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. 10 | March 27, 2013 |
Headlines FCC Issues NPRM on Improving 911 Reliability and Resiliency Following up on a January 2013 Public Safety and Homeland Security Bureau report on 9-1-1 service outages in the wake of a powerful "derecho" storm that devastated portions of the Midwest and Mid-Atlantic states (the "Derecho Report"), the FCC last week issued an NPRM ( FCC 13-33 ) designed to implement the Bureau's recommendations and to ensure that service providers implement vital best practices in network design, maintenance, and operation. Comments on the item will be due 30 days after the NPRM is published in the Federal Register with reply comments due 45 days after Federal Register Publication. The Derecho Report focused on the performance during the derecho of 9-1-1 service providers, which, as noted in the Report, are the providers (typically ILECs) responsible for routing and delivering 9-1-1 calls to PSAPs. The storm rendered several 911 systems in three states inoperable, leaving two million residents unable to reach 911 services. An additional 3.6 million people reportedly lost some degree of network connectivity during and after the storm. Specifically, the 9-1-1 Reliability and Resiliency NPRM seeks comment on the best ways to ensure that service providers: - Periodically audit 9-1-1 circuits for physical diversity, which will improve network reliability and resiliency by helping to identify and correct single points of failure;
- Maintain adequate central office backup power, such as generators and battery backup systems, supported by appropriate maintenance, testing, and records retention; and
- Maintain reliable and resilient network monitoring systems to provide accurate situational awareness during communications outages.
The NPRM also proposes a range of possible approaches for implementing these recommendations, including: - Reporting — where the Commission would require service providers to periodically report on the extent to which they are voluntarily implementing critical best practices or complying with standards established by advisory bodies or requirements established by the Commission;
- Certification — where the Commission would require providers to certify periodically that their 9-1-1 network service and facilities meet specified criteria;
- Reliability requirements — where the Commission would specify minimum requirements for 9-1-1 communications reliability; and
- Compliance reviews and inspections conducted by the Commission to verify that 9-1-1 service providers are following certain practices or adhering to certain requirements.
We recommend that our law firm's ILEC clients keep a watchful eye on this 911 reliability and resiliency proceeding and participate in comments and reply comments to make sure that whatever new rules are adopted do not impose undue compliance and reporting costs on small service providers. Our clients may recall how the FCC's good intentions went awry in the context of adopting emergency backup power rules for wireless facilities in the wake of Hurricane Katrina. The rules were ultimately abandoned by the FCC in 2008 after a court challenge and Office of Management and Budget (OMB) concerns over excessive record keeping and reporting costs. ILECs will want to make sure that legitimate concerns over network resiliency do not lead to inflexible rules or compliance obligations.
FCC Issues Sixteenth Report on Mobile Services Competition Pursuant to Section 332(c)(1)(C) of the Communications Act, the FCC is required to report annually to Congress on the state of competition in the mobile services marketplace. Last week, the FCC issued its Sixteenth Mobile Wireless Competition Report ( Sixteenth Report ) to update the data and analysis presented in the Fifteenth Report, and to analyze mobile wireless service market conditions during 2010 and 2011, as well as during 2012 to the extent data are available. The FCC's analysis includes "competitive market conditions with respect to commercial mobile services" as required by the Act, and presents a multitude of industry data on various aspects of mobile wireless competition. The Sixteenth Report makes no formal finding as to whether there is, or is not, effective competition in the industry. Rather, given the complexity of the various interrelated segments and services within the mobile wireless ecosystem, the Report focuses on presenting the best data available on competition throughout this sector of the economy and highlighting several key trends in the mobile wireless industry. An example of information in the Sixteenth Report that should be of interest to our law firm's mobile wireless clients is the following summary of 3G and 4G network deployment by larger wireless carriers: | 3G/4G Deployment Reported by Selected Mobile Wireless Service Providers | | Service Provider | HSPA, HSPA+, and EV-DO Deployment | LTE and WiMAX Deployment | | Verizon Wireless | As of May 2012, EV-DO Rev. A network covered 290 million POPs. | As of Nov. 2012, LTE network covered more than 250 million POPs. Plans to expand LTE nationwide in 2013 to have LTE coverage similar to its 3G network. | | Verizon Wireless – LTE in Rural America Partners | | As of March 2013, the program included 20 small, rural providers that have launched or plan to launch LTE to areas covering approximately 2.8 million people across 14 states. By March 2013, 7 of these providers had launched LTE: Bluegrass Cellular (Kentucky), Pioneer Cellular (Oklahoma), Cellcom (Wisconsin), Thumb Cellular (Michigan), Strata Networks (Utah), Chariton Valley (Missouri) and Cross Wireless (Oklahoma). | | AT&T Wireless | As of mid-year 2012, all of AT&T's network is covered by HSPA+, covering 275 million POPs. | As of Nov. 2012, LTE network covered 150 million POPs. AT&T plans to deploy LTE to 80 percent of the U.S. population, or approximately 250 million POPs, by the end of 2013, and to 300 million by the end of 2014. | | Sprint Nextel | As of January 2012, EV-DO Rev. A network covered approximately 274 million POPs. | As of September 2012, LTE service is offered in 19 cities and plans to deploy LTE to 100 additional cities within the next several months and to complete LTE build-out by the end of 2013. | | Clearwire | | As of June 2012, WiMAX network covered approximately 134 million POPs. Plans to launch LTE in 31 urban markets by June 2013. | | T-Mobile | As of September 2012, HSPA+ 21 network covered over 200 million POPs and HSPA+ 42 network covered 184 million POPs. | As of December 2012, plans to deploy its LTE network in the United States to 100 million people by July 2013 and 200 million people by year-end July 2013. | | MetroPCS | | As of the end of July 2012, LTE network covered all of the major metropolitan areas MetroPCS serves, including Atlanta, Boston, Dallas, Detroit, Jacksonville, Las Vegas, Los Angeles, Miami, New York, Orlando, Philadelphia, Sacramento, San Francisco, and Tampa. | | Leap | EV-DO deployed to entire network footprint, which covered approximately 95.3 million POPs at the end of 2011. | As of October 2012, Leap had launched LTE service in Tucson, AZ and Las Vegas, Nevada. Leap expects its LTE network to cover approximately 21 million POPs by the end of 2012. The company plans to deploy LTE to approximately two-thirds of its network footprint over the next two to three years. | | US Cellular | EV-DO network covers 98 percent of its customers. | As of June 2012, LTE network covers 30 percent of customers and expects to cover 58 percent by the end of 2012. | | C-Spire | EV-DO network covered approximately 4.7 million POPs at the end of 2011. | As of October 2012, C-Spire offered LTE service in 31 cities in Mississippi. C-Spire plans to further expand its LTE network to 6 more cities by the end of 2012. |
Upon release of the Sixteenth Report, FCC Chairman Julius Genachowski observed that "America's mobile marketplace has strengthened, with increased private investment and innovation, and revitalized competitors, though competition challenges remain."
Failure to Amend License Renewal Application Leads to Dismissal and Fine The FCC has issued a Notice of Apparent Liability for Forfeiture (NALF) against General Communications Inc. (GCI) in the amount of $10,000 for unlicensed operation of a commercial wireless station. Shortly after the license renewal application was filed, the FCC returned the application to GCI with instructions to file a construction notification and request for rule waiver and to then amend the license renewal application to reflect the filing of the construction notification. The return letter established a 60-day period for GCI to accomplish these filings. Because GCI failed to file the construction notification or amend its pending license renewal application within the 60-day period, the FCC dismissed the license renewal application so that any continuing operation of the station during the pendency of the license renewal application became unauthorized. In this case there is no dispute that GCI timely filed its license renewal application or that GCI's failure to properly prosecute its license renewal application resulted in the FCC's dismissal of the application. Under the Administrative Procedure Act (APA), applicants with a timely and sufficient license renewal application have authority to continue operating their facilities until the agency (in this case, the FCC) acts on the license renewal application. Here, the FCC has taken the position that the dismissal of its license renewal application terminated GCI's authority to operate as of the original license expiration date rather than as of the date the license renewal application was ultimately dismissed. Presumably, this was because the FCC had "returned" the application since GCI had not previously filed the required construction notification. Clients should be aware that when the FCC returns an application for additional information or other purposes, the return letter will impose a deadline for response. Even though the application may remain pending for some time after that deadline, the FCC will generally not accept a late-filed response to its return letter, but instead will dismiss the application. This dismissal, in the context of a license renewal application or construction notification, could result in the FCC treating station operations during the pendency of the application or notification as unauthorized and thus, subject to enforcement action including fines. If you have filed an application on your own that is returned for further information by the FCC, please contact us for assistance in responding to the FCC's inquiry. Law & Regulation Senate to Hold Hearing on State of Rural Communications The U.S. Senate Committee on Commerce, Science, and Transportation announced that the Subcommittee on Communications, Technology, and the Internet will hold a hearing on April 9, 2013 at 10:30 a.m. titled "State of Rural Communications." This hearing will examine the current state of rural communications and challenges facing companies serving rural consumers. The hearing will be held at 253 Russell Senate Office Building in Washington, D.C., and will be webcast live via the Senate Commerce Committee website. Refresh the Commerce Committee homepage 10 minutes prior to the scheduled start time to automatically begin streaming the webcast. The Committee indicated that Individuals with disabilities who require an auxiliary aid or service, including closed captioning service for webcast hearings, should contact Collenne Wider at 202-224-5511 at least three business days in advance of the hearing date.
FCC Notifies NTIA of Plans to Auction Government Spectrum Pursuant to the provisions of the Commercial Spectrum Enhancement Act (CSEA) as amended by the Middle Class Tax Relief and Job Creation Act of 2012 (the Spectrum Act), the FCC has notified the National Telecommunications and Information Administration (NTIA) of plans to commence an auction of licenses in the 1695-1710 MHz and 1755-1780 MHz government transfer bands as early as September 2014. The FCC has not yet allocated this spectrum for commercial use but NTIA has recently identified the 1695-1710 MHz band as the 15 megahertz of spectrum between 1675 MHz and 1710 MHz to be reallocated from federal use to non-federal use. Congress similarly directed the FCC to allocate and license the 2155-2180 MHz band, and other bands, by February 15th. The commercial wireless industry has advocated pairing the 2155-2180 MHz band with the 1755-1780 MHz Federal band, so the FCC included these latter bands in the notice to preserve the possibility of auctioning the bands together. The CSEA requires the FCC to notify NTIA at least eighteen months prior to the commencement of any government-transfer frequencies, and for NTIA to notify the FCC of estimated relocation and sharing costs at least six months prior to commencement of an auction.
Last year, the FCC granted T-Mobile special temporary authority to test mobile broadband in the 1755-1780 MHz band. T-Mobile indicated its belief that testing would reveal the spectrum to be ripe for LTE deployment in an August 2012 blog post. In the same post, T-Mobile cited the AWS-3 band at 2155-2180 MHz as a good possible pairing with the 1755-1780 MHz. Industry
Consumer and Governmental Affairs Bureau Announces Workshop on Bill Shock and Cramming The FCC's Consumer and Governmental Affairs Bureau will host a workshop on two significant consumer issues — bill shock and cramming — on Wednesday, April 17, 2013, from 9:00 a.m. to 12:15 p.m. The workshop will educate consumers about how to protect themselves from both of these problems, and include a discussion of policies addressing these issues. The event is free and open to the public and will be held in the Commission Meeting Room at FCC's headquarters located at 445 12th Street SW, Washington D.C. 20554. The workshop will also be streamed live at www.fcc.gov/live. Bill shock is the reaction a subscriber can experience if their mobile wireless user's monthly bill has sudden or unexpected charges that are not a result of a change in service plans. These may include vague or misunderstood advertising charges and unanticipated voice or data roaming charges. A 2010 FCC survey found that 17% of American adults — over 30 million people - with a personal cell phone said that at one time their cell phone bill increased suddenly from one month to the next, even though they had not changed their calling or texting plans. Consumer awareness of call patterns, roaming charges and options for data and text plans can be helpful strategies to alleviate bill shock. Cramming can occur when a local telephone company, long distance telephone company or other type of service provider either accidentally or intentionally places unauthorized, misleading or deceptive charges on a customer's phone bill. Cramming comes in various forms and can be difficult to detect unless the consumer carefully reviews their phone bill. These unauthorized charges may be found on a telephone bill under terms such as "service fee", voicemail" or "monthly fees". Cramming can also be charges for authorized service but the customer was misled about the actual cost. NOTE: Our clients may want to equip their customer service personnel with this information, and how customers complaining about unauthorized charges on their phone bills can report such activity to the FCC. From the FCC's Consumer Topics webpage: You can file an unresolved "shock bill" complaint by telephone to 1-888-CALL-FCC (1-888-225-5322) voice or 1-888-TELL-FCC or (1-888-835-5322) TTY; faxing 1-866-418-2332 or file an electronic complaint at http://www.fcc.gov/complaints . You can file an unresolved "cramming" complaint by telephone to 1-888-CALL-FCC (1-888-225-5322) voice or 1-888-TELL-FCC or (1-888-835-5322) TTY; faxing 1-866-418-2332; or writing to: Federal Communications Commission
Consumer and Governmental Affairs Bureau
Consumer Inquires and Complaints Division
445 12th Street, SW
Washington, DC 20554
E-mail: fccinfo@fcc.gov | BloostonLaw Private Users Update | Vol. 14, No. 3 | March 2013 |
The EPA's Contribution To National Preparedness May Hamstring Users of Back Up Generators In a nation beset by wide-scale natural disasters of late, the value of gasoline and diesel powered generators in keeping communications and other systems up and running has been stressed by both regulators and industry experts. At the FCC's recent Superstorm Sandy field hearings, witness after witness strongly attested to the importance of backup generators to communications companies, first responders, hospitals, homeowners, and all members of the public. You will be either "pleased" or "exasperated" to learn that the Environmental Protection Agency has now made its unique contribution to the national conversation on preparedness in times of disaster. In the past, "unpermitted" generators (meaning those not requiring an EPA permit) have not been required to comply with EPA emissions rules. Under newly adopted EPA rules, now they must comply. This new requirement applies regardless of whether your state or local air pollution or environmental agency has exempted your equipment (or your entire facility) from state or local emissions requirements. In addition to applying to new installations, the new regulations also apply to existing stationary internal combustion generators. The EPA has established various compliance deadlines that appear to vary, depending upon the type of generator that has been installed. These compliance deadlines are May 3, 2013, October 19, 2013 and January 1, 2015. We recommend that you contact your environmental regulatory consultant in order to determine your individual compliance obligations. For more information, review the following link: http://www.gpo.gov/fdsys/pkg/FR-2013-01-30/pdf/2013-01288.pdf.
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 FCC's staff has indicated that there are thousands of licenses that have not been narrowbanded and still show only the wider 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. The FCC has just now issued its long-awaited Public Notice regarding its policies now that the January 1, 2013 narrowbanding deadline has passed. The FCC's Public Notice provides guidance regarding narrowbanding compliance and allows frequency coordinators to assume, for purposes of coordinating other frequency requests, that those wide-band licenses without associated waiver requests are in fact operating in a narrowband configuration with an 11K3F3E emission designator. Additionally, the FCC has previously indicated that it will be auditing licensees that have not narrowbanded their licenses and that there could be substantial fines for non-compliance. 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 wide-band mode, please contact us right away. Continued operation of your radio system in a wide-band 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. Most of our clients have license authorizations with both the narrowband and wide-band emission designators. The FCC has indicated that there is not an immediate requirement to modify your license to delete the wide-band emission designator. Instead, that modification can be made at the time a license renewal or another license modification is to be made. In this regard, if the license is not modified to delete the wide-band emission and the FCC grants a license authorization with that wide-band emission, you would not have authority to operate using the wide-band emission unless the FCC granted you a specific waiver of its rules to permit wide-band operation.
FCC Pushes Back Next Stage of Narrowband Equipment Rules The FCC has partially granted a Petition to Delay the implementation of Rule Section 90.203, which would require all new Part 90 Private Land Mobile Radio equipment in the 150-174/450-512 MHz bands to operate in a "super narrowband" mode (i.e., 6.25 kHz). While Ritron Inc. requested that the Commission delay the implementation of this requirement indefinitely, the Commission concluded that the requirement should be delayed only until January 1, 2015. In seeking an indefinite waiver, Ritron, a manufacturer of wireless products, claimed that the standards for 6.25 kHz technologies were not yet in place and that other issues existed to justify delaying the mandatory 6.25 kHz certification by equipment manufacturers. Further, Ritron pointed out that in the Industrial/Business sector of the equipment market, two incompatible and proprietary technologies have emerged and that 6.25 kHz equipment is extremely expensive. Finally, Ritron claimed that the equipment authorization process to transition to narrowband equipment has largely been unsuccessful. Ritron argued that the Commission should delay the implementation of this requirement until (a) a real need is established for 6.25 kHz equipment — especially since the FCC has just completed the narrowband transition to 12.5 kHz channels and (b) the benefits of 6.25 kHz outweigh the associated research and development, production and manufacturing costs and (c) a definitive standard has emerged for a more cost effective voice compressor/decompresser (vocoder). The FCC declined Ritron's request because it did not adequately quantify its claims. Additionally, the FCC noted that the narrowbanding to 12.5 kHz is only a transitional step in the eventual migration to 6.25 kHz technology. Nonetheless, the FCC concluded that a temporary waiver is warranted. This is because the FCC anticipates the development of a single super-narrowband standard in the Public Safety sector, for which the ANSI 102 "Project 25 Phase II" standard (P25 Phase II) is being completed. Once adopted, this standard will help to ensure that all public safety radios meeting the P25, Phase II standard are interoperable — which is a critical goal of the Administration, the FCC and the public safety community. Because this standard is not yet completed, the FCC has extended the deadline until January 1, 2015 in order to provide time for the standard to be completed and for manufacturers to develop equipment using that standard. As a result, as of January 1, 2015, the FCC will no longer accept applications for certification of Public Safety equipment in the 700 MHz band that cannot operate in a 6.25 kHz mode. Until January 1, 2015, the FCC will continue to accept equipment authorization applications for VHF and UHF equipment operating on 12.5 kHz, and even 25 kHz channels so long as the equipment is capable of operating two voice channels in that bandwidth.
PSAP Do Not Call Registry is Coming Pursuant to the Middle Class Tax Relief and Job Creation Act of 2012, the FCC established a Do-Not-Call Registry for telephone numbers used by Public Safety Answering Points (PSAPs) and prohibiting the use of automatic dialer equipment to contact a telephone number assigned to a PSAP for a non-emergency purpose. The FCC has now announced that the Office of Management and Budget has approved the information collection requirements for the FCC to implement the PSAP Do-Not-Call Registry. We expect that in the near future, the FCC will issue a Public Notice that provides the operational details of the PSAP Do-Not Call Registry as well as the date by which affected entities must begin complying with these requirements.
FCC Proposes Substantial Fines for Unlicensed Private Radio Operation In recent months, the FCC's enforcement staff has been responding to complaints of harmful interference to licensed private land mobile operations from those operating without FCC radio licenses. It appears that these investigations have led to substantial fines, ranging anywhere from $12,000 up to $25,000. Colorado River Adventures The FCC's Enforcement Bureau has proposed to fine Colorado River Adventures $12,000 for operating unauthorized hand-held mobile radios on the frequency 154.600 MHz. The FCC also indicated that several of the hand-held portable radios were producing spurious emissions on the frequency 151.865 MHz. The FCC's enforcement action resulted from complaints of interference from licensed users in the area. During the FCC's investigation of the interference complaint, Colorado River Adventures stated that they had not been aware of any FCC rules violations. The radios had been in use for approximately two-to-three years, from the time that the radios were received from Colorado River Adventures corporate offices. In proposing the fine, the FCC determined that there was sufficient evidence that Colorado River Adventures operated numerous hand-held radios on frequencies that required licensing and that several of the radios were operating off-frequency, meaning that they were operating on frequencies other than the frequency specified on the radio crystal or programing. It is important to note that the FCC is treating this case of unlicensed operation as egregious due to the length of time that the violation was ongoing. Because of this, the FCC increased the pro-posed fine from $10,000 to $12,000. Our clients should verify that all of their radio operations (including hand-held portable radios) are properly licensed. While FCC does not always proactively look for violations, it has actively investigated complaints of interference, which have resulted in substantial fines. Those clients that discover unlicensed operations should promptly shut down those radios and contact our office in order to bring the radios back into regulatory compliance. Terry L. Van Volkenburg In response to a complaint of interference from the Brevard County Sheriff's Department, the FCC has proposed to impose on Terry Van Volkenburg a fine of $25,000 for unlicensed operation and deliberate interference to licensed public safety communications. During the months of September and October, 2012, the Sheriff's Department experienced intermittent interference to its radio communications. The Sheriff recorded the interference, which included transmissions of vulgar language, sound effects, previously recorded prison communications and threats on prison officials over the Sheriff's Department communications system. These interfering communications continued despite warnings from the Sheriff's Department that Mr. Van Volkenburg was interfering with prison communications and that he should cease operations. The FCC was able to investigate and locate the source of the interfering communications by using direction finding techniques. Mr. Van Volkenburg admitted that he had been transmitting on the Sheriff's Department's frequency, but that he believed that his transmissions were not strong enough to talk over the prison communications system. Despite Mr. Van Volkenburg's claims, the FCC found his conduct to be egregious since Mr. Van Volkenburg repeatedly operated transmitting equipment on a public safety channel despite several warnings to cease, and that his transmissions were malicious since they were designed to deliberately interfere with the Sheriff Department's operations. Because of these factors, the FCC increased the proposed fine by $8,000, from $17,000 to $25,000. It is important to note that unlicensed operation is a violation of the Communications Act of 1934, which in addition to any civil penalties that may be imposed by the FCC, could also result in criminal prosecution by the local US Attorney's Office. A conviction could result in the imposition of a criminal fine of up to $10,000 or one year in jail or both. |
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