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. 42 | November 20, 2013 |
Headlines
Wheeler Embraces the "IP Transition" On November 19, 2013, newly-confirmed FCC Chairman Tom Wheeler posted a statement to the FCC's Official Blog describing his intention to vigorously spur the "IP Transition." "We have listened," declares Wheeler, "and now it is the time to act." Despite the action-oriented nature of Wheeler's post, however, it appears the blog post primarily hints at additional collection of information for the time being. According to the announcement, the Technology Transitions Policy Task Force will present a status update at the FCC's upcoming December 12 meeting, with the expectation that the January meeting will include consideration of an Order for immediate action. In Wheeler's own words, that Order should include recommendations to the Commission on how best to: - obtain comment on and begin a diverse set of experiments that will allow the Commission and the public to observe the impact on consumers and businesses of such transitions (including consideration of AT&T's proposed trials);
- collect data that will supplement the lessons learned from the experiments;
- initiate a process for Commission consideration of legal, policy, and technical issues that would not neatly fit within the experiments, with a game plan for efficiently managing the various adjudications and rulemakings that, together, will constitute our IP transition agenda;
- speed the initiation of experiments and assess, monitor, measure, and analyze their outcomes;
- inform and protect consumers;
- obtain accurate and useful information about the technology transition from multiple resources that could include collaboration with other federal, state, and tribal agencies, public input through crowd-sourcing, and leveraging outside expertise and advisors; and
- initiate a process to decide the legal and policy questions raised by this network revolution.
Of particular interest, Wheeler noted that the key to the transition is to "encourage technological change while preserving the attributes of network services that customers have come to expect – that set of values we have begun to call the Network Compact." Whatever the "Network Compact" specifically entails, the connection between customer expectations and the underlying network is one rural carriers have been trumpeting throughout the transitional proceedings, contrary to the arguments of AT&T that it's a new network with new rules. BloostonLaw will continue to monitor the transition proceedings as they unfold. Wheeler Calls for Cellphone Unlocking Before the Holidays FCC Chairman and former CTIA President Tom Wheeler last week urged the wireless industry to stop dragging its feet and to finalize amendments to the CITA Consumer Code that would address consumers' rights to unlock their mobile devices once their contracts are fulfilled. In his letter to current CTIA President Steve Largent, Wheeler noted that FCC staff had been working with the trade group on these matters for eight months, and wanted to resolve the matter before the December holiday season. Five requirements that the FCC expects the industry's voluntary unlocking policy to include are: - providing a clear, concise, and readily accessible policy on unlocking;
- unlocking mobile wireless devices for customers, former customers, and legitimate owners when the applicable service contract, installment plan, or early termination fee has been fulfilled;
- affirmatively notifying customers when their devices are eligible for unlocking and/or automatically unlocking devices when eligible, without an additional fee;
- processing unlocking requests or providing an explanation of denial within two business days; and
- unlocking devices for military personnel upon deployment.
CITA and the FCC are reportedly in agreement on all but the third item regarding proactive consumer notification. Wheeler characterized a voluntary unlocking rights policy that lacks such consumer notice as "a hollow shell." "Enough time has passed, and it is now time for the industry to act voluntarily or for the FCC to regulate," wrote Wheeler. SBCA Responds to NTCA's Vantage Point Paper There is an old saying in the legal profession: "When strong on the facts, pound the facts. When strong on the law, pound the law. When strong on neither, pound the table." On November 14, 2013, the Satellite Broadcasting & Communications Association (SBCA) filed a letter with the FCC responding to NTCA's Vantage Point Paper, filed with the FCC earlier this month. The SBCA submission comes across as table pounding at its finest. In the first paragraph of its filing, SBCA characterized the Vantage Point Paper as "just another attempt by NTCA to forestall competition in rural areas" and as an "untimely effort to revisit a sound Commission conclusion in the USF/ICC Transformation Order ." According to SBCA, the "Vantage Point Paper makes inaccurate claims about the quality of satellite broadband service in an effort to persuade the Commission to allow rural carriers to leverage and retain their incumbent status — to the detriment of rural broadband consumers across the United States." SBCA claims that "the satellite industry simply seeks a technology-neutral, level playing field in the regulatory arena;" and that with a level regulatory playing field "the satellite industry is confident that marketplace forces will work to ensure that consumers can take advantage of the quality, price-competitive and innovative services that it provides." What follows are three pages of bloviating intended to convey that satellite is "a true market competition" that is just as good as terrestrial systems in terms of delivering broadband service, but some of the facts cited by SBCA seem to undercut its own claims. For example, SBCA characterizes as "simply market differentiators" satellite's comparatively poor latency, lower capacity limits, and slower speed. With respect to the latter, SBCA states that "satellite broadband today is available at speeds upwards of 15 Mbps; the same or better speed available on terrestrial DSL." (emphasis added). It goes on to state that broadband "satellite service in rural areas provides reasonably comparable, if not better, performance and speeds to most DSL broadband and 3G cellular services." Strengths cited by SBCA in support of satellite broadband, assuming they exist in practice, seem weakened by these limitations. FCC Issues Call For Papers on System for Sharing Spectrum in the 3.5 GHz Band In a Public Notice issued November 18, the FCC asked for the submission of papers addressing the technical aspects of the Spectrum Access System (SAS) for the 3550-3650 MHz band (3.5 GHz Band). Comments on the PN are due to be filed by December 5, 2013 and reply comments are due by December 20, 2013. The deadline for the submission of papers to be considered in the workshop is January 3, 2014. The papers will be discussed at a workshop to be hosted by the FCC on Tuesday, January 14, 2014. The workshop will explore the technical requirements, architecture and operational parameters of the proposed SAS. The papers and the workshop are the next steps in a process begun in December 2012 when the FCC adopted a Notice of Proposed Rulemaking (NPRM) that was to make available at least 100 megahertz of spectrum in the 3.5 GHz Band for shared commercial uses, including small cell networks (due to relatively short-range propagation in this portion of the frequency spectrum). The NPRM proposes a three-tier, license-by-rule authorization framework that would facilitate rapid broadband deployment while protecting incumbent users of the band, primarily the federal government. Under this proposal, access to the 3.5 GHz Band would be governed by a dynamic SAS, similar to the TV White Spaces database concept, in which access to the band would be based on the priority of the user and would be determined automatically in real time. Then, earlier this month, an FCC Public Notice (PN) asked for comment on licensing models and technical requirements in the 3.5 GHz Band. The PN reiterated that the proposed SAS would manage three service tiers: (1) Incumbent Access; (2) Priority Access; and (3) General Authorized Access. Incumbent Access users would include authorized federal and grandfathered Fixed Satellite Service users. These users would have protection from harmful interference from all other users of the band. The Priority Access tier would include users with critical quality-of-service needs (such as hospitals, utilities, and public safety entities) who would be authorized to operate with some interference protection. General Authorized Access tier users would use the band opportunistically within designated geographic areas but would be required to accept interference from the higher-tier users. To that end, the FCC now believes it is in the public interest to seek further input from interested stakeholders on system level capabilities, technical parameters, and other requirements for the proposed SAS. The November PN provides more specific guidance about the objectives and scope of the upcoming workshop and invites all interested parties to develop detailed technical papers addressing the specific issues discussed in the PN. FCC Seeks Input on Improving FCC Efficiency The Special Counsel to FCC Chairman Tom Wheeler announced in an FCC blog posting on November 18, 2013, that the Commission is seeking public input on improving the efficiency of FCC processes. Responses are due by December 2, 2013. The staff has been instructed to develop a plan within the next 60 days that includes recommendations on how best to tackle the challenge of reforming FCC processes. The FCC specifically asks for input on ways it can: streamline, update and eliminate inefficient, outdated or duplicative processes; improve the effectiveness of communications between the public and the FCC; make information collections and reports more focused, transparent and relevant; expand the overall transparency of the workings of the agency; and any other ideas to improve the focus, speed and efficiency of the FCC's work-flows. The responses will be compiled into a report and recommendations to Chairman Wheeler. All feedback received will be made public. The posting notes that this is only the beginning of this round of process reform efforts at the Commission, "which builds on the many steps taken in past years." The Commission hopes "to have an ongoing dialogue both internally and externally about what the agency can do to be more responsive, efficient, and effective." Law & Regulation
FCC Announces Effective Date, Comment Due Dates on Inmate Calling Services The FCC's Report and Order and Further Notice of Proposed Rulemaking on inmate calling services (ICS) appeared in the Federal Register on November 13, 2013. The appearance of the Report and Order portion establishes a February 11, 2014 effective date for the final rule. However, rule section 64.6060 and Section III.I of the Report and Order are not included, as they still require approval by the Office of Management and Budget. The new rules: - require all interstate inmate calling rates, including ancillary charges, be based on the cost of providing the inmate calling service;
- adopt an interim rate cap of $0.21 per minute for debit and pre-paid calls and $0.25 per minute for collect calls;
- adopt a safe-harbor for rates of $0.12 per minute for debit and prepaid calls and $0.14 cents per minute for collect calls;
- prohibit "site commissions" payments from providers to correctional facilities from inclusion in interstate rates or charges;
- clarify that inmates or their loved ones who use Telecommunications Relay Services because of hearing and speech disabilities may not be charged higher rates; and
- require a mandatory data collection, annual certification requirement, and enforcement provisions to ensure compliance.
The appearance of the Further Notice of Proposed Rulemaking portion sets a comment deadline of December 13, and a reply comment deadline of December 30. In the FNPRM, the FCC is seeking comment on reforming rates and practices affecting intrastate calls, and on fostering competition to further reduce rates. Walden Defends AT&T and Verizon Participation in Spectrum Auctions Political news outlet The Hill reports that in a briefing with reporters on Thursday, November 15, Rep. Greg Walden (R-Ore.) warned that Congress could step in if lawmakers don't like the FCC's decisions regarding the upcoming auction of airwave licenses, in light of requests for the FCC to limit the ability of Verizon and AT&T to participate in the auction. According to the article, Walden, who is chairman of the House Communications and Technology subcommittee, stated "I don't think it's fair to take perhaps some of the biggest bidders out of the process in the beginning," Walden said. "Remember, part of the requirement here is to generate maximum revenues for the taxpayers." The article also indicates that Walden warned the FCC not to set aside too much "prime spectrum" for unlicensed use, stating the FCC should "not to try to calve off valuable taxpayer owned spectrum that should be in auction and make it free and unlicensed." A day earlier, Walden had announced that the subcommittee is scheduling an oversight hearing sometime in December. Potential topics for the hearing include agency transparency and the proposal to eliminate the UHF discount, the latter of which Rep. Walden considers mishandled by the FCC. Industry
LightSquared Sues Charles Ergen and DISH Network The complex saga of the LightSquared bankruptcy proceeding continues, as LightSquared has now filed a lawsuit against DISH Network, EchoStar Corporation and Charles Ergen accusing Ergen and other affiliated entities of secretly purchasing debt in the bankrupt satellite company in order to gain leverage for a takeover. The suit, which was filed last Friday in U.S. Bankruptcy Court in Manhattan, alleges that the founder and Chairman of DISH bought $1 billion in LightSquared debt in violation of a credit agreement that prohibited LightSquared's direct competitors, including DISH and EchoStar, from owning the debt. Ergen instead acquired the debt through a separate LLC without revealing he was behind the purchase. Ergen, who is LightSquared's largest creditor, made a $2.2 Billion bid to purchase LightSquared as a way to gain control over the company's L-band spectrum (1525-1559 MHz) at a deep discount. A bankruptcy auction has been tentatively scheduled for November 25th, with Ergen's offer serving as the opening bid. Competing bids are due by today (November 20). A DISH spokesman has called LightSquared's complaint "a desperate measure to avoid selling its assets to the highest bidder," reports Bloomberg News Service. This fall, DISH played a central role in a complex deal to harmonize the height/power rules for unpaired channels in the Lower 700 MHz band and paved the way for AT&T to support interoperability in the Lower 700 MHz band. As part of that deal, DISH secured rulings that would allow it to use Mobile Satellite Service spectrum it acquired from DBSD and TerreStar in 2012, in conjunction with the H-Block and portions of the proposed AWS-3 spectrum, for terrestrial LTE downlink operations. DISH recently promised the FCC it would bid a minimum of $1.56 billion in the upcoming H-Block auction. Sprint Corp. and T-Mobile US both announced last week that they would not participate in bidding for the H-Block. While it is unclear whether DISH's ultimate plan involves leasing its spectrum to mobile carriers, partnering with an incumbent or becoming a service provider in its own right, Charlie Ergen's ambitions of offering terrestrial wireless service along with satellite TV have the potential to shake up the mobile industry. Deadlines
FEBRUARY 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 February 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 are required to include their FCC Registration Number (FRN). 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
Dec. 2 — Reply comments on revising and updating the record on cramming are due.
Dec. 2 — Responses to FCC inquiry on efficiency are due.
Dec. 5 — Comments on Revised 3.5 GHz Licensing Model are due.
Dec. 8 — Electronic filing deadline for Form 497 for carriers seeking support for the preceding month and wishing to receive reimbursement by month's end.
Dec. 9 — Petitions for Reconsideration of Special Access Data Collection.
Dec. 13 — Comments on Lifeline Biennial Audit Plan are due.
Dec. 13 — Comments are due on intrastate inmate calling rates and practices.
Dec. 18 — Upfront payment deadline for Auction 96.
Dec. 20 — Form 323 (Biennial Ownership Report) is due.
Dec. 20 — Reply comments on Revised 3.5 GHz Licensing Model are due.
Dec. 23 — PRA Comments on Electronic Tariff Filing Requirements are due.
Dec. 30 — Reply comments on Lifeline Biennial Audit Plan are due.
Dec. 30 — Reply comments are due on intrastate inmate calling rates and practices.
Jan. 3 — Papers on System for Sharing 3.5 GHz Band are due.
Jan. 8 — Electronic filing deadline for Form 497 for carriers seeking support for the preceding month and wishing to receive reimbursement by month's end.
Jan. 15 — Annual Hearing Aid Compatibility Report is due.
Jan. 17 — Mock auction for Auction 96.
Jan. 22 — Auction 96 begins.
Feb. 1 — FCC Form 499-Q is due.
Feb. 1 — FCC Form 502 (Number Utilization and Forecast Report) is due.
Feb. 14 — Inmate calling rules become effective.
Mar. 1 — Copyright Statement of Account Form for cable companies is due.
Mar. 1 — Annual CPNI Certification is due.
Mar. 1 — FCC Form 477 (Local Competition & Broadband Reporting) is due. |
David George and Bill Noyes
