BloostonLaw Telecom Update Published by the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP [Portions reproduced here with the firm's permission.] www.bloostonlaw.com |
| Vol. 13, No. 38 | September 29, 2010 |
 FCC Unveils Tentative Agenda For Oct. 14 Open Meeting FCC Chairman Julius Genachowski has announced that the following items will be on the tentative agenda for the next open meeting scheduled for Thursday, October 14, 2010: - Bill Shock NPRM: A Notice of Proposed Rulemaking seeking comment on rules requiring mobile carriers to provide usage alerts and related information that will assist consumers in avoiding unexpected charges on their bills.
- Mobility Fund NPRM: A Notice of Proposed Rulemaking seeking comment on a proposal to use recently reserved universal service funds to create a Mobility Fund to support private investment in current- (3G) and next-generation mobile services in areas where consumers currently lack such services.
- CableCARD Third R&O and Order on Reconsideration: A Third Report and Order and Order on Reconsideration that will make changes to the FCC’s CableCARD rules to improve the consumer experience with the video navigation devices used with cable services and promote the development of a competitive market for such devices.
BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast. |
INSIDE THIS ISSUE - FCC frees TV white spaces for “Super Wi-Fi” devices.
- FCC approves upgrades, modernizations for E-rate program.
- FCC adopts new E911 rules—Commission seeks further comment on location accuracy requirements.
- Feds unveil final Recovery Act grant awards.
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FCC Frees TV White Spaces For “Super Wi-Fi” Devices As expected, the FCC, at last week’s open meeting, unanimously approved a Second Memorandum Opinion and Order (MO&O) to free up vacant airwaves between TV channels — called “white spaces” — to unleash a host of new technologies, such as “super Wi-Fi,” and myriad other diverse applications (BloostonLaw Telecom Update, September 15 and 22). This is the first significant block of spectrum made available for unlicensed use below 5 GHz in more than 20 years. The National Broadband Plan noted the importance of unlicensed spectrum in creating opportunities for new technologies to blossom and recommended that the Commission complete the TV white spaces proceeding as expeditiously as possible. The Order eliminates the requirement that TV bands devices that incorporate geo-location and database access must also include sensing technology to detect the signals of TV stations and low-power auxiliary service stations (wireless microphones). It also requires wireless microphone users who seek to register in the TV bands databases to certify that they will use all available channels from 7 through 51 prior to requesting registration. Requests to register in the database will be public, thus allowing interested parties to weigh in on any given request. The Commission is also taking steps to ensure that incumbent services are protected from interference from the use of white spaces in various ways. In particular, the Order reserves two vacant UHF channels for wireless microphones and other low power auxiliary service devices in all areas of the country. It also maintains a reasonable separation distance between TV White Space device and wireless microphone usage permitted to be registered in the database. As noted above, the FCC believes many applications are possible. These include broadband access to schools particularly in rural areas, campus networks that are better able to keep pace with user’s increasing demands for bandwidth, home networks that are better able to support real time streaming video applications, remote sensing of water supplies by municipalities and support for the smart grid. The FCC said potential uses of this spectrum are limited only by the imagination. Although the particular unused TV channels vary from location to location, the devices are supposed to have the flexibility and agility to locate and operate on the unused channels, no matter where the devices are located. The devices will use geo-location technology to determine their location and a database look-up that identifies the unused channels that are available at their location. The FCC said this type of “opportunistic use” of spectrum has great potential for enabling access to other spectrum bands and improving spectrum efficiency. The FCC said its action is expected to spur investment and innovation in applications and devices that will be used not only in the TV band but eventually in other frequency bands as well. Specifically, the FCC is resolving on reconsideration certain legal and technical issues in order to provide certainty concerning the rules for operation of unlicensed transmitting devices in the television broadcast frequency bands (unlicensed TV bands devices, or TVBDs). Resolution of these issues will allow manufacturers to begin marketing unlicensed communications devices and systems that operate on frequencies in the TV bands in areas where they are not used by licensed services (TV white spaces). Pending petitions for reconsideration collectively request numerous changes in the rules for TV bands devices. The FCC upheld the majority of its prior decisions on the issues raised. In this regard, the FCC continues to believe that the approach the Commission followed in the Second Report and Order is desirable and appropriate for this first step in allowing unlicensed operations in the TV bands. The FCC does, however, find merit in a number of the requests for changes to the rules for TVBDs and are granting those requests by modifying and clarifying the rules in four areas. Specifically, it is taking the following actions: 1. Protection Criteria for Incumbent Services - Modifying the protection criteria for low power auxiliary stations such as wireless microphones to reduce the required separation between such devices and unlicensed personal/portable devices operating in Mode II.
- Modifying the definition of the receive sites entitled to protection outside of a television station’s service area to include all multi-channel video programming distributors as defined by the rules.
- Reserving two vacant UHF channels for wireless microphones and other low power auxiliary service devices in all areas of the country.
- Allowing operators of event and production/show venues that use large numbers of wireless microphones on an unlicensed basis that cannot be accommodated in the two reserved channels and any others available at that location to register the sites of those venues on TV bands databases to receive the same geographic spacing protections afforded licensed wireless microphones.
- Restricting fixed TV band devices from operating at locations where the ground level is more than 76 meters above the average terrain level in the area.
2. TV Band Devices - Eliminating the requirement that TV band devices that incorporate geo-location and database access must also listen (sense) to detect the signals of TV stations and low power auxiliary service stations (wireless microphones). As part of that change the FCC is also revising and amending the rules in several aspects to reflect use of that method as the only means for determining channel availability. While the FCC is eliminating the sensing requirement for TVBDs, it is encouraging continued development of this capability because the FCC believes it holds promise to further improvements in spectrum efficiency in the TV spectrum in the future and will be a vital tool for providing opportunistic access to other spectrum bands.
- Adopting power spectral density limits for unlicensed TV bands devices.
- Modifying the rules governing measurement of adjacent channel emissions.
- Restricting fixed TV bands devices from operating at locations where the height above average terrain of the ground level is greater than 76 meters.
3. TV Bands Database - Requiring that communications between TV band devices and TV band databases, and between multiple databases, are secure.
- Requiring that all information that is required by the Commission’s rules to be in the TV band databases be publicly available.
4. Use of TV Channels - Amending the rules to protect Canadian and Mexican stations in the border areas by including those stations in the TV bands database as protected services.
- Changing the protection zone for the radio astronomy facility near Socorro, New Mexico to a rectangular area.
- Declining to grant a request by FiberTower to set aside TV channels for fixed licensed backhaul use.
- The FCC is also making other minor changes and refinements to its rules for TV bands devices. With these changes and clarifications, the FCC said the rules will better ensure that licensed services are protected from interference while retaining flexibility for unlicensed devices to share the TV bands with them.
BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast. FCC Approves Broadband Upgrades, Modernizations For E-rate Program In accordance with the National Broadband Plan, the FCC, at last week’s open meeting adopted an Order to upgrade and modernize the E-rate program for schools and libraries, and to index the cap on E-rate funding to inflation. Given the FCC’s intent to maintain the current size of the Universal Service Fund (USF), any increase in funding for schools and libraries could put additional pressure on reducing the size of the High Cost Fund. The FCC said one of the Plan’s key recommendations is to bring connectivity to all schools and libraries across America. The Commission noted that program has achieved remarkable success — 97 percent of American schools and nearly all public libraries now have basic Internet access. But the Plan found that basic broadband connectivity is too slow to keep up with the innovative high-tech tools that are now essential for a world-class education. According to a recent FCC survey, 78 percent of E-rate recipients say they need faster connections to meet the speed and capacity demands of their students, teachers, and library patrons. The FCC said its E-rate Order makes it easier for schools and libraries to get the highest speeds for the lowest prices by increasing their options for broadband providers and streamlining the application process. The FCC said its Order is another advance in the Commission’s ongoing transformation of the Universal Service Fund (USF), of which the E-rate program is part, to deploy broadband throughout America. The FCC’s upgrades to E-rate include: Super-Fast Fiber: The FCC said its E-rate Order will help bring affordable, super-fast fiber connections to America’s schools and libraries. It allows participants to use E-rate funds to connect to the Internet in the most cost-effective way possible, including via unused fiber optic lines (“dark fiber”) already in place across the country and through existing state, regional and local networks. The claim is that with these fiber networks, schools and libraries can provide students and communities with cutting-edge connectivity, while at the same time saving millions of dollars by bypassing more expensive options. Commissioner Robert McDowell was initially opposed to the dark fiber provision, but said he came around to supporting it because he recognized “having access to competitive dark fiber may reduce costs to the fund.” School Spots: The FCC is also opening the door to “School Spots”— where schools have the option to provide Internet access to the local community after students go home. With affordable fiber, the FCC said, these School Spots are a major step toward the National Broadband Plan’s goal of connecting an anchor institution in every community to affordable 1 gigabit per second broadband. School Spots will help ensure that people who otherwise lack access can use broadband. Learning On-the-Go: The FCC said it is launching a pilot program that supports off-campus wireless Internet connectivity for mobile learning devices. The Commission said that education doesn't stop at the schoolyard gate or the library door. Digital textbooks and other innovative wireless devices allow students to learn in a real-world context, inside the classroom and beyond. Because of their low cost and accessibility, these mobile devices can also help advance digital equality, particularly for children from economically disadvantaged communities, the Commission said. Indexing the Cap: Indexing the cap on E-rate funding to inflation in a fiscally responsible manner, so that the program can more fully meet the needs of students and communities. Since 1997 when the E-rate program started, the FCC said, inflation has raised costs 30 percent but the program has remained capped, significantly decreasing its effective purchasing power. Earlier this month, the Commission reserved hundreds of millions of dollars annually from another program of the Universal Service Fund to cover the incremental E-rate support (less than $25 million next year) it is providing, without growing the overall size of the Universal Service Fund, the Commission said. The FCC said it will use the gross domestic product chain-type price index (GDP-CPI) to inflation-adjust the amount of funds available annually to E-rate program participants. This is the same index the Commission uses to inflation-adjust revenue thresholds used for classifying carrier categories for various accounting and reporting purposes and to calculate adjustments to the annual funding cap for the high-cost loop support mechanism. There is no index that specifically examines the cost of the services funded under the E-rate program, and no record support for a more targeted measure of inflation than the GDP-CPI. Moreover, the Commission said, it has used the GDP-CPI index in other contexts to estimate inflation of carrier costs. During periods of deflation, the FCC will maintain the prior-year cap to maintain predictability. When the calculation of the yearly average GDP-CPI is determined, the Wireline Competition Bureau will publish a Public Notice in the Federal Register within 60 days of announcing any increase of the annual funding cap based on the rate of inflation. Commissioner McDowell dissented from this aspect of the Order, and Commissioner Meredith Baker only concurred. McDowell said he did not agree with the decision to raise the $2.25 billion E-rate cap by indexing it to overall inflation. He said “Some consider this increase ‘offset’ by recent ‘savings’ captured in a previous Commission proceeding. Others argue that the cap increase for the upcoming funding year is minimal. Nonetheless, I have long advocated for overall comprehensive reform of the universal service system in lieu of piecemeal alterations, and therefore it makes more sense that any ideas for increasing caps should be debated more thoroughly in that forum. “Additionally, as recently as July 1 of this year, the Commission announced that the fund has retained $900 million in unused money in excess of the existing cap. In light of this, I question why the Commission is raising the cap when the fund has almost $1 billion in leftover cash. Again, we should always remember that we should be the prudent stewards of other people’s money.” “Finally, even if the E-rate program had not been running a surplus, it is not clear to me why it is necessary to index it to inflation of the overall economy rather than inflation in the telecom sector specifically. When comparing the consumer price index for the economy as a whole against the prices for telecom services for the past decade, inflation in the telecom sector has remained essentially flat while the index for all other products and services has risen. This is the first time the E-rate cap has ever been raised, and tying it to a general inflation index may make future support of this program more difficult to achieve. The majority’s decision today is not supported by the evidence in the record and is not fiscally prudent. As such, I respectfully dissent from this portion of the Report and Order.” Commissioner Baker said: “I concur in one aspect of this Order: indexing the annual funding cap. As I have said many times, I continue to have concerns that our efforts to modernize the various components of the Universal Service Fund (USF) should not result in further growth in the overall size of the Fund. While I recognize that any increase in E-rate support is offset with funds reclaimed through our action in another proceeding, I believe it may have been more prudent to delay consideration of increasing the funding cap for E-rate until we are farther down the road of comprehensive reform for all components of the Universal Service Fund, including the high-cost support mechanism. Only then will we be sure that reforms for all USF programs together—some of which continue to grow—can be accomplished without increasing the overall size of the Fund, while achieving Congress’s goal of ensuring broadband access by all people of the United States. Finally, I feel strongly that the Commission must remain vigilant with regard to any signs of waste, fraud or abuse of this program. It is our obligation to ensure that money is spent responsibly to achieve the goals set out by Congress.” Other aspects of the FCC’s Order include: - Supporting connections to the dormitories of schools that serve students facing unique challenges, such as Tribal schools or schools for children with physical, cognitive, or behavioral disabilities.
- Bolstering protections against waste, fraud, and abuse by codifying competitive bidding requirements and clarifying ethics obligations.
- Streamlining the E-rate application process for educators and librarians.
Formally called the Schools and Libraries Universal Service program, the E-rate program provides up to $2.25 billion annually to support telephone and Internet connections at schools and libraries across the country. The program supports both the cost of telecommunications and Internet service and the installation of internal networks. Since it was established by the 1996 Telecommunications Act, the program has connected most of the nation’s classrooms to the Internet, and supports continued service and necessary upgrades of school and library networks. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. FCC Adopts New E911 Rules Commission Seeks Further Comment On Location Accuracy Requirements At last week’s open meeting, the FCC adopted a Second Report and Order on wireless E911 location accuracy requirements, as well as a Further Notice of Proposed Rulemaking (FNPRM) and Notice of Inquiry (NOI) on both wireless and Internet Protocol (IP)-enabled service provider E911 requirements. The FCC’s actions are expected to help strengthen and improve the ability of Public Safety Answering Points (PSAPs, or 9-1-1 call centers) to quickly locate wireless 9-1-1 callers and dispatch emergency responders to assist them during emergencies. The Order requires wireless carriers to provide reliability data on each 9-1-1 call upon the request of a PSAP. For rural wireless carriers, the cost of complying with any new requirements adopted pursuant to this rule making could be disproportionately expensive, especially if the underlying network uses a network-based E911 solution instead of a handset-based solution. This is of particular concern to GSM carriers. Additionally, the Order allows carriers to use network-based accuracy data, handset-based data, or a combination of the two; and elect ether county or PSAP measurements in their service areas. There are, however, standards and benchmarks. For example, a carrier using network-based technologies must eventually meet an accuracy standard of “100 meters for 67% of calls.” The compliance benchmarks are: (1) One year from the effective date of the Order, carriers shall comply with this standard in 60 percent of counties or PSAP service areas. These counties or PSAP service areas must cover at least 70 percent of the population covered by the carrier across its entire network. (2) Three years from the effective date of the Order, carriers shall comply with this standard in 70 percent of counties or PSAP service areas. These counties or PSAP service areas must cover at least 80 percent of the population covered by the carrier across its entire network. (3) Five years from the effective date of the Order, carriers shall comply with this standard in 100% of counties or PSAP service areas covered by the carrier.
There are similar requirements for carriers employing handset-based technologies. The Commission also unanimously adopted an FNPRM and NOI, as recommended in the National Broadband Plan, that explores how to further improve the location capability of 911 and E911 services for existing and new voice communications technologies, including new broadband technologies associated with the deployment of Next Generation 911 (NG 911) networks. The FNPRM seeks public comment on a number of issues, including whether the FCC should adopt a technologically neutral location accuracy standard, methodologies for verifying compliance, and how wireless 911 caller location accuracy can be improved in challenging environments, such as in high-rise buildings, urban canyons and mountainous and forested terrain. The NOI seeks public comment on whether to require interconnected Voice over Internet Protocol (VoIP) service providers to automatically identify the caller’s location, rather than requiring the caller to self-report his or her location, and whether other forms of VoIP services should be subject to the 911 rules. The NOI also focuses on the potential impact of future NG 911 deployment on location accuracy and automatic location identification. Additionally, the NOI explores whether to extend 911 and E911 requirements to new and emerging voice communications services, devices, and application enabled by broadband technologies. Comments on the PS Docket No. 07-114 and WC Docket No. 05-196 FNPRM and NOI will be due 60 days after publication of the item in the Federal Register, and replies will be due 30 days thereafter. BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast. Feds Unveil Final Recovery Act Grant Awards The National Telecommunications and Information Administration (NTIA) has announced final Recovery Act grant awards. These include 56 investments totaling $190 million to support state efforts to compete in the digital economy. These are the final awards in the State Broadband Data and Development (SBDD) grant program, funded by the American Recovery and Reinvestment Act. The 50 states, five territories, and the District of Columbia will use this funding to support the use of broadband technology to improve their economies. As examples of these diverse state-driven projects: - Massachusetts will provide technical assistance to small businesses and non-profit organizations to help them improve operations through broadband and technology use.
- Pennsylvania plans to research barriers to the use of broadband by manufacturers and to examine the impact of broadband use on the compatibleness of this sector.
- In Florida, technology teams will provide hardware and network assessments to public libraries, enabling them to provide faster and more reliable Internet service to the public.
- Arkansas plans to expand online county government services, particularly in rural communities, allowing residents to access these services from their homes.
- Colorado plans to organize a state-wide broadband task force to promote the growth of distance learning and to implement and assess the impact of several pilot projects.
- North Carolina will leverage years of experience to expand its broadband planning teams into more communities, driving broadband- and technology-based economic development.
Separately, U.S. Agriculture Secretary Gary Locke announced 14 American Recovery and Reinvestment Act investments of $206.8 million in grants, as the final awards in a program to increase broadband Internet access. “In total,” he said, “we are investing in 233 strong projects that reach every state. Most are ‘middle mile’ networks that expand high-speed Internet availability to communities and connect key institutions, such as schools, libraries, and hospitals.” NTIA and the Rural Utilities Service (RUS) are administering a nearly $7 billion Recovery Act initiative to expand access to and adoption of broadband services. NTIA is utilizing approximately $4 billion of that funding for the Broadband Technology Opportunities Program (BTOP), which provides grants to support the deployment of broadband infrastructure, enhance and expand public computer centers, and encourage sustainable adoption of broadband service. BloostonLaw contacts: Ben Dickens, Gerry Duffy, John Prendergast, and Mary Sisak. FCC ERRATUM CORRECTS COMMENT CYCLE FOR RECON PETITIONS REGARDING POLE ATTACHMENT ORDER: The FCC has issued an Erratum correcting the comment cycle regarding the petitions for reconsideration of its May 20 Pole Attachment Order (BloostonLaw Telecom Update, September 22). The Erratum states that oppositions to the recon petitions shall be filed 15 days after publication of the WC Docket Nos. 07-245 and GN Docket No. 09-51 item in the Federal Register, and replies shall be filed 10 days thereafter. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. COMMENT SOUGHT ON RECON REQUESTS REGARDING RULES GOVERNING WCS IN 2.3 GHz BAND: The FCC has asked for comments on several petitions for reconsideration or partial reconsideration of its rules governing the operation of Wireless Communications Services in the 2.3 GHz band. The FCC’s 2.3 GHz Order was published in the August 2 Federal Register. Petitioners, including AT&T, WCS Coalition, Green Flag Wireless LLC, and others, generally argue that the FCC’s performance rules do not allow sufficient time to develop technical standards, design, test, and manufacture equipment, and deploy mobile broadband network facilities to meet the performance standards. Oppositions to the petitions must be filed 15 days from the September 22 date of the Public Notice (e.g., October 6), and replies must be filed 10 days after the time for filing oppositions has expired (e.g., October 16). BloostonLaw contacts: Hal Mordkofsky, John Prendergast, Richard Rubino, and Cary Mitchell. NTIA CLOSES CONVERTER BOX COUPON PROGRAM: The National Telecommunications and Information Administration (NTIA) has published a final rule in the Federal Register that essentially shuts down the Digital-to-Analog Converter Box Coupon Program. The regulations implemented Section 3005 of the Digital Television Transition and Public Safety Act of 2005. The final coupons were issued on August 12, 2009, and expired on November 9, 2009. As a result, NTIA is removing its regulations because the Coupon Program is closed, and the regulations are now obsolete. This newsletter is not intended to provide legal advice. Those interested in more information should contact the firm. | 
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