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. 43 | November 26, 2013 |
Holiday Edition
BloostonLaw wishes our clients a Happy Thanksgiving Holiday. Our offices will be closed Thursday, November 28, and Friday, November 29. FCC To Consider Repealing Prohibition on the Use of Cell Phones Aboard Aircraft At its December 12, 2013 open meeting, the FCC is scheduled to consider a Notice of Proposed Rulemaking proposing the elimination of the current rule which prohibits the use of cell phones on in-flight aircraft. The proposed repeal is based on improvements in technology. Repeal of the regulation would allow use of the phones at altitudes above 10,000 feet via onboard airborne access systems, if the airlines agree and following receipt of all required Federal Aviation Administration approvals. The current rule was enacted over 20 years ago to prevent electrical interference to terrestrial-based cellular systems. At that time, use of the devices on in-flight aircraft was not technically feasible because the unit would have had to make a connection with a land-based cell site and doing so could cause interference over a wide area. Since then, improvements in technology have mitigated or eliminated these concerns because the devices can connect to an on-board WiFi hot spot or pico cell. The FCC proposed elimination of the rule in 2004, but it decided to retain it in 2007 following widespread opposition from the flight attendants' union and others concerned about the annoyance associated with passengers placing voice calls on airplanes. Most likely, if the FCC eliminates the current prohibition, the airlines will permit the use of text messaging, e-mail and Internet access from the devices while in-flight, but use of voice service is controversial. The prospect of endless voice chatter in the close confines of an aircraft cabin is already stirring up opposition to the proposal. To ease concerns, the FCC has issued a notice entitled " FAQ: Increasing Consumer Access to In-Flight Mobile Wireless Services " to explain what the agency is proposing and what will happen if the current rule is repealed. White House Reiterates Support for Wireless Spectrum Caps A top telecommunications policy official in the White House last week urged the FCC to consider limiting the ability of Verizon Wireless and AT&T to bid in the upcoming broadcast incentive auction. The FCC is currently reviewing comments that were filed at the end of last year on its policies and rules concerning wireless spectrum holdings. At issue is whether the Commission should retain or modify its current case-by-case analysis used to evaluate mobile spectrum holdings in the context of transactions and auctions, or whether it should adopt bright-line limits, as advocated by some providers and public interest groups. Speaking at an event on Capitol Hill, Deputy Chief Technology Officer Tom Power argued that spectrum caps may be needed to preserve competition in the mobile wireless industry. This is not the first time that the Obama Administration has weighed in on the issue of how lower frequency spectrum should be allocated. Last April, the Justice Department's Antitrust Division made a 24-page ex parte submission in the FCC's mobile spectrum proceeding (WT Docket No. 12-269) arguing for rules that ensure smaller nationwide networks have an opportunity to acquire low frequency spectrum. While not citing to any particular company or comments, the Administration's support for "smaller nationwide networks" was viewed as backing positions on sub-1 GHz spectrum aggregation advocated by Sprint and T-Mobile. "A carrier's position in low-frequency spectrum may determine its ability to compete in offering a broad service area, including its ability to provide coverage efficiently in rural areas," said the Justice Department filing. If adopted, a cap on lower band spectrum holdings could significantly boost the prospects for small and rural carriers that seek to bid for 600 MHz spectrum in the broadcast incentive auction. At the same time, spectrum caps could limit the ability for smaller carriers to obtain the highest price if their business plans change and they ultimately choose to sell their licenses. NASUCA Files Motion to Extend Reply Comment Filing Deadline for Cramming On November 21, 2013, the National Association of State Utility Consumer Advocates (NASUCA) filed a motion requesting that the deadline for submission of reply comments for the FCC's call for comments to refresh the record on cramming be extended by a period of thirty days – i.e., until January 2, 2014. According to the motion, the FCC's Public Notice only allows 14 days to review the approximately 250 pages worth of comments that were submitted by approximately 29 commenters. Further, NASUCA noted that the 14-day period includes the Thanksgiving holiday and portions of its own annual meeting. As a result, NASUCA suggests additional time is needed to review and study the initial comments and to potentially formulate thoughtful replies. FCC Announces Tentative Agenda for December Open Meeting Chairman Tom Wheeler has announced that the following items will be on the tentative agenda for the next open meeting scheduled for Thursday, December 12, 2013: - a Notice of Proposed Rulemaking to revise outdated rules and provide airlines with the ability to permit passengers to use mobile wireless services via onboard airborne access systems,
- a Report and Order that takes critical steps to improve the reliability and resiliency of 911 networks nationwide,
- a status update on the Technology Transitions Policy Task Force's work towards making near-term recommendations related to the Commission's expectations and role in the IP transition; and
- an update on FCC and industry efforts to promote mobile wireless device unlocking
The Open Meeting is scheduled to commence at 10:30 a.m. in Room TW-C305 of the FCC's D.C. office, and will be broadcast live at www.fcc.gov/golive . Time Warner Cable — Ripe for Takeover? Multiple sources reported late last week that Time Warner Cable may be lined up for a takeover by its competitors, either wholly by Comcast Corp. or through a joint effort with Charter Communications, Inc. According to The Wall Street Journal, Time Warner Cable had approached Comcast about a combination in recent months in hopes of heading off an offer by Charter Communications Inc. and its major shareholder, Liberty Media Corp. However, the article continues, Comcast may be considering a deal with Charter in addition to its own bid for the company. The WSJ notes that, "people in the cable industry question whether Comcast could get regulatory approval to buy Time Warner Cable. . . But lawyers and analysts in Washington say such a deal could get approved, with conditions." An article in Bloomberg suggests that a deal in which Comcast and Charter split up Time Warner would help lower regulatory hurdles for Comcast than if it attempted to buy the company outright. As Bloomberg notes, there are no statutory limits on the percentage of customers a cable company could own — the FCC restriction preventing any one U.S. cable provider from owning more than 30 percent of the total nationwide subscriber base was eliminated in 2009. 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. | BloostonLaw Private Users Update | Vol. 14, No. 11 | November 2013 |
FCC Imposition of Special Access Reporting Requirement on Part 101 Microwave and Part 25 Satellite Licensees May Impose Undue Burden on Unsuspecting Licensees Challenges Due December 9th On November 8, the Federal Register included a recently-adopted FCC order imposing a new requirement to require various telecommunications service providers and users to report expenses associated with the purchase of services in the special access market place. In addition to wireline carriers, this requirement will also apply to most wireless licensees that provide commercial communications services to others (e.g., Part 22 paging, cellular, PCS, WCS, AWS, 700 MHz, 39 GHz, LMDS, etc.). However, the requirement will also apply to Part 25 satellite/earth station licensees and registrants and Part 101 microwave licensees, even though their use of Special Access Services may be unrelated to their radio operations. Unfortunately, because of poor drafting, the FCC has inadvertently applied this new reporting requirement to licensees in the Part 101 Microwave Industrial/Business Pool Service, even though the FCC specifically exempt-ed licensees in the other private radio services, since those entities use radios as an adjunct to their primary business activities and are not providing telecommunications services to others (much like the Part 101 private microwave licensees). Likewise, the FCC did not differentiate between licensees and registrants that utilize their facilities for private internal uses and those that provide communications services to others. This is critical, since the trigger for this reporting requirement is the purchase of Special Access Services and otherwise being subject to regulation by the FCC. In reviewing the FCC's Order, it appears that the FCC most likely did not exclude the Part 25 satellite and Part 101 microwave services since there is a mix of commercial telecommunications and non-telecommunications services licensed under those rule parts. As a result, the unintended consequence is that the FCC inadvertently swept up many of the very entities it intended to exclude — namely those entities that use radio as an adjunct to their core business activities. Accordingly, we recommend that our affected internal use clients seek reconsideration of the FCC's decision. If the FCC's Order is not modified, those purchasers of Special Access Services from "Price Cap Carriers" (such as Verizon, AT&T and Centurylink) who also hold licenses in the Part 25 Satellite Services or the Part 101 private microwave services, will be required to report their expenditures for Dedicated Services under tariffed as well as non-tariffed plans. We expect that the time to complete this report could be substantial, especially since the report itself is upwards of 30 pages with nearly 80 pages of instructions. As part of the reporting requirement, affected clients will also be required to provide details regarding the terms and conditions associated with their service plans, so that the FCC can evaluate allegations of harmful, anti-competitive conduct and cross-check information that has been provided by service providers. If your company may be affected by this rule change and you wish to participate in a challenge, please let us know by e-mail ( rdr@bloostonlaw.com ) ASAP. Any challenge must be filed no later than Monday, December 9, 2013. FCC Chairman Wheeler Names Admiral David Simpson as Chief of Public Safety and Homeland Security Bureau Chairman Tom Wheeler announced his intention to name Rear Admiral David Simpson as Chief of the FCC's Public Safety and Homeland Security Bureau. In making this appointment, Chairman Wheeler noted that the FCC has the responsibility to ensure that public safety agencies have access to communications that will meet their mission of safeguarding the American public. In particular, Chairman Wheeler stated that "[a]t a time when our net-works are continuously being attacked, it is also important to have someone with Admiral Simpson's cybersecurity skills. Admiral Simpson's extensive experience managing and securing complex and disparate information environments worldwide makes him exceptionally well suited to lead PSHSB." Admiral Simpson has more than 20 years of Information and Communications Technology experience in the federal sectors — including the Department of Defense and working with other federal agencies in order to ensure secure communications. FCC Proposes $234,000 Fine for Tower Violations The FCC has recently issued a Notice of Apparent Liability against Johnson Towers Corporation — proposing a fine of $234,000 for violations involving three antenna structures in Pinellas Park, Florida. In particular, Johnson Tower apparently failed to install lights on two antenna structures and update registration information in the FCC's Antenna Structure Registration (ASR) database to reflect the dismantling of an antenna tower. The issues involving the towers originally came to the FCC's attention when the Federal Aviation Administration (FAA) notified the FCC that a Notice to Airman (NOTAM) had expired. Upon investigation, the FCC discovered that only one tower had originally required lighting since it was part of a three-tower array. However, because the tower that required lighting had been dismantled in 2006, the FCC's field inspector directed Johnson Tower to light the remaining two towers and update the information regarding the three towers in the ASR database. Over the course of the next two and one-half years, the FCC followed up with Johnson Tower — who made various excuses as to why the lighting had not been completed even though the FCC determined that such lighting was required. Additionally, the FCC reminded Johnson Tower to make the necessary filings in the ASR database — which as of October 25, 2013 still had not been made. As we have previously indicated, the FCC treats tower lighting violations very seriously due to the life-safety risks to aviation. Here, Johnson Tower has had two 104 meter towers that have been unlit since 2006 despite direction from the FCC and the FAA to do so. As a result, the FCC has found Johnson Tower's conduct to be egregious and has proposed the maximum fine allowed per violation for failure to light the two remaining antenna towers — $112,500 each for a total of $225,000. The remaining $9,000 stems from Johnson Towers' failure to make required filings in the FCC's ASR database. FCC Confirms that Federal to Federal Communications are Permitted under Rule Section 90.179(g) In response to an inquiry by the State of Kansas Department of Transportation (KDOT), the FCC has concluded that internal Federal to Federal communications are permitted over a radio system using FCC-regulated frequencies, under FCC Rule Section 90.179(g). KDOT's inquiry arose from an arrangement that the State of Kansas was proposing to enter into with the Department of Justice (DOJ) in order to allow DOJ to use the Kansas Statewide Interoperable Communications System (KSICS) for interoperable federal-to-state/local communications as well as "internal federal to federal communications." In reaching its ruling, the FCC noted that in 1998, the FCC concluded that "eliminating the restrictions against public safety licensees sharing radio systems with Federal entities 'serves the public interest by fostering the realization of interoperability amongst state and local public safety entities and Federal government agencies.'" The FCC noted that such arrangements may also benefit state and local governmental entities by permitting them to recover a portion of the system costs from their Federal partners since sharing may be on a non-profit, cost-shared basis. State of Maine Obtains Waiver to Use One-Way Paging Channel for Two-Way Communications; Virginia Urges Reallocation of One-Way Paging Channels In connection with its state-wide public safety radio system, the State of Maine has been granted a waiver of the FCC's Rule to permit it to license the frequency 157.450 MHz (which is designated as a one-way paging channel) for two-way communications at its Huntoon Hill site by pairing this channel with the frequency 161.340 MHz. In justifying its request, the State of Maine explained that no other VHF spectrum is available and that there is demand for public safety one-way paging in the State of Maine. Additionally, Maine noted that its proximity to Canada and its difficult terrain limit its spectrum options such that there is no other public safety spectrum available for use at the Huntoon Hill site. The Commonwealth of Virginia Department of State Police, the Wisconsin Department of Transportation and Enterprise Wireless Alliance all supported Maine's re-quest. In reviewing the request, the FCC found that Maine had met its burden for justifying the waiver and will allow it to use the frequency 157.450 MHz for two-way communications. Virginia's Proposal — In supporting Maine's waiver request, Virginia has urged the FCC to liberally permit the use of all Part 90 paging frequencies for land mobile radio operations by statewide public safety entities, and suggested that the FCC amend its rules accordingly — with a priority for statewide public safety entities, and with related modifications to the bandwidth and power limitations. Virginia's proposal is significant, since it would impact not only the Public Safety Pool paging channels, but also those one-way paging channels in the Industrial/Business Pool. While public safety one-way paging channels are not heavily used, there is still significant use on the one-way paging channels in the Industrial/Business Pool. The FCC may or may not decide to adopt a Notice of Proposed Rulemaking to amend its rules and reallocate this spectrum from one-way paging to two-way communications, based on the Virginia filing. November is a Busy Month for Enforcement During the month of November, the FCC's Enforcement Bureau issued several fines for violations involving equipment authorizations as well as technical violations of the FCC's licensing rules — including improper operation. Fines were issued to individuals, industrial/business users as well as public safety users. Unlicensed Operation Alan D. Slater — The FCC has proposed to fine Mr. Slater $10,000 for operating on the frequency 854.4125 MHz at Hillsboro, Oregon. Mr. Slater's operation on this frequency caused harmful interference to the public safety communications system operated by the Washington County Consolidated Communications Agency. In response to the FCC's inquiry, Mr. Slater was unable to explain why the frequency 854.4125 MHz had been programmed into the transmitter or why he was transmitting from an unauthorized transmitter site. Romayne Davis — Mr. Davis was fined $10,000 for operation of an unlicensed transmitter on the frequency 89.5 MHz.
Estevan Gutierrez — Mr. Gutierrez was fined $25,000 for operation on the frequency 159.150 MHz without a license and for maliciously causing harmful interference to the Las Vegas, New Mexico Police Department. Monroe Medi-Trans, Inc. d/b/a Monroe Ambulance — The FCC adopted a consent decree in the amount of $9,000 for unlicensed operation due to Mon-roe Ambulance's failure to renew its license in a timely manner. In connection with its reauthorization efforts, the FCC's Enforcement Division issued a letter of inquiry (LOI) which directed Monroe Ambulance to submit a sworn statement in response to a series of questions related to its failure to file a license renewal application and its continued operation of station WNXA527 after the license had expired. Glen Rabash — The FCC reduced Mr. Rabash's proposed $15,000 fine to $4,000 for unlicensed operation on the frequency 88.3 MHz. The reduction was based upon Mr. Rabash's inability to pay. Additionally, the FCC noted that Mr. Rabash was apparently operating a low power transmitter that was certified under Part 15 with an antenna system that was not authorized by the FCC. Clients should be careful not to use home built antenna systems with Part 15 equipment unless the FCC has certified the equipment for use with the particular transmitter. Operation of Equipment Inconsistent with Equipment Authorization VPNet, Inc. — The FCC adopted a consent decree in the amount of $9,000 for operating a Motorola Canopy on the frequency 5637 MHz in a manner that was inconsistent with the equipment certification by installing an external antenna connector with reflectors or lenses with antenna gains of more than 18 dBi. Ayustar Corporation — The FCC adopted a consent decree in the amount of $6,000 for operating a Motorola Canopy on the frequency 5626 MHz even though the device was not certified for use on that frequency. In responding to the FCC's inquiries, Ayustar Corporation also provided documentation regarding its ability to pay — which resulted in a reduced voluntary contribution to the US Treasury. Improper Operation — Operation on an Incorrect Frequency Lakewood Transportation, LLC — FCC has pro-posed a fine of $6,000 for alleged operation on the frequency 159.675 MHz rather than its licensed frequency — 160.0575 MHz. Lakewood was a repeat offender, having been previously cited by the FCC in 2011. Further exacerbating the matter was the fact that Lakewood had obtained a new license on the frequency 160.0575 MHz, but failed to reprogram its radio system to the new frequency for almost 2 years. As a result, the FCC applied an upward adjustment of $2,000 to the proposed fine. Manufacture and Marketing of Unauthorized RF Equipment Custom Interface Technologies — The FCC has fined Custom Interface Technologies (CIT) $14,000 for the manufacture and marketing of radio frequency devices without first obtaining FCC authorization. In particular, CIT had been manufacturing and marketing uncertified video assist transmitters. While CIT claimed that the video assist devices transmitters were manufactured for export, the FCC noted that they were being marketed and sold on CIT's website as well as by dealers in Southern California. | 
David George and Bill Noyes
