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 Telecom Update||Vol. 17, No. 25||June 25, 2014|
FCC Releases Fourth “Measuring Broadband America” Report
On June 18, the FCC released the results of its ongoing nationwide performance study of residential broadband service in its fourth “Measuring Broadband America” report. According to a press release on the report, “This year’s report reveals that most broadband providers continue to improve service performance by delivering actual speeds that meet or exceed advertised speeds during the past year, but some providers showed significant room for improvement, particularly with respect to consistency of speeds.”
The report identifies five “evolving trends”:
- ISPs continue to deliver the combined upload/download speeds they advertise, but a new metric this year – consistency of speeds – shows there’s still work to be done; average speeds are close to advertised, but not always available.
- Download speeds performance varies by service tier, with some ISPs delivering less than 80 percent of advertised speed. Windstream’s 1.5 Mbps speed tier was the biggest offender here, only delivering 78 percent of advertised speeds.
- Fiber and Cable technologies continue to evolve to higher speed offerings, but DSL is beginning to lag behind. According to the report, providers using DSL technology generally failed to meet their advertised speeds.
- Consumers continue to migrate to higher speed tiers. This year, consumers subscribed to an average advertised speed of 21.2 Mbps, representing an increase of approximately 36 percent from last year.
- Upload speeds vary sharply. Verizon was king of the hill, offering upload rates as high as 35 Mbps and Frontier was a distant second up to 25 Mbps, but no other provider in the study offered rates that are higher than 10 Mbps.
The study also reportedly uncovered data on network congestion that, while not a part of the report, will be made public by the FCC, and plans to institute its own congestion.
NANC Recommendations on LNP Adopted
The Wireline Competition Bureau (WCB) of the FCC has adopted recommendations made by the North American Numbering Council (NANC) to change certain local number portability (LNP) “provisioning flows.” Specifically, the WCB adopted changes to existing processes for canceling a number port request, to the timeline for re-using disconnected ported numbers, and for changing the due date for a port. The WCB declined to adopt a recommendation concerning a preference for area code overlays instead of area code splits, and left to the states the option to choose the best means of implementing area code relief for their citizens.
With respect to the provisioning flows for port cancellations, termed by the NANC as the “Cancel Flows,” the WCB adopted revisions clarifying that if the customer contacts the current provider, that provider may choose to advise the customer to call the new provider to cancel the port request. If the customer contacts the new provider, that provider must cancel the port. If the current provider decides to cancel the port request, it must obtain verifiable authority from the customer, such as a Letter of Authorization, dated after the initial port request. The new provider must then process the cancellation request, even if the current provider does not provide an actual copy of the authorization. The WCB also adopted changes to the steps to be taken to notify the new provider of the cancellation, depending on whether the current provider is a wireline or a wireless provider.
With respect to the timeline for re-using disconnected ported numbers, the WCB adopted a recommendation to delete language in section 52.15(f)(ii) of the Commission’s rules that states “[t]he maximum interval between disconnect date and effective release is 18 months,” because it is inconsistent with the Commission’s rules, which provides that a service provider may not “age” disconnected residential numbers for more than 90 days and disconnected business numbers for more than 365 days.
The WCB also adopted the recommendation to accept Best Practice 65, which provides that both service providers involved in a port must agree to any changes to the original due date for that port. This change is intended to close a perceived loophole in the current flows that prompts some new service providers to activate ports before the agreed-to porting date and before the old service providers have their networks ready to port a number out.
The revised provisioning flows will become effective 30 days after publication in the Federal Register and will be available to the public through the NANC website. Once effective, the industry is required to comply with these new provisioning flows.
FCC Seeks Comment on LMCC Petition; Denies Extension of Temporary Rule Waiver
The Land Mobile Communications Council (LMCC) has filed a Petition for Rulemaking to amend Rule Section 90.159 to expand the Conditional Temporary Authorization rule to include Private Land Mobile Radio Service (PLMRS) applications for spectrum in the 470-512 MHz, 806-824/851-866 MHz and 896-901/935-940 MHz bands. Comments on the LMCC proposal are due Wednesday, July 23, 2014 and Reply Comments will be due on Thursday, August 4, 2014.
Under the FCC’s current rules, PLMRS applicants for spectrum below 470 MHz are permitted to operate in most circumstances for a period of up to 180 days during the pendency of their application, provided that the application has been frequency coordinated (if required) and been on file with the FCC for at least ten business days. Conditional temporary authorization will lapse if the application is dismissed or returned for additional information. Further, under the FCC’s rules, conditional temporary authority is not available if the application proposes a site in the Canadian coordination zone, the antenna structure still requires approval of the FAA and the FCC, the application requires a waiver of the FCC’s rules, the proposed facility will have a significant environmental effect or the proposed facility is located in a radio quiet zone.
Because of changes in the FCC’s regulatory environment for coordinating frequencies above and below 470 MHz, LMCC believes that conditional temporary authority for PLMRS applications above 470 MHz is appropriate. And, while the FCC granted a temporary waiver to permit conditional temporary authority for applications above 470 MHz in the industrial business pools, the question remains whether the same relief would be appropriate for the public safety bands as well since that spectrum is also subject to frequency coordination.
Accordingly, the FCC is seeking comment on whether to issue a Notice of Proposed Rulemaking to amend its rules to expand the scope of its conditional temporary authorization rules. For those of our clients with PLMRS systems above 470 MHz, we believe that this will enhance your flexibility in deploying systems since it will have the potential to greatly expand your tool box in order to accommodate construction schedules and minimize the need for applications for special temporary authorizations. Additionally, the FCC is also seeking comment on whether this proposal should be available to frequencies in both the Industrial/Business Pool and the Public Safety Pool, or just the former. Since both sets of frequencies are subject to frequency coordination in much the same manner, we believe that it would be appropriate for the FCC to provide this relief to frequencies in both the Industrial/Business Pool and the Public Safety Pool.
In a related matter, the FCC declined to extend the temporary waiver that had been granted for applications in the Industrial/Business Pool frequencies above 470 MHz. As a result, any applications for Industrial/Business Pool frequencies above 470 MHz that are received on or after July 1, 2014 will not have the benefit of the FCC’s conditional temporary authorization waiver and applicants will have to wait until their applications are affirmatively granted by the FCC unless they are able to obtain a specific grant of special temporary authority (STA) to construct and operate while the underlying application is pending.
E-Rate Modernization Effort Announced
FCC Chairman Tom Wheeler announced that he has circulated an E-Rate Modernization proposal to his fellow Commissioners. According to the announcement, the proposed Order is “the next major step in a comprehensive modernization of E-Rate,” and is “focused on the largest and most urgent need — closing the Wi-Fi gap — while ensuring E-Rate money is spent smartly and improving program administration.”
The announcement goes on to detail the “highlights” of the proposed Order:
Close the Wi-Fi Gap
- Commit at least $1 billion in support to Wi-Fi next year to connect over ten million students across the country in 2015, followed by another $1 billion in 2016 with predictable support continuing in future years.
- Provide multi-year funding predictability to ensure widespread and equitable distribution of support.
- Begin a multi-year transition of all program funding to broadband, by gradually phasing down support for non-broadband services.
- Adopt clear broadband goals to measure overall program success, while maintaining local flexibility to determine the needs of individual schools and libraries.
Make E-Rate Dollars Go Farther
- Set the maximum program match at 4-to-1 for Wi-Fi services to promote cost-effective decision-making.
- Speed consortium applications to drive down prices.
- Increase transparency on how E-rate dollars are spent and on prices charged for E-rate services.
- Leverage GSA pricing so schools can buy for less.
Deliver Faster, Simpler, More Efficient Applications and Other Processes
The FCC said it hopes to act on the proposed Order over the summer, so rules would be in place for 2015 funding.
- Fast, simple process for multi-year applications.
- Expedited process for small dollar, cost-effective applications.
- Speed review of all applications.
- Move to electronic filing of all documents.
- Simplify discount calculations.
- Zero tolerance for fraud or abuse: toughen document retention and site inspection rules.
Law & Regulation
Wireline Competition Bureau Seeks Comment on Market Analysis for CenturyLink Petition
On June 20, the FCC’s Wireline Competition Bureau released a Public Notice seeking comment on its proposed method for defining the relevant market or markets at issue, and analyzing the level of competition within the market(s). Comments are due July 7, and Reply Comments are due July 14.
CenturyLink filed a Petition for Forbearance requesting that the Commission forbear from “dominant carrier regulation and the Computer Inquiry tariffing requirement with respect to all of its packet-switched and optical transmission services (together ‘enterprise broadband services’) that are still subject to those obligations.” According to the Petition, due to a series of mergers CenturyLink’s enterprise broadband services are subject to different degrees of regulation depending on which CenturyLink affiliate—Qwest, Embarq, or CenturyTel—historically provided service in the area.
With regard to the requisite market analysis of the Petition, the FCC proposes to modify its traditional market analysis, which is based on the Qwest Phoenix Order’s specific criteria for defining markets and assessing market power, to account for “potential differences in competition for enterprise broadband services among various customer classes ( e.g. , small and medium businesses, as opposed to large enterprise customers; customers with localized or low-volume needs versus those with needs for nationwide contracts).” According to the FCC, “an analysis that recognizes the potential for varying levels of competition among customer classes will provide a sound framework to consider CenturyLink’s assertion that it competes in a nationwide market for the provision of broadband enterprise services.”
The FCC indicated that it also intends to issue a data request to help determine the level of competition that various customer classes face for the enterprise broadband services at issue in CenturyLink’s forbearance petition.
FCC Announces Tentative Agenda for July Open Meeting, Will Consider Rural Broadband Experiments
On June 20, the FCC issued the tentative agenda for its July 11, 2014 Open Meeting. The Commission will consider a Report and Order to modernize the E-rate program and expand support for Wi-Fi connectivity for schools and libraries (see the article in this week’s edition for more information).
The Commission will also consider a Report and Order establishing a budget and a methodology for selecting winning applications for the Connect America rural broadband experiments adopted in the Technology Transitions Order, and will consider a Second Order on Reconsideration and FNPRM that revisits the Commission’s determinations regarding the captioning of video clips when delivered using IP.
Clients will recall that back in February the FCC invited a wide range of entities and consortia (including state and regional authorities, research and education networks, municipalities, Tribal governments, cable operators, CLECs, ILECs, fixed and mobile wireless providers, wireless Internet service providers and electric utilities) to propose experiments that focus on the deployment of last mile broadband networks in rural areas that lack Internet access service that delivers 3 megabits per second downstream and 768 kilobits per second upstream. The FCC intends to make a portion of the current unallocated $230 million balance in the Connect America Fund (CAF) available to support the experiments.
D.C. Circuit Vacates FCC Interim Rules on IP-Captioned Telephone Service
On June 20, 2014, the United States Court of Appeals for the D.C. Circuit released an Opinion vacating the FCC’s January 2013 Internet Protocol Captioned Telephone Service (IP-CTS) (a form of Telecommunications Relay Service) Interim Order, asserting the FCC had no good cause for bypassing notice and comment rulemaking requirements, and vacated the $75 Rule and the Default-Off Rule contained in the August 2013 Final Order. The Court left the remainder of the Order intact. The appeal was brought by Sorenson Communications, Inc. and CaptionCall, LLC (collectively “Sorenson”).
IP-CTS uses the Internet to transmit telephone conversations and captioned messages between hearing-impaired users, third-party callers, and relay operators. The FCC uses the TRS Fund to compensate TRS providers for their services, with rates ranging from $1.2855 per minute to $6.2390 per minute, depending on the type of service provided. IP-CTS providers are compensated at a rate of $1.7877 per minute, and prior to the rulemakings at issue in the appeal, they served approximately 150,000 users.
Sorenson is an IP CTS provider. Unlike its competitors, who generally require their users to pay for their phones, Sorenson provided its phones to customers at no charge. This led to the belief that Sorenson’s unusual method of expanding its market presence resulted in a strain on the TRS Fund, with actual disbursements to providers far exceeding projected amounts.
On January 25, 2013, the FCC released the Interim Order, without notice and comment, promulgating several interim rules. It cited the potential for Fund depletion caused by IP-CTS misuse as “good cause” for bypassing the notice-and-comment requirements of the Administrative Procedure Act (APA). Of the rules promulgated in the Interim Order, two were pertinent to the appeal. First, the FCC required all new users to register and self-certify their hearing loss, but only if the provider sold the IP-CTS equipment for $75 or more. If the phone was distributed free or for less than $75, the FCC required users to submit a third-party professional certification of their hearing impairment. Second, all IP-CTS capable phones were to be distributed with the captions turned off and users were to activate the captioning feature for each call as needed. The FCC issued a Final Order on August 26, 2013, which made permanent—after notice and comment—most of the rules promulgated in the Interim Order.
The FCC tweaked the price-floor rule, eliminating the option to be certified by a third-party professional; instead, all phones were to cost $75 or more to be eligible for TRS reimbursement, unless the phone was distributed through a state-run program (“the $75 Rule”). As for the default captions rule, the FCC added an exception: all IP-CTS-capable phones were to be distributed with captions turned off by default, unless the user applied for an exemption based on a certification by an independent professional that the user was either too physically or mentally disabled to turn captions on manually (“the Default-Off Rule”).
The Court noted that an agency can bypass the notice-and-comment requirement of the APA when the agency “for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” Here, the Court determined that the FCC’s decision to implement the Default-Off Rule was arbitrary and capricious.
The Court resolved Sorensen’s challenges on APA grounds, stating that it did not need to reach the question of whether the two rules run afoul of Title IV of the Americans with Disabilities Act. Sorenson asked the Court to vacate the entire Final Order, but the Court saw no need to do so. According to the Court, “cutting to the chase, Sorenson would like to be rid of the marketing restrictions of the Final Order. Because the issues surrounding the rules were not properly presented to us, we have no opinion concerning whether the restrictions were properly promulgated in accordance with the ADA, the APA, and the First Amendment.”
The Court vacated the entire Interim Order, as there was no good cause for bypassing notice and comment. It also vacated the $75 Rule and the Default-Off Rule contained in the Final Order, but left the remainder intact.
US Supreme Court Rules Warrants Required for Cell Phone Search
The Supreme Court ruled unanimously today that police must obtain a warrant before searching mobile devices that are seized when arresting someone. The landmark decision was handed down in the case Riley v. California, and it extends broad constitutional privacy protections to data that citizens increasingly store on smartphones. The Court’s ruling also addressed a separate case on cell phone privacy, United States v. Wurie, which was argued on the same day.
The Court’s opinion, written by Chief Justice John Roberts, rejected law-enforcement arguments that cellphones should be subject to a long-standing exception to the warrant requirement that allows police to search the contents of suspects' pockets to make sure they don't carry weapons or destroy evidence.
“That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together. Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse,” Roberts wrote.
By way of background, the Supreme Court held in United States v. Robinson (1973) that law enforcement could conduct a complete search of a person incident to arrest. A “complete search” was not just limited to a frisk of the suspects outer clothing and removal of weapons that the arresting officer might reasonably ascertain that the suspect had in their possession, but also reasonably included a suspect’s remaining pockets to allow the removal of weapons which the arrestee might use to harm the officer or attempt an escape. However, the Roberts court concluded that the physical search rule of Robinson didn’t apply to cell phones:
“Modern cell phones are not just another technological convenience,” wrote Roberts. “With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’ The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.”
In the Riley case, police looked at the contents of David Leon Riley’s smartphone twice after his 2009 arrest but prior to obtaining a warrant. They found photos on the device that were evidence of Riley’s involvement in a gang, and the photos were deemed admissible by the trial court. Riley was subsequently convicted and given a lengthened sentence of 15 years to life based on his gang involvement. A state appeals court upheld Riley’s sentence as well as the use of cell phone evidence by authorities. During oral arguments yesterday morning, Riley's lawyer emphasized a distinction between law enforcement’s right to inspect physical items — like hardcopy photos in a suspect’s wallet — and digital evidence. He told the justices there are “very, very profound problems with searching a smartphone without a warrant.”
In the Wurie case, the federal government was challenging a decision by the First Circuit Court of Appeals that ruled against warrantless review of the call log of a cell phone found on a person who was lawfully arrested. There, the court threw out Brima Wurie’s conviction after a search of his flip phone following a street arrest in 2007 led police to his home where they discovered a variety of drugs and weapons. The Court of Appeals reasoned that a modern cell phone is more like a personal computer that can contain large amounts of highly personal information. Because searching cell phone data could be a convenient way for the police to find more information relating to the suspect’s arrest or even other crimes, the Court of Appeals held that the police could not perform warrantless searches of cell phones unless specific exigent circumstances existed, such as destruction of evidence or a bomb threat.
The ruling found that even though the “search incident to arrest” exception does not apply to cell phones, other case-specific exceptions — such as when “the exigencies of the situation” may still justify a warrantless search of a particular phone.
As a result of the ruling, Supreme Court reversed and remanded the Riley case to the California Court of Appeals, and it affirmed the First Circuit’s ruling in Wurie. We are continuing to review today’s decision and will keep our clients advised of any further developments.
AT&T Chairman Promises Expansion of Rural Broadband if DirecTV Merger Approved
In a hearing on the proposed merger of AT&T and DirecTV before a House antitrust subcommittee yesterday, AT&T’s Chairman and CEO, Randall Stephenson, described ambitious plans to expand access to AT&T’s broadband services in rural America if the $45.8 billion transaction is allowed to proceed.
“Being able to offer DirecTV’s video product on a nationwide basis gives us the confidence to expand and enhance our high-speed broadband service to at least 15 million customer locations across 48 states, mostly in underserved rural areas, within four years after deal close,” Stephenson said in prepared testimony.
Stephenson’s testimony revealed that the company plans to use fixed wireless technology — using “dedicated spectrum, and professional home installations” — to expand service to a majority (13 million of the 15 million) of these households. He said the product would perform at speeds of 15-20 Mbps, and that nearly 20% of rural customers that would receive AT&T’s service today have no access to high-speed wireline broadband, while another 27% have access to only one provider. In addition, AT&T promised to upgrade at least 2 million additional customer locations to its “GigaPower” fiber-to-the-home broadband service. These additional locations today either have no AT&T broadband or older generation broadband that does not support video.
A map provided in support of Stephenson’s testimony (shown below) reflects AT&T’s “best estimate” of the coverage of its promised broadband expansion:
Stephenson touted competitive benefits of the transaction, arguing AT&T and DirecTV do not compete in the vast majority of the country, and that the deal will make AT&T a stronger competitor and able to accelerate innovation and deployment of new broadband infrastructure. He even said that the AT&T-DirecTV merger would pressure cable companies to lower prices. He was unwilling, however, to guarantee that AT&T would lower its own pay-TV prices for consumers.
"At best you're telling us [the merger] would slow the rate of increase" for prices, said Sen. Richard Blumenthal (D-Conn). "I think at best a lot of consumers would find that answer unsatisfying."
Lawmakers were reportedly less confrontational to AT&T than they were at an April hearing that examined the proposed Comcast-Time Warner Cable deal. Congress has no direct authority to block such a deal, but members can exert political and/or budgetary pressure on the FCC and Justice Department.
The AT&T-DirecTV merger is subject to approval by DirecTV shareholders as well as review by the FCC, the DoJ, a few U.S. states and some Latin American countries. In addition, AT&T will sell its 8.4% stake in America Movil SAB, worth about $5.8 billion, in the open market to facilitate the regulatory approval process. America Movil is a major competitor for DirecTV in the pay-TV market in Latin America. AT&T has said it expects the deal to close within approximately 12 months.
Mediacom and Deere & Co. Seek Federal Funding For Rural Internet Project in Two Iowa Counties
PCIA reports that the Des Moines Register recently published an article stating that Mediacom Business and Deere & Co. have asked the FCC to help fund a plan to demonstrate how reliable broadband connectivity has grown from a luxury tor rural communities into an anchor that can attract businesses and other attractions. The project would strengthen access to high-speed Internet access in Audubon and Carroll Counties in western Iowa.
Officials for the two companies say the project would help farmers get the most out of modern farm equipment, much of which now includes features that can only be fully implemented with high-speed Internet access. A filing with the FCC specified the cost of the project as approximately $800,000 in federal funding in addition to 20 percent more to come from Mediacom and other private sources. Officials for both companies claim that the first step is to convince the government that the plan is viable.
The project would require laying six miles of fiber-optic cable in Audubon County and 19 miles in Carroll County. The cost estimate is $200,000 for the Audubon County portion and $600,000 for the Carroll County portion.
The FCC will award between $100 million and $150 million later this year to fund broadband projects. Deere and Mediacom submitted their proposal as part of the agency’s preliminary phase. A formal application seeking the money will have to be filed after the FCC adopts rules governing the process for awarding funding.
Sprint Inks 4G LTE Rural Roaming Agreements with 12 New Carriers
Sprint has announced a significant expansion of its Rural Roaming Preferred Program through the addition of 4G LTE agreements with 12 rural and regional network carriers. The agreements further initiatives announced this past March by Sprint, Competitive Carriers Association (CCA) and the NetAmerica Alliance. Sprint’s Rural Roaming Preferred Program now extends coverage to 23 states, over 352,000 thousand square miles and a population of over 34 million people.
Last week’s announcement highlights agreements with 12 new carriers:
- SouthernLINC Wireless, covering 127,000 square miles and 18 million people in Georgia, Alabama, Mississippi and Florida
- nTelos, covering 66,000 square miles and 6.1 million people in Virginia, West Virginia, Maryland, North Carolina, Pennsylvania, Ohio and Kentucky (previously announced)
- C Spire Wireless, covering over 61,700 square miles and approximately 5.5 million people in Mississippi, Alabama, Florida and Tennessee
- Nex-Tech Wireless , covering 35,000 square miles and 286,000 people in Kansas and Colorado
- Flat Wireless, covering over 29,000 square miles and 2.1 million people in Texas, New Mexico and Arizona
- SI Wireless dba MobileNation, covering 10,000 square miles and 830,000 people in Tennessee and Kentucky
- Inland Cellular, covering 9,000 square miles and 297,000 people in Idaho and Washington
- Illinois Valley Cellular, covering 5,500 square miles and 250,000 people in Illinois
- Carolina West Wireless, covering 3,100 square miles and 585,500 people in North Carolina
- James Valley Telecommunications, covering 4,000 square miles and 45,000 people in South Dakota
- VTel Wireless , covering 791 square miles and 60,450 people in Vermont
- Phoenix Wireless, covering 800 square miles and 17,000 people in Maine
“These agreements demonstrate Sprint’s commitment to provide better coverage, a faster network and a wider selection of lower-cost wireless devices to all customers, regardless of where they live,” said Michael C. Schwartz, Sprint senior vice president of Corporate and Business Development. “Through unique and flexible deals with carriers like C Spire and nTelos we are providing an enhanced 4G LTE experience for Sprint customers and increasing wireless choice and competition across rural America.”
Through the CCA arrangement, Sprint will provide competitive wireless service providers with roaming access on Sprint’s 4G LTE network. In turn, rural carriers will build local 4G LTE mobile broadband networks (Sprint Network Vision-compliant) and will share those networks with Sprint. Sprint will also share its network (nationwide) with participants. Participating carriers will use CCA’s Data Services Hub (developed by Reston, VA-based Transaction Network Services, Inc.) as a clearinghouse for reciprocal roaming arrangements with each other and Sprint, Wi-Fi access and interoperability and 3G roaming fallback. RCR Wireless has reported that Sprint will also work with CCA to promote a device ecosystem that will include 700 MHz Band Class 12 support into devices that are also compatible with Sprint’s LTE and CDMA services across the 800 MHz and 1.9 GHz bands.
The Rural Roaming Preferred Program, developed by CCA, complements the Small Market Alliance for Rural Transformation (SMART) initiative announced last March by Sprint and the NetAmerica Alliance, which remains a separate program. That agreement will provide members with the ability to lease 800 MHz and 1.9 GHz spectrum from Sprint in markets where the carrier does not have plans to launch LTE services, reciprocal roaming with Sprint and its network partners, and relies on core network facilities maintained by NetAmerica. In contrast, the CCA Rural Roaming Preferred Program does not appear to provide participating carriers with access to Sprint’s licensed spectrum. To date, Net America has completed preliminary agreements with 14 companies and has engaged in discussions with approximately 40 additional companies in more than a dozen states.
Jun. 26 – Replies to petitions to suspend or reject tariff filings made on 15 days’ notice are due.
Jun. 26 – Petitions to suspend or reject tariff filings made on 7 days’ notice are due.
Jun. 27 – Replies to petitions to suspend or reject tariff filings made on 7 days’ notice are due.
Jul. 1 – FCC Form 481 (Carrier Annual Reporting Data Collection Form) is due.
Jul. 3 – FCC Application Filing Fees increase.
Jul. 7 – Comments are due on proposed FCC fee revisions.
Jul. 7 – Comments on Market Analysis for CenturyLink Forbearance Petition are due.
Jul. 10 – Comments are due on T-Mobile Data Roaming Petition.
Jul. 14 – Comments are due on Citizens Broadband Radio Service FNPRM.
Jul. 14 – Reply comments on Market Analysis for CenturyLink Forbearance Petition are due.
Jul. 14 – Reply comments are due on proposed FCC fee revisions.
Jul. 15 – Comments are due on the Open Internet NPRM.
Jul. 15 – Comments are due refreshing the record on the 2010 Broadband NOI.
Jul. 23 -- Comments are due on LMCC Petition to Expand Conditional Temporary Authorization
Jul. 31 – FCC Form 507 (Universal Service Quarterly Line Count Update) is due.
Jul. 31 – Carrier Identification Code (CIC) Report is due.
Jul. 31 – FCC Form 690 (Mobility Fund Phase I Auction Winner Annual Report) is due.
Aug. 1 – Reply comments are due on Citizens Broadband Radio Service FNPRM.
Aug. 4 - Reply comments on LMCC Petition to Expand Conditional Temporary Authorization are due.
Aug. 11 – Reply comments are due on T-Mobile Data Roaming Petition.
Sep. 10 – Reply comments are due on the Open Internet NPRM.
Sep. 10 – Reply comments are due refreshing the record on the 2010 Broadband NOI.
|BloostonLaw Private Users Update||Vol. 15, No. 6||June 2014|
Reminder: License Modification May Not Result in a New Construction Date – Watch Your License
The FCC recently issued an order dismissing a late-filed Petition for Reconsideration of the termination of a wireless license for non-construction. In this case, the license was originally issued on February 28, 2013 with a February 28, 2014 construction deadline. On August 28, 2013, the FCC granted an application for modification of the license. However, this license modification did not result in the adjustment of the license construction deadline. As a result, because the licensee did not file its construction notification in a timely manner, the license, as modified in August 2013 automatically terminated on February 28, 2014.
The FCC has established a mechanism for addressing license authorizations where a construction notification has not been filed before it acts to formally terminate the license authorization in its license database. Under this procedure, the FCC will issue a Termination Pending Public Notice, which will provide affected licensees with a 30-day window to seek reconsideration of the FCC’s proposed action. The licensee will be required to demonstrate that the station was timely constructed within the authorized construction period. A failure to file the petition for reconsideration will ultimately result in loss of your authorization with respect to that transmitter. As a result, it is extremely important that any filings be made in a timely manner in order to avoid the inadvertent loss of a necessary and valuable license.
Any clients with questions about their construction requirements should contact our office.
Complaint Leads to $12,000 Consent Decree for Operating on Expired License
Call Mobile, Inc. has entered into a consent decree for $12,000 following a complaint that lead to an FCC investigation which concluded that Call Mobile had been illegally operating on an expired license for almost three years. Call Mobile indicated that the license expiration was the result of human error since it had believed that the license for the station did not expire until 2013 like the rest of its licenses — especially since it had consolidated several of its licenses. As a result, Call Mobile inadvertently assumed that the call sign was inactive when it received its renewal reminder notification from the FCC in 2010.
It is critically important that our clients ensure that licenses are properly maintained and renewed in a timely manner. A failure to renew a license will result in the automatic termination of the license authorization and the operational authority that goes with it.
The FCC originally proposed a fine in the amount of $15,000 — which was based upon two violations: (a) operations for almost three years without authorization and (b) failure to file required forms — namely, the license renewal applications.
Because of the potential for inadvertent rules violations, we recommend that our clients periodically review their licenses in order to ensure that the station operations match the licensed specifications and that no licenses have inadvertently been allowed to expire. Clients with any questions or concerns should contact our office.
FCC Proposes $15,000 Fine for Tower Violations
The FCC has proposed a $15,000 fine against Northeast Passage Corporation for various antenna structure violations, including: (a) the failure to monitor and properly maintain daytime obstruction lighting, (b) increasing the structure height without FCC authorization and (c) failing to notify the FAA of known light outages.
On July 19, 2013, the FCC’s field agents stumbled upon Northeast Passage Coloration’s antenna in Hightstown, New Jersey. The tower did not appear to be lit or painted as required by the FCC. In this regard, the FCC’s antenna structure registration database indicated that antenna tower stood 78.3 meters above ground level and was required to have day-time painting and red obstruction lighting for night-time visibility. When the FCC’s enforcement agents came back to inspect the tower a few days later, it was discovered that, while the tower had red-obstruction lighting, it also had medium white-intensity lighting in lieu of the required day-time paint, and most of the medium intensity white lights were not working. Based upon this inspection, the FCC contacted the FAA and determined that no Notice to Airman (NO-TAM) had been filed to warn pilots of the hazards posed by the lighting outage. Finally, the FCC field agents also determined from a contractor working on the tower that the tower itself significantly exceeded the authorized structure height specified in the ASR.
During the course of the FCC’s investigation, Northeast Passage’s President claimed that the contractor working on the tower was to repair the tower lights, that the tower lights were being monitored by US Tower Services – which had contracted with Nextel to monitor the lights. The FCC’s enforcement agents were unable to substantiate any of Northeast Passage’s claims.
Even though Northeast Passage received a Determination of No Hazard from the FAA in 2006 to increase the overall height of its antenna structure and change its obstruction marking and lighting from day-time paint to medium intensity white-lighting, it never sought the required approval from the FCC to modify its Antenna Structure Registration.
In reviewing the violations (failure to properly maintain obstruction marking and lighting and notifying the FAA of the outage and failure to update its Antenna Structure Registration), the FCC proposed a base fine of $13,000. However, because Northeast Passage appeared to act with “deliberate disregard for the Commission’s rules that are critical for ensuring the safety air navigation,” the FCC added an additional $2,000 for a total of $15,000.
Clients should make the following observations in dealing with the FCC in similar type cases: (a) If you desire to make a change to your antenna tower, it is critically important to amend the Antenna Structure Registration after you receive your FAA approval to make the change, and (b) do not mislead an FCC enforcement agent since this case demonstrates that they may check behind you to make sure your statements are accurate.
FCC Proposes Record $34.9 Million Fine for the Sale and Marketing of Illegal Signal Jammers
The FCC has issued a Notice of Apparent Liability for Forfeiture of $34.9 million against a Chinese electronics manufacturer and retailer for allegedly marketing 285 different models of signal jamming devices to US consumers over a two year period. As we have previously reported, the use of signal jamming equipment is illegal in the United States and dangerous, since it can block emergency cellular calls to 911 services as well as public safety communications.
It is important to note that all companies, whether located in the United States or overseas, are subject to the FCC’s equipment rules for any equipment that is marketed or sold in the United States — including the prohibition against the marketing and sale of signal jamming equipment. In this case, CTS Technology Co. (CTS) operates an Internet website that markets consumer electronics to consumers in the United States. The FCC states that CTS used this website to mislead American consumers by falsely claiming that certain signal jammers were approved for use by the FCC — when in fact the use of signal jamming equipment by consumers is illegal under any circumstance. The FCC noted that in addition to marketing and selling these devices to the general public, CT also sold 10-high powered signal jammers to undercover FCC personnel.
In addition to the proposed $34.9 million fine, the FCC has also ordered CTS to cease marketing signal jamming equipment in the United States and to report to the FCC any US based persons and entities that have purchased these devices.
The public may report the sale or use of an illegal signal jammer by contacting the FCC’s Enforcement Bureau at 1-888-225-5322.
If you have inadvertently purchased an illegal signal jammer, please contact our office promptly.
ARRI, Inc. Agrees to $80,000 Penalty for Illegal Sale of Electronic Devices
AARI has entered into a consent decree with the FCC’s Enforcement Bureau and agreed to make a voluntary contribution to the federal Government for $80,000. The consent decree resulted from ARRI’s marketing and sale of digital cameras and wireless accessories in the United States prior to complying with the FCC’s equipment authorization rules, which are designed to ensure that devices which emit radio frequency radiation do not interfere with authorized radio communications and provide consumers with the necessary information to ensure that electronic devices are used properly.
FCC Waives Narrowband Requirement to Allow Rescue Squad to Obtain Quiet Zone Approval
In connection with a Petition for Reconsideration filed by Belington Emergency Squad in West Virginia, the FCC has waived the narrowbanding requirement for a period of six months in order to enable the Rescue Squad to “obtain ‘Quiet Zone’ approval.” In taking this action, the FCC dismissed Belington’s Petition for Reconsideration as moot.
As we have previously reported over the past few years, the FCC’s narrowbanding requirements for the VHF and UHF bands became effective on January 1, 2013 and any wide band operations would no longer be permitted unless explicitly allowed under the FCC’s Rules or pursuant to the grant of a limited rule waiver by the FCC. If you are still operating in a wide-band mode, please contact our office right away so that we can assist in bringing your station back into regulatory compliance. The FCC has repeatedly indicated that they can issue fines for improper operation.
At issue in Belington’s case is the fact that Quiet Zone approval is required because of the National Radio Astronomy Observatory (NRAO) telescope located at Green Bank, West Virginia. This Quiet Zone – which is 13,000 square miles, was created to minimize the possible harmful interference to the NRAO telescope. As a result, the FCC’s rules require applicants to notify the NRAO of any proposed construction and operation of a new or modified radio facility from any fixed location within the Quiet Zone.
When Belington sought the required approval from the NRAO, its administrator requested that it significantly reduce power as part of the narrowbanding process to 17 watts ERP. Because the Administrator did not explain why Belington’s narrowband operation would pose a greater potential for greater interference than its current wide-band operation at 25 kHz, the Commission granted a limited waiver to Belington to continue wide-band operations for a period of six months so that it may pursue the matter further with the NRAO administrator since Belington has no other alternative to keep operating.