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. 16, No. 11 | April 3, 2013 |
Headlines FCC Announces Leftover Paging Channel Auction Procedures & DeadlinesThe FCC has announced the procedures and minimum opening bid amounts for the upcoming auction of 5,905 licenses for lower and upper paging bands spectrum. This auction, which is designated as Auction 95, is scheduled to commence on July 16, 2013. The key deadline is for filing a "short form" application to participate in the auction, which is set for May 9, 2013 at 5:59 PM Eastern Time. As we have previously indicated, Auction 95 will offer 5,905 paging licenses consisting of 4,902 licenses in the lower paging bands (35 MHz, 43 MHz, 152 and 158 MHz, 454 and 459 MHz) and 1,003 licenses in the upper paging bands (929 MHz and 931 MHz). These licenses can be used for paging, and in some cases, mobile dispatch, repeater, control link and other types of operations with appropriate waivers from the FCC. We have successfully helped several clients obtain paging channels and the appropriate rule waivers for internal dispatch operations in prior auctions. Auction 95 will include licenses that remained unsold from a previous auction, licenses on which a winning bidder in a previous auction defaulted, and licenses for spectrum previously associated with licenses that canceled or terminated. In a few cases, the available license does not cover the entire geographic area due to an excluded area or previous partitioning. The relevant deadlines for this auction are as follows: - Auction Tutorial Available (via Internet): April 30, 2013
- Short-Form Application (FCC Form 175) Filing Window Opens: April 30, 2013 at 12:00 noon ET
- Short-Form Application (FCC Form 175) Filing Window Deadline: May 9, 2013, at 5:59 p.m. ET
- Upfront Payments (via wire transfer): June 13, 2013, at 5:59 p.m. ET
- Mock Auction: July 12, 2013
- Auction Begins: July 16, 2013
FCC Seeks to Revisit Radio frequency Exposure Limits and PoliciesAlmost ten years after the FCC initiated a proceeding to clarify technical and semantic issues in its regulations implementing the National Environmental Policy Act (NEPA) as they relate to the guidelines for human exposure to RF electromagnetic fields, the FCC last Friday released a Report and Order and Further Notice of Proposed Rulemaking to finally address these issues, along with a Notice of Inquiry ("NOI") to initiate a comprehensive review the Commission's RF exposure limits and policies ( FCC 13-39 ). According to industry reports, the 200-page document has reportedly been under consideration since June of 2012, and it is only now seeing the light of day due to its technical complexity and heft. The Order clarifies evaluation procedures and references to determine compliance with the Commission's limits, including specific absorption rate (SAR) as a primary metric for compliance, consideration of the pinna (outer ear) as an extremity, and measurement of medical implant exposure. The Further Notice portion of the item seeks comment on new proposals developed regarding compliance with guidelines for human exposure to RF electromagnetic fields. The Commission is proposing to broadly revise and harmonize its criteria for determining whether single or multiple fixed, mobile, or portable RF sources are subject to routine evaluation for compliance with the RF exposure limits or are exempted from such evaluations. It is also proposing to adopt specific new requirements for signs and barriers at fixed transmitter sites to ensure compliance with public and occupational exposure limits and to clarify the definition of transient exposure for non-workers exposed at levels up to occupational limits. The Further Notice also seeks to streamline and harmonize procedures to achieve equal treatment of RF-emitting equipment based on their physical rather than service categories. Thus, the Commission is proposing to establish general exemptions from evaluation to determine compliance in place of existing service-specific "categorical exclusions." In the NOI, the FCC asks whether its exposure limits remain appropriate in light of recent research and differing interpretations that have emerged. Since the Commission is not a health and safety agency, it has indicated it will defer to other organizations and agencies with respect to interpreting the biological research necessary to determine what levels of RF radiation exposure are safe. As such, the Commission invites health and safety agencies and the public to comment on the propriety of its current limits and whether additional precautions may be appropriate in some cases, for example with respect to children. The Commission also seeks comment from the public, expert organizations, and any federal agency with jurisdiction by law or expertise over the environmental impact of human exposure to RF energy regarding the potential environmental impacts, including any cumulative impacts, of the rule changes proposed in the Further Notice. The FCC last evaluated RF exposure limits and policies in 1996, based on guidance from federal safety, health, and environmental agencies using recommendations published separately by the National Council on Radiation Protection and Measurements (NCRP) and the Institute of Electrical and Electronics Engineers, Inc. (IEEE). Since that time, there has been significant research by a number of international organizations and the IEEE has revised its recommendations several times, The NCRP, on the other hand, continues to support its recommendation as used the the current FCC rules. Last summer, the US Government Accountability Office issued a report to Congress and recommended that the FCC update its current RF exposure limits and reevaluate current testing methodologies. Comments on the FNPRM and NOI will be due 90 days after the item is published in the Federal Register, and Reply Comments will be due 150 days after publication. For small and rural wireless carriers, the key will be for the FCC to avoid imposing unreasonable compliance requirements that unduly complicate the implementation of wireless services. This is of particular concern because of the strict buildout deadlines the FCC has more recently imposed on licensees.
Law & Regulation Wireless Service Providers not Liable for Copyright InfringementIf you are a wireless carrier, can you be held liable for vicarious or contributory copyright infringement when your subscribers engage in copyright infringement over your network? The U.S. Court of Appeals for the Ninth Circuit in California answered that question in the negative in the circumstances presented in the case of Luvdarts LLC v. AT&T Mobility LLC, 9th Cir., No. 11-55497, decided March 25, 2013. The plaintiffs were online providers of greeting cards and the defendants were the four nationwide cellular carriers. The online greeting cards included a note that the cards could be sent only once and were not entitled to be forwarded to others. However, there was nothing in the online content that prevented such copyright infringement; and apparently the prohibition on forwarding had been routinely ignored. The plaintiffs, whose case had been dismissed by a lower court, claimed on appeal that the wireless carriers were liable for the copyright infringement of their subscribers under the doctrines of vicarious and contributory infringement because the carriers knew of the infringement and had done nothing to prevent it. The Ninth Circuit affirmed the lower court and dismissed the complaint. It said that vicarious liability requires that the carriers had the right and ability to supervise the infringing activity and, in addition, had a financial interest in the infringing activity. The court held that the carriers had neither. For contributory liability, the court said, the plaintiffs would have to show that the carriers not only knew of the infringement but had also induced or materially contributed to it. Here, the carriers did not have the technical capacity to supervise and prevent the infringing activity, nor did they have an obligation to do so, said the court. Moreover, the court said, even if they had a duty to develop the technical capacity to oversee and control the infringing activity, the plaintiffs had failed to show that the carriers could reasonably come up with such capacity at an acceptable cost.
FCC Issues Tentative Agenda for April Open MeetingThe following items will be on the tentative agenda for the next open meeting, scheduled for Thursday, April 18, 2013: Reducing Regulatory Burdens and Facilitating Investment by Streamlining Foreign Ownership Review: The Commission will consider a Second Report and Order to streamline the foreign ownership policies and procedures that apply to common carrier radio licensees and certain aeronautical radio licensees under section 310(b) of the Communications Act of 1934, as amended, significantly reducing regulatory burdens while ensuring the Commission continues to receive the necessary information to protect the public interest. Promoting Innovation and Competition by Facilitating Direct Access to Numbers: The Commission will consider a Notice of Proposed Rulemaking and Notice of Inquiry on expanding direct access to telephone numbers to promote competition and innovation by IP-based providers, while protecting consumers and the reliability of phone calls. It will also consider an Order to allow a limited trial of direct access to numbers for VoIP providers. Presentation on the Status of Alerts to Prevent Bill Shock: Pursuant to CTIA's revision to its Code of Conduct for Wireless Service, April 17, 2013 is the deadline by which the participating CTIA member wireless carriers must provide their subscribers with four specified types of alerts to allow consumers to avoid unexpected charges for wireless usage exceeding their plan limits, and for additional charges for international roaming. The Consumer and Governmental Affairs Bureau will provide a status report of the participating carriers' compliance with this requirement. 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. The event will be shown live at http://www.fcc.gov/live .
Industry TAPD Announces Universal Service Webpage TransitionThe Telecommunications Access Policy Division announced on March 29 that it has transitioned the universal service web pages from the "www.transition.fcc.gov" domain to "www.fcc.gov." Although this means that the URLs for the various universal service web pages have been changed, the TAPD indicates that the old pages should automatically forward to the new ones in the near future, if not already. Clients experiencing difficulty accessing the universal service web pages can check the Public Notice for a list of the new URLs.
FCC Announces Showcase of Technology to Prevent Distracted DrivingThe FCC has announced that it will showcase various technologies designed to prevent distracted driving. The exhibit will be held at the FCC's headquarters on Friday, April 19, 2013, from 10:00 AM until 1:00 PM. For 2010, the National Highway Transportation Safety Administration (NHTSA) reported that distracted driving was the cause of 18 percent of all fatal collisions, with 3,092 persons killed and over 416,000 injured. In addition to the large wireless carriers (AT&T, Verizon Wireless, Sprint/Nextel) exhibiting at the showcase, the FCC has indicated that the National Organization for Youth Safety, the National Safety Council, DRIVESMART VA, ICONO Systems, MobileLutions, American Traffic Safety Services Association and other stakeholders — such as technology companies and state and local governments — will be represented. Exhibitors will be demonstrating new technologies as well as providing consumer information on the dangers of texting while driving and other distracted driving behaviors.
Calendar At-A-Glance Apr. 8 — Electronic filing deadline for Form 497 for carriers seeking support for the preceding month and wishing to receive reimbursement by month's end.
Apr. 8 — Reply Comments on Revised E-Rate Forms are due.
Apr. 8 — Reply Comments on NECA Modification of Average Schedule Formulas are due.
Apr. 9 — Reply Comments for Next Generation 911; Text-to-911 (Other Sections) are due.
Apr. 12 — State Commissions must notify the FCC of their intent to file shapefile study area boundary maps on behalf of Incumbent Local Exchange Carriers (ILECs).
Apr. 12 — Reply Comments on Service Obligations and Challenge Procedures for CAF II are due.
Apr. 16 — Comments on Petition filed by a group of competitive carriers asking the FCC to Reverse Forbearance for Special Access are due.
Apr. 22 — Reply Comments for Interstate Inmate Calling Rate Proceeding are due.
Apr. 29 — State Commissions can begin submitting shapefiles on behalf of ILECs.
Apr. 29 — ILECs may begin submitting shapefiles on their own behalf.
Apr. 29 — Comments on Health Care Connect Fund Forms 460, 461, 462 and 463 are due.
May 1 — FCC Form 499-Q, Telecommunications Reporting Worksheet is due.
May 9 — Short Form Application to Participate in Auction 95 (Lower and Upper Paging Bands Spectrum) is due.
May 10 — Comments on Tribal Mobility Fund Phase 1 Auction Scheduled for October 24, 2013 are due.
May 13 — Comments on Options for Disposition of UHF T-Band (470-512 MHz) are due.
May 13 — Reply Comments on Health Care Connect Fund Forms 460, 461, 462 and 463 are due.
May 23 — final deadline for ILECs to have shapefiles submitted and certified.
May 24 — Reply Comments on Tribal Mobility Fund Phase I Auction are due.
May 31 — FCC Form 395, Employment Report, is due.
May 31 — Reply Comments on Petition filed by a group of competitive carriers asking the FCC to Reverse Forbearance for Special Access are due.
June 11 — Reply Comments on Options for Disposition of UHF T-Band (470-512 MHz) are due.
June 28 — deadline for State Commissions to submit and certify the data included in shapefiles. |
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