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. 18, No. 27||July 1, 2015|
Commissioner Pai Provides First Details on Stand-Alone Broadband USF Support
This week, FCC Commissioner Ajit Pai issued a detailed press release outlining revisions he proposes to make to the FCC’s rules governing Universal Service Fund support for rural local exchange carriers to allow them to obtain support for stand-alone broadband services. Commissioner Pai’s proposal essentially allows stand-alone broadband to be included in high cost loop support and interstate common line support calculations. See the full article below for more information.
Commissioner Pai Details RLEC Stand-Alone Broadband Support Plan, Voluntary Model Participation
On June 29, Commissioner Ajit Pai issued a statement detailing his plan for supporting stand-alone broadband in rural areas, and providing proposed rule change language.
First, Pai proposes specific changes to rule section 54.303, which governs the calculation of support. The proposed changes would effectively include stand-alone broadband costs in high cost loop support and interstate common line support calculations. Further, the proposed changes would also determine how much of that support should be attributed to stand-alone broadband, and would direct that support be used to offset the cost of service.
Second, Pai proposes making participation in the currently-circulating alternative cost model for rate of return areas (A-CAM) strictly voluntary. Further, he proposes implementing a five-year transition period for carriers whose support would decrease under A-CAM, with no limit on participation by such carriers. Pai seems to suggest, however, that some limit would be necessary for carriers whose support would increase under A-CAM, noting that he is “open to using some of the reserves that have built up within the rate-of-return budget over the past few years to fund additional volunteers” but insisted “we must be fiscally responsible and prioritize participation for those areas that have the lowest build out of high-speed broadband.”
FCC Reaches Consent Decree with TracFone to Unlock Mobile Phones
As this edition of the BloostonLaw Telecom Update went to press, the FCC announced that it had entered into a Consent Decree with TracFone to resolve an investigation into whether TracFone had violated FCC rules by certifying compliance with industry consumer protection and service quality standards despite failing to allow unlocked handsets.
The investigation was prompted by TracFone’s FCC Form 481 filing for 2014, in which it certified that for the 2015 Lifeline program year it would comply with the CTIA – The Wireless Association® Consumer Code for Wireless Service (CTIA Code), which serves as a safe harbor for eligible telecommunications carriers (ETCs) to demonstrate that they have met the standards required to serve as an ETC. As of February 11, the CTIA Code included handset unlocking provisions, which require carriers to unlock handsets and disclose the same to consumers. Despite its certification, TracFone neither unlocked its handsets nor notified its customers.
Under the Consent Decree, TracFone will:
- By September 1, 2015, provide clear notifications to its customers about its handset unlocking policy, and eligible non-Lifeline TracFone customers must be allowed to trade in their old device for a cash refund of the trade-in-value of the handset.
- By May 1, 2016, allow eligible non-Lifeline TracFone customers to trade in their old device for an upgrade credit toward a new, unlockable handset, and provide new Lifeline customers with phones capable of being unlocked.
- Provide a $400,000 per month offset to the Universal Service Fund until it provides unlockable handsets to new Lifeline customers.
- By December 31, 2016, ensure that all phones launched by TracFone are capable of being unlocked.
- Maintain the availability of the foregoing refunds, upgrade credits and replacement handsets through at least June 2018.
In adopting the Consent Decree, the FCC noted that TracFone was aware that it was not in compliance with the CTIA Code, as it had stated it had contracted to prevent unlocking as a security measure.
Waivers of Intercarrier Compensation Recovery Rules Granted
The Wireline Competition Bureau (WCB) has granted additional waivers of the intercarrier compensation recovery rules to a number of local exchange carriers (LECs) affected by the Halo Wireless, Inc. (Halo) bankruptcy. (WC Docket No. 10-90; CC Docket No. 01-92) Specifically, the WCB granted a waiver to a number of LECs that sought waiver of the rules to permit them to include uncollected revenues from Halo in their ICC Base Period Revenue (BPR). These waivers followed the Commission's earlier Order, released in August 2014, granting similar requests from two LECs seeking waiver of section 51.917(b)(7) of the Commission’s rules, that allowed the requesting carriers to include in their recovery calculations funds they were unable to collect from Halo.
In granting the waivers, the WCB found that "Petitioners have demonstrated good cause for waiver to allow them to add to their respective BPR calculations amounts reflecting intrastate access services and, in some cases, net reciprocal compensation for such traffic routed from Halo and terminated by Petitioners during FY 2011, and billed to, but not collected from, Halo." Further, according to the WCB, "absent such waivers, the unique combination of these circumstances would result in significant reductions to Petitioners’ ICC recovery mechanism revenues," which would continue far into the future.
The WCB granted the LECs' waiver requests subject to certain conditions. According to the WCB, "[p]rior to implementation of the relief granted in this Order, each petitioner must certify that: (1) it terminated all the traffic sent to it by Halo during FY 2011 that it seeks to add to its BPR calculations; (2) it billed Halo for such traffic during FY 2011 or before the close of the next regular billing cycle in Fiscal Year 2012 for the amounts to be added to its BPR calculations; (3) a court or regulatory agency of competent jurisdiction has made a finding of liability against Halo regarding the compensation for such traffic; (4) it filed a timely claim in the Halo bankruptcy case requesting compensation for such traffic; and (5) it did not include in its BPR adjustment amounts any interest, late payment fees, collection fees, or attorney fees." In addition, the WCB stated that any BPR adjustment for a study area resulting from the Order shall not exceed the unpaid compensation subject to the Commission’s recovery rules contained in a Petitioner’s bankruptcy claim for that study area.
FCC Extends Comment Deadlines on Special Access FNPRM
On June 24, the FCC’s Wireline Competition Bureau issued a Public Notice announcing the further extension of the deadlines for comments and reply comments in response to Section IV.B of its December 18, 2012 Further Notice of Proposed Rulemaking in the special access proceeding. Comments are now due September 25; replies due October 16.
According to the Public Notice, The Bureau said it is in the process of allowing access to the data collected for interested parties to review (pursuant to the relevant Protective Order), and recognized that parties would not have adequate time to access and review the information collected prior to the current deadlines (July 1 and July 22).
Section IV.B of the FNPRM sought comment on possible changes to its rules for the special access services provided by ILECs in price cap areas. Specifically, the FCC is seeking comment on how the special access pricing flexibility rules might change after it conducts market analysis on the data collected, and on what steps the FCC should take where relief has been provided under the existing rules and where the data and analysis demonstrate that competition is not sufficient.
Law & Regulation
FCC Issues Tentative Agenda for July 16 Open Meeting
On June 25, the FCC issued the tentative agenda for its next Open Meeting, currently scheduled for July 16. At the meeting, the FCC will consider:
- a Procedures Public Notice which adopts a set of auction procedures for the upcoming Incentive Auction; establishes and provides information on final procedures for setting the initial spectrum clearing target, qualifying to bid, and bidding in the reverse and forward auctions.
- an Order on Reconsideration addressing petitions for reconsideration of certain aspects of the Mobile Spectrum Holdings Report and Order.
- a Report and Order, Order on Reconsideration, Third Order on Reconsideration and a Third Report and Order that provides “meaningful opportunities” for small businesses, rural telephone companies, and businesses owned by members of minority groups and women to participate in the provision of spectrum-based services, and also strengthens the Commission’s rules to protect against unjust enrichment to ineligible entities.
As always, the meeting is scheduled to commence at 10:30 a.m. EST and will be webcast live at www.fcc.gov/live .
FCC Reminds Antenna Structure Owners of Obligations
Recently, the FCC has noticed a trend where applications for antenna structure registration (ASR) contain defects that point to violations of the FCC’s ASR rules that could result in significant fines. These violations include:
- Failing to obtain both a Determination of No Hazard from the Federal Aviation Administration and an ASR registration prior to constructing the antenna structure
- Failing to notify the FCC within five days of completing construction of the tower or dismantling the tower
- Installation of obstruction marking and lighting that differs from the specifications authorized by the FCC in the ASR system and/or specified on the Determination of No Hazard issued by the FAA.
- Failing to update the ASR registration database upon receipt of a new/updated Determination of No Hazard from the FAA for an antenna structure.
Additionally, now that the FCC’s ASR application process includes an environmental assessment, the filing process has become more complex and confusing. The application is now a two-step process, with the second step occurring after the environmental process has been completed. As a result, the FCC is also taking this opportunity to remind applicants that ASR applicants may not prematurely certify that the antenna structure would not have a “significant environmental effect.” Doing so could result in the imposition of monetary forfeitures. In this regard, the FCC has found that this issue generally arises when the “Step 2” amendment is made, including:
- The applicant uses ASR Certification Option No.1 (indicating that the construction is exempt from environmental notification due to another agency’s review before an environmental review has actually been completed);
- The applicant uses ASR Certification Option No. 3 (environmental notification has been completed, and the FCC has notified the applicant that an Environmental assessment is not required before the Bureau has notified the applicant that an Environmental Assessment is not required); or
- The applicant uses ASR Certification Option No. 4 (The FCC has issued a Finding of No Significant Impact before the FCC has issued a Finding of No Significant Impact).
In order to avoid the potential for monetary forfeitures, it is very important that our clients ensure that their ASR filings are made in a timely manner and in compliance with the FCC’s environmental rules. We recommend that clients consult us with any questions, to avoid fines.
Iowa Governor Signs Broadband Legislation
Last week, Iowa Governor Terry Branstad signed into law a piece of legislation known alternately as the “Connecting Iowa Farms, Schools, and Communities Act” or the “Connect Every Acre Bill”, which is intended to expand high-speed Internet and wireless communications in rural areas.
Provisions of the Act include:
- Appointment of the State of Iowa Office of the Chief Information Officer to coordinate statewide broadband availability and access between the public and private sector.
- Creation of the Iowa Farms, Schools and Communities Broadband Grant Program to award grants to communication service providers to invest broadband access to farms, schools and communities (for which the Iowa Fiscal Year 2016 budget reportedly includes $5 million).
- Provision of a 100% property tax exemption for broadband infrastructure for infrastructure in place on or after July 1, 2014, for ten years.
- Streamlining and expediting the permitting process by requiring permitting authorities for non-wireless broadband related permits to be done within sixty business days.
In signing the bill, Gov. Branstad said, “Our state already has a low unemployment rate of 3.8 percent but, to continue our growth, we must look at ways to encourage connecting every acre of Iowa to high-speed broadband,” and that he was pleased with the bipartisan support the bill received. “Together,” he said, “Iowa lawmakers came together to pass this meaningful legislation to continue building Iowa for the future.”
Charter Files Public Interest Statement on Time Warner / Bright House Mergers
Capitol Hill news outlet The Hill is reporting that Charter Communications filed a 362 page Statement of Public Interest with the FCC in an effort to support its multi-billion dollar deal with Time Warner Cable and Bright House Networks.
In the mammoth filing, the cable company outlined a number of services it promised it would introduce and terms it would accept to serve the public interest, including strict adherence to the new Net Neutrality restrictions that went into effect mid-June. Other commitments include a minimum broadband speed of 60 Mbps at a lower price; no data caps, usage based pricing, modem fees, or early termination fees; and no passing-on federal or state Universal Service Fund fees to customers. New Charter also promised to “return TWC call center jobs to the United States” and hire “thousands of new employees” to handle customer services and field technician operations.
JULY 1: FCC FORM 481 (CARRIER ANNUAL REPORTING DATA COLLECTION FORM). All eligible telecommunications carriers (ETCs) must report the information required by Section 54.313, which includes outage, unfulfilled service request, and complaint data, broken out separately for voice and broadband services, information on the ETC’s holding company, operating companies, ETC affiliates and any branding in response to section 54.313(a)(8); its CAF-ICC certification, if applicable; its financial information, if a privately held rate-of-return carrier; and its satellite backhaul certification, if applicable. Form 481 must not only be filed with USAC, but also with the FCC and the relevant state commission and tribal authority, as appropriate. Although USAC treats the filing as confidential, filers must seek confidential treatment separately with the FCC and the relevant state commission and tribal authority if confidential treatment is desired.
JULY 1: MOBILITY FUND PHASE I ANNUAL REPORT. Winning bidders in Auction 901 that are authorized to receive Mobility Fund Phase I support are required to submit to the Commission an annual report each year on July 1 for the five years following authorization. Each annual report must be submitted to the Office of the Secretary of the Commission, clearly referencing WT Docket No. 10-208; the Universal Service Administrator; and the relevant state commissions, relevant authority in a U.S. Territory, or Tribal governments, as appropriate. The information and certifications required to be included in the annual report are described in Section 54.1009 of the Commission’s rules.
JULY 31: FCC FORM 507, UNIVERSAL SERVICE QUARTERLY LINE COUNT UPDATE. Line count updates are required to recalculate a carrier's per line universal service support, and is filed with the Universal Service Administrative Company (USAC). This information must be submitted on July 31 each year by all rate-of-return incumbent carriers, and on a quarterly basis if a competitive eligible telecommunications carrier (CETC) has initiated service in the rate-of-return incumbent carrier’s service area and reported line count data to USAC in the rate-of-return incumbent carrier’s service area, in order for the incumbent carrier to be eligible to receive Interstate Common Line Support (ICLS). This quarterly filing is due July 31 and covers lines served as of December 31, 2014. Incumbent carriers filing on a quarterly basis must also file on September 30 (for lines served as of March 31, 2015); December 30 (for lines served as of June 30, 2015), and March 31, 2016, for lines served as of September 30, 2015).
JULY 31: CARRIER IDENTIFICATION CODE (CIC) REPORTS. Carrier Identification Code (CIC) Reports must be filed by the last business day of July (this year, July 31). These reports are required of all carriers who have been assigned a CIC code by NANPA. Failure to file could result in an effort by NANPA to reclaim it, although according to the Guidelines this process is initiated with a letter from NANPA regarding the apparent non-use of the CIC code. The assignee can then respond with an explanation. (Guidelines Section 6.2). The CIC Reporting Requirement is included in the CIC Assignment Guidelines, produced by ATIS. According to section 1.4 of that document: At the direction of the NANPA, the access providers and the entities who are assigned CICs will be requested to provide access and usage information to the NANPA, on a semi-annual basis to ensure effective management of the CIC resource. (Holders of codes may respond to the request at their own election). Access provider and entity reports shall be submitted to NANPA no later than January 31 for the period ending December 31, and no later than July 31 for the period ending June 30. It is also referenced in the NANPA Technical Requirements Document, which states at 7.18.6: CIC holders shall provide a usage report to the NANPA per the industry CIC guidelines … The NAS shall be capable of accepting CIC usage reports per guideline requirements on January 31 for the period ending December 31 and no later than July 31 for the period ending June 30. These reports may also be mailed and accepted by the NANPA in paper form. Finally, according to the NANPA website, if no local exchange carrier reports access or usage for a given CIC, NANPA is obliged to reclaim it. The semi-annual utilization and access reporting mechanism is described at length in the guidelines.
AUGUST 1: FCC FORM 499-Q, TELECOMMUNICATIONS REPORTING WORKSHEET. All telecommunications common carriers that expect to contribute more than $10,000 to federal Universal Service Fund (USF) support mechanisms must file this quarterly form. The FCC has modified this form in light of its recent decision to establish interim measures for USF contribution assessments. The form contains revenue information from the prior quarter plus projections for the next quarter. Form 499-Q relates only to USF contributions. It does not relate to the cost recovery mechanisms for the Telecommunications Relay Service (TRS) Fund, the North American Numbering Plan Administration (NANPA), and the shared costs of local number portability (LNP), which are covered in the annual form (Form 499-A) that was due April 1.
AUGUST 1: FCC FORM 502, NUMBER UTILIZATION AND FORECAST REPORT: Any wireless or wireline carrier (including paging companies) that have received number blocks—including 100, 1,000, or 10,000 number blocks—from the North American Numbering Plan Administrator (NANPA), a Pooling Administrator, or from another carrier, must file Form 502 by August 1. Carriers porting numbers for the purpose of transferring an established customer’s service to another service provider must also report, but the carrier receiving numbers through porting does not. Resold services should also be treated like ported numbers, meaning the carrier transferring the resold service to another carrier is required to report those numbers but the carrier receiving such numbers should not report them. Reporting carriers file utilization and forecast reports semiannually on or before February 1 for the preceding six-month reporting period ending December 31, and on or before August 1 for the preceding six-month reporting period ending June 30.
AUGUST 29: COPYRIGHT STATEMENT OF ACCOUNTS. The Copyright Statement of Accounts form plus royalty payment for the first half of calendar year 2015 is due to be filed August 29 at the Library of Congress’ Copyright Office by cable TV service providers.
SEPTEMBER 1: FCC FORM 477, LOCAL COMPETITION AND BROADBAND REPORTING FORM. Three types of entities must file this form. (1) Facilities-based Providers of Broadband Connections to End User Locations: Entities that are facilities-based providers of broadband connections — which are wired “lines” or wireless “channels” that enable the end user to receive information from and/or send information to the Internet at information transfer rates exceeding 200 kbps in at least one direction — must complete and file the applicable portions of this form for each state in which the entity provides one or more such connections to end user locations. For the purposes of Form 477, an entity is a “facilities-based” provider of broadband connections to end user locations if it owns the portion of the physical facility that terminates at the end user location, if it obtains unbundled network elements (UNEs), special access lines, or other leased facilities that terminate at the end user location and provisions/equips them as broadband, or if it provisions/equips a broadband wireless channel to the end user location over licensed or unlicensed spectrum. Such entities include incumbent and competitive local exchange carriers (LECs), cable system operators, fixed wireless service providers (including “wireless ISPs”), terrestrial and satellite mobile wireless service providers, MMDS providers, electric utilities, municipalities, and other entities. (Such entities do not include equipment suppliers unless the equipment supplier uses the equipment to provision a broadband connection that it offers to the public for sale. Such entities also do not include providers of fixed wireless services ( e.g., “Wi-Fi” and other wireless ethernet, or wireless local area network, applications) that only enable local distribution and sharing of a premises broadband facility.) (2) Providers of Wired or Fixed Wireless Local Telephone Services: Incumbent and competitive LECs must complete and file the applicable portions of the form for each state in which they provide local exchange service to one or more end user customers (which may include “dial-up” ISPs). (3) Providers of Interconnected Voice over Internet Protocol (VoIP) Service: Interconnected VoIP service is a service that enables real-time, two-way voice communications; requires a broadband connection from the user’s location; requires Internet-protocol compatible customer premises equipment; and permits users generally to receive calls that originate on the public switched telephone network and to terminate calls to the public switched telephone network. Interconnected VoIP providers must complete and file the applicable portions of the form for each state in which they provide interconnected VoIP service to one or more subscribers, with the state determined for reporting purposes by the location of the subscriber’s broadband connection or the subscriber’s “Registered Location” as of the data-collection date. “Registered Location” is the most recent information obtained by an interconnected VoIP service provider that identifies the physical location of an end user. (4) Providers of Mobile Telephony Services: Facilities-based providers of mobile telephony services must complete and file the applicable portions of this form for each state in which they serve one or more mobile telephony subscribers. A mobile telephony service is a real-time, two-way switched voice service that is interconnected with the public switched network using an in-network switching facility that enables the provider to reuse frequencies and accomplish seamless handoff of subscriber calls. A mobile telephony service provider is considered “facilities-based” if it serves a subscriber using spectrum for which the entity holds a license that it manages, or for which it has obtained the right to use via lease or other arrangement with a Band Manager.
SEPTEMBER 30: FCC FORM 396-C, MVPD EEO PROGRAM REPORTING FORM. Each year on September 30, multi-channel video program distributors (“MVPDs”) must file with the Commission an FCC Form 396-C, Multi-Channel Video Programming Distributor EEO Program Annual Report, for employment units with six or more full-time employees. Users must access the FCC’s electronic filing system via the Internet in order to submit the form; it will not be accepted if filed on paper unless accompanied by an appropriate request for waiver of the electronic filing requirement. Certain MVPDs also will be required to complete portions of the Supplemental Investigation Sheet (“SIS”) located at the end of the Form. These MVPDs are specifically identified in a Public Notice each year by the FCC.
Calendar At A Glance
Jul. 1 – FCC Form 481 (Carrier Annual Reporting Data Collection Form) is due.
Jul. 1 – FCC Form 690 (Mobility Fund Phase I Auction Winner Annual Report) is due.
Jul. 6 – Reply comments are due on the 9-1-1 Non-Service Initialized Device NPRM.
Jul. 6 – Reply comments are due on Eligible Services List for E-Rate 2016.
Jul. 9 – Deadline to Certify Accuracy of Authorization and Database Technical Information for Full Power and Class A Stations.
Jul. 9 – Deadline for Petitions for Eligible Entity Status for Full Power and Class A Stations.
Jul. 14 – Reply comments are due on the FCC’s Mobile Competition Report.
Jul. 16 – Comments are due on Part 4 Outage Reporting NPRM.
Jul. 20 – PRA comments are due on the Open Internet Order.
Jul. 27 – Comments are due on FirstNet Draft RFP.
Jul. 31 – Reply comments are due on Part 4 Outage Reporting NPRM.
Jul. 31 – FCC Form 507 (Universal Service Quarterly Line Count Update) is due.
Jul. 31 – Carrier Identification Code (CIC) Report is due.
Aug. 1 – FCC Form 502 due (North American Numbering Plan Utilization and Forecast Report).
Aug. 1 – FCC Form 499-Q (Quarterly Telecommunications Reporting Worksheet) is due.
Aug. 29 – Copyright Statement of Accounts is due.
Sep. 1 – FCC Form 477 due (Local Competition and Broadband Report).
Sep. 25 – Comments are due on Section IV.B of the Special Access Data NPRM.
Sep. 30 – FCC Form 396-C (MVPD EEO Program Annual Report).
|BloostonLaw Private Users Update||Vol. 16, No. 26||June 2015|
FCC Imposes $24,000 in Fines for Harmful Interference and Tower Fencing Violations – Reiterates Definition of Willful and Repeated.
The Federal Communications Commission has imposed a $17,000 fine against Acumen Communications (Acumen) for operating on an unauthorized frequency and causing harmful interference to United States Coast Guard (USCG) operations.
In January 2013 and in response to a USCG complaint concerning harmful interference in the 150 MHz band, the FCC’s Enforcement Bureau determined that a continuous signal was coming from Acumen’s transmitter at Mt. Wilson, California. The Enforcement Bureau was able to verify its determination by having Acumen shut down the suspect transmitter – which eliminated the harmful interference. The cause of the harmful interference was a spurious signal on 150.6973 MHz where the authorized signal was 152.285 MHz.
While Acumen did not deny that its transmitter was generating a spurious signal, Acumen asserted that the unauthorized frequency was created by a mix of various frequencies – including those that were not within its control. The FCC noted that the spurious frequency was within the range of spurious activity that Acumen acknowledged in its response to the underlying violation notice. Finally, the interference was eliminated when Acumen shut down its transmitter.
The FCC’s Rules require licensees to take reasonable precautions to avoid causing harmful interference, including monitoring the transmit frequency for communications that may already be in progress as well as any other reasonable measures that might be necessary to minimize the potential for harmful interference.
Finally, Acumen argued that it did not intend to cause harmful interference to USGS operations and that the Enforcement Bureau was required to demonstrate that Acumen intended to cause harmful interference. The FCC did not accept this argument.
The FCC has imposed a $7,000 fine against Sound Communications, the licensee of an AM broadcast station, for failing to enclose its antenna structure within an effectively locked fence. The fencing requirement exists in order to prevent the public from entering areas with a high potential for exposure to radio frequency radiation (RF radiation). In this case, Sound Communications did not deny that its antenna structure was improperly enclosed. Rather, Sound Communications stated the FCC cannot impose the fine because its violation was neither willful nor repeated. In this regard, Sound Communications admitted that it left the gate unlocked to permit access to a tower crew, but did not re-lock the gate because it assumed that the crew would do so.
In imposing the fine, the FCC noted that Sound Communications admits to leaving the fencing gate unlocked for several days.
Willful and Repeated Acts
While Acumen’s and Sound Communications’ arguments are reasonable, the FCC has long taken a “strict liability” position that violations resulting from inadvertent errors or omissions often are willful violations. This is because the FCC has long concluded that the term “willful” does not require a finding that the licensee actually intended to commit a violation by engaging in a particular act. Rather, it is sufficient that the licensee merely knew it was committing the act, irrespective of any intent to violate the law. Thus, “it is not necessary that the violation be intentional. All that is necessary is that the licensee knew it was doing the act in question.” As a result, the FCC did not reduce or cancel the fines against Acumen or Sound Communications.
Enforcement Warning – The FCC Will Take Action Based Upon Information that Comes to its Attention
The FCC recently issued a letter to PayPal regarding changes to its User Agreement that would impact all of its users. The changes raised concerns that PayPal could violate federal laws governing the use of autodialed, prerecorded and artificial voice calls (including text messages). These changes came to the Enforcement Bureau’s attention through Media Reports and other sources. Thus, it is important to note that FCC personnel can and will take action based upon information that is in the public domain even if there have been no formal or informal complaint to trigger an investigation.
Those clients that are interested in utilizing prerecorded and artificial voice calls should contact our office so that we can assist in ensuring that your operation is compliant with federal law as well as the FCC rules and regulations.
WesTex’s Untimely Petition for Reconsideration Dismissed
In recent orders, the FCC has denied late-filed petitions for reconsideration, even where the merits of the claim might be valid. The Communications Act mandates that a petition for reconsideration must be filed within 30 days of the FCC’s action. The FCC has made clear that because the deadline is statutory, it does not have the discretion to accept a petition that is even one day late.
In the most recent case, WesTex Towers (WesTex) obtained a license for a private microwave station which had a construction deadline of February 13, 2015. On March 25, 2015, the FCC issued a public notice announcing its intent to terminate the license because WesTex had not filed the required construction notification. On May 31, 2015, more than 30 days after the filing deadline, WesTex filed its petition for reconsideration of the FCC’s action to place its private microwave license into a termination pending status.
FirstNet Declines to Take Position on FCC Timeline for Public Safety Transition from UHF T-Band
In response to an inquiry in connection with its draft Request for Proposal relating to construction of the public safety broadband network, FirstNet has announced that it does not anticipate taking a position on the issue of when and whether public safety entities must relocate their public safety radio systems from the UHF T-Band. This is significant because FirstNet is responsible for constructing an interoperable broadband public safety system in the 700 MHz band. The response is part of a FAQ appearing on FirstNet’s website relating to the RFP.
FCC Grants Waiver to Permit Use of Wrist-Worn Personal Locator Beacon
Breitling U.S.A. has obtained a waiver of Part 95 of the FCC’s Rules to permit equipment authorization and use of the Breitling Dual Band Emergency Watch (Emergency 2 Watch), which includes a Personal Locator Beacon (PLB). In particular, Breitling sought a waiver of certain manual control, battery and labelling requirements in the Radio Technical Commission for Maritime Services (RTCM) standard.
In 2001, the FCC granted Breitling a prior waiver to permit equipment authorization and use of its Emergency Watch, which was designed to be back-up safety device to supplement the conventional 121.5 MHz Emergency Locator Transmitter (ELT) radio beacon that is activated in order to alert search and rescue services in the event of an aviation accident. At the time, a waiver was required because the Emergency Watch did not meet all of the FCC’s technical requirements for ELTs, including certain battery, control and labeling requirements. Since the time that Breitling obtained its 2001 waiver, there have been ten emergency activations of the Emergency watch and no inadvertent or false alarms.
In 2002, the FCC amended its rules in order to permit the authorization and use of PLBs – emergency beacons for individuals on land that transmit on the frequencies 406.0-406.1 MHz and 121.5 MHz. PLBs must conform to the RTCM standards.
Breitling has now developed a second generation Emergency Watch that includes a PLB. Breitling claims that the incorporation of a PLB into a wristwatch casing as opposed to a conventional hand-held device renders certain requirements of the RTCM standards irrelevant or infeasible. To offset those issues, Breitling pointed out in its waiver request that the Emergency 2 Watch would be worn on the wrist and thus “immediately at hand and ready to operate with no added risk of harmful interference to others.” Additionally, Breitling noted that none of these issues would affect the reliable operation of the PLB and that the Emergency 2 Watch meets all of the other requirements of the RTCM standards (except for those provisions for which it was granted waiver back in 2001).
While the RTCM standard requires certain operational and battery life requirements, the Commission noted, in granting Breitling’s waiver request, that the Emergency 2 Watch was similar to a conventional PLB, but with the added benefit of being a wristwatch that is worn at all times as increasing the likelihood of it being available for use in an emergency situation. The Commission concluded that this ready access offset the operational differences between a conventional PLB and the Emergency 2 Watch.
FCC Adopts Rules for Robocalls and Text Messages
On June 18, the FCC adopted a Declaratory Ruling and Order in which it made a number of affirmations aimed at increasing consumer protection from robocalls and texts. The full text of the order is not yet available, but a press release issued by the FCC indicates the Order:
- Permits service providers to offer robocall-blocking technologies to consumers and implement market-based solutions that consumers can use to stop unwanted robocalls.
- Affirms the right of consumers to revoke their consent to receive robocalls and robotexts in any reasonable way at any time.
- Creates a one-strike rule for reassigned numbers, requiring companies to stop calling a reassigned number after one call.
- Clarifies that a consumer whose name is in the contacts list of an acquaintance’s phone does not consent to receive robocalls from third-party applications downloaded by the acquaintance.
- Affirmed that consumers are entitled to the same consent-based protections for texts as they are for voice calls to wireless numbers.
The press release also indicates that the FCC adopted “very limited and specific exemptions for urgent circumstances,” such as free calls or texts to alert consumers to possible fraud on their bank accounts or remind them of important medication refills, among other financial alerts or healthcare messages, but provided that consumers have the right to opt out from these permitted calls and texts at any time.
Because the FCC’s modifications to the robocall restrictions are in the form of a declaratory ruling and order, many aspects may be effective immediately upon release of the document; therefore, our clients that utilize robocalling for a variety of legitimate reasons will want to evaluate their practices IMMEDIATELY under the new requirements, and make adjustments as necessary to avoid liability.
CTIA Sues City of Berkeley CA over RF Radiation Warning Requirement
CTIA, on behalf of the cellular industry, has sued the City of Berkeley, California in US District Court for Northern California to block an ordinance requiring the inclusion of an additional warning label with wireless handset sales. The warning rule includes a requirement that the service provider include the statement: “If you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is ON and connected to a wireless network, you may exceed the federal guidelines for exposure to RF radiation. This potential risk is greater for children.” CTIA argues that the Berkeley warning is contrary to Federal studies finding no evidence linking cell phone use to cancer or other health issues, and that Berkeley is violating the free speech requirements of the First Amendment to the Constitution. Berkeley indicates that the ordinance merely recites information contained in the manufacturer’s product manuals.
The City of San Francisco had adopted a similar ordinance, only to revoke it in 2013 after CTIA took the city to court. But the San Francisco ordinance required the warning to disclose the emissions coming from the device. CTIA indicates in its court filing that the FCC’s standard already sets a protection standard well above what is necessary; and that consumer wireless devices meet the relevant standard regardless of how they are worn. The cellular industry is concerned that if the Berkeley ordinance stands, it will spawn a myriad of similar but different (and in some cases conflicting) requirements from other state and local governments, creating an unreasonable and expensive compliance burden on cellular providers and retailers.
FCC Amends Traveler’s Information Station Rules – Clarifies Weather Rebroadcast Restrictions
The Traveler’s Information Service (TIS) allows state and local governments to provide traveler’s aid information over low power radio transmitters operating in the AM radio band. Most often, these transmitters are located along interstate highway corridors and are designed to provide travelers with information concerning road conditions, travel restrictions and relevant weather forecasts as well as travel related emergency messages concerning natural disasters ( e.g., floods, forest fires, etc.), traffic accidents and other hazards that affect the safety of life and property.
FCC Clarifies Restriction on Weather Information
In 2013, the FCC amended its Traveler’s Information Service (TIS) Rules in order to allow public safety entities to provide highway traveler’s information more efficiently. At that time, the FCC clarified that permissible content broadcast had to be related to an emergency or an imminent threat of danger, or absent emergency conditions, provided “noncommercial voice information pertaining to traffic and road conditions, traffic hazard and travel advisories, directions, availability of lodging, rest tops and service stations, and descriptions of local points of interest.” TIS licensees were not, however, permitted to rebroadcast routine weather information.
In response to comments on this issue, the FCC has now clarified that while routine weather rebroadcasts are not permitted, TIS licensees may broadcast weather information (or retransmit NOAA broadcasts) “during times of hazardous or potentially hazardous conditions.” In so doing, the FCC noted that TIS licensees have “substantial discretion to determine what information is relevant to such conditions.” Additionally, the FCC noted that it has previously clarified that TIS licensees may broadcast emergency information and information related to imminent threats to safety of life or property even if the information is not travel related. Finally, the FCC recognized that TIS licensees are uniquely qualified to assess hazards in their local communities and are therefore in the best position to determine what information is relevant to a particular local emergency. As a result, the FCC believes that TIS licensees have the flexibility to broadcast necessary weather information during an emergency while still maintaining the primary purpose for the TIS system – namely to provide travel-related information.
Part 90 of the FCC’s Rules currently requires TIS licensees to filter the transmit signal to 3 kHz in order to prevent interference to adjacent channel AM broadcast stations. As a result, this restriction has distinguished TIS stations from traditional AM broadcast stations, resulting in poorer audio fidelity which makes the TIS transmission less intelligible.
Based upon comments that it received, the FCC believes that this restriction is of negligible value and that the public would be better served by the wider bandwidth so that the motorists could receive travel related information from TIS stations that is clearer and easier to understand. As a result, the FCC is relaxing the filtering requirement from 3 kHz to 5 kHz, which it believes will result in audio quality similar to commercial AM broadcast stations while still preventing the potential for harmful interference to adjacent channel stations.
Any TIS licensee seeking to retrofit existing equipment, e.g., installation of an outboard 5 kHz filter at the audio input with deactivated 3 kHz filters, will require a Class II permissive change request. The FCC noted that equipment manufacturers should file a Class II permissive change request for each TIS model they seek to have retrofitted. The change request should describe the change and include a list of filters if more than one is to be approved with the system as well as clear and concise instructions for TIS licensees if the retrofit can be performed by the end-user licensee.
Before retrofitting any TIS equipment, TIS licensees must ensure that their equipment has received a Class II permissive change grant from the FCC and may only use approved filters for their particular system.
Music Content Prohibited on TIS Stations
Based upon complaints in the proceeding, the FCC reminds all TIS licensees that music may not be broadcast over TIS stations and that permitted communications are limited to voice communications. We caution that violations of this restriction could result in the imposition of monetary forfeitures by the FCC.
FCC Grants Petition to Deny Application for Modification of AMTS Station
The FCC received a petition to deny from Mission Broadcasting Inc. (Mission) to deny an application for modification of an Automated Maritime Telecommunications System (AMTS) license by Northwest Utilities Service Company (Northwest) to add a transmitter location for which individual licensing is required due to its proximity to television broadcast stations. The basis of the petition to deny was that that the proposed AMTS transmitter would cause significant interference to television reception. In its petition, Mission claimed that there are over 30,000 residences within both the proposed AMTS station’s predicted interference contour and the television stations noise limited service contour. Additionally, Mission noted that the AMTS station would cause harmful interference to television reception for 2,300 residences. Northwest claimed that while there were 4,200 residences within both the proposed AMTS stations predicted interference contour and the television station’s noise limited service contour, the proposed AMTS station would not cause interference to any of the affected residences.
Under the FCC’s Rules, AMTS stations are authorized on the condition that no harmful interference will be caused to the reception of existing television stations – particularly TV channels 10 and 13 due to their proximity to the AMTS spectrum. An applicant proposing to locate an AMTS transmitter within 80 miles of a channel 10 television station or 105 miles of a Channel 13 television station must provide an engineering study which demonstrates how it will avoid interference to television reception within the television stations Grade B contour. If there are more than 100 residences within both the proposed AMTS station’s predicted interference contour and the television stations Grade B contour, the AMTS applicant must (a) show that its proposed site is the only suitable location, (b) develop a plan to control any interference that is operations would cause within the Grade B contour and (c) agree to make any necessary adjustments to affected television receivers in order to eliminate the interference to television reception.
The FCC granted the petition and dismissed Northwest’s application as defective since there were more than 100 affected residences or households within both the proposed AMTS station’s predicted interference contour and the television station’s noise limited service contour and Northwest had not made the required showings.
In this case there was also a dispute as to whether Mission was under an obligation to identify an alternative site that could be used by Northwest. While the general requirement is yes, the FCC noted that the requirement was not triggered since Northwest failed to make a showing that its proposed site was the only suitable location. Office clients should be aware of this where similar issues might exist where an application is challenged on the basis of interference issues ( e.g., 72-76 MHz and developmental authorizations).
FCC Grants Waiver of 800 MHz Rules to Permit Commercial Licensing Before Expiration of the 5-Year Holding Period
The FCC received a waiver request from NexGen Communications Corporation for waiver of the five-year holding period for licensees to utilize 800 MHz Business/Industrial Land Transportation Service spectrum for commercial purposes. The FCC granted the waiver request with respect to one application, but not NexGen’s second application.
The five-year holding period was created as part of the 800 MHz rebanding process that was designed to resolve interference issues between commercial and public safety systems. This included the creation of the expansion band (which was designed for SMR stations) and the Guard Band (which was designated for public safety, business and SMR operations). Under the FCC’s procedures, the Expansion Band and Guard Band channels become available for licensing only after the Wireless Telecommunications Bureau announces that the required level of clearing has been achieved in the particular NPSPAC Region, and may not be used for commercial purposes until five years have elapsed.
In NexGen’s case, it applied for five Guard Band channels in Minneapolis and six Guard Band and Expansion Band Channels in New Berlin, Wisconsin. Both applications were granted in September 2013. Based upon these grants, NexGen purchased equipment and scheduled deployment of its New Berlin system for August 2014 in order to provide service to a large fleet user. Based upon an informal objection filed by Smartcomm in August 2014 which stated that the New Berlin application had been improperly coordinated since it was located in Waukesha County (Region 54 – Chicago) where rebanding had not yet been completed rather than Region 45. NexGen stated that it searched for alternative spectrum, but was unable to locate any and accordingly cancelled its New Berlin license in November 2014.
In December 2014, NexGen filed an application requesting three Business/Industrial Land Transportation frequencies at a second site in Minneapolis and a second application requesting one Business/Industrial Land Transportation channel at the New Berlin Site with a second channel at a location approximately 16 miles away in Milwaukee. Part 90 of the FCC’s Rules imposes a five year holding period before a licensee may convert the channels from private internal to commercial operation. NexGen has requested a waiver of the rule with respect to both of its pending applications.
In evaluating the waiver requests, the FCC concluded that NexGen presented a reasonable case with New Berlin/Milwaukee application since NexGen acted in reasonable reliance upon the FCC’s action to grant its initial New Berlin facilities application and the fact that the erroneous grant came to light almost a year later, after NexGen had purchased equipment and identified an initial customer. Having been unsuccessful in trying to locate alternative SMR frequencies, NexGen cancelled its initial New Berlin license. Inasmuch as NexGen had acted appropriately and relied on the FCC’s action in good faith, the FCC concluded that the circumstances warranted a waiver of the five-year holding period.
With respect to the Minneapolis application, the FCC concluded that a waiver was not justified and denied the request. In making this determination, the FCC noted that while a purpose of the rule is to prevent speculative trafficking of frequencies (which NexGen stated it would not be engaging in), the FCC also noted that the rule was also designed “to ensure that these channels will continue to be initially licensed only to entities that will use them for [private land mobile radio] communications” and that assigning these frequencies to NexGen or any other SMR provider would frustrate that purpose.
The FCC reiterated that it gives close scrutiny to 800 MHz applications and rule waiver requests in order to ensure that 800 MHz channels are only assigned to eligible users for the proper designated purpose. Here, NexGen demonstrated extraordinary circumstances with respect to its New Berlin application, but not with respect to its Minneapolis application.
City of Mesa, Arizona Obtains Extension of Time to Deploy 700 MHz Trunked Radio System
The City of Mesa, Arizona (Mesa) has sought an extension of time to complete the reprogramming of its six-channel, 700 MHz deployable trunked system. The system was licensed to Mesa in 2011, conditioned upon the outcome of a then pending rulemaking which explored whether to designate the 700 MHz reserve channels for deployable trunked systems.
On October 24, 2014, the Commission reallocated the reserve channels to General Use, subject to the Regional Planning Committee (RPC) coordination. In making this reallocation, the FCC gave the RPCs flexibility to designate up to eight of the former reserve channels for deployable trunked systems in non T-Band markets. Additionally, the FCC also encouraged the RPCs to amend their regional plans within six months of the publication of the report and order in the Federal Register (which was extended to October 30, 2015) and ordered Mesa, among other licensees, to reprogram their deployable trunked systems to the former reserve channels.
In requesting its extension, Mesa notes that it cannot submit an application for modification of license with the FCC until the Region 3 700 MHz RPC submits its frequency plan for FCC approval. As a result, Mesa has requested an extension of time for a period of six months following the Region 3 RPC’s adoption of a plan and the FCC’s approval of the Plan. Mesa states that a grant of the waiver will allow it to redeploy its system on the next maintenance cycle without having to incur additional expense in order to add the frequencies prior to the original June 2, 2015 deadline.
The FCC granted Mesa’s request because the Region 3 RPC has not yet amended its plan to identify the frequencies that may be used for deployable trunked systems and Mesa therefore cannot file its application since it does not know which frequencies will be approved for deployable trunked systems. Additionally, the FCC also noted that the public interest would be served because the extension would minimize the costs that would be incurred by Mesa.
It is important to note that the FCC does not routinely grant extension requests and that such requests are only considered in circumstances where the delay is due to reasons that are beyond the applicant’s control.