Selected portions of the BloostonLaw Telecom Update, and/or the BloostonLaw Private Users Update — newsletters from the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP are reproduced in this section with the firm's permission.
| BloostonLaw Private Users Update || Vol. 14, No. 12 || December 2013 |
Members of Rescue Squad Indicted for Putting Law Enforcement Channels on Squad Radios
The Bluefield Daily Telegraph and other media sources in Southwest Virginia are reporting that two members of a local rescue squad in Southwest Virginia were indicted on felony charges of using a computer to convert the property or computer program of another and making an unauthorized copy of a program or property of another. The charges arose from an investigation into the unauthorized use of the Tazewell County sheriff's office radio frequencies on radios belonging to their rescue squad — which is an agency licensed by the Virginia Office of Emergency Medical Services. Essentially, the two individuals are being accused of downloading encryption keys which then allowed them to listen in on encrypted police communications. It is because the proprietary encryption keys were also downloaded that Tazewell County was able to proceed with these criminal charges. In addition to the Tazewell County issue, authorities are also investigating whether or not frequencies assigned to Russell County Fire and EMS and the Virginia State Police were improperly programmed into the radios.
In addition to criminal action by authorities in Virginia, the FCC could potentially take enforcement action against the rescue squad for this sort of activity, since the FCC's rules require permission from a licensee before their channels may be programmed into another agency's public safety radio system. For this reason, it is critically important that companies ensure that end-users do not have the capability of modifying or otherwise programming their radios, and that these functions be reserved only for authorized maintenance personnel.
Public Safety and Homeland Security Bureau Announces Comment Deadlines for Proposals to Improve Mobile Wireless Network Resiliency and Service Transparency
This item will be of interest to our public safety clients because of the concern that the public have access to public safety communications at all times, especially in the event of a disaster — whether natural or man-made. In this regard, the FCC is seeking to promote transparency to consumers about the status of wireless networks during times of disaster, the FCC adopted an NPRM (FCC 13-125) with proposed regulations that would require facilities-based wireless carriers to submit daily reports to the Commission so the public can be aware of what percentage of carrier's cell sites are operational during and immediately after a disaster.
The Notice of Proposed Rulemaking (NPRM) on this topic was originally released on September 27, 2013, but the FCC has now announced the publication of the NPRM in the Federal Register. As a result, comments in this proceeding will be due on January 17, 2014 and reply comments will be due on February 18, 2014.
Under the Commission's proposals, which come in the wake of disasters like Hurricane Katrine, the Derecho Storm and Superstorm Sandy, carriers would have to report the percentage of active cell sites in each county within the designated disaster area. This would allow consumers to see how wireless service providers compare in keeping their networks operational in emergencies.
According to the FCC, Superstorm Sandy disabled at its peak more than twenty-five percent of cell sites in 158 counties in all or part of ten states and the District of Columbia. The most extensive wireless service disruptions were heavily concentrated in New Jersey and the New York City metro area, where residents found themselves without reliable and continuous access to mobile wireless communications throughout the storm and its aftermath. Several counties had outages of more than double the twenty-five percent aggregate figure. The State of New Jersey, all of which was included in the reporting area, had aggregated cell site outages on the order of forty percent. The Commission believes that requiring reporting and public disclosure of the information proposed could benefit consumers while also advancing public safety.
The FCC currently relies on periodic reporting from communications providers to gauge network reliability. Under Part 4 of its Rules, mobile wireless service providers are required to apprise the Commission of network outages that exceed certain quantitative thresholds, depending on the type of services provided. The FCC collects this information in its Network Outage Reporting System (NORS), and then uses the information to identify larger trends and vulnerabilities in the nation's communications infrastructure. In addition, the Commission operates a Disaster Information Reporting System (DIRS), which is activated during emergencies to collect near "realtime" status information from mobile wireless and other providers to improve the situational awareness of federal agencies, including the Federal Emergency Management Agency (FEMA), and streamline emergency response. Reporting in DIRS is voluntary; however, the Commission generally suspends the otherwise mandatory NORS reporting obligations of DIRS participants throughout periods when the latter system is fully activated. Information reported to the Commission in either of these reporting systems is afforded a presumption of confidential treatment, a policy the Commission adopted to protect filing parties from competitive harm and prevent terrorist targeting of vulnerable communications assets.
In particular, the Commission seeks comment on the following issues:
- Whether the proposed reporting and disclosures would provide consumers with useful information for making comparisons about mobile wireless products and services;
- Whether such disclosures, by holding providers publicly accountable, could incentivize improvements to network resiliency while allowing providers flexibility in implementing such improvements;
- Whether such information would be useful to policymakers at state and local levels;
- Whether the proposed disclosures comport with "smart disclosure" principles;
- Whether the proposed disclosure would lead to adverse unintended consequences for consumers and mobile wireless providers; and
- Whether the Commission should consider other measures, including alternative informational disclosures, performance standards or voluntary measures, or refer issues of what information would be helpful to consumers to an advisory committee before acting.
Signal Booster Manufacturers Warned of March 1, 2014 Compliance Date
The FCC has released a Public Notice reminding manufacturers of Signal Booster devices that new technical, operational and registration requirements for signal booster equipment will become effective on March 1, 2014. These requirements will apply to all signal boosters — consumer and industrial — that are sold and marketed in the United States.
Specifically, "no person, manufacturer, distributor or retailer may market, distribute or offer for sale or lease any Consumer Signal Booster that does not comply with the requirements of [Section 20.21(g) of the FCC's Rules] to any person in the United States or to any person intending to operate the Consumer Signal Booster within the United States at any time on or after March 1, 2014."
Because signal boosters will require FCC equipment authorizations and labeling in accordance with the new technical requirements, the FCC is cautioning manufacturers to ensure that sufficient time is provided for review and processing of applications for authorization.
FCC Rules Impose New Requirements, Annual Certification Requirement on Wireline and Wireless 911 Service Providers
The FCC has adopted new rules regarding 911 service reliability that require all "Covered 911 Service Providers" to meet an annual certification requirement and to take "reasonable measures" to ensure 911 circuit diversity, availability of backup power at central offices that directly serve PSAPs, and diversity of network monitoring links. (PS Docket Nos. 13-75, 11-60).
A "Covered 911 Service Provider," is defined as "any entity that provides 911, E911, or NG911 capabilities such as call routing, ALI, ANI, or the functional equivalent of those capabilities, directly to a PSAP, statewide default answering point, or appropriate local emergency authority, or that operates one or more central offices that directly serve a PSAP." A central office "directly serves a PSAP" if it "(1) hosts a selective router or ALI/ANI database (2) provides functionally equivalent NG911 capabilities, or (3) is the last service-provider facility through which a 911 trunk or administrative line passes before connecting to a PSAP." This includes virtually all providers, including wireline, wireless, and voice over internet protocol (VoIP). The FCC declined to adopt exemptions from these rules for rural local exchange carriers.
Thus, rather than take enforcement action against the individual carriers with demonstrated poor performance in connection with the provision of 911 service during emergency situations, such as the Derecho and Super-storm Sandy, the FCC has imposed on all carriers even more reporting requirements, which will disproportionately burden already overburdened small and rural telecom service providers.
According to the FCC, a service provider can demonstrate its compliance with the requirement to take "reasonable measures" to ensure reliable 911 service, by complying with the "best practices" which make up the certification and which are based on the industry best practices developed by the Communications Security, Reliability, and Interoperability Council (CSRIC). Although a service provider may depart from best practices, if it does so, the FCC states that the service provider should have a reasonable basis for its decisions, coupled with appropriate steps to compensate for any increased risk of failure. According to the FCC, "where service providers employ alternative measures in lieu of best practices, they should be able to explain why those measures are appropriate and reflect reasonable measures to provide reliable 911 service."
The Order also requires all Covered 911 Service Providers to certify annually to certain basic measures in three substantive areas, including 911 circuit auditing, backup power at central offices that directly serve PSAPs, and diverse network monitoring links. According to the FCC, a "certification that the Covered 911 Service Provider has performed all the elements will be deemed to satisfy the obligation to take reasonable measures to provide reliable 911 service, provided that the certification is accurate and complete." The FCC states that "if a Covered 911 Service Provider cannot certify affirmatively to every element in a substantive area, but believes that its actions are nevertheless reasonably sufficient to mitigate the risk of 911 service failure based on the configuration of its network and other factors, then it may certify that it has taken alternative measures in that substantive area. For each element where the Covered 911 Service Provider certifies to taking alternative measures, it must include with its certification a brief explanation of those alternative measures with respect to each PSAP, central office, or 911 service area where they are in use, and why those measures are reasonable under the circumstances to mitigate the risk of failure." Where certain elements of the certification do not apply, a Covered 911 Service Provider may so indicate. However, in this circumstance, "it must include with its certification a reasonable explanation of why those elements are not applicable."
The FCC specifies that "each certification must be made by a corporate officer responsible for network operations in all relevant service areas," and that "the certifying official must have supervisory and budgetary authority over a Covered 911 Service Provider's entire 911 network, not merely certain regions or service areas." Covered 911 Service Providers must maintain for two years the records supporting each annual certification and make such records available to the Commission upon request.
Finally, the FCC amended section 4.9 of its Rules, which required carriers to notify PSAPs when communications outages occur that affect 911 service "as soon as possible." Under the amended rule, Covered 911 Service Providers "must notify PSAPs of outages potentially affecting 911 service to that PSAP within thirty minutes of discovering the outage and provide contact information such as a name, telephone number, and e-mail for followup."
The new rules, including the underlying obligation to take reasonable measures to provide reliable 911 service, become effective thirty days after publication in the Federal Register. However, the information collection requirements pursuant to the rules will not become effective until approval by the Office of Management and Budget.
The FCC also adopted a phase-in of the annual certification requirement. Under the phase-in, Covered 911 Service Providers must file an initial certification one year after the effective date of the rules, indicating that they have made substantial progress toward meeting the standard of the full certification. According to the FCC, "[t]o allow service providers time to implement the best practices reflected in the certification, we define "substantial progress" as at least 50-percent compliance with each of the three substantive certification requirements."
FCC Grants Extension of November 20 deadline for 800 MHz Rebanding Cost Estimates
On August 16, 2013, the FCC released a public notice which established the rebanding schedule for 800 MHz licensees in the U.S.–Mexico border regions. Under the adopted schedule, licensees were required to provide Sprint with all cost estimates by November 20, 2013.
The FCC received numerous requests for extension of the November 20, 2013 deadline for 800 MHz licensees in the U.S.–Mexico border region to provide rebanding cost estimates to Sprint. Most licensees requested a short extension of time for January, February or early March, 2014 within which to provide the complete cost estimate to Sprint. Because the FCC was concerned that a delay by even one licensee could have a "domino effect" that could cause further delays to the rebanding efforts of other 800 MHz licensees, the waiver request justifications received a high degree of scrutiny. As a result, the FCC only granted those requests that where the licensee demonstrated that a grant would not unreasonably delay the rebanding of the 800 MHz band in the U.S.–Mexico border region. While the Commission could have dismissed those requests were licensees did not make an adequate showing, it chose instead to hold those requests — presumably so that licensees would have an opportunity to supplement their requests with an appropriate justification. In all, the FCC granted 26 requests allowing extension for submission of the cost estimate on or before the earlier of the date requested or March 10, 2014. For the four licensees that had requested additional time, the FCC indicated that supplemental requests for extension could be filed.
Failure to Timely Renew Earth Station License Results in $16,000 fine and Compliance Program
KSBJ Educational Foundation has entered into a voluntary consent decree with the FCC's Enforcement Bureau because it failed to timely renew its license for Domestic Earth Station E940280 in June 2004. KSBJ continued to operate its earth station for over 7 years even though its license had automatically expired. Upon discovery of its error, KSBJ immediately requested special temporary authority (STA) from the FCC to continue operating — which it continued to do until its initial request was dis-missed, as defective.
As part of the consent decree, the FCC required KSBJ to make a "voluntary contribution" to the US Treasury in the amount of $16,000. Additionally, KSBJ is required to
(a) designate a compliance officer and establish a compliance plan which includes operating procedures to ensure that all "covered" employees comply with the FCC's rules,
(b) create and distribute a compliance manual which explains the licensing rules and shows the Operating Procedures that all "covered" employees must follow and
(c) establish a compliance training program for all "covered" employees.
Should KSBJ violate any FCC Rule or the terms of its consent decree with the FCC, it is required to report any violations within 15 days of discovery of the violations.
While consent decrees can be a valuable tool when addressing issues of non-compliance with the FCC, it is important to note that they bring additional obligations since the FCC will mandate compliance programs for any "covered" employee.
The development of a proactive compliance program may assist you in avoiding FCC rules violations that could lead to enforcement action by the FCC — including substantial fines and possible loss of licenses. It is not unusual for the FCC to fine licensees for technical rules violations, including improper operation or antenna tower violations. Please let us know if you would like assistance in developing a compliance program.