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 U.S. Cellular, CoBank Discuss Phase II Mobility Fund with the FCC With Mobility Fund Phase I funding being authorized (see article below), attention is turning to as-of-yet unannounced Mobility Fund Phase II, with U.S. Cellular and CoBank filing ex partes with the FCC on various aspects of the proceeding. BloostonLaw has filed comments on behalf of clients in the proceeding thus far, and is able to help clients set up ex parte meetings or make other ex parte filings. On Friday, June 14, U.S. Cellular met with members of the Wireless Telecommunications Bureau staff to discuss the upcoming Phase II Mobility Fund auction. According to the notice of ex parte for the meeting, filed Wednesday, June 19, U.S. Cellular argued that the FCC should target Phase II funding to those areas that lack 4G service. U.S. Cellular also supported the use of road miles to demonstrate coverage, arguing that carriers already understand that testing parameter and that developing a new one would be "unduly complicated, difficult to comply with, and to enforce." In addition, U.S. Cellular proposed that the FCC eliminate the rule that prohibits funding from being awarded in areas where a carrier has made a public commitment to provide service by a date certain. On June 18, CoBank sent a letter to acting Chairwoman Clyburn expressing concern "about proposals to cut the term length of Mobility Fund II awards from a 10-year term of support to five years for qualified wireless carriers." CoBank's letter highlighted the fact deploying affordable broadband in rural, high-cost areas is not economically possible "without a sufficient, sustainable, and predictable level of support," and stated that reducing the term of Mobility Fund II awards from 10 years to five "could discourage future lending to support broadband build-out, thus hastening adverse effects on business and economic development in rural America." Progeny Establishes Interference Hotline and Webpage As previously reported, the FCC has authorized Progeny LMS LLC to operate a nationwide multilateration location and monitoring service (M-LMS) network in the 902-928 megahertz band. Many unlicensed wireless devices operate in the 902-928 MHz unlicensed band, ranging from baby monitors to garage door openers to alarms and medical equipment; and certain equipment manufacturers have raised concerns about the potential for interference. In response to interference concerns, the FCC conditioned its grant of operating authority to Progeny on certain requirements to minimize interference. In particular, Progeny must publicly announce where they will be building their stations, file interference reports for the next 18 months, and establish a website for interference complaints. The FCC will continue to monitor the situation and encourage the parties to cooperate to resolve any future interference problems; and Progeny has indicated that it will voluntarily seek to take measures to address any interference problems that may arise. Progeny has now established the required website for members of the public to use if they encounter interference to their 902-928 MHz unlicensed devices. The Progeny complaint webpage has been established at www.Progenylms.com ; and a related toll free interference call line has been established (855-716-5743). Information about where Progeny is currently establishing transmitters can be viewed in its required report to the FCC, at the following link:
http://apps.fcc.gov/ecfs/document/view?id=7520924065
Law & Regulation Comments Due July 19 on VoIP Providers Direct Access to Numbers NPRM The FCC's Notice of Proposed Rulemaking (NPRM) on allowing interconnected Voice over Internet Protocol (VoIP) providers to obtain phone numbers directly from the North American Numbering Plan Administrator appeared in the Federal Register on June 19, setting the comment cycle for the proceeding. Comments are due July 19, 2013, and reply comments are due August 1, 2013. Originally released on April 18, 2013, the VoIP Numbering NPRM sought comment on allowing interconnected VoIP providers to obtain telephone numbers directly from the NANPA and the Pooling Administrator (PA), subject to certain requirements, such as compliance with the number utilization and optimization requirements and industry guidelines and practices that apply to carriers. The NPRM also sought comment on the documentation that should be required to obtain numbers, the enforcement of VoIP compliance with numbering rules, as well as issues related to databases, call routing, termination, intercarrier compensation, interconnection, local number portability, and more. The NPRM also sought comment on approaches to expand numbering accessibility for other types of providers and uses, including telematics and public safety, and the potential benefits and number exhaust risks of granting providers other than interconnected VoIP providers direct access to numbers. As we mentioned when we originally reported on the NPRM in the April 24 Edition of the BloostonLaw Telecom Update, BloostonLaw is considering filing comments based on concerns about number exhaustion and preservation issues, and how they may affect the rural telco industry. Concerned clients should contact the firm as soon as possible. FCC Issues Agenda for June 27 Open Meeting On June 20, 2013, the FCC issued the official agenda for its June 27, 2013 Open Meeting. At the meeting, the FCC will consider (i) an Order to improve and streamline the collection of broadband subscription and deployment data; (ii) an Order to help increase the Nation's supply of spectrum for flexible-use services, including mobile broadband; and (iii) a Declaratory Ruling clarifying wireless carriers that collect CPNI on mobile devices must adhere to statutory and regulatory CPNI requirements.
In addition, the Wireline Competition and Wireless Telecommunications Bureaus will present an update on universal service reform implementation, and the Incentive Auction Task Force will present an update on progress towards the television broadcast incentive auction.
Industry FAA Moves Toward Looser Electronics Restrictions on Airlines The Federal Aviation Administration (FAA) is moving toward allowing gate-to-gate use by airline passengers of music players, tablets, laptops, smartphones and other gadgets. Restrictions on cellphone calls and Internet use and transmission are not expected to be changed, primarily because these matters are within the province of the Federal Communications Commission. An industry-labor advisory group has been tasked by the FAA with studying the impact of electronic devices on airplane operations, and the group is planning to recommend that the agency ease its gadget restrictions. The report containing the recommendations is scheduled for completion in September 2013. The agency is under public and political pressure to ease the restrictions as more people bring their devices with them when they fly in order to read e-books, listen to music, watch videos and get work done. Any plan to allow gate-to-gate electronic use would also include certification processes for new and existing aircraft to ensure they are built or modified to mitigate risks from the use of such devices. Steps to be taken could include ensuring that all navigation antennas are angled away from the aircraft's doors and windows. Aircraft already certified for Wi-Fi use would likely be more easily certified. Technically under the current rules, the FAA does not bar the use of electronic devices when aircraft are below an altitude of 10,000 feet. Such decisions are left to the airlines which, because of the near impossibility of complying with FAA rules requiring the airlines to test every type and make of device to ensure there is no electromagnetic interference with on-board systems, simply bar all use of the devices. The FAA decided to study the impact of easing the restrictions after facing pressure from lawmakers. For example, Senator Claire McCaskill (D-MO) has threatened to introduce legislation to compel the FAA to make the change. "It's good to see the FAA may be on the verge of acknowledging what the traveling public has suspected for years — that current rules are arbitrary and lack real justification," McCaskill said in a statement. "In the meantime, I'll continue my effort to have these regulations rigorously examined until scientific evidence has been presented to justify them, or the rules are altered," she added. McCaskill and other supporters of ending the ban on electronic devices during flight have argued that the FAA's 2011 decision to allow pilots to use iPads to record flight data proved that electronics do not interfere with an airplane's on-board equipment. AT&T Seeks Deals in Europe AT&T (NYSE:T) is scouring Europe for potential deals, according to multiple reports, adding steam to the rumors that the company is looking abroad for strategic opportunities after having been thwarted in its attempt to buy T-Mobile USA. According to a Bloomberg report citing unnamed sources claiming familiarity with the matter, AT&T informally approached Spanish authorities about acquiring 29.9 percent of Telefonica and was rebuffed. However, both Telefonica and Spain's government denied a recent report concerning this matter. AT&T and Telefonica declined to comment. Bloomberg also reported that AT&T also has explored the idea of acquiring Telefonica's 02 UK unit or its Latin American businesses; and that it is also eyeing assets owned by Vodafone and EE, the United Kingdom joint venture between France Telecom and Deutsche Telekom. The Financial Times also reported that EE and Vodafone are of interest to AT&T. Randall Stephenson, AT&T's CEO, has been asked by analysts for several months about potential mergers and acquisitions in Europe. In January, The Wall Street Journa l reported that AT&T was seeking merger and acquisition targets in Europe to roll-out LTE technology there quickly and make more money from new pricing schemes. AT&T's relationship with America Movil (in which AT&T owns a 9 percent interest) could complicate matters because the latter competes with Telefonica in Europe, a state of affairs that could complicate European regulatory reviews. Changes in Service Plans Change Wireless Landscape Recent trends could lead to fewer devices in the market place. Over the past year or so, the large carriers have changed how they bundle wireless services. In addition to eliminating unlimited data plans, Carriers have also started offering services on an a la carte basis that allow customers to pick how much talk time and data they need. Additionally, subscribers can purchase pre-paid phones that do not carry a one or two-year contract obligation. These changes have brought the emergence of the "Bring Your Own Device" or "BYOD" trend, which allows employees to use their preferred devices for work and connectivity to employer systems. Employees have embraced the BYOD trend because they do not have to carry multiple cell phones (work and personal), while employers do not have to purchase devices or plans and are therefore able to reduce costs by shifting the financial burden to their employees. If this trend continues to grow, carriers could feel the pinch as fewer corporate devices are purchased and placed on their systems since individuals may no longer be carrying multiple devices.
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. 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. 19 — Comments are due on VoIP Direct Access to Numbering NPRM.
Jul. 24 — Deadline for reply comments on revision of Part 15 Rules to Permit U-NII Devices in 5 GHz 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. 1 — Reply comments are due on VoIP Direct Access to Numbering NPRM.
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. | BloostonLaw Private Users Update | Vol. 14, No. 6 | June 2013 |
FCC Announces that PSAPS May Report Communications Outages Directly to the FCC by E-Mail In order to make it easier for PSAPs to report outages to the FCC, the Public Safety & Homeland Security Bureau announced that beginning June 11, 2013, PSAPs may e-mail outage reports to the FCC by using the e-mail address psapreport@fcc.gov . PSAPs may also continue to make reports via telephone to the FCC's Operations Center by calling (202) 418-1122, which is staffed 24 hours, 7 days a week. The loss of commercial communications service and/or other types of outages may seriously jeopardize public safety. The FCC stated that the addition of an e-mail reporting option will improve the FCC's ability to provide assistance to PSAPs as well as improve the FCC's ability to meet its statutory obligation to ensure that the communications networks promote the safety of life and property. Those PSAPs that choose to report information by e-mail should include the following: - contact information;
- a description of the nature of the outage; and
- a description of any assistance that may be needed from the FCC.
Follow up: EPA Issues New Regulations on Generators As previously reported (Private Users Update March, 2013), the Environmental Protection Agency (EPA) has now implemented regulations governing generators, including emergency "back up" generators. In the past, "unpermitted" generators (meaning those not requiring a state or local environmental permit) have not been required to comply with EPA emissions rules. Under newly adopted EPA rules, now they must comply with various new requirements, depending on the use, power and hours of operation of the generator. Therefore, it is imperative that a qualified environmental consultant be retained to ensure compliance with all applicable substantive, record keeping and reporting requirements, and to investigate state requirements. A significant factor is whether your generator is used as part of an "emergency demand response" system, whereby generators are used in a coordinated manner to overcome brown-out or black-out situations, usually pursuant to an agreement with a public utility. The new requirements apply even though your state or local air pollution or environmental agency does not require an environmental permit for the generator, i.e., the state or local authority has exempted your equipment (or your entire facility) from state or local emissions requirements. The new rules went into effect on April 1, 2013. Under prior EPA regulations, emergency generators were exempt from EPA requirements if they did not require a state or local emissions permit. Diesel generators will soon have to start using a cleaner form of diesel fuel. A preliminary review of the new regulations suggests that most "emergency standby" generators are exempt from much of the tougher new emission regulations that would require actual equipment modifications, but may be limited in the amount of time that they can operate each year. They may also have to comply with additional maintenance and record-keeping requirements. Diesel generators will not be exempt from regulations requiring the use of cleaner fuel. Moreover, the new EPA regulations are extremely complicated, and the specific requirements can vary by geographic region. For example, most engines generally will be classified as "area sources" of pollution, but may be classified as "major sources" of pollution for certain types of emissions. In addition, these regulations do not preempt state clean air standards, which may be more restrictive than the federal regulations, particularly in California (for example, California has stringent regulations governing diesel engine particulate emissions, while the EPA does not). Furthermore, certain testing and maintenance records do not have to be filed with the EPA, but must be made available to EPA inspectors during onsite inspections; but these documents may have to be filed with certain state environmental authorities. Similarly, in some circumstances, notifications and reports must be filed with the EPA, and some states require that copies of these documents be filed with state environmental authorities. For more information see
http://www.gpo.gov/fdsys/pkg/FR-2013-01-30/pdf/2013-01288.pdf . The EPA's reduced regulatory scheme for emergency engines may cover many backup generators, but it will be important to identify which generators qualify as "emergency standby," how long they can operate before they trigger the new emission restrictions, and what maintenance and record-keeping requirements will now apply. Additional information is contained in a 15 page, April 2, 2013 EPA public release entitled "Implementation Question and Answer Document for National Emission Standards for Hazardous Air Pollutants for Stationary Reciprocating Internal Combustion Engines and New Source Performance Standards for Stationary Compression Ignition and Spark Ignition Internal Combustion Engines," a copy of which can be found at:
http://www.epa.gov/ttn/atw/rice/20120717riceqaupdate.pdf . Some important points in the Q&A: - The rules restate that in an emergency, such as hurricane or ice storm, any engine of any size can operate without meeting control requirements or emission limits.
- Emergency engines that commit to run less than 15 hours for "emergency demand response" can operate without meeting federal control requirements or numeric emission limits. However, operators should determine what additional reporting and/or record-keeping requirements apply to their particular generator, and what state requirements may apply.
For initial notification forms, notices of compliance status, fact sheets, webinars, applicability flowcharts, a spreadsheet of the various requirements that apply to existing and new/reconstructed engines of various types and sizes, and detailed rule language, see http://www.epa.gov/ttn/atw/rice/ricepg.html . In addition, the January 2013 rule amendments include requirements to report using EPA's Compliance and Emissions Data Reporting Interface ("CEDRI") when appropriate forms are available; and this is accessible through EPA's Central Data Exchange ("CDX") ( http://.epa/gov/cdx);http://www.epa.gov/ttnchie1/ert/1ndex.html .) Warren Havens has Bad Week at FCC Over the course of seven days, the FCC has handed Warren Havens two defeats. The first was in connection with the upcoming Paging Auction (Auction 95) in which the Auctions Division summarily denied three identical requests by Environmental LLC, Skybridge Spectrum Foundation and V2G LLC (collectively, the "Havens entities") for waiver of the FCC's Rules requiring a higher upfront payment for any applicant that has previously been delinquent on any non-tax debt owed to any Federal agency. The Havens entities stated that while each was a former defaulter within the meaning of the FCC's Rules, the FCC should nonetheless find that a de minimis exception existed even though the Havens entities were unable to identify any FCC rule or precedent for their argument. The FCC concluded that the FCC's Rules are absolute with respect to former defaulters and that no such de minimis exception exists. Accordingly, the FCC denied the waiver request and required the Havens entities to submit an upfront payment that was 50 percent larger than would otherwise be required. In the second case, Havens sought a declaratory ruling concerning co-channel Automated Maritime Telecommunications System (AMTS) geographic and site-based licenses. In particular, Havens took the positions that (a) the predicted 38 dBu contour of a site-based AMTS licensee that fails to provide the co-channel geographic licensee with sufficient information to calculate the site-based stations' protected contour may be calculated based on an assumed omni-directional antenna with an antenna height of one-half of the licensed height above ground level and an ERP of 10 watts and (b) that a geographic licensee would be required to protect only those frequencies actually used by the site-based licensee, rather than the entire channel block. The FCC denied both of the declaratory ruling petition's requests, since Havens incorrectly relied on Rule Section 80.70(a) as the basis for resolving interference disputes between incumbent site-based and geographic licensees when the proper mechanism is set forth in Rule Section 80.385(b)(1). Further, the FCC refused the request that the predicted 38 dBu contours be calculated on an "assumed" ERP when the Commission has previously stated that "the 38 dBu contours of incumbent licensees were to be calculated on the basis of actual operating parameters" rather than assumed values. This is because the FCC had concluded that an assumed ERP could result in the under protection or over protection of individual stations. Finally, as described above, the FCC also denied Havens' request that AMTS geographic licensees be required to protect incumbent site-based licensees only on the frequencies actually being used. In reaching this conclusion, the FCC noted that AMTS licensees are not required to use the entire channel block at any given time in order to retain the authorization to operate on the entire channel block, provided of course, that sufficient spectrum is put into operation in order to provide an authorized service. Verizon Argues for CMRS Standards for FirstNet Technical Rules; Other Commenters Want FCC to Ensure Prompt Rural Buildout In reply comments in the FirstNet proceeding to establish technical rules for the 20 MHz of 700 MHz spectrum dedicated to public safety, Verizon has argued that the rules should be structured as close as possible to the rules imposed on 700 MHz commercial wireless providers. In particular, Verizon was concerned that having technical rules that do not line up with technical requirements for the adjacent 700 MHz commercial channel blocks could result in harmful interference among public safety users on adjacent channels and nearby areas. Additionally, Verizon worried that incompatibility between public safety and commercial systems could also limit "the viability of partnering arrangements, contrary to Congress's objectives." Other commenters, including the State of New Mexico, National Rural Electric Cooperative Association and NTCA, have urged the FCC to impose construction requirements on FirstNet. The State of New Mexico, which is largely rural, and others are deeply concerned that FirstNet will build out in the urbanized areas first—so that revenues from those areas can be used to finance construction in the less profitable (and more costly) rural areas. The belief is that this sort of a build out would conflict with the Congressional mandate that each construction phase include substantial rural milestones. | 
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The FCC has extended until July 24 the deadline to file reply comments in its proceeding to allow unlicensed National Information Infrastructure (U-NII) devices at 5 GHz. The FCC in February sought comment on making available an additional 195 megahertz of spectrum in the 5.35-5.47 GHz and 5.85-5.925 GHz bands for U-NII use. Reply comments are responses to comments already filed in the proceeding, 
David George and Bill Noyes
