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. 21 | June 12, 2013 |
Headlines Obama Administration Announces Spectrum Sharing Initiative President Barack Obama is directing Federal Agencies to look for ways to share more of their government-use radio spectrum with the private sector for wireless broadband use. In a presidential memorandum issued last Friday, the Obama administration set forth a comprehensive plan for Federal agencies and offices to accelerate shared access to spectrum. The memorandum also seeks to facilitate the rapid deployment of wireless broadband by, among other things, "enforcing rules to provide strong incentives for licensees to put spectrum to use and avoid spectrum warehousing." This fine print suggests that the Obama administration may be putting pressure on the FCC to interpret license buildout rules strictly, and that the Commission may be more inclined to impose license "take backs" in circumstances where buildout efforts fall short. "Where technically and economically feasible, sharing can and should be used to enhance efficiency among all users and expedite commercial access to additional spectrum bands, subject to adequate interference protection for Federal users, especially users with national security, law enforcement, and safety-of-life responsibilities," the memorandum said. Among the policy directives, the President announced the creation of a Spectrum Policy Team, co-chaired by the Chief Technology Officer and the Director of the National Economic Council, that will work with NTIA to implement the memorandum, with the advice and assistance of the FCC. The Spectrum Policy Team is directed to monitor and support advances in spectrum sharing policies and technologies, and to publish a report within one year (i.e., by June 14, 2014) describing how NTIA and the FCC are incorporating spectrum sharing into their spectrum management practices. The report is also supposed to include recommendations that enable more productive uses of spectrum throughout our economy and society while protecting the capabilities of agencies. Current discussions on spectrum sharing between agencies and non-federal entities are focused on opportunities in the 1695-1710 MHz band, the 1755-1850 MHz band, and the 5350-5470 and 5850-5925 MHz bands. The President has directed NTIA to continue these discussions as well as to expedite commercial entry into these bands where possible, provided that the capabilities of Federal systems are maintained and protected. The discussions are to be expanded to encompass more spectrum bands below 6 GHz that may be candidates for shared access. To facilitate collaboration between commercial and other stakeholders engaged in research, development and testing of spectrum sharing technologies, the President has instructed the Secretary of Commerce within three months (i.e., by September 14, 2013) to publish an inventory and description of Federal test facilities available for such use, and within six months (i.e., by December 14, 2013) to establish a plan to maximize the productive use of these Federal facilities. The presidential memorandum also directs NTIA to assist agencies in preparing qualitative assessments of their spectrum use in those bands that were previously identified as having the greatest potential to be shared with non-federal users. Thereafter, NTIA shall monitor agencies' spectrum usage in real time in selected communities throughout the country to identify opportunities for more efficient spectrum access. The presidential memorandum strongly encourages the FCC to expedite the repurposing of spectrum and enable innovative and flexible commercial uses of spectrum, including broadband, to be deployed as rapidly as possible by: - identifying non-federal spectrum that can be used for licensed and unlicensed broadband services and devices;
- identifying non-federal spectrum that can used to accommodate agencies seeking to relocate their systems;
- promulgating and enforcing rules for licensed services to provide strong incentives for licensees to put spectrum to use;
- promoting a reliable secondary market for spectrum usage and negotiated access by agencies;
- promulgating and enforcing rules for licensed services and unlicensed devices to share Federal spectrum; and
- consulting with the State Department regarding international obligations related to spectrum use.
In addition to creating opportunities for clients to work with Federal agencies as customers for spectrum-based services, and opportunities to access new spectrum bands through sharing arrangements, we expect the presidential memorandum may have an impact in the FCC's willingness to show flexibility or give Lower 700 MHz licensees the benefit of a doubt when it comes to the December 2013 interim construction deadline. Remarks of Commissioner Pai at Cellphone Unlocking Forum; Legislation Introduced in Congress to Permit Unlocking On June 17, 2013, FCC Commissioner Ajit Pai addressed the Cellphone Unlocking Forum hosted by TechFreedom and the Competitive Enterprise Institute in Washington, D.C. The Commissioner stated that all Federal policymakers, both in the White House, Congress and at the FCC agree that customers should be able to unlock their wireless devices at the end of their contract terms without fear of criminal prosecution, and suggested a statutory change to accomplish that objective. The problem arises under the Digital Millennium Copyright Act (DMCA). The DMCA was designed to prohibit digital piracy, such as the unauthorized downloading of songs from the Internet. To accomplish this, the DMCA prohibits consumers from deactivating the digital rights management software or other protections designed to prevent access to a digital copyrighted work. About ten years ago it was determined that the DMCA might apply when a wireless customer unlocked his or her cellphone. DMCA swept up cellphone unlocking through a technicality — the "locking" of a cellphone by the original carrier prevents access to software in the phone (such as the mobile operating system) when it's used on a subsequent carrier's network. Thus, unlocking a cellphone is "circumventing a technological measure," in the language of the DMCA, even though no one believes that unlocking a phone is the equivalent of piracy. The Librarian of Congress (who oversees the U.S. Copyright Office and administers the DMCA) granted three-year exemptions in 2006 and 2009 so that consumers would not be subject to DMCA's anti-circumvention provisions, but declined to extend the exemption in October 1012. According to Commissioner Pai, Congress is the body best positioned to permanently cure this problem through a simple amendment to the DMCA — Congress could simply amend the definition of "circumvention" to exclude "circumvention initiated by or on behalf of the owner of a wireless communications device solely to connect that device to a wireless communications network." In a related matter, new legislation was introduced in the U.S. Senate last week that would overturn the Library of Congress's October 2012 decision not to exempt the unlocking of cell phones from the anti-circumvention provisions of the Digital Millennium Copyright Act. Senator Patrick Leahy (D-Vt.) introduced a bill that would not amend the DMCA, but would overturn the Librarian of Congress' decision, grant another three-year exemption, and order the agency to consider expanding the exemption to cover tablets. Chris Lewis, the top lobbyist for Public Knowledge, characterized the bill as a "three-year band-aid," and called for legislation to permanently codify an unlocking exemption "and a broader discussion around further reform of the [DMCA's] anti-circumvention provisions that created this problem in the first place." Senators Ron Wyden (D-Ore.) and Amy Klobuchar (D-Minn.) have also introduced bills on the topic. However, Senator Leahy's bill is the one most likely to move forward because his committee has jurisdiction over copyright issues, including cellphone unlocking.
Law & Regulation FCC Reinforces Microwave Licensee Obligations for Prior Coordination — Failure to Comply Could Lead to Application Dismissal In a strongly worded letter to OEM Communications LLC and Comsearch, the FCC granted OEM's microwave applications with special conditions in order to ensure that OEM's proposed system would operate in accordance with the FCC's Rules and not cause interference to other licensees. The disagreement between OEM and Comsearch dates back to June 2011 when Comsearch rescinded its original frequency coordination for the OEM microwave applications. Nonetheless, on July 6, 2011, OEM filed the applications along with a statement which indicated that the applications had been originally cleared but that Comsearch had withdrawn its clearance and requested additional information followed by an objection to the proposed applications. OEM took the position that Comsearch was seeking "trade secret information regarding network design" and that its objection should be disregarded since it was submitted more than 30 days after OEM requested coordination of its proposed facilities. On August 9, 2011, Comsearch filed an Informal Objection to the OEM applications and admitted that its initial communications with OEM may have been confusing and that the handling of the OEM prior coordination notices were "not up to its standards." In its Informal Objection, Comsearch argued that its request for additional information was justified because OEM was proposing a unique configuration – two connected 11 GHz paths with the same frequency pair used in both directions on both paths. Additionally, Comsearch also had questions regarding OEM's proposed antenna system and why it was using channels normally reserved for narrowband use. Following a review of the applications and pleadings, the FCC returned the applications to OEM for additional information. The OEM applications and the Comsearch Informal Objection raise various issues, including whether OEM complied with the prior coordination requirement in Section 101.103(d) of the FCC's Rules. In assessing this issue, the FCC concluded that neither OEM nor Comsearch handled their frequency coordination obligations appropriately. While Comsearch admitted its actions were not clear and created confusion, the FCC noted that OEM should not have categorically rejected Comsearch's request for additional information merely because the request was received more than 30 days after the PCN was sent out. Rather, the FCC stated that its rules require applicants and licensees to make "every reasonable effort to avoid problems and conflicts." The FCC noted that while OEM's PCN contained the minimum information required by Rule Section 101.103(d)(2), it did not preclude Comsearch or any other interested party from requesting additional information in order to make a determination as to whether or not a frequency proposal will cause harmful interference to existing facilities. In fact, the FCC requested additional information so that it could evaluate the applications – some of which was ultimately provided pursuant to a request for confidential treatment. The FCC reminded OEM that it had an affirmative duty to "cooperate and work with other applicants and licensees to resolve issues that come up during the frequency coordination process." While the FCC declined to dismiss OEM's applications, it was only because (a) Comsearch had originally cleared the applications and (b) because Comsearch was partially to blame for the issues that arose during the prior coordination process for these OEM applications. As a result, applicants should beware that a failure to properly complete the prior coordination process – even if valid inquiries come more than 30 days after the PCN is issued, could result in dismissal of the affected applications.
Industry Google Launches Balloon-based Broadband Program in New Zealand The Washington Post is reporting that internet search giant Google is testing a program to deliver broadband internet to poor, rural, and disaster-stricken areas via helium balloon. It may sound a bit crazy, but the pilot program (appropriately known as Project Loon) uses a constellation of 30 weather balloons equipped with solar platforms and transmitters to create a mesh network 60,000 feet in the sky (twice as high as commercial jetliners) above the Canterbury region of New Zealand. The 50 test participants connect to the network using special antennas attached to their building, and the system is capable of beaming wireless internet service to the ground at speeds similar to today's 3G networks. The balloons drift slowly, and can stay aloft for more than 100 days. Project engineers use specially designed software to control the position of each balloon by changing its altitude to pick up layers of wind traveling in the right direction. Each balloon can provide connectivity to a ground area about 40 kilometers (25 miles) in diameter, and the entire test network covers an area of nearly 10,000 square kilometers. In a Google blog post, Mike Cassidy, head of the project, explained the rationale for the project as follows: "There are many terrestrial challenges to Internet connectivity—jungles, archipelagos, mountains. There are also major cost challenges. Right now, for example, in most of the countries in the southern hemisphere, the cost of an Internet connection is more than a month's income." "We believe that it might actually be possible to build a ring of balloons, flying around the globe on the stratospheric winds, that provides internet access to the earth below," wrote Cassidy. As we reported recently (BloostonLaw Telecom Update, May 29, 2013), Google is in the midst of a multi-pronged effort to bring Internet service for the first time to a billion or more new people in emerging markets such as sub-Saharan Africa and Southeast Asia. The Company has numerous projects underway in both rural and urban areas, using TV White Space spectrum in areas where government regulations allow, and unlicensed frequencies in other areas. The Southern Hemisphere, specifically the 40th parallel and points south, was chosen for the Project Loon test in part because of favorable stratospheric conditions. Google also needs permission from local governments to tap public airwaves, a prospect that is much easier in the Southern Hemisphere where there are vast underdeveloped regions and fewer countries to deal with. Cassidy says that over time, Google would like to set up pilot projects in countries at the same latitude as New Zealand, as well as to find partners for the next stage of the project, which will reportedly include north Tasmania by mid-2014 as well as Argentina. Technical partners in the high-flying endeavor include Sioux Falls SD-based Raven Industries, which has reportedly been working on the top-secret project for eighteen months. "Raven Aerostar is our balloon design partner and manufacturer of our envelopes," said Cassidy. "They bring to the project decades of expertise in high-altitude balloon engineering as well as the latest breakthroughs in super pressure balloon engineering. They also helped us design the flight control system. This system controls the balloon and helps bring it down safely."
Deadlines 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.
Calendar At-A-Glance Jun. 19 — Comments are due on 2013-2014 Regulatory Fee Structure NPRM.
Jun. 24 — Replies to oppositions to Dell Telephone Company's Application for Review are due.
Jun. 25 — Annual access charge tariffs filed by ILECs on 7-day notice are due.
Jun. 25 — Deadline for oppositions/comments on Silver Star Application for Review.
Jun. 26 — Reply comments are due on 2013-2014 Regulatory Fee Structure NPRM.
Jun. 28 — Deadline for State Commissions to submit and certify the data included in shapefiles.
Jun. 28 — Reply comments on Broadcast TV Incentive Auction NPRM are due.
Jul. 1 — Annual High Cost ETC Report Due under Rule 54.313 (Subsection (h) Only)
Jul. 1 — Annual Mobility Fund Phase I Report Due under Rule 54.1009
Jul. 2 — Reply comments on TracFone Petition for Rulemaking Prohibiting Distribution of Lifeline Handsets are due.
Jul. 5 — Deadline for replies on Silver Star Application for Review.
Jul. 8 — Paperwork Reduction Act Comments due to OMB on FCC Form 481.
Jul. 8 — Electronic filing deadline for Form 497 for carriers seeking support for the preceding month and wishing to receive reimbursement by month's end.
Jul. 8 — Comments are due on VoIP, NG911, and Wireline-to-Wireless Transition Trials.
Jul. 12 — Comments on Separate Affiliate Requirements for Rate of Return Carriers are due.
Jul. 14 — Reply comments in response to the FCC's Notice of Proposed Rulemaking to revise Part 15 of the Rules to permit Unlicensed National Information Infrastructure devices in the 5 GHz band are due. This deadline has been extended from June 24 to July 14.
Jul. 16 — Paperwork Reduction Act Comments on Proposed Collection of Urban Rates Survey Information are due.
Jul. 24 — Deadline for reply comments on revision of Part 15 Rules to Permit U-NII Devices in 5GHz Band.
Jul. 25 — Comments are due on the FCC Staff Report on Rate of Return Re-Prescription.
Jul. 31 — FCC Form 507 due (Universal Service Quarterly Line Count Update).
Jul. 31 — FCC Form 525 due (Competitive Carrier Line Count Quarterly Report).
Aug. 12 — Reply comments on Separate Affiliate Requirements for Rate of Return Carriers are due.
Sept. 3 — Comments are due on FCC's guidelines for human exposure to RF electromagnetic fields. | 
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Apple analyst Horace Dediu crunched the numbers, and that $20 billion breaks down for each one of those 575 million users in interesting ways:
David George and Bill Noyes
