief Counsel – Telecommunications for Prism Communication Services, Inc, and was in private practice with a Washington, D.C. law firm specializing in media, wireline and satellite issues. Deputy Chief, Wireless Telecommunications Bureau, John S. Leibovitz: Mr. Leibovitz was a staff member on the Presidential Transition Team, where he helped to coordinate the Technology, Innovation, and Government Reform working group. Prior to the transition, Mr. Leibovitz worked as an entrepreneur and strategy consultant in the telecommunications industry, with an emphasis on the wireless sector. He started his business career with McKinsey & Company, in New York. He has written about technology and communications policy in the Yale Law Journal and the Yale Journal of Law and Technology. Chief of Public Safety and Homeland Security Bureau, Rear Admiral (ret.) Jamie Barnett: Admiral Barnett served 32 years in the United States Navy and Navy Reserve, retiring in 2008. His last active duty assignments were Deputy Commander, Navy Expeditionary Combat Command and Director, Naval Education and Training in the Pentagon. For the last two years, Admiral Barnett has been a Senior Research Fellow at the Potomac Institute for Policy Studies, a policy think tank focusing on science and technology issues of importance to the nation, including cyber conflict and cyber security. Deputy Chief, Public Safety and Homeland Security Bureau, David Furth: David Furth has served at the FCC since 1992 and in the Public Safety and Homeland Security Bureau since the Bureau’s formation in 2006. Since January 2009, Mr. Furth has served as Acting Chief of the Bureau. Previously, Mr. Furth was an Associate Bureau Chief in PSHSB, focusing on public safety spectrum policy issues, particularly 800 MHz rebanding and the 700 MHz rulemaking proceeding. Mr. Furth also worked in the Wireless Telecommunications Bureau in various capacities, including Deputy Chief and Chief of the Commercial Wireless Division, Senior Legal Advisor to the Bureau Chief, and Chief Counsel and Associate Bureau Chief. Mr. Furth also served as a Legal Advisor to FCC Commissioner Rachelle Chong. Deputy Chief, Public Safety and Homeland Security Bureau, Jennifer Manner: Most recently, Ms. Manner was a principal at ZComm Strategies, LLC, where she advised telecommunications companies on regulatory policy issues. Prior to that, Ms. Manner was Vice President of Regulatory Affairs at SkyTerra Communications, L.P. Ms. Manner served as Senior Counsel to FCC Commissioner Kathleen Abernathy, with responsibility for wireless, technology and international issues. BloostonLaw contacts: Hal Mordkofsky and John Prendergast. FCC Fines PLMS Station For Operating On Unauthorized Frequencies The FCC has issued a monetary forfeiture in the amount of $4,000 to Sims Metal East, LLC, the licensee of private land mobile station KNEM713, in Jersey City, N.J., for willfully and repeatedly violating the Commission's Rules by operating a mobile relay station and mobile units on unauthorized frequencies. On October 3, 2008, the Enforcement Bureau’s New York Office issued a Notice of Apparent Liability for Forfeiture (NAL) in the amount of $4,000 to Sims for operating mobile units and a mobile relay station on the unauthorized frequencies 469.4 MHz and 464.4 MHz respectively. Despite evidence that Sims received the NAL, the FCC found that Sims did not file a response to the NAL. As a result, the FCC affirmed the forfeiture. This fine reinforces the need for FCC licensees to keep their contact information current, and to promptly respond to any FCC inquiries. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino. |
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