Selected portions of the BloostonLaw Telecom Update, a newsletter from the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP are reproduced in this section with the firm's permission.
In lieu of holiday cards this season, BloostonLaw will be making a donation to Healthcare for the Homeless, a local charity program. We wish our clients a happy and safe holiday season! In observance of the holiday, we will not publish the newsletter until Jan. 9. Our office will be closed Dec. 24-25 and Dec. 31-Jan. 1.
FCC Seeks Comment On NTCA, AT&T Petitions On Transition to IP
The FCC seeks comment on petitions filed by the National Telecommunications Cooperative Association (NTCA) and AT&T concerning the transition of voice networks to Internet Protocol (IP). (GN Docket No. 12-353).
In its Petition, NTCA asks the FCC to initiate a rulemaking "to examine means of promoting and sustaining the ongoing evolution of the Public Switched Telephone Network from a Time-Division Multiplexing ("TDM")-based platform to an Internet Protocol ("IP")-based infrastructure through targeted regulatory relief and the establishment of tailored near-term economic incentives" With respect to economic incentives, NTCA suggests that the FCC should confirm that " all interconnection for the exchange of traffic subject to sections 251 and 252 is governed by the Act," regardless of the technology used and "provide carriers with an incentive to offer IP interconnection by allowing them to recover through rates that would be developed pursuant to the Act the costs of exchanging traffic through such interconnects." NTCA also suggests that the FCC should encourage migration to IP by providing universal service support for networks even if a customer does not continue to purchase regulated voice service. On regulatory relief, NTCA suggests that the FCC should develop a list of specific existing regulations that may not be applicable for IP networks and services, seek comment on whether the regulations should be eliminated, retained or modified, and set a firm deadline for reforming the regulatory structure.
In its Petition, AT&T asks the FCC to conduct trial runs of the transition to Internet Protocol facilities and services from time-division multiplexed facilities and services in select wire centers. Specifically, AT&T asks the FCC to open a new proceeding "to conduct, for a number of select wire centers, trial runs for a transition from legacy to next-generation services, including the retirement of TDM facilities and offerings." AT&T proposes that the FCC would invite ILECs to propose individual wire centers for the trial runs "and a detailed plan identifying the steps those carriers will take in each wire center to transition from TDM to IP-based facilities and services," including identifying the "modifications each carrier will make to its network to effect the transition, as well as the services it will offer in place of legacy wireline services." AT&T also proposes that the FCC seek comment on "how best to remove the legal and regulatory impediments to the trial itself and the ultimate transition to all-IP networks and services." According to AT&T, "this regulatory experiment will show that conventional public-utility-style regulation is no longer necessary or appropriate in the emerging all-IP ecosystem."
Comments on the Petitions are due by January 28, 2013 and reply comments are due by February 25, 2013.
FCC Seeks Comment On Implementing Text-to-911
At last week's open meeting, the FCC adopted a Further Notice of Proposed Rulemaking (FNPRM) to spur the availability of nationwide ”text-to-911” service. The FCC's action follows closely on the heels of a voluntary agreement by AT&T, Sprint, T-Mobile, and Verizon, with support of leading public safety organizations, to make text-to-911 available to their customers by May 15, 2014, with significant deployments expected in 2013 (BloostonLaw Telecom Update, December 12).
Text-to-911 obligations would require all wireless carriers and providers of certain Internet-based (”over the top”) text messaging applications to enable their customers to send text messages to 911 in areas where local 911 call centers (known as Public Safety Answering Points, or PSAPs) are also prepared to receive the texts.
The FNPRM, released December 13, 2012, seeks comment on a number of issues related to the implementation of text-to-911. These issues include how to determine to which ”over the top” applications the obligation should apply and whether the May 15, 2014 timetable for text-to-911 implementation is feasible for all carriers. The FNPRM also seeks comment on routing and location accuracy issues; options for PSAPs to receive text-to-911 messages; and TTY compatibility. Cost recovery and funding issues, such as whether a portion of USF should be made available to compensate for the costs of the text-to-911 obligations and whether ”over the top” text message service providers should be allowed to recover costs, are also covered.
Recognizing the importance of keeping consumers informed during the transition about whether text-to-911 is available in their local area, the FCC also proposes to require carriers and ”over the top” text messaging providers to send automated ”bounce back” error messages to consumers attempting to text 911 in areas where the service is not yet available. The error message would indicate that the text did not reach 911 and that the consumer should instead place a voice call to 911, if possible.
The FCC also seeks comment on a number of issues related to consumer education regarding the capabilities and limitations of text messaging — for example, text may not provide all of the features and functions associated with voice, such as automatic location information — and on whom the burden of providing such educational information should fall.
Comments on the PS Docket No. 11-153 and 10-255 proposal to require automated ”bounce back” messages for failed text-to-911 attempts will be due 20 days after the FNPRM is published in the Federal Register, and comments on the remaining issues will be due 40 days after that. Specific dates will appear in the BloostonLaw Telecom Update as soon as they are available.
FCC Proposes New ”Citizens Broadband Service” In 3.5 GHz Band
Following up on recommendations made in a recent report from the President's Council of Advisors on Science and Technology (PCAST), the FCC has proposed to make 100 megahertz of spectrum in the 3.5 GHz Band available for shared commercial use under new flexible use rules designed to encourage use of small cells and advanced spectrum sharing technologies. If adopted, the proposals will create a new Citizens Broadband Service in the 3550-3650 MHz band (which is currently utilized for military and satellite services).
The proposals are contained in a Notice of Proposed Rule Making (NPRM) and Order (FCC 12-148) in GN Docket No. 12-354, and build upon the FCC's experience with spectrum sharing the TV white spaces proceeding as well as ideas brought up in the dynamic spectrum access Notice of Inquiry (NOI). Comments on the item are due February 20, 2013 with reply comments due by March 22, 2013.
Among the proposals that should be of interest to our clients is whether the FCC should include under the proposed new, flexible use rules for the neighboring 3650-3700 MHz band (the 3.65 GHz Band), which is used extensively by wireless Internet service providers (WISPs) and others for commercial broadband services. The FCC believes that integrating the 3.65 GHz Band within the proposed Citizens Broadband Service will bring benefits of greater spectrum availability and equipment economies of scale to current 3.65 GHz Band licensees. The proposal contemplates conversion of the existing 3.65 GHz non-exclusive licensing framework to the license-by-rule framework proposed in the NPRM.
With demand for wireless broadband capacity growing much faster than the availability of new spectrum, the FCC and Obama Administration have outlined a path for nearly doubling the amount of available spectrum for fixed and wireless broadband uses. Some experts forecast a need for a thousand-fold increase in wireless capacity by 2020. To meet this demand, future generations of wireless technology and services must continue to increase their yield of bits per hertz per second. Future wireless traffic demands also require new wireless network architectures and new approaches to spectrum management.
The PCAST Report identifies two technological advances as holding great promise for increasing the nation's wireless broadband capabilities. First, increased use of small cell network deployments ( e.g., like Wi-Fi access points) can multiply wireless capacity within existing spectrum resources. Second, increased spectrum sharing can make large swaths of spectrum that is set aside for important, but localized, government and non-government uses newly available for broadband use. The proposed Citizens Broadband Service would foster the widespread utilization of both of these technological advances and promote the efficient use of the 3.5 GHz Band.
The 3.5 GHz Band was identified by the National Telecommunications and Information Administration (NTIA) for shared federal and non-federal use in a 2010 Fast Track Report. Incumbent uses in the band include high powered Department of Defense (DoD) radars as well as non-federal Fixed Satellite Service (FSS) earth stations for receive-only, space-to-earth operations and feeder links. The Fast Track Report recommended that based on WiMAX technology, new commercial uses of the 3.5 GHz Band could occur outside of large ”exclusion zones” extending approximately 275 miles from the east and west coasts. Thus, while the Citizens Broadband Service will be available to much of the U.S. geography, the FCC estimates that approximately 60% of the U.S. population would not have access to small cell technology in the 3.5 GHz Band. This could limit interest in the band among larger service providers. Conversely, it might make a better opportunity for small carriers, entrepreneurs and niche service providers to take the lead and develop the Citizens Broadband Service in a way that best suits their needs. The 3.3-3.7 GHz Bands have been authorized for fixed and mobile services around the world and, in many instances, licensees have used this spectrum for broadband wireless access systems based on WiMAX technology.
The FCC has proposed that the Citizens Broadband Service be managed by a spectrum access system (SAS) incorporating a dynamic database and, potentially, other interference mitigation techniques. The SAS would ensure that Citizens Broadband Service users operate only in areas where they would not cause harmful interference to incumbent users and could also help manage interference protection among different tiers of Citizens Broadband Service users. The three tiers of service would be:
(1) Incumbent Access;
(2) Priority Access; and
(3) General Authorized Access (GAA).
The FCC seeks comment on this approach.
Under the FCC's main proposal, users in the Priority Access and GAA tiers would be licensed by rule as Citizens Broadband Service users under Part 95 of the FCC's rules. A license-by-rule approach would provide individuals, organizations, and service providers with ”automatic” authorization to deploy small cell systems, in much the same way that the Part 15 unlicensed rules have allowed widespread deployment of Wi-Fi access points.
If implemented, the new Citizens Broadband Service could help address the ongoing capacity shortage and promote new innovations in broadband technology, deployment, and spectrum management while protecting incumbent authorized federal and grandfathered FSS users. In order to develop a comprehensive record on this proposal, the FCC seeks comment on a wide range of technical, licensing, and other related issues. Clients who are interested in learning more about the FCC's Citizens Broadband Service proposals or possibly filing comments should contact Hal Mordkofsky, John Prendergast or Cary Mitchell.
Sprint To Buy Remaining 50% Of Clearwire
Sprint has announced that it has entered into a definitive agreement to acquire the approximately 50% stake in Clearwire that it does not currently own for $2.97 per share, equating to a total payment to Clearwire shareholders, other than Sprint, of $2.2 billion. This transaction results in a total Clearwire enterprise value of approximately $10 billion, including net debt and spectrum lease obligations of $5.5 billion.
The transaction was unanimously approved by Clearwire's board of directors upon the unanimous recommendation of a special committee of the Clearwire board consisting of disinterested directors not appointed by Sprint. In addition, Clearwire has received commitments from Comcast Corp., Intel Corp and Bright House Networks LLC, who collectively own approximately 13% of Clearwire's voting shares, to vote their shares in support of the transaction. SoftBank has provided its consent to the transaction, as required under the terms of its recently announced merger agreement with Sprint.
In connection with the transaction, Clearwire and Sprint have entered into agreements that provide up to $800 million of additional financing for Clearwire in the form of exchangeable notes, which will be exchangeable under certain conditions for Clearwire common stock at $1.50 per share, subject to adjustment under certain conditions. Under the financing agreements, Sprint has agreed to purchase $80 million of exchangeable notes per month for up to ten months beginning in January, 2013, with some of the monthly purchases subject to certain funding conditions, including conditions relating to the approval of the proposed merger by Clearwire's shareholders and a network build out plan.
The transaction is subject to customary closing conditions, including regulatory approvals and the approval of Clearwire's stockholders, including the approval of a majority of Clearwire stockholders not affiliated with Sprint or SoftBank. The closing of the transaction is also contingent on the consummation of Sprint's previously announced transaction with SoftBank. The Clearwire and SoftBank transactions are expected to close mid-2013.
WESTERN GOVERNMENTS THWART U.N. ATTEMPT TO SEIZE CONTROL OF INTERNET: A United Nations (U.N.) attempt to hand over control of the Internet to the International Telecommunications Union (ITU) has failed because a coalition of Western governments, including the United States, refused to back the proposal, according to various media sources. Those nations pushing for the proposal were mostly dictatorial regimes such as Russia and China. The U.N. conference—the World Conference on International Telecommunications (WCIT)—was held in Dubai this month. One of the more controversial proposals was to create an Internet ”kill switch” that opponents said would be used to censor content and free speech. The ITU and its supporters also sought global surveillance, online taxes, regulation of social media, and the end of Internet anonymity, and putting the Internet under U.N. jurisdiction. While most dictatorial regimes signed an agreement favouring the ITU takeover of the Internet, media reports said that this accord is virtually meaningless because it does not have the backing of Western governments. Both Democratic and Republican FCC Commissioners supported the U.S. stance to oppose the agreement. For example, FCC Commissioner Robert McDowell said: “Even though the United States refused to sign the new agreement, what happened . . . in Dubai could have ripple effects here at home. Consumers everywhere will ultimately pay the price for this power grab as engineers and entrepreneurs try to navigate this new era of an internationally politicized Internet.” Chairman Julius Genachowski said it was “regrettable that discussions at the WCIT turned to the creation of a new layer of international Internet regulation, instead of focusing on the need to spur global growth through the expansion of international telecommunications networks.”
VERIZON PROPOSES DISCONTINUANCE OF FRAME RELAY SERVICE: Verizon has filed an application with the FCC requesting authority to discontinue frame relay service at speeds less than 200 kbps in California, Connecticut, Delaware, Florida, Maryland, Massachusetts, New Jersey, New York, North Carolina, Pennsylvania, Rhode Island, Texas, Virginia and Washington, D.C. (WC Docket No. 12-356, Comp. Pol. File No. 1064) Frame Relay service is described as "a public metropolitan and wide-area data service that utilizes packet switching technology and digital transmission facilities to provide a data delivery service primarily used by commercial customers." Verizon plans to discontinue Frame Relay service, subject to certain grandfathering restrictions, on or after February 15, 2013.
Verizon's application will be deemed to be granted automatically on the 60th day after the release date of this public notice, unless the Commission notifies Verizon that the grant will not be automatically effective. Comments objecting to this application must be filed with the Commission on or before January 11, 2013.
WIRELESS INDUSTRY UNVEILS NEW ”WIRELESS EMERGENCY ALERTS” TO REPLACE ”AMBER ALERTS”: CTIA-The Wireless Association, The Wireless Foundation, The National Center for Missing & Exploited Children (NCMEC) and Syniverse have announced that on December 31, 2012, the Wireless AMBER Alerts program will end operations, as a part of the nation's transition to the Wireless Emergency Alerts (WEA) program. Millions of cellphone users across the country will now receive free, automatic notifications about abducted children in their area as part of the WEA program. CTIA said that it and the wireless industry joined the FCC and Federal Emergency Management Agency (FEMA) to offer WEA to supplement the existing Emergency Alert System. Consumers with WEA-capable smartphones and feature phones and services are automatically enrolled to receive AMBER Alerts for free, along with the Presidential and Imminent Threat Alerts. Unlike Wireless AMBER Alerts, the WEA AMBER Alerts use the latest technology to send messages to wireless customers with WEA-capable devices in the area where a child has been abducted, even if the wireless customer isn't from the area. For example, if a Chicago resident was visiting Boston and a WEA AMBER Alert was issued in Boston, the subscriber would receive the alert. At the same time, if an alert was issued in Chicago, the subscriber would not receive it while in Boston. CTIA said that statistics show that the first three hours after an abduction are the most critical in recovery efforts, and being able to quickly engage the public in the search for an abducted child can help law enforcement bring that child home safely. The Office of Justice Program's AMBER (America's Missing: Broadcast Emergency Response) Alert Program , named after 9-year-old Amber Hagerman, is a voluntary partnership among law enforcement agencies, the wireless industry, transportation officials, broadcasters and other entities to activate an urgent bulletin to find abducted children. Acting Assistant Attorney General for the Office of Justice Programs Mary Lou Leary is the National AMBER Alert Coordinator responsible for this national network. Before Wireless AMBER Alerts, AMBER Alerts were issued via television, radio and Department of Transportation highway signs when a child was believed to have been abducted and in extreme danger. The wireless industry launched the Wireless AMBER Alerts program in 2005 because its members believed its technology could expand the Alerts' reach to aid in the recovery of abducted children. The 700,000 wireless customers currently enrolled in Wireless AMBER Alerts will receive text messages about the transition and alternative sources for receiving AMBER Alerts. For more information about the alternative sources please visit http://www.missingkids.com/ambersignup/ .
FEBRUARY 1: FCC FORM 502, NUMBER UTILIZATION AND FORECAST REPORT. Any wireless or wireline carrier (including paging companies) that have received number blocks—including 100, 1,000, or 10,000 number blocks—from the North American Numbering Plan Administrator (NANPA), a Pooling Administrator, or from another carrier, must file Form 502 by February 1 . Carriers porting numbers for the purpose of transferring an established customer's service to another service provider must also report, but the carrier receiving numbers through porting does not. Resold services should also be treated like ported numbers, meaning the carrier transferring the resold service to another carrier is required to report those numbers but the carrier receiving such numbers should not report them. Reporting carriers are required to include their FCC Registration Number (FRN). Reporting carriers file utilization and forecast reports semiannually on or before February 1 for the preceding six-month reporting period ending December 31, and on or before August 1 for the preceding six-month reporting period ending June 30.