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. 40 | November 6, 2013 |
Headlines
FCC Proposes $33 Million in Penalties against Three Lifeline Providers The FCC issued Notices of Apparent Liability (NALs) against three Lifeline providers this week, with proposed fines of $32.6 million in total for apparently violating the FCC's rules prohibiting duplicate support. Conexions Wireless was penalized in the amount of $18.4 million for apparent violations in Arkansas, Maryland, and West Virginia; i-wireless was penalized $8.8 million for apparent violations in Ohio, Illinois, North Carolina, Tennessee, West Virginia, New York, Indiana, and South Carolina; and True Wireless was penalized $5.5 million for apparent violations in Arkansas, Maryland, Oklahoma, and Texas. According to a News Release discussing the NALs, the FCC's Enforcement Bureau found that the companies "apparently violated the rules limiting Lifeline subscriptions to one subscriber per household, and received payments for thousands of consumers that already were obtaining Lifeline service from the same company." In each case, the FCC continued, the carrier knew or should have known, based on internal data, that the consumers were ineligible because they were already receiving service from that carrier. In addition to the proposed penalties, the companies also must refund the universal service funds paid to the carriers for duplicative Lifeline service. The FCC also proposed a penalty of $300,000 against Conexions for its apparent willful and repeated failure to provide timely and complete responses to requests for information, noting that Conexions' conduct delayed and impeded the Enforcement Bureau's investigation. FCC Seeks Comment on Use of Big LEO S Band to Expand Terrestrial Wi-Fi Service As the battle between Harbinger Capital and DISH Network for control over bankrupt LightSquared continues, the FCC on Friday adopted a Notice of Proposed Rulemaking seeking comment on another satellite company's proposal to expand its use of satellite spectrum for terrestrial broadband operations. Comments on the item will be due 75 days after Federal Register publication, which has not yet occurred. Reply comments will be due 30 days after the initial comments. Under proposed new rules ( FCC 13-147 ), Louisiana-based Globalstar, Inc. would be able to provide low-power Ancillary Terrestrial Component (ATC) service using its licensed spectrum at 2483.5-2495 MHz under certain limited technical criteria, and with the same equipment would be able to utilize spectrum in the adjacent 2473-2483.5 MHz band pursuant to Part 15 technical rules for unlicensed operations in that band. Globalstar's proposed Terrestrial Low Power Service (or "TPLS") would enable what its supporters have deemed "a privately managed extension to the 2.4 GHz 802.11 band." The company envisions TLPS access points and end-user devices operating within the 22 megahertz band designated as Channel 14 (i.e., 2473-2495 MHz) in the IEEE 802.11 "Wi-Fi" standard. Unlicensed 802.11 devices are currently prohibited from using Channel 14 in the United States because Globalstar's licensed S-band spectrum is a "restricted band" for unlicensed purposes. In addition to its proposal for low-power ATC service, Globalstar's November 2012 Petition for Rulemaking sought the ability to deploy a higher power LTE-based terrestrial service in portions of both the S band (2483.5-2495 MHz) and L band (1610-1617.775 MHz) over the longer term. The Commission said it plans to address the L band portion of Globalstar's proposal in a separate proceeding. While grant of the Globalstar request could potentially increase the amount of spectrum available for broadband access in the United States, significant concerns have been raised about potential detrimental impacts on unlicensed devices. The Bluetooth Special Interest Group, Consumer Electronics Association, Wi-Fi Alliance, and Wireless Internet Service Providers Association have each raised concerns regarding Globalstar's petition with respect to low-power operations in the 2473-2495 MHz band. Among other things, critics believe Globalstar's proposal may require a change in filtering for Wi-Fi devices, increasing costs of devices and resulting in a potential loss in service due to loss of guard band between Globalstar's licensed spectrum and the adjacent unlicensed band. Critics also take aim at the loss of potential "commons" spectrum that would otherwise be available for future innovation to a single firm, and the inconsistency of the proposal with globally-harmonized rules. For its part, Globalstar argues that its low-power broadband network will enhance the commercial viability of its global MSS network by entering into joint ventures with other companies and using the revenues from future terrestrial services and spectrum leases to cover the capital and operational costs of providing MSS. Testing of a low-power wireless system operating with technical parameters consistent with Globalstar's proposal was reported this past August as involving web giant Amazon and a way to connect its Kindle devices to the Internet. Globalstar appears to be pulling out all the stops in seeking to gain public interest support for its proposal. The company's Petition for Rulemaking offers to deploy 20,000 free access points to public and non-profit schools, community colleges and hospitals in the United States, and to provide MSS free of charge to customers in federally declared disaster areas following natural or man-made disasters for the duration of the disaster. A recent ex parte filing by Globalstar notes for the record the company's support for the Obama administration's ConnectED initiative, and that its proposal "can play an important part in meeting the ambitious objectives of ConnectED." Clients should contact us if they are interested in filing comments or learning more about this proposal. NTIA/NIST Co-Host Innovative Spectrum Sharing Technology Day On Tuesday of this week, the U.S. Commerce Department's National Telecommunications and Information Administration (NTIA) and the National Institute of Standards and Technology (NIST) co-hosted a conference in Washington, D.C., to celebrate Innovative Spectrum Sharing Technology Day. The event was the outgrowth of last June's Presidential Memorandum to the heads of executive departments and agencies on expanding America's leadership in wireless innovation. One of the major policies outlined in the memo was that, where technically and economically feasible, spectrum sharing "can and should be used to enhance efficiency among all users and expedite commercial access to additional spectrum bands, subject to adequate interference protection for Federal users, especially users with national security, law enforcement, and safety-of-life responsibilities." The conference agenda included opening remarks by officials from NTIA, NIST and the Executive Office of the President, followed by a panel discussion by representatives from other government agencies including the FCC, the Defense Advanced Research Projects Agency (DARPA), the National Science Foundation (NSF), the Office of Science and Technology Policy (OSTP) and the Office of Management and Budget (OMB). Following the panel discussion, attendees were able to view equipment demonstrations by a number of invited companies that are engaged in the development of spectrum sharing technologies, including BloostonLaw client, xG Technology, Inc., believed to be the only company that has developed a spectrum sharing cognitive radio technology with FCC-approved equipment that has been proven to work effectively under actual field operating conditions. Other invitees included Google, Microsoft, Qualcomm, InterDigital Communications and several research labs from academia. A major thrust of the panel discussion was the need to establish a dialogue between government and private industry. One of the NTIA panelists, Karl Nebbia, Associate Administrator in the Office of Spectrum Management, said that if spectrum sharing is to become a reality, government users need to quantify their use of the spectrum in terms of bandwidth, frequencies and time of use. The DARPA representative, John Chapin, said that his agency is engaged in radio mapping that is designed to do just that. Julius Knapp, Chief of the FCC's Office of Engineering and Technology said that big questions that need to be resolved are how shared systems are going to work under stress and how disputes are going to be resolved. Overall, it seemed very clear from the discussion that the government is turning more and more toward spectrum sharing and that a major push will be made in that direction in the near future, including spectrum sharing workshops to be announced soon. Law & Regulation
IEEE Asks FCC to Declare Technologies Above 95 GHz in the Public interest Although the frequency spectrum above 95 GHz has been expanded for use in wireless applications, the FCC has not kept pace. So says a petition filed with the Commission by a section of the Institute of Electrical and Electronics Engineers (IEEE). Citing Section 7 of the Communications Act, IEEE claims that the FCC is obligated to issue a declaratory ruling within 12 months of its filing that services above 95 GHz be classified presumptively as a new technology or service, thereby requiring the FCC to establish new rules for their operation. According to IEEE, grant of the petition would allow for the development of new technologies above 95 GHz, which is now frustrated because the FCC has no regulations governing operations in this portion of the frequency spectrum. Under Section 7, which is premised on the policy of the U.S. to encourage the provision of new technologies and services to the public, the FCC is obligated to determine whether any new technology or service proposed in a filing is in the public interest within one year of the filing. Any party opposing the new technology has the burden to demonstrate that the proposal is inconsistent with the public interest. Although this provision of communications law has been in existence for 30 years, it appears that it has been honored more in its breach by the FCC than in its compliance. Since there are no equipment authorization standards or rules for operations above 95 GHz, developers of new technologies are limited to experimental licenses that are generally of short duration with no benefits of regular licensing. Citing several ongoing technological developments above 95 GHz, IEEE claims that grant of its petition would eliminate or reduce the present barriers to market entry and would stimulate the innovation and capital investment for research and development in this relatively unused portion of the spectrum. Comments on the IEEE petition are due to be filed with the FCC by December 2, 2013 and reply comments are due by December 17, 2013. Comment Sought on Revised 3.5 GHz Band Licensing Model On November 1, 2013, the FCC released a Public Notice seeking further comment on the proposed "Citizens Broadband Service" in the 3.5 GHz band. Comments are due December 5, 2013, and reply comments are due December 20, 2013. The Citizens Broadband Service was originally proposed in a Notice of Proposed Rulemaking released in December of 2012. There, the FCC proposed to make 100 megahertz of spectrum in the 3.5 GHz Band available for shared commercial use under new flexible use rules designed to encourage use of small cells and advanced spectrum sharing technologies. Under the proposal, the spectrum would be managed by a spectrum access system (SAS) incorporating a dynamic database and, potentially, other interference mitigation techniques. The SAS would ensure that Citizens Broadband Service users operate only in areas where they would not cause harmful interference to incumbent users and could also help manage interference protection among different tiers of Citizens Broadband Service users. The three tiers of service would be: (1) Incumbent Access; (2) Priority Access; and (3) General Authorized Access (GAA). Users in the Priority Access and GAA tiers would be licensed by rule as Citizens Broadband Service users under Part 95 of the FCC's rules. A license-by-rule approach would provide individuals, organizations, and service providers with "automatic" authorization to deploy small cell systems, in much the same way that the Part 15 unlicensed rules have allowed widespread deployment of Wi-Fi access points. Another proposal asked whether the FCC should include new, flexible use rules for the neighboring 3650-3700 MHz band (the 3.65 GHz Band), which is used extensively by wireless Internet service providers (WISPs) and others for commercial broadband services. The November 1 Public Notice seeks comment on specific variations of the original proposal, dubbed the "Revised Framework." The Revised Framework contains the following core concepts: - An SAS to dynamically manage frequency assignments and automatically enforce access to the Priority Access and GAA tiers;
- Open eligibility for Priority Access tier use;
- Granular but administratively-streamlined licensing of the Priority Access tier;
- Mutually exclusive spectrum rights for Priority Access subject to licensing by auction;
- A defined "floor" of GAA spectrum availability, to ensure that GAA access is available nationwide (subject to Incumbent Access tier use);
- Additional GAA access to unused Priority Access bandwidth, as identified and managed by the SAS, to maximize dynamic use of the unutilized portion of the band and ensure productive use of the spectrum;
- Opportunities for critical infrastructure facilities to obtain targeted priority spectrum use within specific facilities (such as a building) that meet certain requirements to mitigate the potential for interference to and from other band users; and
- A set of baseline technical standards to prevent harmful interference and ensure productive use of the spectrum.
Although the FCC has specifically requested comment on the Revised Framework, commenters are also invited to discuss any technically viable alternatives that meet the FCC's stated objectives. Industry
FAA Approves Use of Electronic Devices on Flights On October 31, 2013, the Federal Aviation Administration announced that passengers may safely use portable electronic devices during all phases of flight ( i.e., including takeoff and landing). Although differences between airlines will create some variance in the implementation of the FAA's determination, the agency indicated that it expected many companies to allow expanded use of electronic devices by the end of the year. According to the announcement, "[e]lectronic items, books and magazines, must be held or put in the seat back pocket during the actual takeoff and landing roll. Cell phones should be in airplane mode or with cellular service disabled — i.e., no signal bars displayed—and cannot be used for voice communications based on FCC regulations that prohibit any airborne calls using cell phones." The agency further stated that it did not consider changing the regulations regarding the use of cell phones for voice communications during flight because the issue is under the jurisdiction of the FCC. However, the Aviation Rulemaking Committee did recommend that the FAA consult with the FCC to review the current rules. C-Spire Announces Gigabit FTTH Plans Telecompetitor is reporting that C-Spire, a wireless service provider in the southeastern region of the United States, has announced that it will build gigabit fiber-to-the-home (FTTH) service to nine communities in Mississippi if it receives enough pre-registrations. The nine communities are: Batesville, Clinton, Corinth, Hattiesburg, Horn Lake, McComb, Quitman, Ridgeland and Starkville. C-Spire has indicated that when enough residents from a neighborhood pre-register, C Spire will commit to build out that neighborhood with FTTH. According to the article, C-Spire will price its gigabit fiber service offering as follows: 1 Gbps stand-alone internet access will be priced at $80 per month; a double-play package of phone and internet will cost $100 per month; a double play of TV and internet will be $140; and a triple play offering of TV, phone, and internet will be priced at $160 per month. C-Spire's offering has some similarity to content-provider Google's Gigabit broadband service offerings available in Kansas City and Provo. Commissioner Clyburn Proposes Ending FCC Sports Blackout Rules Commissioner Clyburn has recently taken steps to open a rule making proceeding that would eliminate the FCC's 40-year old sports blackout rules. Commissioner Clyburn has indicated that the high price of tickets to professional athletic events and the state of the economy make it difficult for fans to attend local professional games. The proposal would not prevent the NFL or major league baseball or other professional sports leagues from negotiating agreements with broadcasters, and cable and satellite providers from negotiating individual agreements to black-out certain sporting events. Under current rules, a cable or satellite system may not carry sporting events that have been blacked out on broadcast television due to low attendance at the game. Broacastingcable.com is reporting that the Sports Fan Coalition petitioned the FCC in 2011 to lift the ban by arguing that it would be pro-fan, pro-consumer, deregulatory action serving the public interest by expanding the availability of sports to the public without adding any regulatory compliance costs to the private sector." This position has been supported by members of Congress and Chairman Wheeler was pressed on this very issue during his confirmation hearings before the Senate Commerce Committee. Calendar At-a-Glance
Nov. 7 – Reply comments are due on EAS Testing Issues.
Nov. 8 – Electronic filing deadline for Form 497 for carriers seeking support for the preceding month and wishing to receive reimbursement by month's end.
Nov. 8 – Reply comments are due on FCC's Notice of Proposed Rulemaking on E-Rate 2.0.
Nov. 14 – FCC Open Meeting.
Nov. 18 – Phase II E-911 Location Accuracy Workshop.
Nov. 18 – Reply Comments are due on FCC's guidelines for human exposure to RF electromagnetic fields.
Nov. 18 – Comments on revising and updating the record on cramming are due.
Nov. 19 – Reply comments are due on NECA's 2014 Modification of the Average Schedule Universal Service High-Cost Loop Support Formula.
Dec. 2 – Reply comments on revising and updating the record on cramming are due.
Dec. 2 – Form 323 (Biennial Ownership Report) is 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. 20 – Reply comments on Revised 3.5 GHz Licensing Model are due.
Dec. 23 – PRA Comments on Electronic Tariff Filing Requirements 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. | 
David George and Bill Noyes
