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.
Tower Compliance Manual
BloostonLaw has assembled a compliance manual for all tower/antenna structure owners, as well as any licensee mounting antennas on structures. The manual helps structure owners and licensees avoid FCC fines, minimize Federal and state approval delays, and minimize or avoid the potential for civil and/or criminal liability that could be associated with tower operations/accidents. The manual includes a detailed explanation of FCC, FAA and other Federal regulatory requirements so that your staff can understand the legal do's and don'ts associated with tower construction and antenna mounting. We have also developed checklists that can be used by your employees and contractors to (1) make sure that necessary compliance steps are taken and (2) create a paper trail documenting such compliance. There are separate checklists for antenna structure owners and radio licensees that will use such structures. These checklists cover such issues as environmental protection, historic preservation, harmful RF radiation limits, interference protection, aviation safety, and Federal reporting requirements. A sample tower log is included.
In recent years, tower owners have faced huge fines and even higher civil liabilities due to rule violations that may contribute to an aviation accident. Similar liability can arise from environmental or harmful radiation violations. Also, many licensees do not realize that, for every antenna mounted in the United States, the licensee must either obtain the prior approval of the applicable State Historic Preservation Officer (SHPO), or establish that the antenna qualifies for an exemption from this requirement. BloostonLaw is offering its antenna structure compliance manual in binder format, with the checklists provided on CD-ROM as well, so that you can print off the appropriate checklist for each new structure or antenna. Please contact the firm for a copy of the manual.
Sandy Wreaked Havoc On Many Wireless Carriers
Superstorm Sandy wreaked havoc on wireless carriers last week, knocking out a quarter of the cell sites from Virginia to Massachusetts on the East Coast. That number improved to 15% of cell sites out of service by last Thursday, according to the FCC and various media reports.
This figure includes many cases where cell sites that are otherwise operational are effectively inoperable because of outages in other parts of the communications infrastructure. With regard to cable services, it appears that outages have declined to approximately 12% to 14%, from initial outages estimates of 25%.
In terms of network outages, Hurricane Sandy was serious, but does not seem to have been as bad as Hurricanes Rita or Katrina.
In a November 2 statement, David Turetsky, FCC Public Safety and Homeland Security Bureau Chief said: "Now that we are collecting DIRS [Disaster Information Reporting System] information for a smaller geographic area, our network outage estimates do not provide a direct comparison with past figures. But as of 10 a.m. this morning [November 2], the data indicate that the number of cell site outages has declined to 15% overall. This is down from approximately 25% [last] Tuesday morning and 19 yesterday morning for the earlier, larger reporting area. As before, this figure includes many cases where cell sites that are otherwise operational are effectively inoperable because of outages in other parts of the communications infrastructure, which is highly interdependent."
Continuing, Turetsky said: "With regard to cable services, it appears that outages for today's smaller geographic are at 17%. Today's estimate includes, for the first time, data from a company that serves many areas that have been severely affected by the storm and widespread power outages. Excluding the additional reporting, the percentage of cable outages would have shown a continued decline from yesterday's estimate of 12%-14% of subscribers."
As of last week, Tier I wireless service providers have been struggling to keep their services running, mostly because of the loss of power. But they say they have been making progress. Here's what they have to report:
Sandy's record-setting storm surge resulted in flooding at several key Verizon facilities in Lower Manhattan, Queens and Long Island, interrupting commercial power and rendering backup power systems at these sites inoperable. In some cases, Verizon teams have not been able to access the sites, due to flooding and safety concerns. A Verizon Wireless technical officer reported last Thursday that 96% of the company's network "from Maine to Virginia" was operating, up from 94% on Wednesday.
AT&T issued a general statement about post-hurricane network restoration efforts, but it declined to specify the extent of its outages. The company reported on November 1 that its disaster response team has been fully engaged and working around the clock to ensure the flow of wireless and wireline services in the areas. It also extended the late-payment window and waived late affected fees for customers who are behind on payments, and that it would not disconnect services to customers impacted by the storm because of non-payment.
Almost 20% of Sprint's wireless network was still down in New York, New Jersey and Connecticut as of November 1, and the Company acknowledged that "challenges remain for the hardest hit areas of these states, including metropolitan New York City and portions of the New Jersey coast. In New York City, for example, approximately three-quarters of the network is operational, but challenges remain in obtaining commercial power, backhaul connections, and gaining safe access to cell sites."
T-Mobile USA reported that it had made good progress in restoring network service to areas Hurricane Sandy, with network technicians deploying generators to cell sites where power outages continue and to repair damage caused by high winds and flooding. The company also reported working closely with the NYC Department of Emergency Management and with FEMA to gain safe access to areas of the City where storm damage was extensive, including parts of Staten Island and lower Manhattan. By November 1st, the company reported that network restoration in NYC was at 85%, overall, and network availability had improved to 80% within the borough of Staten Island. However, the agreement between T-Mobile with AT&T to share networks in NY and NJ was reportedly providing customers of both AT&T and T-Mobile improved service in the hardest hit areas.
Reminder to Tower Owners of Lighting, FAA Notification, Record-Keeping Obligations
In light of the recent storm and damage to telecom networks resulting from flooding and high winds, we remind our clients that own antenna towers or similar structures of the need to comply with inspection, Federal Aviation Administration (FAA) notification and record keeping requirements under the FCC's Rules.
In particular, the owner of any antenna structure that is required to install obstruction lighting must either visually inspect the antenna structure lights once every 24 hours, or install an automatic alarm that is designed to register any failure of the obstruction lighting. This is to ensure that the lights are always functioning properly.
If alarm circuits are used, the owner should inspect all of the automatic and/or mechanical control devices, indicators and alarm systems associated with the tower lighting no less than every three months to determine that the equipment is functioning properly. All inspections should be documented in the tower log or other written report.
In Case of a Light Malfunction:
If a required aviation safety light malfunctions, it is critical that the following actions be taken immediately:
1. Repair the light outage within 30 minutes if at all possible.
2. If the outage cannot be corrected within 30 minutes, and the malfunctioning light is either (1) a top steady burning light or (2) any flashing obstruction light, regardless of its position on the antenna structure, the structure owner is required to report the outage immediately by telephone to the nearest Flight Service Station or office of the FAA by calling 877-487-6867 (for Alaska 800-478-3576) so a hazard advisory known as a Notice to Airman (or "NOTAM") can be issued. This report must state:
(a) the condition of the light;
(b) the circumstances causing failure;
(c) probable date for restoration;
(d) the ASR number for the antenna structure;
(e) overall structure height AGL; and
(f) the owner's contact information.
3. Make an entry in the tower log of:
(a) the nature of such light outage or improper operation that was observed or otherwise noted;
(b) the date and time the outage or improper operation was observed;
(c) the date, time and nature of adjustments, repairs or replacements that were made to resolve the matter; and
(d) details of any FAA outage reporting, if required.
Further notification of the FAA by telephone (at the numbers listed above) must be given immediately upon resumption of normal operation of the light or lights, and every 15 days if repairs cannot be accomplished in two weeks. This is because normally, after 15 days, the NOTAM is automatically deleted from the FAA's system. While the extinguishment or improper functioning of a steady burning side intermediate light does not require reporting to the FAA, these lights must nonetheless be repaired as soon as possible.
Outsourcing of monitoring duties:
If clients have hired an outside contractor to monitor tower lighting visually or via alarm circuit, they should provide the contractor with a description of the FCC's requirements, detailed written instructions regarding the proper function of the antenna structure's lights, and a telephone number to be called IMMEDIATELY (on a 24-hour per day availability) to notify the structure owner of any outage or malfunction.
Our clients should also provide instructions on actions to be taken in the event of an outage, including a clear indication about who is responsible for initiating repairs and for notifying the nearest FAA Flight Service Station. The instructions must be clear about the above deadlines for repairs and reporting. This way, if there is an aviation accident that is caused by a malfunction in the obstruction lighting, our clients will be in a better position to protect themselves against liability by demonstrating that they took all reasonable steps to supervise the contractor.
A copy of the instructions given to the contractor, and a written acknowledgment of receipt, signed by the contractor, should be kept in the station log.
FCC EXTENDS CERTAIN WIRELESS DEADLINES DUE TO SUPERSTORM SANDY:
The FCC's Wireless Telecommunications Bureau has released a Public Notice announcing the extension of certain deadlines that fall during the week of October 27 through November 2,
until Monday, November 5
Wireless Radio Service licensees and applicants. This action was taken on the FCC's own motion, due to disruptions associated with Hurricane Sandy and declarations of emergency in many states. Because the FCC and Federal Government were closed on Monday and Tuesday of last week, those days are treated as holidays under Section 1.4 of the FCC's rules for purposes of calculating other FCC deadlines. In addition to the extensions that apply to everyone, those licensees and applicants that operate facilities in Connecticut, New Jersey and New York, or that significantly rely on personnel, records, or financial institutions located in these states, have been granted a further extension of deadlines occurring between October 27 and November 27,
until Wednesday, November 28.
Deadlines that are extended as a result of Hurricane Sandy include:
(1) deadlines associated with Wireless Radio Service applications, notifications, and reports including, but not limited to, license modifications, license renewals, and notifications of construction; and
(2) construction deadlines and other regulatory deadlines applicable to wireless radio services
Clients should contact us to confirm whether specific deadlines involving their wireless licenses or impacting their wireless operations have been extended.
(The PN lists specific radio services and reports impacted by the rules.) Licensees filing in accordance with this extension must include with their filing a certification upon the penalty of perjury that the deadlines could not be met within the time otherwise provided in the Commission's rules because of the hurricane. Applications filed pursuant to this Public Notice will not be charged a waiver fee.
FCC EXTENDS COMMENT DEADLINES IN SPECTRUM HOLDING PROCEEDING:
The FCC has extended the comment deadlines for its Notice of Proposed Rulemaking (NPRM), in which it initiated a rulemaking to review its policies governing mobile spectrum holdings (BloostonLaw Telecom Update, October 3 and 10). The NPRM seeks comment on whether to retain or modify the current case-by-case analysis used to evaluate mobile spectrum holdings in the context of transactions and auctions, as well as whether to adopt bright-line limits. Comments in this WT Docket No. 12-269 proceeding are now due November 28, and replies are due January 7, 2013.
AT&T TO PAY $700,000 TO RESOLVE COMPLAINTS OF EXCESS CHARGES FOR WIRELESS DATA PLANS:
As a result of an FCC Enforcement Bureau investigation, AT&T has agreed to pay $700,000 as part of a consent decree to resolve complaints that the company switched certain consumers to its mandatory monthly wireless data plans even though it had promised they could retain their existing pay-as-you-go data plans. These customers are called "grandfathered subscribers." AT&T has agreed to refund excess charges paid by individual customers, which could be as much as $25 to $30 a month, depending on data use. The transfers began occurring in November 2009, shortly after AT&T required first-time smartphone subscribers or those who upgraded their phones to enroll in monthly data plans. Consumer complaints prompted the FCC to launch an investigation last year. AT&T smartphone customers who had pay-as-you-go data plans (or had disabled network data) and kept their old phones had the option to keep their pay-as-you-go data plans when the company made monthly plans mandatory in September 2009. Some consumers who replaced these phones under warranty or insurance, or who moved to a new residence were switched to the monthly plans, even though AT&T had said the "grandfathering" policy would continue to apply in these situations. Under the terms of today's Consent Decree with AT&T, the company has agreed to make a voluntary payment in the amount of $700,000 to the U.S. Department of Treasury and refunds to individual customers. AT&T has also agreed to an extensive compliance plan, which includes: consumer notification, training of customer care representatives, and periodic compliance reports to the FCC. AT&T must also conduct additional searches of its records to identify improperly switched consumers and ensure appropriate refunds.
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.