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. 15 | May 1, 2013 |
Headlines Wheeler Nominated to FCC Chair As this edition of the BloostonLaw Telecom Update went to press, President Obama officially nominated Tom Wheeler as the next FCC Chairman. Leading up to the announcement, Reuters , Bloomberg , and the Wall Street Journal Online all ran articles indicating that Obama would give Wheeler the nod. According to Reuters, "[Wheeler] has the rare support of both industry groups and a number of consumer advocates." Bloomberg reported on a number of issues currently before the FCC upon which Wheeler has, in the past, gone on record, including whether to limit the amount of spectrum a company can hold in a given area (Wheeler pushed for elimination of a cap in 2001), whether US standards on cellular radiation need to be updated (Wheeler indicated no connection between cancer and mobile phone use had been established in 1999), and whether AT&T should be able to merge with T-Mobile (Wheeler supported the merger, suggesting it was an opportunity to regulate broadband through conditions, in a 2011 letter). Wheeler, who is currently the managing director at Core Capital Partners, LP, had been dubbed the front-runner for the spot by news outlets, despite support for current Commissioner Jessica Rosenworcel and opposition by Sen. Jay Rockefeller (D-W.Va.), who has expressed concern for Wheeler's history as a lobbyist for the cable and cellphone industries. According to the New York Times , President Obama also appointed Mignon Clyburn, a, F.C.C. Commissioner since 2009, as interim chairwoman of the agency.
FCC Holds Licensee Liable for Tower Violations, Despite Claim of Non-Ownership The FCC has recently released an order on review in which it imposed an $11,000 fine on Ely Radio, LLC, for failing to ensure that the tower lighting was in proper working order. At the time of the violation, Ely Radio, LLC was the licensee for Station KWNA (AM) in Winnemucca, Nevada. While the FCC's Rules impose primary liability on the tower owner, licensees should be aware that the FCC may hold all licensees on a tower jointly and severally liable for ensuring that the tower is in compliance with the FCC's rules. This secondary liability for licensees will generally occur where the tower owner is either unwilling to take action or the FCC is unable to locate the tower owner. This case has a unique twist since Ely claimed that while it had purchased the license for station KWNA (AM), it did not purchase the antenna tower. This claim was contrary to the seller's position, who claimed that the purchase agreement between the parties included not only the station itself, but "all of the equipment necessary" to run the station – including the tower. In the face of this contractual dispute, the FCC determined that Ely owned the tower and had also violated the FCC's rules since it did not make a filing to reflect the ownership change. Bolstering the FCC's conclusion that Ely was liable — irrespective of whether Ely was the tower owner, was the fact that (a) Ely was the only user on the tower, (b) Ely had access to and control over the tower lighting, (c) it was Ely's personnel that had improperly extinguished the tower lighting and (d) Ely knew that the seller had taken the position that the tower was included as an asset in the transaction and that the seller had not been involved in the maintenance of the tower since the station had been sold to Ely.
There are several lessons that can be learned from this case, including: 1. Notify the FCC promptly if you purchase an antenna tower or structure that is registered with the FCC. 2. Ensure that your purchase agreement clearly identifies the specific assets that are included or not included in your transaction. 3. While tower owners are primarily responsible for compliance with the FCC's tower marking and lighting rules, there may be circumstances where the licensees can be held liable. As a result, licensees should ensure that the tower owner is fulfilling its obligations. In this regard, if the FCC is unable to get a response from the tower owner, it may look to the licensee(s) to correct the deficiency (and pay any fines!). 4. It is critically important to maintain obstruction marking and lighting in order to protect safety to air navigation.
Law & Regulation FCC Enters Into $450k Consent Decree Against Manufacturer The FCC has entered into a consent decree whereby New Sensor Corporation dba Electro Harmonix will contribute $450,000 to the US Treasury, as a result of issues relating to the sale of digital RF devices, such as bass amplifiers and vocal processors. The FCC initiated an investigation of New Sensor when it determined that the company was marketing devices that were classified as "unintentional radiators" (i.e., generating RF not to send communications signals but incidental to some other purpose), yet had not met the FCC's authorization and labeling requirements. New Sensor stated to the FCC that it was unaware of FCC regulation of such devices. Clients that manufacture, market or sell any devices that include any sort of electronics, even if not intended to act as a communications device, should be aware of the need to comply with the FCC's filing and labeling requirements for unintentional radiators.
FCC Enters Into $450k Consent Decree Against Manufacturer SLATE is reporting that the House Judiciary Committee held hearings late last week on whether or not law enforcement should be required to obtain a search warrant or court order before obtaining historic cellphone location data from carriers. The Department of Justice (DOJ) has argued that cell phone users have no expectation of privacy in historic cell location data that is stored by carriers while civil rights groups believe that obtaining this data without a warrant or court order is an improper search and seizure under the 4th Amendment. The issue can have significant impacts in view of the fact that in 2011, SLATE indicates that major wireless carriers received more than 1.3 million requests for subscriber data from law enforcement (including requests for text messages, wiretaps and geo-location information — the latter of which may be part of a cell tower dump where the carrier provides data on all users that connected to a particular cell tower during at a particular time period). In recent weeks, this may have been one of the investigative tools used by federal and local law enforcement authorities to solve the Boston Marathon bombing. While there are justifications on both sides of the argument, it is important to note that some states are starting to take action. On February 21, 2013, Rep. Bryan Hughes (R) introduced House Bill 1608 in the Texas legislature to amend the Texas criminal code by requiring law enforcement to obtain a warrant before obtaining information of a cellular telephone or wireless device that is generated by the operation of the device. This legislation is currently pending. There would be an exception for "exceptional" cases, where a warrant would not be required.
FCC Adopts Revised and Streamlined rules for the Experimental Radio Service effective May 29, 2013 On April 29, 2013, Federal Register ( Volume 78, No. 82 ) publication occurred of the FCC's new Rules which significantly change in some respects the Part 5 Experimental Radio Service (ERS) requirements. The new Rules were set forth in the FCC's Report and Order, ET Docket No. 10-236 and 06-155, FCC 13-15, adopted and released on January 31, 2013. The rule changes will go into effect on May 29, 2013. It is anticipated that the revisions should create a more flexible framework to support the rapid pace of technological innovation and to further implement the recommendations of the Commission's March 2010 National Broadband Plan. To carry out this transition, the Commission created three new types of experimental licenses to advance the development of new technologies, expedite their initiation into the marketplace, and unleash the full power of innovators to keep the United States at the forefront of the communications industry. The Commission's actions also revise the market trial rules to eliminate confusion and more plainly express its policies with respect to marketing products prior to equipment certification. The three new types of experimental licenses include: 1) Program experimental license: This license will allow colleges, research laboratories, health care institutions, and manufacturers with demonstrated experience in RF technology to conduct an ongoing series of research experiments and tests. 2) Medical testing license: This license will be available to health care facilities with RF expertise to assess newly developed RF-based medical devices for patient compatibility, electromagnetic compatibility, and to conduct clinical trials at patients' homes or in other geographic areas that are not within the health care licensee's control. 3) Compliance testing license: This license will provide Commission-recognized laboratories the flexibility to undertake RF product compliance testing under the Commission's equipment authorization procedures.
Along with the new flexibility, the Commission will also ensure that critical services (i.e. commercial mobile radio services, emergency notifications, and public safety radio services) are protected by requiring experimenters using this augmented authority to provide notice to such licensees, and to develop a specific plan to avoid harmful interference to those operations. In addition, as with current experimental licenses, experimentation under these new licenses must be accomplished on a non-interference basis. Finally, the Commission will create a new web-based registration system to track and administer individual experiments for program and medical testing licenses. All experimental radio provisions will be consolidated into Part 5 of the Commission's Rules by creating a new subpart for broadcast experiments and eliminating the developmental licensing rules that are scattered across multiple Commission rule parts. The Commission also clarified, simplified, and expanded the existing ERS rules that provide for market trials, including allowing a greater number of RF devices to enter the U.S. for testing and evaluation purposes.
Industry FCC Burdensome Lifeline Reporting Appears to Miss the Mark The Wireline Competition Bureau (WCB) has announced that 29 percent of all lifeline subscribers as of June 2012, were de-enrolled from the program by the end of 2012. (WC Docket No. 11-42) News reports have indicated that for traditional facilities-based carriers, approximately 40 percent of lifeline subscribers were de-enrolled. However, apparently only 19 percent of TracFone's lifeline customers were de-enrolled. At the same time, in cities across the country, non-facilities-based wireless carriers continue to sign up Lifeline subscribers at street-side tents and through door-to-door campaigns. One wonders if every year a large number of subscribers will be de-enrolled from Lifeline, only to re-enroll at the next street tent. Imposing burdensome reporting requirements on wireline carriers will not solve this problem. ILECs are encouraged to discuss the impact of the FCC's burdensome reporting requirements and the impact of the FCC's lifeline policies on their customers with their congressional members.
Calendar At-A-Glance May 1 — FCC Form 499-Q, Telecommunications Reporting Worksheet is due. May 8 — Electronic filing deadline for Form 497 for carriers seeking support for the preceding month and wishing to receive reimbursement by month's end. May 9 — Final Deadline for Short Form Application to Participate in Auction 95 is due. May 10 — Comments on Tribal Mobility Fund Phase 1 Auction Scheduled for October 24, 2013 are due. May 10 — Comments on US Telecom Petition for Reconsideration/Clarification of 54.313 Reporting Requirements are due. May 13 — Comments on Options for Disposition of UHF T-Band (470-512 MHz) are due. May 13 — Reply Comments on Health Care Connect Fund Forms 460, 461, 462 and 463 are due. May 13 — Comments on 911 Reliability Rulemaking are due. May 13 — Comments on Rural Call Completion are due. May 23 — Final deadline for ILECs to have shapefiles submitted and certified. 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. June 8 — Electronic filing deadline for Form 497 for carriers seeking support for the preceding month and wishing to receive reimbursement by month's end. June 11 — Reply Comments on Options for Disposition of UHF T-Band (470-512 MHz) are due. June 28 — Deadline for State Commissions to submit and certify the data included in shapefiles. Jul. 1 — Annual High Cost ETC Report Due under Rule 54.313. | BloostonLaw Private Users Update | | April 2013 |
Applications to Bid on Former Paging Channels Due May 9 As we previously reported, the FCC announced that it will be auctioning 5,905 licenses for lower and upper paging bands spectrum licenses consisting of 4,902 licenses in the lower paging bands (35 MHz, 43 MHz, 152 and 158 MHz, 454 and 459 MHz) and 1,003 licenses in the upper paging bands (929 MHz and 931 MHz). This spectrum may be of interest to our private radio clients for dispatch and other private internal uses with appropriate waivers from the FCC. Several of the licenses will award paired VHF or UHF channels that can be used for dispatch, control and other radio operations useful to private internal radio users (or commercial repeater operators). Unlike shared Part 90 channels, the former paging channels authorize exclusive use of the channels, subject to protecting incumbent co-channel operators in the area. We have successfully helped several clients obtain paging channels and the appropriate rule waivers for internal dispatch operations in prior auctions. The FCC has now announced the procedures and minimum opening bid amounts for the upcoming auction. This auction, which is designated as Auction 95, is scheduled to commence on July 16, 2013. The key deadline is for filing a "short form" application to participate in the auction, which is set for May 9, 2013 at 5:59 PM Eastern Time. Auction 95 will include licenses that remained unsold from a previous auction, licenses on which a winning bidder in a previous auction defaulted, and licenses for spectrum previously associated with licenses that canceled or terminated. In a few cases, the available license does not cover the entire geographic area due to an excluded area or previous partitioning. The relevant deadlines for this auction are as follows: - Auction Tutorial Available (via Internet): April 30, 2013
- Short-Form Application (FCC Form 175) Filing Window Opens: April 30, 2013 at 12:00 noon ET
- Short-Form Application (FCC Form 175) Filing Window Deadline: May 9, 2013, at 5:59 p.m. ET
- Upfront Payments (via wire transfer): June 13, 2013, at 5:59 p.m. ET
- Mock Auction: July 12, 2013 • Auction Begins: July 16, 2013
- Short-Form Application (FCC Form 175) Filing Window Deadline: May 9, 2013, at 5:59 p.m. ET
- Upfront Payments (via wire transfer): June 13, 2013, at 5:59 p.m. ET
- Mock Auction: July 12, 2013 • Auction Begins: July 16, 2013
FCC Proposes to Eliminate Part 90, 97 and 101 Exemption from Radio frequency Exposure Rules and Seeks to Revisit Exposure Limits and Policies Proposed Rules Could Add to Application Complexity, Cost The FCC has released a 200 page Report and Order, Further Notice of Proposed Rulemaking and Notice of Inquiry that will fundamentally change its RF exposure rules. In this proceeding, the FCC has proposed to eliminate a critical service based exemption that allowed most Part 90, 97 and Part 101 licensees to install radio transmitters without having to conduct calculations or measurements, or otherwise make a filing with the FCC, in order to demonstrate that the transmitter equipment would not cause harmful RF radiation. Instead, private land mobile, amateur and private microwave stations were generally exempt from the RF compliance evaluation process. Depending upon the power of the transmitting equipment, if the FCC's proposal is adopted, licensees would be required to certify compliance, either by calculation or measurement — which could cause significant increases in engineering costs associated with system design. Additionally, the FCC is also proposing to eliminate categorical exemptions for mobile units, which depending upon use, could have the unintended consequence of requiring fixed base licensing for those radios that are license as "mobile" units even though they are "fixed." Clients should consult with their system engineer and/or equipment vendor to determine whether certain aspects of the FCC's proposed RF rule changes may adversely affect your operations. Order Order Categorical Exclusion s — The FCC's existing rules provide for categorical exclusions from Environmental Assessments with respect to RF exposure if the licensee or applicant can demonstrate (a) compliance with the FCC's RF exposure limits or (b) that the transmitter falls into an excluded category based upon proximity and power level. The FCC has not taken any steps in this order to eliminate or dilute this exclusion, but is proposing, in the Further Notice, new general exemption criteria that are based on proximity, frequency and power in order to streamline the determination as to whether or not the preparation of a routine RF evaluation will be necessary. This would result in the elimination of the service based exemptions. Methods for Demonstrating Compliance — The FCC has adopted two methods that licensees and grantees may use to demonstrate compliance with the FCC's RF exposure rules. These methods are: (a) specific absorption rate ("SAR") and (b) maximum permissible exposure ("MPE"). The SAR may be used in lieu of the MPE for fixed transmitters operating on spectrum below 6 GHz. The FCC has indicated that SAR will continue to be the only acceptable compliance measurement for portable devices below 6 GHz. You may continue to use derived MPE evaluation methods for RF sources where appropriate, as long as compliance with both the whole-body and localized SAR limits are ensured. The FCC cautions that while it will continue to permit applicants to use MPE in order to demonstrate compliance with the FCC's outer RF radiation limits, licensees and grantees may not switch to an SAR evaluation after-the-fact if it turns out that the device did not meet the MPE requirement. Thus, an after-the-fact SAR evaluation following a violation of MPE limits cannot be used as a defense against an FCC enforcement action. Technical Evaluation References — The FCC has determined that it will no longer utilize Supplement C as its informative reference for the evaluation of mobile and portable devices. Supplement C will be replaced by the Office of Engineering and Technology's Laboratory Division Knowledge Database ("KDB") since it can be updated as expert bodies and other research indicate that changes are appropriate. Additionally, the switch from Supplement C to the KDB will eliminate any ambiguity regarding procedures that the FCC Lab has found acceptable. This is because recent technology changes have outpaced the development of generally acceptable standards. By using the KDB, the FCC Lab can make the changes in real time. Pinna (Outer Ear) Classification — Under the FCC's current rules, the Pinna or Outer Ear was not classified as an extremity (e.g., wrist, ankle, foot, hand, etc.). The FCC has now revised its rules to classify the outer ear as an extremity. This classification is supported by the FDA as well as the IEEE. Additionally, manufacturers, including Motorola and Ericsson, both supported this revision. Labeling Requirements for Occupational Use — In order to reduce the potential for harmful exposure from mobile and portable devices, the FCC has adopted labeling requirements that are designed to make workers aware of the potential for exposure. The FCC will be updating the OET Laboratory publications in order to provide more detailed guidance for complying with the labeling requirements for occupational use devices. While various formats were suggested, the FCC has determined that it will not specify a format for these visual advisories, but instead, will encourage the industry to establish labeling standards that use similar symbols, colors and signal words, as proposed in the Further Notice. Training — The purpose of the FCC's Rules is to ensure that workers at higher permitted levels of exposure have the appropriate level of awareness and control in order to ensure that they are not subject to RF exposures above the occupational/controlled limits. The necessary information may be provided to workers in writing and/or verbally, provided that the information complies with the occupational/control limits and ensures that exposed persons are "fully aware of the potential for exposure and can exercise control over their exposure." The exception to this rule is that "transient" individuals — visitors or people traversing the site (but not third party workers performing maintenance for an extended period) — must receive written or verbal information/notifications (e.g., signs) concerning the RF exposure potential. Compliance at Sites with Multiple Transmitters — The FCC clarified that all licensees that exceed the five percent RF exposure limit threshold at any non-compliant location are jointly and severally responsible and may be subject to enforcement action by the FCC, including the imposition of fines on all licensees at the site. The FCC noted that when routine evaluations are required, all relevant co-located licensees are responsible for compliance. As a result, co-located licensees should cooperate and share information regarding their respective power and other operating characteristics in order to ensure that accurate calculations regarding the RF environment can be made. Further Notice and NOI In the Further Notice, the FCC has requested comment on new proposals developed regarding compliance with guidelines for human exposure to RF electromagnetic fields. The FCC's current rules identify particular categories of existing or proposed transmitting facilities that require routine environmental evaluations and categorically exempt all other transmitting facilities from these evaluations. The FCC is proposing eliminate the radio service-based exemptions by broadly revising and harmonizing its criteria for determining whether single or multiple fixed, mobile, or portable RF sources are subject to routine evaluation for compliance with the RF exposure limits or are exempted from such evaluations. It is also proposing to adopt specific new requirements for signs and barriers at fixed transmitter sites to ensure compliance with public and occupational exposure limits and to clarify the definition of transient exposure for non-workers exposed at levels up to occupational limits. In an effort to treat all RF radiation sources similarly, the FCC is proposing to adopt generalized exemption criteria applying to single RF sources and then further generalized to multiple RF sources based on power, distance and frequency for all services using fixed, mobile and portable transmitters. The FCC believes that exemption criteria based on physical properties, rather than distinctions between radio services, is more appropriate and will be technologically "neutral." Additionally, the exemption thresholds are based upon general population thresholds, since any exposure above the general population limit would need to be evaluated in order to ensure that there is adequate training and occupational awareness. The Further Notice also proposes to streamline and harmonize procedures to achieve equal treatment of RF-emitting equipment based on their physical characteristics rather than service categories. Thus, the Commission is proposing to establish general exemptions from evaluation to determine compliance in place of existing service-specific "categorical exclusions." In the NOI, the FCC asks whether its exposure limits remain appropriate in light of recent research and differing interpretations that have emerged. Since the FCC is not a health and safety agency, it has indicated it will defer to other organizations and agencies with respect to interpreting the biological research necessary to determine what levels of RF radiation exposure are safe. As such, the FCC invites health and safety agencies and the public to comment on the propriety of its current limits and whether additional precautions may be appropriate in some cases, for example with respect to children. The FCC also seeks comment from the public, expert organizations, and any federal agency with jurisdiction by law or expertise over the environmental impact of human exposure to RF energy regarding the potential environmental impacts, including any cumulative impacts, of the rule changes proposed in the Further Notice. With regard to mobile units, the FCC stated as follows: "…we now propose to delete the existing mobile power exemptions and apply the new proposed general fixed transmitter power exemptions to mobile and portable devices as well. . . . The new exemption proposal would allow higher powers at greater distances for both mobile and fixed devices, would apply to all services, and would be valid in possibly reflective environments and at lower frequencies; however, this proposal would necessarily reduce the exemption power for mobile devices used at 20 cm. . . .We seek comment on whether these proposals are acceptable alternatives to the values suggested by CTIA and Cingular in their comments. . . . Parties that determine that they are not exempt, as well as parties that do not determine exemption status, must perform an evaluation." [footnotes omitted] Licensees and radio users must determine if the application of the evaluation requirement to mobile units (and fixed radios licensed as "mobiles") will adversely affect their operations. The FCC last evaluated RF exposure limits and policies in 1996, based on guidance from federal safety, health, and environmental agencies using recommendations published separately by the National Council on Radiation Protection and Measurements (NCRP) and the Institute of Electrical and Electronics Engineers, Inc. (IEEE). Since that time, there has been significant research by a number of international organizations and the IEEE has revised its recommendations several times. The NCRP, on the other hand, continues to support its recommendation as used in the current FCC rules. Last summer, the US Government Accountability Office issued a report to Congress and recommended that the FCC update its current RF exposure limits and reevaluate current testing methodologies. Comments on the FNPRM and NOI will be due 90 days after the item is published in the Federal Register, and Reply Comments will be due 150 days after publication. For our private land mobile clients, the key will be for the FCC to avoid imposing unreasonable compliance requirements that unduly complicate the use and installation of radio equipment. This is of particular concern because radio communications are a necessary adjunct to many businesses and further regulatory burdens would only add unnecessary delay and expense.
FCC Enforcement Bureau Warns Purveyors of Robocalls: "Don't call us....(or) we'll call you." The FCC's Enforcement Bureau recently issued citations to Dialing Services, LLC and Richard Gilmore (d/b/a Democratic Dialing) for providing automatically dialed calls using prerecorded or artificial voice messages – "robocalls". Investigations conducted by the Enforcement Bureau's Telecommunications Consumers Division found that these two companies made in excess of one million robocalls to wireless phones without prior authorization from the call recipients during certain months of 2011 and/or 2012. The investigations also revealed that each company failed to provide certain identification information as required under federal law. Robocalls consist of pre-recorded voice messages and autodialed calls to cell phones and other mobile services such as paging systems. The calls are generally prohibited, subject to two exceptions: 1) calls made for emergency purposes, and 2) calls made with the prior expressed consent of the called party. NOTE: Our clients may want to arm their customer service personnel with this information. Additionally, should your wireless phones receive unwanted robocalls, you can report such activity to the FCC. You can file a complaint by telephone to 1-888-CALL-FCC (1-888-225-5322) voice or 1-888-TELL-FCC (1-888-835-5322) TTY, by fax to 1-866-418-0232, via the FCC's electronic complaint form (www.fcc.gov/complaints), or mail. If mailing a complaint, send it to: Federal Communications Commission
Consumer and Governmental Affairs Bureau
Consumer Inquiries and Complaints Division
445 12th Street, SW
Washington, DC 20554 Complaints can also be filed online at: https://esupport.fcc.gov/ccmsforms/form1088.action?form_type=1088C . While the FCC cannot award monetary or other damages to consumers, filing complaints allows the Commission to investigate violators. However, in some states you are allowed to file suits against telemarketers and receive monetary damages for violations of these rules. The FCC's Enforcement Bureau indicated that the citations could lead to considerable monetary penalties if violations continue. The citations require each company to certify within fifteen calendar days that it has ceased making all robocalls to wireless phones without prior authorization, and that the calls it makes that are otherwise permissible include the proper identifications. Companies that continue to make the unauthorized calls to wireless phones may be liable for monetary penalties of $16,000 per call, which could lead to fines in excess of tens of millions of dollars, depending on the volume of violations. The FCC reported that consumers have grown increasingly wary concerning these robocalls and often find the unwanted messages to their cell phones to be intrusive. | 
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