Selected portions of the BloostonLaw Telecom Update, and 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. 
Headlines | BloostonLaw Telecom Update | Vol. 16, No. 5 | February 13, 2013 |
Don't Forget to Notify FCC of Tower Ownership Changes; FCC Issues Fine for $4,500 The FCC's Enforcement Bureau has fined Hacienda San Eladio, Inc. $4,500 for failing to keep the ownership information associated with its Antenna Structure Registration current. The FCC discovered that Hacienda had not updated its registration to reflect its ownership of the antenna tower. Hacienda acquired the tower in 2003, but did not notify the FCC of the ownership change until April 2012 — which was two months after the FCC issued the proposed fine. The FCC's Rules require new owners of antenna structures to notify the FCC of an ownership change immediately following an ownership change. This is because the FCC holds tower owners primarily responsible for compliance with its tower rules, including the maintenance of obstruction marking and lighting requirements that are designed to ensure safety to air navigation. Licensees using the tower have secondary liability. In addition to any fines that the FCC may impose, a failure to comply with these requirements could create significant liability, since an unmarked or improperly marked tower can be a significant hazard to air navigation and result in an aviation accident. Because of this risk, the FCC must be able to reach the tower owners so that it can have any safety issues resolved in a timely manner. Here, the tower owner indicated that the lapse was inadvertent in nature, but the FCC noted that the violation had been ongoing for eight years, and that even after being notified of the violation, Hacienda still failed to comply. The question that remains is: "What does the FCC mean by immediate?" Certainly, it is clear that a delay of eight years is not immediate. Additionally, it may be safe to assume that a delay of a few months is likewise unacceptable; especially since the FCC mentions twice in its Forfeiture Order that Hacienda waited until almost two months after the proposed fine was issued to file the ownership change notification. In order to avoid the question "What is Immediate?", we recommend that any client that will be buying, selling or otherwise transferring an antenna structure include the preparation of the required notification as part of the closing documents. The new owner will thereby be ready to make the appropriate filing promptly. Additionally, if you are involved in any transaction that includes the purchase of FCC radio licenses, you should verify whether any of the licenses include registered antenna towers that belong to the Seller. In this way, you can ensure that appropriate steps are taken to maintain compliance with the FCC's Rules. If you have acquired an antenna tower that is registered with the FCC (or have disposed of a tower and the new owner has not made the required filing), please let us know as soon as possible so that we can assist you in bringing those antenna towers back into compliance. Satellite Imagery Not Sufficient to Prove Construction Status of Wireless Licenses Clients over the years have had to determine whether or not a particular site-based station was properly constructed in a timely manner in order to determine whether it was entitled to protection, or to resolve a potential interference issue. This is because the FCC's Rules often mandate a specific construction period and discontinuance period — after which the license will automatically terminate if it is not constructed and operational. It is not unheard of for a licensee to attempt to warehouse spectrum by filing construction notifications for stations that have not discontinued operation. This is more common place in those areas where channels are scarce due to overcrowding. In one of these types of claims, the FCC was called upon to determine whether the licensee had properly constructed its 800 MHz station. Essentially, Warren Havens and his affiliated companies claimed that the licenses were not constructed since satellite imagery reflected that there was no antenna site at the geographic coordinates specified on the face of the underlying site-based license. The FCC has denied Petitions for Reconsideration filed by Havens seeking denial of applications for assignment, modification and renewal of various of 800 MHz licenses. The FCC determined that Mr. Havens's claims that satellite imagery was sufficient to "demonstrate" that stations were not constructed was "meritless" since those very same satellite images showed visible antenna structures near the listed geographic coordinates. The FCC concluded that "the images actually supported the licensees' representations that the stations were constructed at the locations within a reasonable margin of error for determining geographic coordinates using older technology." In this regard, the FCC noted that minor variations in license coordinates due to the use of newer technologies (e.g., Quadrangle Maps vs. GPS) is not unusual, since the newer technology is far more accurate than older methods for determining tower site locations and ground elevation. Because of this, the fact that there may be minor variations between geographic coordinates listed on the license and the actual site location is not sufficient grounds for concluding that the license authorization automatically terminated due to a failure to meet the construction deadline. Over the years, many of our clients have found themselves in a position of having to prove whether or not a co-channel licensee was actually operating or had actually constructed a facility in a timely manner. In most circumstances, the best way to prove the construction status of a station is by continuous monitoring of the station for a period of time that is longer than that required for automatic termination of the license. In the Part 22 services, it is 121 days while in the private radio services, it is 1 year. Any client with a question as to whether or not a co-channel or adjacent channel licensee has not constructed or otherwise discontinued operation should contact us for guidance. | BloostonLaw Telecom Update | Vol. 16, No. 6 | February 20, 2013 |
Additional Spectrum to Become Available for Unlicensed Operation At today's Open Meeting, the FCC proposed to make up to an additional 195 megahertz of spectrum in the 5 GHz band available for unlicensed operation (a 35 percent increase). The proposal is consistent with the course of action prescribed by legislation signed into law in 2012, known as the Middle Class Tax Relief and Jobs Creation Act of 2012. The FCC says that the additional spectrum would accelerate the growth and expansion of new Wi-Fi technology that can offer faster speeds of one gigabit per second or more, increase overall capacity and reduce congestion at Wi-Fi hot spots. Unlicensed National Information Infrastructure (U-NII) devices presently operate in 555 megahertz of spectrum in the 5 GHz band and are used for short range, high speed wireless connections that include Wi-Fi enabled local area networks and fixed outdoor broadband transceivers used by wireless Internet service providers (WISPs) to connect smartphones, tablets and laptops to the broadband network. The proposed additional spectrum would allow unlicensed devices to use wider bandwidth channels, thereby leading to faster speeds. The FCC's Notice of Proposed Rulemaking had not been released as of our deadline. FCC Seeks Comment on Options for Disposition of UHF T-Band (470-512 MHz) The FCC has released a Public Notice in order to gather the information necessary to determine when, how and under what circumstances it would be most appropriate to (a) reallocate the UHF T-Band and (b) relocate incumbent T-Band users as required by the Middle Class Tax Relief and Job Creation Act of 2012 (the Act). The FCC notes that it is not proposing any changes to its rules regarding the T-Band. Comments are due May 13 and Reply Comments are due June 11. The questions posed by the FCC cover a variety of issues and impact not only public safety licensees in the T-band, but could also impact non-public safety licensees as the FCC attempts to develop recommendations on how best to repurpose the UHF T-Band. While Section 6301 requires the relocation of public safety users on spectrum allocated for public safety uses, the FCC is far less clear as to the obligations and licensee rights where the UHF T-Band spectrum is allocated for non-public safety use (even if public safety users have been authorized to use this spectrum through the rule waiver process). The FCC is required to reallocate the T-Band spectrum "currently used by public safety eligibles" within nine years of enactment of the Act and to "relocate[e] public safety entities" from the T-Band not later than two years after the completion of competitive bidding." The Act states that the Department of Commerce will make grants available to cover relocation costs for the relocation of public safety entities from the T-Band spectrum. In order to implement its obligations, the FCC is seeking comment on the following: - Alternative spectrum bands that are potentially available for relocation of T-Band public safety licensees, including other UHF-VHF spectrum bands, or public safety spectrum in the 700 MHz or 800 MHz bands, and non-public safety spectrum.
- Feasibility for T-Band public safety licensees to migrate their operations to the 700 MHz public safety broadband spectrum by becoming users of the FirstNet public safety broadband network.
- Determination of the time-line under the Act to reallocate T-Band spectrum and relocate public safety licensees, including whether it should be the maximum period of years allowed under the Act or some shorter period of time.
- Determination of relocation costs, including the extent to which relocation costs will vary depending on what spectrum band is used for relocation.
- Whether it would be appropriate to assume a compensation regime similar to those previously adopted by the FCC for other relocation obligations while also minimizing costs.
- How should the FCC treat equipment that was purchased after the effective date of the Act? Should the FCC condition the reimbursement for this equipment upon a demonstration that the acquisition of equipment did not increased the licensee's relocation costs over what they would have been otherwise?
- How should the FCC treat voluntary migration by T-Band public safety licensees prior to the reallocation and relocation required by the Act? Is there a public interest benefit to encouraging early relocations? If so, are there any incentives that the FCC could implement?
- Some state and local government agencies that are public safety-eligible also use non-public safety frequencies in the T-Band for non-public safety activities. In addition, some public safety entities operate on non-public safety T-Band frequencies pursuant to waivers. Should the FCC treat these licensees as "public safety eligibles" for purposes of relocation to alternative spectrum under the Act?
The Act does not address the status of non-public safety licensees in the T-Band. Additionally it does not require non-public safety licensees to relocate from the T-Band to other spectrum. Nonetheless, the FCC would like to know whether it should require the relocation of non-public safety licensees from the T-Band. If so, under what conditions and to what spectrum should these licensees be relocated? The FCC also notes that a portion of the UHF T-Band was allocated to the Part 22 Paging and Radiotelephone Service. What steps should be taken with respect to those licensees? Finally, the FCC seeks comment on what, if any, interim actions should be taken with respect to T-Band incumbents prior to implementing the reallocation and relocation provisions of the Act. In this regard, the FCC has suspended the processing and acceptance of T-Band applications for new and expanded operations while the FCC considers the future use of the band. This would include continuing the application suspension or modifying it in some way to permit certain types of modifications. The FCC's Public Notice (DA 13-87) has several more detailed questions that may be of interest to those of our clients that utilize spectrum in the UHF T-Band. Those clients that may be impacted by this transition should advise how they would be impacted so that appropriate comments can be filed with the FCC. | BloostonLaw Telecom Update | Vol. 16, No. 7 | February 27, 2013 |
HTC America Settles FTC Charges It Failed to Secure Millions of Mobile Devices Shipped to Consumers Company Required to Patch Vulnerabilities on Smartphones and Tablets Mobile device manufacturer HTC America, Inc., a US subsidiary of the Taiwanese company HTC, has agreed to settle Federal Trade Commission (FTC) charges that HTC America failed to take reasonable steps to secure the software it developed for its smartphones and tablet computers, introducing security flaws that placed sensitive information about millions of consumers at risk. The settlement , which was announced last Friday, requires HTC America to develop and release software patches to fix vulnerabilities found in millions of HTC devices. In addition, the company is required to establish a comprehensive security program to address security risks during the development of HTC devices and to undergo independent security assessments every other year for the next 20 years. The FTC has indicated that this is the first time it has brought a case of this type against a device manufacturer. HTC develops and manufactures mobile devices based on the Android, Windows Mobile, and Windows Phone operating systems. The company customizes the software on these devices in order to differentiate itself from competitors and to comply with the requirements of mobile network operators. To illustrate the consequences of these alleged security failures, the FTC complaint alleges several vulnerabilities found on HTC's devices, including the insecure implementation of two logging applications — Carrier IQ and HTC Loggers — as well as programming flaws that would allow third-party applications to bypass Android's permission-based security model. As a result, any third-party app on a user's device that could connect to the internet also could communicate with the logging apps. The FTC says that allowed for unauthorized access to users' phone numbers, browsing histories, the numeric keys they pressed, contacts' numbers, and other information best kept secure. HTC also allegedly pre-installed a custom voice recorder application that, if exploited, would provide any third-party application access to the device's microphone, even if the third-party application had not requested permission for that functionality. According to the FTC, these vulnerabilities affected more than 18 million HTC devices. "The company didn't design its products with security in mind," Lesley Fair, a senior lawyer in the FTC's Bureau of Consumer Protection, wrote in a blog post . "HTC didn't test the software on its mobile devices for potential security vulnerabilities, didn't follow commonly accepted secure coding practices and didn't even respond when warned about the flaws in its devices." Now that word of the FTC's investigation and settlement are public, carriers that have sold HTC devices to customers should work with HTC or their authorized handset distributor to obtain and provide security patches to fix affected devices without delay and encourage their customers to install the patch right away to ensure their personal information is protected. We also urge our firm's wireless clients to educate their sales staff about the HTC security issues and FTC settlement so they can properly advise customers who are purchasing new smartphones. The flaw in the company's phones has apparently been known by some bloggers since at least 2011. HTC acknowledged the problems at that time and developed software patches for at least some of the deficiencies that year. Further information from the FTC geared for consumers ("Patching Things Up") is at http://www.consumer.ftc.gov/blog/patching-things . A more general overview on mobile apps and data security that our clients may wish to post on their own web site for consumers is at: http://www.onguardonline.gov/articles/0018-mobile-apps.pdf As a related matter, the FTC announced that it will host a one-day public forum on June 4, 2013 addressing malware, viruses and similar threats facing users of smartphones and other mobile technologies. Law & Regulation | BloostonLaw Telecom Update | Vol. 16, No. 6 | February 20, 2013 |
FCC Proposes Changes to RF Equipment Approval Process The FCC has initiated a rulemaking proceeding that looks toward modifying and improving its equipment approval process. The Notice of Proposed Rulemaking was released on February 15, 2013 in ET Docket No. 13-44. A provision of the Communications Act empowers the FCC to make regulations governing the interference potential of radio-frequency (RF) devices. It also provides that no person shall manufacture, import, sell, offer for sale, or ship devices or home electronic equipment and systems, or use devices, which fail to comply with regulations promulgated by the FCC. This provision of the law is intended to prevent devices that could cause harmful interference to radio communications from reaching the marketplace or being operated. These regulations have been modified from time to time and generally provide that most RF equipment must be tested by an approved laboratory for compliance with the rules under which it will operate and then an application is submitted either to the FCC or a Telecommunications Certification Body (TCB) which then reviews the test results and, if satisfactory, issues the certification required for the equipment to be marketed and sold in the U.S. At present, TCBs issue about 98 percent of all equipment authorizations. In the rulemaking, the FCC is proposing that all equipment certification applications be submitted to a TCB. According to the FCC, this proposal will allow the Commission staff to concentrate on enforcing the rules, providing the necessary oversight and guidance to the TCBs, performing post-market surveillance, and auditing random samples of products approved by the TCBs. The FCC also proposes to tighten the regulations by which the testing laboratories and the TCBs become accredited. Comments on the rulemaking proposals are due 45 days after publication of the Notice of Proposed Rulemaking in the Federal Register and reply comments are due 30 days thereafter. | BloostonLaw Telecom Update | Vol. 16, No. 7 | February 27, 2013 |
Unauthorized Operation of Satellite Earth Station License Leads to $18,000 Fine The FCC has recently proposed to fine Life on the Way Communications, Inc. $18,000 for operating its Earth Station facility without a license over an extended period of time. The unauthorized operation resulted from Life on the Way's failure to obtain FCC consent to the assignment of the license from the prior licensee in 2002 and for allowing the license to lapse in 2007. Life on the Way did not obtain FCC authority until 2012 when it filed an application to reauthorize the underlying Earth Station license and a request for special temporary authority (STA) to continue operating its Earth Station facility. This situation illustrates two lessons for our clients — (a) contact us anytime you are selling or purchasing a business so that we can determine whether any FCC licenses may be involved and (b) track license expiration dates in order to ensure that timely license renewals are not inadvertently overlooked. Our retainer services are a good tool for tracking license expiration dates and also include the preparation and filing of license renewal applications. US Postal Service Suggests Collaboration with Rural Telecom Providers On February 8, 2013, the US Postal Service Office of the Inspector General released an issue brief discussing a possible pilot collaboration between rural telecom providers and the postal service. Although intended as an exploration and not an endorsement, the brief describes an interesting concept in which mail is sent physically but delivered digitally, and vice-versa. According to the issue brief, some international postal operators are using hybrid delivery networks that combine traditional physical mail delivery with digital delivery to cut costs by reducing the number of days that it physically delivers mail, while providing customers 24/7 digital access to postal services through computers or handheld devices. In light of the declining volume of physical mail in the United States, the issue brief proposes a pilot program to develop a similar network linking the Postal Service with its rural customers using existing telephone lines owned by rural telecom companies. Under the program, the telecom companies would install broadband networking equipment at participating postal facilities and rural households, and provide the software necessary to send and receive secure digital messages over the telephone lines. The Postal Service would also provide content and services for the network, starting with digital-to-physical and physical-to-digital mail services. According to the issue brief, the Department of Defense recently implemented a physical-to-digital mail solution at the Pentagon following completion of a successful pilot program. To help fund the pilot program, the issue brief envisions program participants working together to apply for money that federal, state, and local governments have made available for expanding broadband Internet access. These funds would then be directed toward installation costs, and computers and training for consumers. | BloostonLaw Telecom Update | Vol. 16, No. 7 | February 27, 2013 |
Controversial "Copyright Alert System" Goes Into Effect this Week; Illegal Downloads May Result in Temporary Throttling of Service In an effort to curb unauthorized peer-to-peer sharing of music, movies and other copyrighted digital works, the Center for Copyright Infringement — an organization which includes members of the Recording Industry Association of America, the Motion Picture Association of America and major Internet service providers — has this week launched its "Copyright Alert System" initiative to directly notify Internet users when their connections have been used for illegal downloading. Under this new system, the industry will conduct electronic surveillance of online activity and directly notify users through their ISP when it detects potential copyright violations — which can be traced to individual IP or Internet addresses. Violators will be given an escalating series of warnings and up to six opportunities (or "six strikes") to change their behavior since the program is designed to deter the average customer. The alerts are as follows: - The first and second alerts will notify ISP subscribers that their Internet account has allegedly been used for copyright infringement and provide an explanation of how to avoid future offenses, as well as direct users to lawful media content site.
- If the user's behavior persists, a third and fourth alert will be sent. These alerts will ask "the subscriber to acknowledge receipt" of the messages by clicking a notice.
- After a fifth alert, ISPs will be allowed to take "Mitigation Measures" to prevent future infringement.
- If the ISP did not institute a Mitigation Measure following the fifth alert, it must enact a Mitigation Measure after the sixth alert.
Depending on the service provider, the ISP's range of Mitigation Measures may include: - A temporary reduction in Internet speed;
- A temporary downgrade in Internet service tier or
- Redirection to a landing page for a set period of time, until a subscriber contacts the ISP or until the subscriber completes an online copyright education program.
Termination of service is not part of the alert system. Customers that feel they have been wrongly accused by the recording and film industries will be permitted to submit an appeal — provided that they first pay a $35.00 fee. The fee — which is ostensibly to prevent frivolous appeals — is reimbursed if the customer prevails. Customers who prove financial hardship can also have the fee waived. Unlike past efforts by the recording and film industries that resulted in significant punitive actions, Jill Lesser of the Center for Copyright Infringement stated that the program is "meant to educate rather than punish, and direct [the public] to legal alternatives." As one might predict, the Copyright Alert System had come under fire from open Internet advocates, such as the Electronic Frontier Foundation , who fear that the new rules will hurt the spread of open, public Wi-Fi networks.
| BloostonLaw Private Users Update | Vol. 14, No. 3 | February 2013 |
Enforcement Advisory — FCC Reminds Users of Emergency Locator Beacons of Proper Use and Registration Requirements The FCC's Enforcement Bureau has issued an Enforcement Advisory (Advisory No. 2013-03) to remind users of various emergency locator beacons that improper use or a failure to register an emergency locator beacon could result in substantial fines of up to $112,500 for any single act. Emergency locator beacons are designed to transmit emergency distress signals. Currently, the FCC authorizes the use of three types of emergency locator beacons: EPIRBs for maritime use, ELTs for aviation use and Personal Locator Beacons or PLBs for land-base use. The emergency locator beacons operate in the 406 MHz band so that they can be tracked by satellites and must be registered with the National Oceanic and Atmospheric Administration (NOAA) for Search and Rescue Satellite Aided Tracking (SARSAT). NOAA does not charge for registration of emergency beacons. Aside from being a violation of the FCC's Rules that can result in substantial fines, a false activation of an emergency locator beacon will be immediately detected by SARSAT and can result in the deployment of search and rescue personnel. It is important to note that care must be taken to prevent an inadvertent activation since it does not always cause an audible tone. Auction of "Leftover Paging" Licenses Set for July 16th The FCC has announced that the auction of "leftover" market area paging licenses will commence on July 16, 2013 ( Auction No. 95 ), and seeks comment on the procedures that will govern the auction. Reply Comments in this AU Docket No. 13-12 are due March 14. The FCC will be offering 5,905 paging licenses, of which 4,902 licenses are in the lower paging bands (35-36 MHz, 43-44 MHz, 152-159 MHz, 454-460 MHz) and 1,003 licenses are in the upper paging bands (929-931 MHz). These licenses can be used for paging, and in some cases mobile dispatch, repeater, control link and other types of operations. Unlike Part 90 shared spectrum, the auction winner has a level of exclusivity, although it usually must protect incumbent systems in and near the auction license area that were authorized under the old licensing regime. Auction No. 95 will include licenses that remained unsold from a previous auction, licenses on which a winning bidder in a previous auction defaulted, as well as licenses that were canceled or terminated by the FCC. In a few cases, the available license does not cover the entire geographic area due to an excluded area or previous license partition. In the Paging Reconsideration Order, the Commission concluded that the licenses for the lower band should be awarded in each of the 175 geographic areas known as Economic Areas (EAs), and the licenses for the upper band should be awarded in each of the 51 geographic areas known as Major Economic Areas (MEAs). These EAs and MEAs encompass the United States, Guam, the Northern Mariana Islands, Puerto Rico, the U.S. Virgin Islands, and American Samoa. The FCC is seeking comment on various competitive bidding procedures, and proposes to set the minimum opening bid for each license available in Auction 95 at $500.00. In this regard, the FCC is proposing to use bidding procedures in Auction No. 95 that are very similar to its prior auctions. Of note, however, is the FCC's proposal to impose a 10 percent bid withdrawal payment requirement. The FCC has proposed this amount since it believes that bidders will have fewer opportunities in Auction No. 95 to combine licenses on adjacent channels or in adjacent market areas than in prior paging auctions. The Public Notice does not indicate that there will be any changes to the build out requirements for these paging licenses. Under the FCC's current rules, any successful bidder will be required to demonstrate that it has constructed facilities that cover 1/3 of the population within three years of license grant and 2/3 of the population within 5 years of license grant. Alternatively, successful bidders may elect, at the three year mark, to provide "substantial service" within the market by the fifth anniversary. By electing to provide substantial service, licensees are afforded additional flexibility; although we note that the FCC has taken a closer look at buildout showings relying on the vague "substantial service" option in more recent years . It is important to note that in 2010, the FCC proposed rules to tighten up its construction and license renewal requirements for the wireless services. As a result, bidders should expect closer scrutiny of buildout showings and license renewal applications. | 
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