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. 18 | May 22, 2013 |
Headlines FCC Seeks Input for Annual Wireless Competition Report The FCC has issued a Public Notice seeking input on mobile wireless competition for the FCC's 17th Annual Report on the State of Competition in Mobile Wireless. The Commission is required to submit annual reports to Congress analyzing competitive conditions with respect to commercial mobile services. The notice seeks input on virtually every aspect of wireless service and operations, including types of services offered, spectrum needs, equipment and handset issues, industry consolidation, and rural service issues. Comments are due June 17, 2013, Reply Comments Due: July 1, 2013. With regard to rural wireless operations, the FCC asks the following: - The extent of mobile voice and broadband network deployment in rural areas. Are there noteworthy trends in the state of competition in rural areas and tribal lands?
- To what extent do providers offer coverage only in certain parts of these areas, such as near major roads, where they do not market service to residents of those areas? If this is the case, could the Commission's analysis of mobile wireless service deployment and competition be further improved if mobile wireless providers indicated the parts of their coverage areas in which they compete to offer service and the parts that are used only to provide coverage to traveling subscribers based in other locations?
- Are commenters aware of pricing studies that look at urban versus rural or other sub-national mobile wireless pricing? How can the Commission examine whether pricing in rural areas conforms to national pricing plans or whether there are meaningful differences in mobile wireless pricing plans and pricing promotions between urban and rural areas? To the extent that such differences exist, what are the reasons for such differences?
- Finally, the FCC seeks comment on how mobile wireless service providers' spectrum holdings vary in urban versus rural areas. To what extent is spectrum unused or under-utilized by licensees to a greater extent in rural versus urban areas? Do licensees plan to deploy networks and offer service using such spectrum in the future? To what extent are service providers and licensees in rural areas spectrum constrained? Is there a greater benefit for service providers to holding spectrum in the frequencies below 1 GHz in rural versus urban areas? If so, why?
Other notable areas of inquiry include: Are there additional sources of data that can be used to examine mobile wireless service availability and network deployment? Are there additional analyses of competition that the Commission should perform using the Mosaik data or other data sources? How can the Commission further develop and refine its understanding of mobile voice and broadband availability and deployment? To what extent do MVNOs and resellers create competitive pressure on facilities-based providers, including the facilities-based providers from which the MVNO or reseller purchases its wholesale services? How many subscribers do these companies have, and with which facilities-based providers? From the consumer's perspective, what are the benefits of buying from a reseller/MVNO versus a facilities-based provider? The FCC seeks information about the role of mobile satellite service (MSS) providers in the mobile wireless services industry. To what extent are mobile wireless services provided by MSS a substitute for or a complement to terrestrial mobile wireless services? To what extent are MSS operators providing broadband services, and how is this affecting mobile wireless competition? With regard to industry consolidation, the FCC seeks comment on the usefulness of the traditional antitrust concentration index derived from NRUF data in measuring industry concentration and competition, the relationship between concentration and competition, and whether there are other ways or current best practice metrics by which the Commission should analyze concentration in the mobile wireless industry. The FCC seeks comment on whether it would be helpful to estimate market shares or concentration for specific mobile wireless services and how it might estimate such market shares. In addition, it seeks comment on the relationship between concentration and competition. How has concentration in the mobile wireless services industry changed during 2012 and 2013? Barriers to entry in the mobile wireless services industry include various regulatory and non-regulatory factors, such as access to spectrum, tower siting policies, large sunk costs for network deployment, and the magnitude of marketing and advertising expenditures on brands and services. The FCC seeks comment on the effects of these and other types of barriers to entry on concentration in the mobile wireless industry. To what extent have new providers launched service in 2012 and 2013? Are other providers in the process of securing financing and building networks, with plans to begin offering service soon? How should the FCC assess the ways in which spectrum holdings affect the structure, conduct, and performance of the mobile wireless services industry? How much spectrum is unused or underutilized? To what extent do spectrum licensees lease, partition, or disaggregate their spectrum? How much of the spectrum available for the provision of mobile wireless services is actually used to provide service? To what extent has control over the types of applications that customers can access on their devices shifted from service providers to device makers and/or operating system developers during 2012 and 2013? This proceeding also offers a platform to raise concerns about issues that the FCC may not have targeted as specifically, such as handset interoperability. Interested clients should contact us to participate in comments. FCC Adopts Text-To-911 Bounce-Back Message Requirement, Effective September 30 On May 17, 2013, the FCC released a Report & Order adopting rules requiring wireless carriers and certain other text messaging providers to send an automatic "bounce-back" text message to consumers (including roamers) who try to send a text message to 911 where text-to-911 service is not available from a given Public Safety Answering Point (PSAP). However, legacy devices that are incapable of sending texts via three digit short codes are not subject to the bounce-back message requirement, provided the software for these devices cannot be upgraded over the air to allow text-to-911 functionality. In addition, the bounce-back message requirement does not apply to non-service initialized handsets. The new requirement is intended to help protect the public by substantially reducing the risk of consumers sending a text message to 911 and mistakenly believing that 911 authorities have received it. Instead, under the new rules, consumers will receive an immediate response that text-to-911 is not supported in that area and to contact emergency services by another means, such as by making a voice call or by using telecommunications relay services (if deaf, hard of hearing, or speech disabled) to access 911. While the FCC declined to adopt a requirement to use specific wording for the message, the FCC stated that the following message would be compliant: "There is no text-to-911 service available. Make voice call to 911 or use another means to contact emergency services." The FCC noted that deployment of Next Generation 911, including text-to-911 service, has begun, but the transition is still in the very early stages and will not be uniform. During the transition, text-to-911 will be available in certain geographic areas sooner than others and may be supported by some service providers and PSAPs but not others. In addition, as text-to-911 becomes more widely available, it is likely to raise consumer expectations as to its availability, which makes it increasingly important for the public to know when the service is not available in an emergency. To address these concerns, the FCC is requiring wireless carriers and "interconnected" text message providers — that is, providers of software applications that enable consumers to send text messages to and receive text messages from all or substantially all text-capable U.S. telephone numbers — to implement the bounce-back capability no later than September 30, 2013, although the FCC encourages carriers and others to provide the bounce-back capability at an earlier date if possible. This requirement does not apply to certain text message applications that reach only a defined set of users, such as those within games and social media. The FCC originally proposed a June 30, 2013 compliance date for the bounce-back messages. In establishing the September 30, 2013 deadline the FCC specifically cited the Blooston Rural Carriers argument that June 30 was too soon a deadline. The FCC stated that carriers unable to meet the September 30, 2013 compliance deadline can request a waiver, but no assurance was given that any waiver request will be granted. The FCC's action builds upon a voluntary commitment of the four largest U.S. wireless carriers — AT&T, Sprint Nextel, T-Mobile, and Verizon — to provide bounce-back messaging capability throughout their networks by June 30, 2013. These carriers, with the support of leading public safety organizations (the National Emergency Number Association and APCO International), also voluntarily committed to make text-to-911 service available to their customers by May 15, 2014, in areas where the local 911 call center is prepared to receive the texts. Last December, the FCC proposed rules to require all wireless carriers and interconnected text message providers to likewise deploy text-to-911 in areas where the 911 call center is prepared to receive the texts, seeking comment on an appropriate timeframe for this requirement. The FCC's May 17 action addresses only the provision of bounce-back messages; the FCC will address text-to-911 implementation at a later date. Comment Sought on Options to Promote Rural Broadband The FCC released a Public Notice seeking comment on options to promote the availability of modern voice and broadband-capable networks in rural areas served by rate-of-return carriers. Specifically, the FCC discussed two potential frameworks designed to provide rate-of-return carriers with additional incentives to efficiently advance broadband deployment. First, the FCC seeks comment on a proposal by NTCA, NECA, and WTA to provide high-cost support for standalone broadband loops provided by rate-of-return carriers. The FCC seeks comment on the specific rule changes that would be necessary to achieve this goal, including issues related to establishing separate loop categories to account for joint-use lines and standalone broadband lines; and the need for cost allocation procedures to be used to establish the price of a standalone broadband loop offering. The FCC also seeks comment on how the proposed standalone broadband funding mechanism would impact providers' investment plans and service offerings, as well as consumer choices and rates, and how it could be integrated in the larger Connect America Fund framework. Second, the FCC sought comment on how Connect America Fund Phase II could be used in areas that currently are served by rate-of-return carriers to provide additional incentives for deployment of broadband-capable networks. This includes comment on the extent to which rate-of-return carriers would find it beneficial to receive Phase II support rather than the support provided by the current HCLS and ICLS programs, and how facilitating a voluntary transition for rate-of-return carriers to model-based support would impact providers' investment plans and service offerings, as well as consumer choices and rates. The FCC also seeks comment on the timing of such a conversion, the amount of support available, budgetary impact, service obligations, and potential alternatives.
Law & Regulation Second Release of Phase I Funds In The Amount Of $485 Million On May 22, 2013, FCC Acting Chairwoman Mignon Clyburn announced a significant public-private effort to connect hundreds of thousands of Americans to high-speed broadband as a result of the second release of Phase I funds of the Connect America Fund. The fund will offer up to $485 million to expand broadband in rural America for both fixed and mobile broadband expansion in unserved areas. The additional investment is intended to leverage millions in additional private investment to quickly serve rural areas currently lacking access to high-speed broadband. This additional investment comes as the FCC moves into Phase II of the Connect America Fund, created in the overhaul of the FCC's traditional universal service program for rural voice service. Phase II will provide ongoing annual support of $1.8 billion for both voice and broadband service, without increasing growth in the fund. Any funding not accepted in Phase 1 will be used to connect unserved communities in Phase II. Total FCC investment in expansion and support of rural fixed and mobile broadband and voice through universal service is budgeted at $4.5 billion. U.S. Supreme Court Upholds FCC Authority In Cell Tower Zoning Disputes On May 20, 2013, the United States Supreme Court issued its decision in City of Arlington, Texas v. FCC upholding the FCC's interpretation of Section 332(c)(7)(B)(ii) of the Communications Act of 1934, as amended, which requires state or local governments to act on wireless siting applications "within a reasonable period of time after the request is duly filed." In the FCC Declaratory Ruling under review, the FCC interpreted the phrase "reasonable period of time" to be presumptively (but rebuttably) 90 days to process a collocation application (that is, an application to place a new antenna on an existing tower) and 150 days to process all other applications, thereby upholding the "shot clock" approach to tower siting requests. The Court's decision was 6 to 3. The dissent, written by Chief Justice John Roberts and joined by Justices Anthony Kennedy and Samuel Alito, criticized the majority for giving excessive deference to the FCC's interpretation of the scope of its own jurisdiction. United States and Canada Reach Agreement on Spectrum Sharing in the Border Region The FCC and its Canadian counterpart, Industry Canada have reached an agreement on ten interim spectrum sharing arrangements that cover various frequency bands along the US/Canadian border area. Among the sharing arrangements is an agreement covering the 3650-3700 MHz band that will allow the deployment of wireless broadband and high-speed internet services to co-exist on both sides of the US-Canadian border through the use of "contention-based protocols" to avoid harmful interference while sharing the spectrum. The "contention-based protocols" will allow multiple users to share the same spectrum by defining the events that must occur when two or more devices attempt to simultaneously access the same channel and establishing the rules by which each device is provided a reasonable opportunity to operate. The "contention-based protocols" are incorporated into, and thus automatically implemented by, the system equipment. The US and Canada have also agreed to several other spectrum sharing arrangements that involve the Personal Communications Services, Advanced Wireless Services, public safety operations in the 4.9 GHz band and railway communications systems. Additionally, the arrangements concluded by the US and Canada also provide for coordination and sharing protocols for spectrum used for Wireless LAN, Mesh Network and Wi-Fi hotspots, fixed point-to-point/multipoint services and broadband traffic.
Industry T-Mobile Withdraws Challenge to Open Internet Rules In its first official act following its acquisition of MetroPCS earlier this month, T-Mobile has withdrawn from a case filed by MetroPCS that is pending before the United States Court of Appeals for the District of Columbia Circuit challenging the FCC's December 2010 net neutrality rules. Outgoing FCC Chairman Julius Genachowski applauded T-Mobile's move, stating: "Since 2010, our strong and balanced rules have been protecting entrepreneurs and consumers, and have increased certainty and predictability for investors in Internet services as well as networks. The ongoing litigation — now pursued by a single company — only serves to reduce that certainty and predictability. I applaud T-Mobile's decision to withdraw from this litigation." As the Chairman noted, T-Mobile's withdrawal from the case does not end the litigation because Verizon Wireless is also a party to the case challenging the net neutrality rules. Verizon Wireless argues (as did MetroPCS) that the FCC lacks the authority to tell mobile carriers how to manage their networks. FCC Announces Carry-Forward of Unused Schools and Libraries Funds In yet another Public Notice released on May 16, 2013, the FCC announced that $450 million in unused funds from previous funding years is available to carry forward to increase disbursements to schools and libraries under the schools and libraries universal service program, also known as the E-rate program. The carry-forward is a requirement of Section 54.507(a)(3) of the rules. According to the FCC, the money will ensure that funding is available for all eligible priority one funding requests received from schools and libraries in funding year 2013 in excess of the annual cap.
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 May 23 — Final deadline for ILECs to have shapefiles submitted and certified.
May 24 — Comments on FirstNet Notice of Proposed Rulemaking are due.
May 24 — Reply Comments on Tribal Mobility Fund Phase I Auction are due.
May 28 — Reply Comments on US Telecom Petition for Reconsideration/Clarification of 54.313 Reporting Requirements are due.
May 28 — Reply Comments on 911 Reliability Rulemaking are due.
May 28 — Reply Comments on Rural Call Completion are due.
May 31 — FCC Form 395, Employment Report, is due.
May 31 — Reply Comments on Petition filed by a group of competitive carriers asking the FCC to Reverse Forbearance for Special Access are due.
Jun. 3 — Comments/Oppositions to Rural Associations Petition for Reconsideration of Sixth Order on Reconsideration are due.
Jun. 3 — Comments/Oppositions on USTelecom Petition for Reconsideration of 54.313 Reporting Requirements are due.
Jun. 8 — Electronic filing deadline for Form 497 for carriers seeking support for the preceding month and wishing to receive reimbursement by month's end.
Jun. 11 — Reply Comments on Options for Disposition of UHF T-Band (470—512 MHz) are due.
Jun. 11 — Replies to comments/oppositions to Rural Associations Petition for Reconsideration of Sixth Order on Reconsideration are due.
Jun. 11 — Replies to comments/oppositions USTelecom Petition for Reconsideration of 54.313 Reporting Requirements are due.
Jun. 14 — Comments on Broadcast TV Incentive Auction NPRM are due.
Jun. 17 — Comments on TracFone Petition for Rulemaking Prohibiting Distribution of Lifeline Handsets are due.
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.
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. 8 — Electronic filing deadline for Form 497 for carriers seeking support for the preceding month and wishing to receive reimbursement by month's end.
July 16 — Paperwork Reduction Act Comments on Proposed Collection of Urban Rates Survey Information are due.
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 — FCC Form 499-Q due.
Aug. 1 — FCC Form 502 due (Number Utilization and Forecast Report).
Aug. 8 — Electronic filing deadline for Form 497 for carriers seeking support for the preceding month and wishing to receive reimbursement by month's end.
Aug. 26 — Reply comments are due on the FCC Staff Report on Rate of Return Re—Prescription. | 
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