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. 17 || April 30, 2014 |
Form 481 Filing Deadline on the Horizon: July 1, 2014
The FCC's Form 481 is due on July 1, 2014, and must not only be filed with USAC, but also with the FCC and the relevant state commission and tribal authority, as appropriate. It is expected that this year (like last year), filers will be required to seek confidential treatment separately with the FCC and the relevant state commission and tribal authority if confidential treatment was desired. Because this entails manual filing, it can be cumbersome.
BloostonLaw is available to assist filers in all aspects of Form 481 filing procedures, including requesting confidential treatment and obtaining proof of filing.
FCC to Consider Open Internet FNPRM, Early Comment Sought
The FCC has announced that on May 15 at the monthly Open Commission Meeting, it will consider a Notice of Proposed Rulemaking addressing the D.C. Circuit Court of Appeals' remand of the 2010 Open Internet Order (a.k.a. Net Neutrality). Despite the fact that the item has not been released, the FCC is nevertheless is encouraging the public to share their views now. Given the ever increasing role of the internet in today's communications, carriers should make the effort to get involved at every opportunity in order to help ensure their interests are protected. Carriers interested in filing comments should contact the firm ASAP.
On April 23, the Wall Street Journal , the New York Times , and other news sources reported that the NPRM (which, as noted above, has not yet been released to the public) will condone "fast lane" agreements akin to those recently signed by Netflix with Comcast and Verizon, in which the content providers' traffic receives improved transmission to end-users. If true, Chairman Wheeler may have a hard time squaring the NPRM with his earlier promises to introduce Open Internet rules that would preserve the spirit of the original rules – particularly the rule prohibiting the selective treatment of certain traffic based on content or application.
The times further reports that, under the proposed rules, broadband providers would have to disclose (i) how they treat all Internet traffic; (ii) on what terms they offer "fast lane" services; and (iii) whether they have favored their affiliated companies that provide content in assigning such faster lanes – a concern that, in the enhanced service context, ultimately resulted in the adoption of the Open Network Architecture rules for the Bell Operating Companies after their break up. Providers would also be required to act "in a commercially reasonable manner."
On April 24, FCC Chairman Wheeler posted a blog entry attempting to "set the record straight." According to his entry, the Notice "does not change the underlying goals of transparency, no blocking of lawful content, and no unreasonable discrimination among users established by the 2010 Rule." Moreover, the Chairman contends, "the Notice will propose rules that establish a high bar for what is "commercially reasonable." In his own words, the notice will propose:
- That all ISPs must transparently disclose to their subscribers and users all relevant information as to the policies that govern their network;
- That no legal content may be blocked; and
- That ISPs may not act in a commercially unreasonable manner to harm the Internet, including favoring the traffic from an affiliated entity.
A number of voices have already been raised in concern over the pending NPRM. Rep. Nancy Pelosi (D-Calif.) issued a statement on April 24, 2014, saying that "[p]ress accounts of the draft proposal from the FCC raise serious concerns that the Internet might soon lose the core of what it is — an open space for innovation, entrepreneurship, connection and communication. . . We must not allow broadband providers to relegate competing ideas, products, and services to slow, congested speeds." Rep. Marsha Blackburn (R-Tenn.) sent a letter to Chairman Wheeler on April 24, 2014, requesting the FCC conduct a cost benefit analysis of the upcoming NPRM on open Internet rules, as outlined in President Obama's Executive Order 13563.
Industry figureheads and the press also raise concerns about the competitive disadvantage "fast lane" agreements may create for start-up entities just beginning to offer new services
Supreme Court to Weigh Risks of Warrantless Cell Phone Searches
The U.S. Supreme Court on Tuesday heard oral arguments in two cases that ask whether the police must obtain a warrant before searching a suspect's cell phone at the time of an arrest.
The two cases, Riley v. California and Unites States v. Wurie , both have long appellate histories, and both involve situations where a person was arrested and convicted in part based on evidence that was directly or indirectly obtained through an examination of their cell phones. The question to be decided by the Court arises under the Fourth Amendment, which guarantees the right of the people to be secure against "unreasonable searches and seizures." With more than 65% of cell phone users today using smartphones, and the ability of these devices to store reams of emails, text messages, photographs, GPS data, and other sensitive personal information, the implications are profound. Under what circumstances should police be allowed to look through an arrested suspect's cell phone without a warrant, and at what point does this practice become an unreasonable search?
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 hard-copy 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."
Justice Elena Kagan, the newest court member, seemed sympathetic to Riley's position when she observed that the government's argument would give police the ability to look at every single email that person had written, a person's bank records, their medical data, their calendar, and also look at the person's GPS data and find out every place where they had been recently, if they were pulled over for not wearing a seat belt. Justice Samuel Alito, however, seemed to take an opposing view. "What's the difference between looking at hard-copy photos in a billfold and looking at photos that are saved in the memory of a cell phone?" he asked.
In the Wurie case, the federal government is 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.
At oral argument , the Deputy Solicitor General emphasized how law enforcement's review of a ringing phone to ascertain the number of a caller identified as "my house" was a reasonable way to ascertain the identity of the offender.
The government wants the Supreme Court to expand the scope of its "search-incident-to-arrest" doctrine, arguing that a person arrested has no "reasonable expectation of privacy" in his cell phone and, therefore, that the government need not be required to obtain a warrant based on probable cause before conducting a search of the cell phone for evidence of the commission of some crime. Civil liberties groups believe there must be safeguards to ensure that the search-incident-to-arrest doctrine does not allow the police to rummage through our most personal effects without constraint and without a warrant. An amicus brief filed by the ACLU argues that in addition to Fourth Amendment interests, important First Amendment protections are at stake. "Cell phones not only provide a means for expression," wrote the ACLU, "they contain substantial information about our constitutionally protected associations."
Under what is known as the Robinson rule, Courts currently allow law enforcement to do warrantless searches when a person is arrested. For example, if someone is pulled over and authorities have probable cause, they might check the car. This is often justified as a way to ensure police safety and avoid the destruction of evidence. However, law enforcement and prosecutors fear that if they must wait for a warrant to inspect a cell phone, a criminal might have the ability to remotely destroy evidence, or to use the device as a weapon ( e.g., for remote detonation of a bomb).
The Supreme Court's rulings in these cases will help shape the contours of the Fourth Amendment's protections against unreasonable searches and seizures in light of new technologies. A decision by the Court is expected in June.
Results For Connect America Cost Model Released
The Wireline Competition Bureau (WCB) has released results for the adopted Connect America Cost Model (CAM v4.1.1) and a list of census blocks that would be eligible for model-based support. (WC Docket No. 10-90) The results for the model are available here . The WCB notes, however, that final figures may change, "depending on the upcoming challenge process and any adjustments that may be made to the budget stemming from updated projections regarding Connect America Fund — Intercarrier Compensation support."
Notably, the results for the model include a list of census blocks that will be eligible for funding under CAM v. 4.1.1. Clients are encouraged to review the lists of census blocks, whether they intend to seek support or challenge others seeking support in their currently-served areas.
The WCB states that the CAM is available at http://www.fcc.gov/encyclopedia/caf-phase-ii-models or https://cacm.usac.org/ . The WCB states that to access the model, "parties must execute the relevant acknowledgement of confidentiality, licensing, and nondisclosure documents released as attachments to a Third Supplemental Protective Order."
Law & Regulation
FCC Announces Tentative Agenda for May Open Meeting
On April 24, the FCC issued a News Release announcing the following items for the tentative agenda for the May 15 Open meeting:
Incentive Auction : a Report and Order that adopts key policies and rules for the broadcast television spectrum incentive auction, laying the groundwork for an unprecedented, market-driven process for repurposing spectrum for mobile broadband use, and promoting competition and innovation.
Mobile Spectrum Holdings: The Commission will consider a Report and Order that modifies the Commission's policies and adopts rules regarding the aggregation of spectrum for mobile wireless services through initial licensing and secondary market transactions to preserve and promote competition. This order will play a key role in defining the ability of potential bidders to seek certain licenses in the upcoming AWS-3 and 600 MHz auctions.
Wireless Microphones: The Commission will consider a Report and Order that provides a limited expansion to the class of wireless microphone users eligible for a license.
Protecting and Promoting the Open Internet: The Commission will consider a Notice of Proposed Rulemaking addressing the D.C. Circuit Court of Appeals' remand of portions of the Commission's 2010 Open Internet Order and proposing enforceable rules to protect and promote the open Internet.
The Open Meeting is scheduled to commence at 10:30 a.m. in Room TW-C305, at 445 12th Street, S.W., Washington, D.C., and will be shown live at FCC.gov/live.
Energy & Commerce Committee Announces Hearing with FCC Chairman
On April 28, the House Subcommittee on Communications and Technology, chaired by Rep. Greg Walden (R-OR), announced that it will have a hearing to conduct oversight of the Federal Communications Commission on Tuesday, May 20, 2014. According to the announcement, FCC Chairman Tom Wheeler will be the sole witness.
"I am pleased that Chairman Wheeler will join us in May," said Rep. Walden in a statement on the hearing. "This will be our first opportunity to directly discuss issues important to our technology economy, including recent proposals regarding the incentive auctions, the latest iteration of the administration's ill advised net neutrality policies, and the broadcast joint sharing agreements and media ownership proceedings at the commission. Process reform also remains a top priority for the committee, and we look forward to discussing this with the chairman."
Walden continued, "We also welcome the opportunity to find areas of common ground as we work toward updating the Communications Act. We look forward to what will surely be a thorough and spirited discussion with Chairman Wheeler."
FCC Proposes $89,200 Fine Against Licensee for Lack of Cooperation
On April 28, 2014, the FCC issued a Notice of Apparent Liability for Forfeiture (NALF) against the licensee of a Philadelphia Television Station for alleged violations of three rule sections. The licensee, D.T.V., LLC, is alleged to have: 1) refused, on two separate occasions, to allow Enforcement Bureau agents from the FCC's Philadelphia Office to conduct unannounced inspections of its facilities; 2) failed to maintain a fully-staffed main studio during normal business hours, as required by the broadcast rules; and 3) failed to operate the station in accordance with the terms of the station's authorization (i.e., it operated from an unauthorized location). This action underscores the need for all licensees (including CMRS and private radio license holders) to cooperate fully with FCC personnel, and to operate their facilities with the expectation that at any time they may come under scrutiny.
According to the NALF, at approximately 11:20 a.m. on August 17, 2011, the FCC agents attempted to inspect the station's main studio, but found it inaccessible because there was a locked gate across the driveway which led to the building. The agents spoke by telephone with the Station Manager and requested access to the main studio to conduct an inspection. After about ten minutes, the Station Manager appeared at the gate and told the agent's he was leaving for a doctor's appointment and asked them to come back the next day to conduct the inspection. In response to questions about staffing at the main studio, the Station Manager reported that no one else was available at the main studio to facilitate an inspection. The FCC agents advised the Station Manager that the main studio needed to be accessible to the general public during normal business hours in accordance with FCC requirements. Nevertheless, the Station Manager refused to permit the inspection, and the agents left without agreeing to return the next day.
After leaving the main studio location, the agents attempted to contact the sole owner of the station. The agents left a voicemail reciting what had happened, but the owner did not return the call. A voicemail also was left at the station's main studio. The Station Manager returned the call, and said he was still at the doctor's office. The agent told the Station Manager that, based on the number appearing on the caller ID, he appeared to be calling from the main studio. The Station Manager replied that the station used his personal cellular number as the station's main studio number.
On the morning of September 30, 2011, the agents returned to conduct an inspection but were prevented from doing so by the locked gate. The Station Manager exited the main building, stood at the gate, asked the agents to wait and presumably returned inside. After waiting ten minutes, the agents left. The agents returned later that afternoon, spoke to the Station Manager by phone, and reminded him that the main studio must be made available for inspection, and that the locked gate prevented access. The Station Manager stated that the gate had to remain locked for security reasons, and that the public must contact the station to obtain access. The agents noted that no information was posted at the gate to inform the public how to obtain access. Later that day, the agents unsuccessfully attempted to contact the station's owner.
On March 6, 2012, an agent visited the site and determined that the station was operating from an unauthorized location. The authorized location was 0.203 miles away. The licensee had no transmitting equipment at the authorized location.
In proposing the forfeiture, the FCC described the licensee's conduct as "simply unacceptable;" and noted that the licensee and its sole owner are "experienced broadcasters and own numerous broadcast stations, including multiple Class A Television facilities across the country." The FCC further noted that no prior case has "involved, repeated, direct, in-person refusals of access by the highest levels of a broadcast station's management, as well as multiple failures by the licensee's sole principal to return FCC agent calls concerning the refusals. Here, by contrast, [the licensee's] actions exhibited a blatant disregard of and contempt for the Commission's authority."
FCC Proposes $48,000 Fine for Jamming Cellphone Calls during Daily Commute
On April 29, 2014, the FCC released a Notice of Apparent Liability for Forfeiture proposing a $48,000 fine against a Florida man who allegedly jammed consumer cell phone service from his car for nearly two years and interfered with first-responder communications. The NALF alleges that Jason R. Humphreys of Seffner, Florida interfered with these services while commuting along a section of Interstate 4 in Florida. In taking this enforcement action, the Commission noted that Mr. Humphreys' jammer operation "could and may have had disastrous consequences by precluding the use of cell phones to reach life-saving 9-1-1 services provided by police, ambulance, and fire departments."
FCC Enforcement Bureau agents identified Mr. Humphreys as the source of the interference by using interference detection techniques. They then worked closely with the Hillsborough County Sheriff's Office, which stopped Mr. Humphreys' vehicle while he was apparently operating the jammer and seized the illegal jamming device. According to deputies from the Sheriff's Office, communications with police dispatch were interrupted as they approached Mr. Humphreys' vehicle.
Mr. Humphries admitted to the Sheriff's Deputies that he had operated a cell phone jammer from his car for the past 16 to 24 months. He told them that he had been operating the jammer to prevent people from talking on their cell phones while driving. The FCC has proposed a $48,000 monetary forfeiture because of the seriousness and duration of the alleged offense.
Signal jamming devices or "jammers" are radio frequency transmitters that intentionally block, jam, or interfere with authorized communications, such as cellphone calls, GPS systems, Wi-Fi networks, and first-responder communications. It is a violation of federal law to market, sell, import, or use a signal jammer in the United States and its territories, except in very limited circumstances involving federal law enforcement. While these devices have been marketed and sold with increasing frequency over the Internet, their use by U.S. consumers is illegal under any circumstances. Unlawful use of signal jammers could result not only in substantial monetary fines, but also imprisonment.
Amazon's Upcoming Smart Phone to Feature 3D, "Prime Data" Mobile Broadband through AT&T
Tech news outlet GigaOm is reporting that, according to recently leaked information, Amazon.com's upcoming smartphone could be an AT&T exclusive and come with a feature called "Prime Data."
The phone itself, which will be officially announced in June and is expected to debut sometime in September, will apparently feature "four low-power infrared cameras on the face of the device that track the position of the user's head in relation to the phone's display," reports BGR . This reportedly allows Amazon's software to make constant adjustments to the positioning of on-screen elements, altering the perspective of visuals on the screen. The result is a 3D experience without the 3D glasses. One application for such technology, as noted in the article, is the ability for customers to see three-dimensional product images when browsing Amazon's digital market.
While further information on "Prime Data" is not available, it seems likely the service will allow device users to stream Amazon's Prime video service without using up their monthly data plan kilobytes. Recently, carriers have been experimenting with so-called "Sponsored Data Plans," under which content providers shoulder some or all of the bandwidth costs generated by their services. For example, ESPN and AT&T briefly discussed such an arrangement under which ESPN content would not count toward AT&T customers' data caps.
AT&T To Launch 4G-Based In-Flight Wi-Fi
Telecompetitor is reporting that AT&T plans to launch high-speed 4G LTE-based Wi-Fi services for in-flight connectivity for airlines and their passengers. According to the report the service, which is planned to be available in late 2015, will not only provide "onboard entertainment" for passengers but also airline cockpit communications, maintenance operations, and crew services. The service will reportedly be delivered by a new air-to-ground network based on global 4G LTE standards putting to use spectrum already owned by AT&T.
Netflix Strikes Deal with Verizon
Despite its vocal displeasure at the recent deal inked with Comcast, multiple news sources (including the Wall Street Journal and USA Today ) are reporting that Netflix has reached a similar deal with Verizon to improve the speed of its streaming content to its customers on that network. "We have reached an interconnect arrangement with Verizon that we hope will improve performance for our joint customers over the coming months," said Netflix spokesman Joris Evers.
Verizon, like Comcast, was a long-time hold-out on Netflix's Open Connect program, which allows internet service providers (ISPs) to connect directly with Netflix content at common Internet exchanges or even allows Netflix to install its own servers within the ISPs' networks to improve customer streaming quality. Ars Technica reports that AT&T is another big provider that's still demanding payment, and that Netflix subscribers on AT&T's network continue to receive poor performance.
In light of reports on what will likely be in the FCC's Open Internet FNPRM later this month, deals such as these may quickly become the norm.
Apr. 23 – Reply comments are due on Extension of Freeze of Separations Category Relationships and Cost Allocation Factors.
Apr. 25 – Comments are due on Grain Management, LLC Petition for Clarification.
May 1 – FCC Form 499-Q, Telecommunications Reporting Worksheet is due.
May 9 – Reply comments are due on Grain Management, LLC Petition for Clarification.
May 29 – Comments are due on the short form Tariff Review Plans.
May 31 – FCC Form 395, Employment Report, is due.
Jun. 16 – ILEC Tariff filings made on 15 days' notice are due.
Jun. 23 – Petitions to suspend or reject tariff filings made on 15 days' notice are due.
Jun. 24 – ILEC tariff filings made on 7 days' notice are due.
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. 1 – Mobility Fund Phase I Auction Winner Annual Report is due.
Jul. 31 – FCC Form 507 (Universal Service Quarterly Line Count Update) is due.
Jul. 31 – Carrier Identification Code (CIC) Report is due.
| BloostonLaw Private Users Update || Vol. 15, No. 4 || April 2014 |
FCC Adopts Proposal to Allocate 150 MHz of Spectrum to "Citizens Broadband Radio Service"
The Federal Communications Commission has set forth its proposal to provide more spectrum for general consumer use, carrier-grade small cell deployments, fixed wireless broadband services, and other innovative uses, through the creation of a new Citizens Broadband Radio Service. The Commission is proposing rules for the Citizens Broadband Radio Service in a Further Notice of Proposed Rulemaking (FNPRM) (FCC 14-49) that advances the Commission's efforts to meet the growing demand for spectrum by proposing to make 150 megahertz available in the 3.5 GHz Band. Comments will be due 40 days following publication in the Federal Register and Reply Comments 60 days after publication in the Federal Register.
The FCC's proposals for the 3550-3650 MHz band (3.5 GHz Band) focus on two components of the Commission's ongoing efforts to address wireless coverage and capacity issues — small cells and spectrum sharing — both of which were discussed in a report issued by the President's Council of Advisors on Science and Technology (PCAST). Under the FNPRM, the FCC has proposed to establish a new Part 96, which will govern the new Citizens Broadband Radio Service. The FNPRM proposes innovative spectrum sharing techniques to unlock the value of the spectrum between 3550 MHz and 3650 MHz, and seeks comment on extending the proposed service to the 3700 MHz band. Specifically, the FNPRM proposes a three-tiered access and sharing model comprised of federal and non-federal incumbents, priority access licensees, and general authorized access users. This approach is conceptually similar to, but more advanced than the databases used to manage Television White Spaces (TVWS) devices. Together, the proposals seek to promote flexibility and innovation by leveraging advancements in technology to facilitate sharing between different users and uses, including incumbent government uses.
Federal and non-federal incumbents would be protected from harmful interference from Citizens Broadband Radio Service users. Targeted priority access licenses would be made available for a variety of uses, including mobile broadband. General authorized access use would be permitted in a reserved amount of spectrum and on an opportunistic basis for a variety of consumer or business-oriented purposes, including advanced home wireless networking.
Access and operation within the 3.5 GHz band would be managed by a spectrum access system, a dynamic database or databases that incorporates technical and functional requirements necessary to manage access and operations across the three tiers. In addition, the FNPRM seeks comment on technical, auction, and allocation rules.
The new rules would allow licensing for a "Contained Access Facility (CAF)", which will be an indoor or otherwise physically contained location used for the express purpose of performing "core mission operations". This may help make spectrum available for mining operations or test bed facilities that involve contained circumstances.
The FCC proposes to define each Priority Access License (PAL) as an authorization to use for one-year a 10 megahertz channel in a single census tract. PALs would be open to any prospective licensee that meets basic FCC qualifications and mutually exclusive applications for PALs would be subject to competitive bidding. Proposed Rule Section 96.5 defined eligibility for a PAL as follows: "Any entity, other than those precluded by section 310 of the Communications Act of 1934, as amended, 47 U.S.C. 310, is eligible to be a Priority Access Licensee or General Authorized Access User under this part, except as set forth in section 96.35." Section 96.35 deals with Contained Access Facilities, discussed above. Thus, it appears that any entity that is not a felon or in violation of the Communications Act's restrictions on foreign ownership may be eligible to get a PAL.
FirstNet Seeks Replacement as General Manager Resigns
Bill D'Agostino, the general manager of First Responder Network Authority (FirstNet), is stepping down from the position for "personal and family reasons," according to a press release by the FirstNet board. Mr. D'Agostino's resignation comes just shy of his one-year anniversary in his capacity as general manager. Deputy General Manager T.J. Kennedy is taking over during the interim period while a replacement is sought. Certain trade press sources point out that Mr. D'Agostino's resignation comes as FirstNet is addressing concerns about potential conflicts of interest (as the board includes representatives of private sector carriers and equipment vendors as well as public safety personnel); and some predict that his departure will make a swift deployment of the national public safety broadband network more difficult.
FirstNet is an independent entity within the U.S. Department of Commerce, National Telecommunications and Information Administration charged by Congress to design and build a high-speed broadband network in the 700 MHz band that is free of the interoperability limitations that affect first responders across the country, and enables the transmission of a broader array of media than just voice traffic, such as documents, images and video.
"I have been honored to lead FirstNet's management efforts over the past year, and believe the organization is now well positioned to enter the next stage of its development," said D'Agostino said in a prepared statement. "Although I will no longer be part of the mission, I will remain an ardent supporter and look forward to its future successes."
"FirstNet has assembled an excellent management team to lead this organization as we continue to develop plans for the nationwide public safety broadband network." said Board Vice Chairman Sue Swenson. "The FirstNet Board will now begin a search to hire someone to lead the team — someone with the right blend of experience along with the management and leadership skills to carry out FirstNet's vision."
FCC and DoJ Seize Equipment from New York City Pirate Radio Stations
On April 14, 2014, the United States Attorney's Office for the Southern District of New York issued a Press Release announcing the seizure of radio equipment from pirate radio stations in New York City.
Under the Communications Act, it is unlawful to operate radio broadcasting equipment above certain low-intensity thresholds without obtaining a license from the FCC. Where persons are operating without a license, the Communications Act permits the seizure and forfeiture of any equipment used with willful and knowing intent to broadcast without an FCC license. While equipment seizures generally occur in the operation of pirate radio stations broadcasting on FM broadcast frequencies, they can also occur in the context of unlicensed operation of land mobile stations. Here, the Press Release stated that two complaints sought the forfeiture of radio transmission and production equipment allegedly used in the illegal broadcast of pirate radio stations on a total of four different FM broadcast frequencies.
Specifically, FCC agents identified a commercial space at 80-84 West 181st Street in the Bronx as the production studio for "Rika FM," which illegally broadcasts its programming on 94.5 and 94.9 MHz. FCC agents also identified a residence at 1370 St. Nicholas Avenue in Manhattan as the location of the radio transmission equipment by means of which "Rika FM" was illegally broadcast.
On April 2, FCC agents and Deputy U.S. Marshals, pursuant to warrants, seized the radio transmission and production equipment identified in the two complaints. FCC Acting Enforcement Bureau Chief Travis LeBlanc said: "As alleged, these pirate radio stations were for-profit businesses that broke the law to line their own pockets while disrupting legitimate broadcasters. They should be out of business and off the air."
FCC Imposes $20K Fine Against PLMRS Licensee for Failing to Renew License
The FCC has imposed a penalty of $20,000 against Emigrant Storage LLC (Emigrant), former licensee of Conventional Industrial/Business Pool Service station WPKM212 at Reno, Nevada for operating the station without authority for more than nine years, because Emigrant had failed to timely renew the license. In this case, because Emigrant failed to renew its license, the spectrum authorized under its now expired license has been assigned to another licensee. As a result, by continuing to operate its station, Emigrant actually caused harmful interference to an authorized user of the spectrum. In rejecting Emigrant's request to reduce the fine, the FCC focused on the significant length of time that the station had operated after Emigrant inadvertently allowed the license to lapse.
In order to avoid an inadvertent license expiration (which can involve a loss of operating rights and a fine), it is important to closely track all license renewal deadlines. In this regard, BloostonLaw offers a retainer service to track these and other types of regulatory deadlines and to prepare and file the necessary license renewal applications for participating clients.
FCC Seeks Comment on LMCC Petition for Rule Making Regarding 800 MHz Expansion Band and Guard Band Frequencies
On March 27, 2014, the Land Mobile Communications Council (LMCC) filed a petition for rulemaking requesting that the Commission amend its rules governing the eligibility for frequencies in the 800 MHz expansion band and guard band. Under the LMCC proposal, the FCC would establish a six-month period for incumbent 800 MHz licensees within a particular geographic market to apply for expansion band and guard band frequencies before those channels are made available to applicants for new 800 MHz systems. Comments will be due May 27, 2014 and Reply Comments will be due June 11, 2014.
As part of the 800 MHz rebanding process to resolve interference between commercial and public safety systems, the FCC established the expansion band at 815-816/860-861 MHz and the Guard Band at 816-817/861-862 MHz in order to provide a spectrum barrier between commercial licensees operating in the enhanced SMR band above the 817/862 MHz band and the public safety licensees operating below 815/860 MHz. Under the FCC's current process, the expansion band and guard band channels become available for licensing once the FCC has announced that the required level of clearing has been achieved in a particular National Public Safety Planning Advisory Committee (NPSPAC) region.
LMCC, which is made up of the various frequency advisory committees, has stated that additional 800 MHz spectrum for incumbent 800 MHz systems is scarce and urgently needed. By providing a limited opportunity for expansion of incumbent systems, LMCC believes that the public interest would be served — especially since incumbent licensees had to undergo the "disruptive" re-banding process without receiving any economic benefit. Additionally, LMCC asserts that use of the expansion band and guard band frequencies in the manner that it has proposed would promote spectrum efficiency.
In seeking comment in this proceeding, the FCC is requesting that commenters address whether the public interest would be served by allowing incumbent 800 MHz licensees temporary priority to apply for expansion band and guard band frequencies over the current licensing scheme that gives priority first to public safety, followed by critical infrastructure and then after five years, to industrial users. Additionally, the FCC is seeking comment as to whether the six-month period proposed by LMCC is the appropriate time period, and whether any limits should be imposed in order to ensure that expansion band and guard band spectrum is available for new systems. Finally, the FCC has asked whether it should defer declaring rebanding to be complete in additional NPSPAC regions pending the resolution of the LMCC petition for rulemaking. Comments are due May 27, 2014 and Reply Comments are due June 11, 2014.
Freeport-McMoran Obtains Rule Waiver to Exceed HAAT Limit in 217-220 MHz Band
The FCC has granted the request of Freeport-McMoran Chino Mines for a waiver of the FCC's Rules, in order to operate a telemetry system on a secondary basis at its mining facilities in Grant, County, New Mexico. The system will monitor meteorological stations that are designed to detect storms, lightning and water pressure in tailings that will detect failures in dams. Freeport-McMoran stated that these systems are necessary to protect its personnel and the public in and around its mines.
The FCC noted that a rule waiver was necessary because the proposed locations are generally higher than the surrounding remote desert terrain, resulting in a height above average terrain (HAAT) of more than 152 meters (500 feet). Thomas Kurian, the geographic market area licensee for the channels to be used under waiver, protested the Freeport-McMoran application — claiming that his market area could receive harmful interference. Mr. Kurian did not indicate whether there were any current or proposed AMTS operations in the vicinity of Freeport-McMoran's proposed operations. Nonetheless, Freeport-McMoran amended its application to reduce the requested power and clarify that it would use down-tilt directional antennas, thereby reducing the proposed coverage area.
In granting Freeport-McMoran's waiver request, the FCC noted that the HAAT restriction was designed to limit interference from secondary telemetry operations to primary operations such as Mr. Kurian's AMTS facilities. In this regard, the FCC noted that Freeport-McMoran had met the waiver standard and that by modifying its proposal to reduce power and utilize down-tilt antennae, its proposed facilities would essentially operate in a manner similar to stations that would meet the EPR/HAAT requirements of the FCC's Rules. As a result, the FCC determined that Freeport-McMoran's proposal met the intent of the height/power restriction and that enforcing the HAAT restriction was unnecessary.
FCC Denies Extension Request to Construct by Port Authority of New York and New Jersey
The FCC has denied a request for further extension of time to construct a land mobile radio-location radio service facility filed by the Port Authority of New York and New Jersey. In denying the extension request, the FCC noted that the Port Authority filed its request twenty-five days after the construction period had lapsed; at that point, the license had automatically terminated due to a failure to construct within the one-year construction period for licenses authorized under Part 90 of the FCC's Rules.
The FCC's Rules permit a licensee to request an extension of the construction period if it can be demonstrated that the failure to construct is "due to an involuntary loss of its site or other causes beyond its control." Additionally, the request must be filed before the expiration of the construction period. If the extension request is late-filed, then the licensee must demonstrate either: (a) that the underlying purpose of the FCC's rule would be frustrated and that the grant would be in the public interest or (b) that unique or unusual factual circumstances exist that would make the application of the rule inequitable.
In the case of the Port Authority, the justification for the delay was an administrative "oversight" resulting from personnel changes and equipment issues. In denying the waiver request, the FCC explained that administrative oversights or errors do not provide adequate justification to grant a rule waiver request. In that regard, the FCC explained that the licensee is solely responsible for complying with its construction requirements and inattention to the FCC's rules does not provide a compelling justification for a rule waiver, especially where the FCC has repeatedly emphasized that licensees must file their extension requests on a timely basis and has dismissed other late-filed requests.
Acumen Communications Fined for Unlicensed Operations Again
The FCC has proposed another fine against Acumen Communications (Acumen) for operating on an unlicensed frequency pair. The matter came to the FCC's attention as a result of a complaint. In inspecting the facilities operated by Acumen, the FCC determined that Acumen had erroneously programmed the frequency 152.405/157.665 MHz into its transmitter.
Under the FCC's Forfeiture Policy Statement, the base amount for operation on an unauthorized frequency is $4,000. However, because a frequency pair was involved, the FCC based the proposed fine on the operation of two unauthorized frequencies, so that the base amount rose to $8,000. The FCC noted that Acumen was a previous offender, having previously operated another of its stations on an unauthorized frequency. As a result, the FCC has proposed to increase the proposed fine to $10,000.
Maricopa County Extension Request Denied – Stringent Conditions Imposed
In connection with the 800 MHz rebanding efforts currently on-going in the US-Mexico border region, the FCC has taken the following actions related to the rebanding efforts involving Maricopa County, Arizona: (a) denial of Sprint's late-filed opposition to the County's request for additional time until October 30, 2014, (b) denial of Maricopa County's request for extension of time, and (c) imposition of strict reporting requirements on Maricopa County.
On March 10, 2014, the County requested a further extension of time within which to submit its cost estimate to the 800 MHz Transition Administrator (800 MHz TA). Any responsive pleading from Sprint was due no later than March 20, 2014. Sprint filed its opposition to the County's Request on April 4, 2014 — 15 days after the due date. While its late-filed opposition included a request for waiver, the FCC stated that Sprint failed to ex- plain why it could not file sooner. Additionally, the FCC found that Sprint's explanation of unique circumstances was insufficient to overcome the Commission's policy of not routinely granting extension requests.
Upon review of the County's underlying extension request, the FCC determined that the County had not justified a further extension to provide the rebanding cost information until October 30, 2014. In reaching this conclusion, the FCC noted that the County's extension request did not provide an explanation of the reasons for the delay in concluding its contract with Motorola, or provide any evidence that it had attempted to accelerate the process. Additionally, there was no documentation from the County's vendor to support its assertion. As an aside, the FCC noted that the County had recently signed a contract with the same vendor to upgrade its existing 800 MHz public safety radio system.
While the FCC did not grant the County's request, it did give the County until July 14, 2014 to file its cost estimate with the 800 MHz TA. In order to ensure that Maricopa County and its vendor work diligently, the FCC imposed the following conditions:
- The County must provide a report each business day to the 800 MHz TA on the status of contract negotiations with its proposed vendor;
- The County must report weekly to the 800 MHz TA on the status of its development of a Statement of Work from its proposed vendor;
- Upon receipt of the Statement of Work from its vendor, the County will have 15 working days to incorporate its internal costs and submit the cost estimate to Sprint and the 800 MHz TA; and
- In the event that the cost estimate is not submitted by July 14, 2014, the County must file a "competent" request for extension of time supported by declarations under penalty of perjury as to all facts alleged in the request, including a detailed description of why the cost estimate was not filed.
FCC Rebukes Local Governmental For Inaccurate Statement
In connection with a request for further extension of time to provide a cost estimate to Sprint and the 800 MHz Transition Administrator (800 MHz TA), the FCC rebuked a west coast local governmental entity for not being forthright in its request. In particular, the FCC took issue with governmental entity's description as to when its Planning Funding Agreement (PFA) with Motorola had been approved and executed. In its second request, the governmental entity stated that board approval had "just recently" been received, when its initial extension request indicated that the PFA had been approved sixty days prior, at the "end of January." In reviewing the second extension request, the FCC did not treat this as a mere misstatement or clerical error. Rather, the FCC rebuked the governmental entity for conduct that "stray[ed] uncomfortably close to misrepresentation."
It is critically important that statements made to the FCC be factually accurate. A finding that a party has engaged in a misrepresentation or a lack of candor can have dire consequences beyond the matter before the FCC. Such a finding goes directly to a licensee's character and qualifications to hold an FCC license. If the FCC were to make the finding that a party lacked candor or engaged in misrepresentations to the FCC, it could impose sanctions, including fines and the issuance of an order to show cause why the existing licenses should not be revoked for failure to meet basic licensee qualifications. While we believe that the FCC would be hard-pressed to find a state or local governmental entity unqualified to hold an FCC license, the fact that the FCC explicitly stated that the local governmental entity had come uncomfortably close to engaging in a misrepresentation before the Commission should be viewed as a warning shot to everyone that the FCC will carefully parse any representations made to it.
FCC Denies Signal Booster Manufacturer Request for Determination of Equivalent Protection
In response to the recent signal booster order, ClearRF requested a determination that its wide-band, direct connect consumer signal booster provides protection equivalent to the National Protection Standard, even though it does not comply with the Part 20 requirements for Bidirectional Capability or Booster Gain Limits.
ClearRF's request was opposed by both CTIA and Verizon Wireless. The FCC noted that ClearRF failed to demonstrate that its wide-band, direct-connect Consumer Signal Booster provided equivalent protection. In this regard, the FCC noted that ClearRF did not provide any technical specificity regarding its product, including the bands of operation, air interfaces that would be supported or the types of machine-to-machine (M2M) devices that could be connected to the ClearRF booster. Additionally, the ClearRF request lacked any technical analysis or test data.
The FCC noted that the Booster Gain Limits and the Bidirectional Capability requirements were included in the FCC's Rules in order to minimize the potential for certain types of interference to wireless networks, and that ClearRF's request did not explain how it would ensure protection from interference to wireless networks.
While the FCC denied ClearRF's request, it also took the opportunity to remind manufacturers that prior to operation of any Consumer Signal Booster, the subscriber must have the consent of the wireless provider and must register the booster with their provider. Additionally, the FCC cautioned that while several wireless providers have voluntarily committed to allowing subscribers to use Consumer Signal Boosters that meet the NPS requirements, there is no certainty that these commitments would apply to signal boosters that had received a determination of equivalent protection. Thus, it would be wise for manufacturers to work with the wireless carriers when seeking a determination of equivalent protection, in order to ensure that those devices are safe for the wireless network.
700 MHz Narrowband State Licensees 5-Year Interim Substantial Service Benchmark Showing Due June 13, 2014 – FCC Provides Guidance
The FCC has released a Public Notice to clarify the substantial service requirement for licensees of state channels in the 700 MHz narrowband spectrum (769-775/799-805 MHz). Under the FCC's Rules, licensees must provide substantial service to one-third of their population or territory.
As part of its filing, each State Licensee must certify that it is providing or is prepared to provide substantial service to one-third of its population or territory. In this regard, the FCC has defined substantial service as "the construction and operation of facilities on state channels which is 'sound, favorable, and substantially above the level of mediocre service which just might minimally warrant renewal'." The FCC has stated that a State Licensee will be deemed "prepared" to provide substantial service if it certifies that a radio system has been approved and funded by the deadline date.
State Licensees that do not meet the 5-year Interim Substantial Service bench-mark, either because they failed to construct or receive funding for any facilities by the June 13, 2014 deadline, will be subject to license cancellation or modification. Any spectrum that is recovered by the FCC will revert to general use subject to the requirements of the regional planning committee.
FCC Denies Waiver Request to Use Federal Frequency to Protect First Responders
The FCC has denied the request of Skagit County Fire Protection District in Washington State to use the frequency 170.150 MHz, which is allocated for Federal government use. In requesting this frequency, Skagit County noted that it has a variety of terrain challenges that adversely affect public safety communications. As a result, the County believes that a communications system based upon a low power vehicular repeater model is the most reasonable and cost-effective solution to overcome these challenges and ensure the safety of its first responders.
In order to operate a repeater system, Skagit County stated that it must have 2 MHz separate between its repeater and mobile frequencies and there is not sufficient public safety spectrum to meet its needs, due to its proximity to British Columbia and the Canadian border.
The frequency 170.150 MHz is allocated for fixed and mobile services on a primary basis for Federal users. Non-federal uses are permitted for non-Federal public safety uses only within a 150 mile radius of New York City.
The National Telecommunications and Information Administration (NTIA), which is responsible to administration of spectrum allocated for use by Federal users, objected to Skagit County's waiver request, since the County proposes to operate the vehicular repeater system over a large geographic area. NTIA believes that this wide-area system would make coordination with federal operations difficult, if not impossible. As a result, NTIA took the position that "[n]on-federal and federal public safety services should not routinely be placed at risk by creating potential conflicts with each other's operations."
The FCC noted that Skagit County has the alternative to apply for any non-Federal Part 90 frequency in the VHF band, and to seek a waiver of applicable technical rules if necessary. Additionally, because of NTIA's opposition, the FCC concluded that the public interest would not be served due to the potential for interference to Federal operations.
FCC Denies Waivers to Assign 800 MHz Expansion Band Licenses
Phyllis Wilson and Robert Wilson filed applications requesting FCC consent to the assignment of two licenses in the 800 MHz expansion band. The applications included requests for waiver of the FCC's Rules, which prohibit the assignment of unconstructed 800 MHz facilities to other entities, except where there is no substantial change in ownership or control or the assignment or transfer of control is involuntary due to the insolvency, bankruptcy, incapacity or death of the transferor or licensee. The underlying purpose of this rule is to prevent spectrum warehousing and trafficking in site-specific licenses.
Phyllis Wilson's waiver request is based upon the FCC's grant of her license later than anticipated and her inability to construct her station due to the passage of time since here investment had been made four years prior. The FCC concluded that the timing of its actions, which affected all licensees equally, did not entitle Ms. Wilson to special relief merely because they did not match her business plan.
Robert Wilson sought relief on the basis that he acquired the license upon the death of his brother. While the FCC's rules permitted the assignment of license from his brother's estate even though the license had not yet been constructed, the FCC concluded that there was not sufficient justification to permit a subsequent assignment of the unconstructed license since Mr. Wilson was no differently situated from any other licensee who acquired an unconstructed 800 MHz license by way of involuntary assignment of license upon the licensee's death. As a result, the FCC concluded that there were no special circumstances to justify the grant of a rule waiver to permit the assignment of license to another party.
Because the FCC denied both waiver requests, the license assignment applications were dismissed.
FCC Proposes Amendments to Maritime Radio Service Rules
As BloostonLaw reported last month, the FCC released a Notice of Proposed Rulemaking (NPRM) in which it proposed to update rules that apply to the maritime radio services. Now that the NPRM has been published in the Federal Register, Comments will be due June 2, 2014. Reply Comments will be due June 30, 2014.
The FCC's proposed rule updates will impact technologies that are used to locate and rescue distressed ships and individuals while at sea or on land and will provide first responders with more accurate data. Additionally, the FCC is also proposing to permit the assignment and/or transfer of control of ship stations, consistent with actions that it has taken in other services.
In the NPRM, the FCC is seeking comment on the amendment to Part 80 and Part 95 of its rules to:
- Require emergency position indicating radio beacons (EPIRBs) to be capable of broadcasting data when activated, in order to improve the ability of rescuers to locate distressed ships
- Update equipment standards for Personal Locator Beacons (PLBs) to ensure that PLBs meet updated functional and technical parameters
- Authorize equipment certification and use of Satellite Emergency Notification Devices (SENDs) that comply with RTCM standards, providing for use of additional technologies for safety of life and rescue scenarios
- Permit equipment certification and use of Maritime Survivor Locating Devices (MSLDs) that comply with RTCM standards
- Provide for equipment certification and use of Automatic Identification System Search and Rescue Transmitters (AIS-SARTs) that comply with international standards
- Clarify rules regarding radar equipment
- Permit use of portable marine VHR radio transmitters on by persons on shore
- Allow the assignment or transfer of control of ship station licenses.
Clients who are interested in filing comments in this proceeding should contact our office.
FCC Seeks Comment on Fax Advertisement Opt-out Petitions
Of interest to our clients that use faxes to communicate with customers and/or the public: The FCC announced that it has received three requests for declaratory ruling and/or waiver requests concerning the FCC's requirement that fax advertisements sent to a consumer who has previously provided an express invitation or permission to include an opt-out notice. Comments on the Petitions are due May 9, 2014 and Reply Comments are due May 16, 2014.
The petitioners are seeking a declaratory ruling in order to clarify that Rule Section 64.1200(a)(4)(iv) does not apply to fax advertisements that are sent with the prior express permission of the recipient, because such communications constitute "solicited" faxes that cannot be required to include the opt-out notice. Alternatively, the Petitioners request that the FCC clarify that there is no statutory basis for the rule under Section 227 of the Act. Finally, in the event that the FCC declines to grant the declaratory ruling, the Petitioners request that the FCC grant a retroactive waiver for fax advertisements that had been previously sent, where they had prior express con- sent from the recipient.
In support of their requests, Best Buy Builders contends that strict application of the rule with respect to solicited faxes would be unduly burdensome and contrary to the public interest. Magna Chek contends that a waiver is in the public interest because its faxes "caused no harm to its recipients." Magna Chek believes that a grant of the limited waiver request "would serve the public interest by avoiding an abuse of the private right of action created by the TCPA, thus preventing the imposition of penalties plainly disproportionate to any possible harms purportedly caused by Masimo's consensual communications."
The fact that Best Buy Builders and Masimo Chek, among others, are seeking rulings that they do not need to provide opt out information raises the issue that companies utilizing fax transmissions for purposes of advertising and other types of solicitation need to ensure compliance with the FCC's Rules in order to avoid significant fines and forfeitures. Our clients with questions regarding their obligations under the FCC's Rules should contact us promptly.