Selected portions of the BloostonLaw Private Users Update, a newsletter from the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP are reproduced in this section with the firm's permission. 
Narrowbanding Deadline Was January 1, 2013 – What Now? As we have long reported, the deadline to narrowband VHF and UHF Part 90 private Land Mobile Service licenses was January 1, 2013. The Commission's staff has indicated that there are thousands of licenses that have not been narrowbanded and still show only the 25 kHz bandwidth emission. Of these thousands of licenses, what is not known is whether the radio systems associated with those licenses have actually been narrowbanded or are no longer in operation. During a meeting today with the FCC and the Land Mobile Communications Council (“LMCC”), the FCC provided guidance regarding narrowbanding compliance. The FCC made clear that it will be auditing licensees that have not narrowbanded their licenses and that there could be fines for non-compliance. In response to questions about future coordinations, it was pointed out that wideband licenses that create an obstacle for a proposed coordination will likely be brought to the FCC's attention; which may lead to closer scrutiny and enforcement action. Finally, the FCC pushed back on the LMCC view point that the coordinators simply be permitted to ignore any noncompliant wideband license. If you are in the situation where you either have a license that has not been narrowbanded or have a radio system that is still operating in a wideband mode, please contact us right away. Continued operation of your radio system in a wideband mode could result in a fine for unauthorized or improper operation. Even if the FCC does not detect this right away, it is quite possible that the issue will become apparent as frequency coordinators adjust their databases and make frequency assignments under the assumption that all radio systems that are not the subject of waivers, have been narrowbanded.] If you are a seasonal user or are currently not using your licensed facility, the FCC stated that the required narrowbanding activities (application for modification of license to change to the narrowband emission and the physical rebanding of the radio equipment) must be completed before you can resume operations.] FCC Takes Action on Narrowband Waivers Requests Over the past several weeks, the FCC has been processing requests for waiver of the narrowbanding deadline that was effective January 1, 2013. In some cases, requests have been granted, while in others they have been dismissed. City of Philadelphia — The FCC granted Philadelphia a waiver of the narrowbanding deadline until February 1, 2014 — which is five months shorter than requested. In requesting the waiver, the City noted that in addition to narrowbanding, it is also in the process of making significant changes to its communications systems so that it can transition its existing public safety 800 MHz operations to a new P25 compliant 800 MHz band trunked system. The FCC granted relief to the City because it has two distinct public safety communications systems (VHF/UHF and 800 MHz NPSPAC) and is in the midst of making significant modifications to the 800 MHz NPSPAC system. The FCC concluded that the alternative, requiring the City to modify both public safety systems at the same time, would put its public safety personnel and citizens at risk. Nonetheless, the FCC was concerned that the timetable proposed by the City was not the quickest possible and reduced the timeline since the City did not explain why it could not commence the funding process for the narrowbanding of its VHF/UHF system until after it had completed the 800 MHz reconfiguration. City of Chicago — On May 24, 2012, the City of Chicago requested a 24-month extension of the narrowbanding deadline. Because of the economic downturn since 2009, Chicago has faced significant budget constraints and a hiring freeze that have resulted in it being able to employ only 16 radio technicians who have the sole responsibility for maintaining, installing and upgrading Chicago's numerous and intricate radio systems. Chicago argued that while its personnel have completed a significant number of necessary and mandated upgrades to its public safety communications systems, more time is needed. Chicago has purchased 15,000 new radios and installed over 400 narrowband receivers. The only radio systems that have not yet been narrowbanded are its Medical Response Team, Street/Sanitation and VHF conventional stand-alone systems. This is because of personnel resource issues and the fact that Chicago needed to complete the narrowbanding in stages in order to ensure system reliability and protection during the upgrade process.
The FCC granted Chicago's request because it found that it took “concrete steps to meet the . . . January 1, 2013 narrowbanding deadline, including narrowbanding a large portion of its current system and securing funding for the remainder of the transition process.” Those actions, taken together with Chicago's assertion that “no codependent, independent or neighboring users will be adversely affected” by a grant of the waiver, provided the FCC justification. It is important to note that the FCC found Chicago's actions persuasive to granting the waiver request — namely that it demonstrated due diligence and that it took significant steps towards narrowbanding its systems. Certain Private Radio Licensees that Sell Commercial Radio Services Must Comply With the March 1 CPNI Certification Deadline All “telecommunications carriers”, including Commercial Mobile Radio Service (“CMRS”) providers, must file an annual Customer Proprietary Network Information (“CPNI”) certification March 1. In the Private Radio Services, this requirement is applicable to Public Coast stations and interconnected SMR and paging providers. This requirement does not apply to private radio clients who only utilize their radio facilities for private internal communications. However, if you are providing a for-profit radio service to the public using your private radio license, or you are a reseller of cellular, PCS, paging or other commercial radio services on the side, you should determine whether you are subject to the CPNI requirements and take appropriate steps to comply. The FCC has taken a hard-line on this filing requirement (including the imposition of substantial fines) because CPNI includes some of the most sensitive personal information that carriers have about their customers as a result of their business relationship (e.g., phone numbers called; the frequency, duration, and timing of such calls; and any services purchased by the consumer, such as call waiting). Failure to file a timely and complete certification calls into question whether a company has properly complied with the rules requiring it to protect its customers' sensitive information. Because the CPNI rules provide important consumer protections, a failure to comply with the CPNI rules, including the annual certification requirement, may subject you to significant enforcement action, including monetary fines of up to $150,000 for each violation or each day of a continuing violation, up to a maximum of $1,500,000. False statements or misrepresentations to the Commission may be punishable by fine or imprisonment under Title 18 of the U.S. Code.
Service providers should modify (as necessary) and complete their “Annual Certification of CPNI Compliance” for 2012. The certification must be filed with the FCC by March 1. The FCC's Rules require that the certification be signed by a company officer with personal knowledge that the company has established operating procedures adequate to ensure compliance with the rules must execute the Certification, place a copy of the Certification and accompanying Exhibits in the Company's CPNI Compliance Records, and file the certification with the FCC in the correct fashion. Our clients can forward the original to BloostonLaw in time for the firm to make the filing with the FCC by March 1, if desired. We ask that any filings be forwarded to us by Friday, February 22. BloostonLaw is prepared to help our clients meet this requirement, which we expect will be strictly enforced, by assisting with preparation of their certification filing; reviewing the filing to make sure that the required showings are made; filing the certification with the FCC, and obtaining a proof-of-filing copy for your records. Clients interested in obtaining BloostonLaw's CPNI compliance manual should contact Gerry Duffy (202-828-5528) or Mary Sisak (202-828-5554). Note: If you file the CPNI certification, you must also file the FCC Form 499-A Telecom Reporting Worksheet by April 1; and if you have filed a Form 499A, the FCC will likely be looking for a CPNI certification from you. FCC Opens Rulemaking for 121.5 MHz Emergency Locator Transmitters (ELTs) On January 8, 2013, the FCC released a Further Notice of Proposed Rulemaking seeking comment on the appropriate treatment for 121.5 MHz Emergency Locator Transmitters (“ELTs”) which are located in aircraft. ELTs are radio beacons that can be activated manually or automatically to alert search and rescue personnel in the event of an aviation accident. The ELT will identify the location of the aircraft and any survivors. On June 15, 2010, the Commission amended its rules to prohibit the certification, manufacturer, importation, sale or use of 121.5 MHz ELTs because the international Cospas-Sarsat satellite system, which relays distress search alerts to search and rescue authorities, was no longer monitoring the frequency 121.5 MHz. In response to its Order, the Federal Aviation Administration (“FAA”) and the Aircraft Owners and Pilots Association (AOPA”) requested that the FCC not implement its modification and continue to allow ELTs to operate on the frequency 121.5 MHz. This is because search and rescue agencies as well as the Civil Air Patrol continued to monitor that frequency. The FCC agreed not to implement its rules and is seeking further comment in order to determine whether to continue permitting ELTs that operate on the frequency 121.5 MHz or to transition all ELTs to 406 MHz. The FCC is of the belief that 406 MHz ELTs are superior to those that operate on 121.5 MHz and would thus promote aviation safety. The FCC notes that at this point in time that there is no justification for it to certify any new 121.5 MHz ELTs since the international Cospas-Sarsat satellite system no longer monitors the frequency 121.5 MHz and the FAA is no longer designing or producing new 121.5 MHz ELTs since the 406 MHz ELTs are superior. In addition to no longer certifying 121.5 MHz ELTs, the FCC is also proposing to prohibit the manufacturer, importation and sale of existing 121.5 MHz ELT models beginning one year after the effective date of a rule banning the certification of that device. This time delay is intended to permit manufacturers, importers and distributors sufficient time to avoid economic harm with stranded inventory. Finally, the FCC is also seeking comment on whether it should ban the use of the 121.5 MHz ELTs after a date certain as well as comment on the costs that might be associated with a mandatory transition from the 121.5 MHz ELT to the 406 MHz ELT. Comments in this proceeding will be due 30 days after publication in the Federal Register. Reply comments will be due 45 days after publication in the Federal Register. FCC Amends Rules for Commercial Radio Operators The FCC recently amended its rules concerning commercial radio operator licenses. These rules apply to radio operators in the maritime and aviation radio services. Currently, the FCC's rules require that a person, who operates, maintains or conducts compulsory inspections of certain maritime and aviation radio stations to possess an appropriate commercial radio operator license. In the Notice of Proposed Rulemaking, the FCC proposed to consolidate the three classes of radiotelegraph operator's certificates, eliminate outdated and redundant restrictive endorsements, modify procedural and record keeping requirements and clarify rules that pertain to log-keeping requirements. The FCC did not change its rules as they pertain to the current process for maintaining its test question pool and the rules regarding equipment testing intervals. Commercial Operator Licensing Issues The FCC currently issues three classes of radiotelegraph certificates. First and Second Class Radiotelegraph Operator's Certificates provide the holder with equivalent authority, while Third Class Radiotelegraph Operator Certificates provide less authority. The FCC proposed deleting the program for First Class Radiotelegraph Operator's Certificates since it is very difficult to meet the one-year experience requirement since most ships no longer maintain radiotelegraph stations and very few land based stations still operate. Additionally, the FCC proposed to eliminate the Third Class Radiotelegraph Operator's Permit because it is virtually the same as the Marine Radio Operator Permit for which an applicant must only pass Element 1 of the written test. Finally, the FCC sought comment on whether it should extend the time period for operator's certificates from 5 years to lifetime, in order to match the time period for other commercial operator licenses and whether it should eliminate the prohibition on holding a radiotelegraph operator's certificate simultaneously with certain other commercial radio operator licenses. Based upon the comments received, the FCC will consolidate the First and Second Class Radiotelegraph Operators Certificates into a new license class – the Radiotelegraph Operator License. In order to obtain this license, applicants will need to pass Elements 1 and 6 and Telegraphy Elements 1 and 2. Likewise, existing First and Second Class Radiotelegraph Operators Certificates will be renewed as Radiotelegraph Operator licenses. The FCC is also eliminating the Third Class Radiotelegraph Operators Certificates. These will be renewed as Marine Radio Operator Permits; although credit will be given for having passed Telegraphy Elements 1 and 2 so that former holders of the Third Class Radiotelegraph Operator Certificate can upgrade to the Radiotelegraph Operator License by passing written Element 6. Finally, the Commission is lifting the requirement to renew Commercial Operator certificates as well as the restriction on holding multiple certificates. COLEM Issues Under the FCC's current rules, commercial radio operator license examinations are conducted by Commercial Operator License Examination Managers (“COLEMs”) for the FCC using a pool of questions that is maintained and updated by the FCC on a periodic basis. The FCC considered delegating this responsibility to the COLEMs, but has declined to do so since the benefits of doing so would not outweigh the financial and administrative burdens placed on the COLEMs. The FCC also modified other rules related to the COLEMs. In particular, the Commission has shortened the time for COLEMs to notify examinees of their examination results from ten to thee business days. Additionally, COLEMs that are filing applications on behalf of applicants will be required to file the applications electronically. Further, the Commission has changed record keeping requirements and will only require the submission of information upon request rather than on a periodic basis. Finally, the Commission will no longer require COLEMs to obtain FCC approval for changes to their fee schedules. Thus, COLEMs are now free to adjust their fees based upon the market place, which the FCC believes will keep fees reasonable since examinees will be able to pick from numerous COLEMs. Equipment Testing and Logging Issues In view of a request by Kurt Anderson, the FCC made revisions to Rule Section 80.409 to clarify and reorganize the logging requirements. The FCC declined to adopt other log-keeping proposals. The FCC also determined that the record in this proceeding did not support a change to its equipment testing intervals. In particular, the FCC noted that there was not an inconsistency between its requirement that there be weekly log entries for the testing of portable survival craft radio equipment and the requirement that survival craft radio equipment be tested at intervals not to exceed 12 months. The Commission reasoned that that the weekly test is a function test while the annual check is to verify checks of frequency tolerance, power output, modulation, battery manufacture date and half-life date. Inasmuch as the latter check is more comprehensive, the requirements are not inconsistent. Similarly, the monthly testing required by NOAA and the US Coast guard for the 406 MHz EPIRB is different from the annual testing required by Part 80 of the rules. The monthly test involves a visual inspection of the device as well as an EPIRB self-check while Part 80 requires a much more detailed check of the device, including “all aspects of operational efficiency with particular emphasis on frequency stability, signal strength and coding.” The rule changes adopted in this proceeding will be effective 30 days after publication in the Federal Register, with the exception of (a) the change in radio operator license classification/endorsements and (b) the application process for modification or renewal license since they involve information collections that require further review and approval. Recent FCC Enforcement Actions for Unlicensed Operations Resulting in Interference to Government Radio Facilities Directlink, LLC — The FCC recently issued a Notice of Apparent Liability for Forfeiture proposing a fine of $25,000 for operating a transmitter without a license and in a manner that violated Part 15 of the FCC's Rule — which allows the operation of certain unlicensed devices. Part 15 of the FCC's Rules allows the unlicensed use of certain RF devices that operate at low-power provided that the operation does not cause harmful interference to licensed radio services and the devices do not generate signal strengths that are greater than the specified limit. On January 10, 2012, the FCC, in response to an interference complaint from the FAA, utilized direction finding equipment to determine that radio operations on the frequency 5630 MHz were coming from a particular location in Colorado. The FCC was able to determine that the system was a U-NII system being operated by Directlink, LLC. The FCC's investigation determined that Directlink's device was authorized to operate within a frequency range of 5745 to 5825 MHz and that it was operating out of the authorized range on a center frequency at 5630 MHz. Once Directlink adjusted the device's operating frequency from 5630 MHz to 5785 MHz, the interference to the FAA's Denver Terminal Doppler Weather Radar (TWDR) was resolved. In order to prevent the potential for interference to the FAA's TDWR installations, the FCC requires operators of U-NII devices in the 5.25 — 5.35 GHz and 5.47 — 5.725 GHz bands to have Dynamic Frequency Selection (DFS) radar detection functionality, which allows the device to detect radar systems and prevent co-channel operations with radar systems. During the FCC's inspection, Directlink advised that it was not operating with the required DFS functionality. It is important to note that the Communications Act prohibits the unlicensed use or operation of any device for the transmission of radio frequency energy or communications or radio signals. Part 15 of the FCC's Rules provides an exception to the licensing requirement provided that the conditions in Part 15 are met. As a result, since Directlink was not operating the U-NII devices in compliance with Part 15 of the FCC's Rules, its operation was unauthorized since it did not have a license. Compounding the issue for Directlink was the fact that it appears the U-NII device itself was unauthorized since it was being operated on an incorrect frequency that was inconsistent with the Equipment Authorization issued by the FCC to the manufacturer and since Directlink did not have the DFS radar detection functioning as required by Part 15 of the FCC's Rules. In assessing the fine, the FCC noted that the base fine for both violations is $15,000. However, the FCC applied an upward adjustment of $10,000 due to the circumstances and the public safety risks posed by Directlink's operation of an unauthorized system that created interference to the FAA's DTWR radar system at the Denver International Airport. Directlink can challenge the proposed fine, and based upon any arguments that are made; the FCC will either affirm, reduce or cancel the fine. Joaquim Barbosa — The FCC issued a Forfeiture Order against Joaquim Barbosa in the amount of $16,000 for unlicensed operation. Mr. Barbosa, a licensed HAM radio operator, operated radio transmitting equipment on the frequency 296.550 MHz which caused harmful interference to a Federal government/U.S. military user. During the course of the investigation, the FCC was able to determine that the source of the interference was from Mr. Barbosa's residence. Mr. Barbosa admitted that he had been operating on the frequency 296.550 MHz for at least four months and that he knew the frequency 296.550 MHz was not authorized for use by HAM radio licensees. The FCC's Notice of Apparent Liability for Forfeiture had originally proposed a fine of $20,000, which included a $10,000 increase due to egregious conduct — operating on spectrum reserved to the Federal government. Mr. Barbosa claimed the fine should either be canceled or reduced because he had a reasonable belief that he was permitted to operate on the frequency 296.550 MHz, that his constitutional rights were violated, that he did not cause harmful interference, that he has an overall good history of compliance with the FCC's rules and that he lacks the ability to pay the proposed fine. In connection with the unlicensed operation, Mr. Barbosa claimed that his operation on the frequency 296.550 MHz in Elizabeth, New Jersey was permitted, not because of his status as a HAM radio licensee, but because he was operating pursuant to a license issued by the Brazilian government to a Brazilian citizen and that the frequency 296.550 MHz is authorized for satellite communications in Brazil. Even if Mr. Barbosa was correct that he was permitted to operate on the frequency 296.550 MHz under the Brazilian license, the FCC stated that the foreign license does not permit operations in the United States without authorization from the FCC. This is because the operation of any radio station within the United States requires an FCC authorization, which the FCC found that Mr. Barbosa clearly did not have. Mr. Barbosa also claimed that the FCC's inspection violated his constitutional rights. Since the FCC's investigation was not criminal in nature, the FCC stated that Mr. Barbosa was not entitled to a Miranda warning before answering any questions. Further, the FCC stated that Mr. Barbosa's constitutional rights against unlawful search and seizure were not violated since he is required to make his station equipment available to the FCC for inspection and the FCC is not required to obtain a warrant before conducting an inspection. In reviewing the case, the FCC did not find any justifications for reducing the forfeiture, except for the fact that up and until now, Mr. Barbosa had a good history of overall regulatory compliance with the FCC's rules for the 13 years he had been an FCC licensee. As a result, the FCC reduced the fine from $20,000 to $16,000. FCC Receives Comments on Next Generation 911 Issues Last month, we reported that the FCC's Public Safety and Homeland Security Bureau (“PSHSB”) was seeking comment on a broad range of issues related to the legal and statutory framework for Next Generation 9-1-1 (“NG911”) services. Over the last month, the FCC received comments from various interested parties, including: the Association of Public Safety Communications Officials — International, Inc. (“APCO”), the State of Hawaii, the National Cable & Telecommunications Association (“NCTA”) and Telecommunications for the Deaf and Hard of Hearing, Inc. on behalf of its coalition partners. These comments have touched on several issues, including funding, legal authority, access to persons with disabilities, and legal protections from liability. APCO — APCO has urged the FCC to develop a national approach to the deployment of NG911. This is because APCO states that “there is currently a lack of coordination among the myriad [of] federal and state roles.” APCO notes that several federal agencies will be partnered in the development of NG911, including the FCC, National Highway Safety Administration, National Telecommunications & Information Administration, and the Department of Homeland Security and urges the FCC to be given the lead role — given its historic expertise in the development of 911 services. In order to coordinate the transition from the current 911 platform to NG911, APCO states that the federal program will need to work with other stakeholders, including APCO, in order to ensure that the public is properly educated on the capabilities and limitations of 911 and NG911. With regard to liability protection, “APCO supports legislation that will provide full liability protection to all NG911 service providers and other stakeholders, and for PSAPs, for all forms of NG911 technologies.” In asking this request, APCO notes that “NG911 will introduce more complex legal issues as transmissions extend beyond voice to text, photos, videos, medical health information, environmental sensors, etc. APCO also notes that the current funding model for 911 services is “beset with a number of problems. In some cases, states have diverted 911 funds to other purposes, while changes in technology are outstripping available funding sources. As a result, there are great disparities in funding — depending upon the locality involved. APCO urges Congress to “consider creating a technology-neutral, uniform model that all service providers would utilize to ensure appropriate NG911 funding for the states.” APCO also recognizes that the transmission of data may become difficult as the transition is made from the current 911 platform to NG911. This is because on the current 911 platform, voice calls from landline, wireless, and VOIP handsets provide the PSAP with call back information and automatic location information. NG911 is much more complex and will involve many more types of devices, methods of communications and types of data. As a result, APCO urges Congress to vest the FCC with the authority to adopt and enforce requirements concerning the transmission of NG911 caller information to the PSAP without regard to the method used by the caller to reach the PSAP. Finally, APCO recommends that the Congress preempt the states and local authorities from enacting “any laws or regulations that may unfairly impeded entry of competitive 911 service providers.” NCTA — NCTA echoes APCO and urges Congress to establish a federal liability protection regime for all entities that are involved in the provision of NG911 services. NCTA recognizes that the current limitation of liability that exists is inadequate because there is not a consistent standard across the United States. As a result, there is uncertainty as to the extent that legal protection is provided, if at all. Not only does NCTA believe that protection should be afforded to NG911 services, but also to any 911 service so that it becomes a lower cost/lower risk endeavor for service providers and the public safety community. TDI — TDI urges the FCC to take the lead in establishing and making accessibility standards for NG911 consistent throughout the United States. TDI believes that this is necessary in order to remove jurisdictional barriers by providing translation services for non-English speakers and those who are deaf, hard of hearing, or speech disabled. TDI states that this is necessary so that a governing a framework can be created so that all Americans, regardless of disability, has easy and convenient access to emergency services no matter where in the county he or she is located. TDI believes that both video conferencing and Real Time Text (“RTT”) services will be essential for fully accessible 911 services and that the FCC must ensure that providers do not impede or impair these services. State of Hawaii — Hawaii urges the FCC to recommend streamlining the Federal bureaucracy and the promotion of state oversite bodies as the means for improving 911 services using new and emerging technologies. Hawaii notes that while the FCC, NHTSA, NTIA and DHS each have a role in the development of NG911, the roles are not clearly defined which can lead to confusion. There is also concern that the existing funding mechanisms for 911 are not sufficient for the transition to NG911. Hawaii therefore recommends that Congress require all public safety appropriations specifically include a provision for 911 and NG911 in any legislation. Based upon the comments received, the FCC will be making its required report to Congress on February 22, 2013 — the one-year anniversary of the Next Generation 9-1-1- Advancement Act of 2012 as part of the Middle Class Tax Relief and Job Creation Act of 2012. | 
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