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. 35 | October 2, 2013 |
Editor's Note—Links May Not Function Due to FCC Shutdown Due to the FCC's shutdown earlier this week due to lapse in funding, the FCC has suspended not only its electronic filing system, but its electronic document server as well. As a result, links to FCC documents in this edition of the BloostonLaw Telecom Update may not function until the FCC returns to business. We apologize for the inconvenience. Headlines
Government Shutdown Alters Filing Procedures; Delays Application Processing On Tuesday, October 1, the FCC issued a Public Notice defining filing procedures during the ongoing government shut down due to the lapse in funding. In short, any filing that is due during the shutdown must instead be filed on the day after the shutdown ends. According to the Public Notice, the FCC's filing window, mail room, and all electronic filing systems, with the exception of the Network Outage Reporting System (NORS), will be unavailable until normal government operations resume. Materials sent to the FCC by private delivery services may be returned to the sender. Any materials, with the exception of NORS filings, that otherwise would be required to be filed with the FCC (and this includes at its headquarters, Gettysburg, PA or U.S. Bank) during the suspension of operations or on the day of return to normal operations, will be due on the business day following the day of return to normal operations. For example, if a lapse in funding ended on a Monday, the FCC would return to normal operations on Tuesday morning, and, to accommodate the orderly resumption of business, filings would be due on Wednesday. (The FCC's rules normally require such filings to be made on the first business day after a shutdown, but the FCC has waived that rule to provide an extra business day for this purpose.) The Public Notice also stated that electronic filing requirements cannot be satisfied by attempting manual filing, with or without a request for waiver of filing requirements, and that if the FCC is unable to restore electronic filing systems on the day the government reopens, it may issue another Public Notice further extending filing deadlines. Finally, the Public Notice affects only the due dates for filings with the FCC. Any other events, or dates for filings with entities other than the FCC, even if such filings are also made with the FCC, are not affected. It is also important to note that any of the FCC's application time-clocks for processing applications are suspended during the Government shut down. As a result, applications that would have been automatically granted during the shutdown will not be granted until sometime after the FCC resumes operations. Likewise, any time-clocks for application processing—which are designed to ensure that the FCC processes applications efficiently—are also suspended. Thus, if there is a 180-day shot-clock or time-clock for an application, the clock will not restart until the FCC's staff returns to work. FCC Modifies Text-to-911 Bounce-Back Message Requirement As Applied To Roaming In an Order on Reconsideration released on September 30, 2013, the FCC amended its text-to-911 bounce-back message requirement (adopted in May 2013) as it applies to Commercial Mobile Radio Service (CMRS) providers serving roamers. The action was taken in response to a "Petition for Reconsideration, or in the Alternative, for Clarification" filed by CTIA—The Wireless Association and supported by the Blooston Rural Carriers, among others. Under the rule adopted in May 2013, a CMRS provider was required to provide a bounce-back text message to a roamer on its system attempting to send a text-to-911 in an area where the service was unavailable or not supported by the Public Safety Answering Point, even though only the roamers home carrier can generate a bounce-back message. The requirement took effect on September 30, 2013. Under the revised regulation adopted on September 30, 2013, when a consumer attempts to send a text message to 911 while roaming on a CMRS network, the CMRS provider offering roaming service (host provider) satisfies its bounce-back obligation provided that it does not impede the consumer's text to the consumer's home network provider (home provider) or impede any bounce-back message generated by the home provider back to the consumer. The home provider (not the host provider) has the obligation to send the text-to-911 bounce-back message when (a) the consumer is located in an area where text-to-911 service is unavailable, or (b) the home provider does not support text-to-911 service in that area at the time. The amended rule takes effect upon publication in the Federal Register. The text-to-911 bounce-back message roaming rule adopted in May 2013 has been waived for all carriers pending publication of the new rule in the Federal Register. FCC Seeks Comment on Mobile Wireless Network Resilience Reporting Seeking to promote transparency to consumers about the status of wireless networks during times of disaster, the FCC last week adopted an NPRM (FCC 13-125) with proposed regulations that would require facilities-based CMRS providers to submit daily reports to the Commission so the public can be aware of what percentage of carrier's cell sites are operational during and immediately after a disaster. Comments on the Commission's Network Resilience Reporting NPRM will be due 60 days after the item is published in the Federal Register, and reply comments will be due 90 days following Federal Register publication. We note that normal Federal Register publication of items not directly related to the performance of governmental functions necessary to address imminent threats to the safety of human life or protection of property has been suspended during the government shutdown. Under the Commission's proposals, which come in response to a 2011 Notice of Inquiry (NOI) on network reliability, resiliency and redundancy, and were informed by recent field hearings in New York and New Jersey to examine the impacts to communications networks from Superstorm Sandy, disclosures would be made with respect to the percentage of cell sites in each county within the designated disaster area. This would allow consumers to see how wireless service providers compare in keeping their networks operational in emergencies. According to the FCC, Superstorm Sandy disabled at its peak more than twenty-five percent of cell sites in 158 counties in all or part of ten states and the District of Columbia. The most extensive wireless service impairments were heavily concentrated in New Jersey and the New York City metro area, where residents found themselves without reliable and continuous access to mobile wireless communications throughout the storm and its aftermath. Several counties had outages of more than double the twenty-five percent aggregate figure. The State of New Jersey, all of which was included in the reporting area, had aggregated cell site outages on the order of forty percent. The Commission believes that requiring reporting and public disclosure of the information proposed could benefit consumers while also advancing public safety. The FCC currently relies on periodic reporting from communications providers to gauge network reliability. Under Part 4 rules, mobile wireless service providers are required to apprise the Commission of network outages that exceed certain quantitative thresholds, depending on the type of services provided. The FCC collects this information in its Network Outage Reporting System (NORS), and then uses the information to identify larger trends and vulnerabilities in the nation's communications infrastructure. In addition, the Commission operates a Disaster Information Reporting System (DIRS), which is activated during emergencies to collect near "real-time" status information from mobile wireless and other providers to improve the situational awareness of federal agencies, including the Federal Emergency Management Agency (FEMA), and streamline emergency response. Reporting in DIRS is voluntary; however, the Commission generally suspends the otherwise mandatory NORS reporting obligations of DIRS participants throughout periods when the latter system is fully activated. Information reported to the Commission in either of these reporting systems is afforded a presumption of confidential treatment, a policy the Commission adopted to protect filing parties from competitive harm and prevent terrorist targeting of vulnerable communications assets. In particular, the Commission seeks comment on the following issues: - Whether the proposed reporting and disclosures would provide consumers with useful information for making comparisons about mobile wireless products and services;
- Whether such disclosures, by holding providers publicly accountable, could incentivize improvements to network resiliency while allowing providers flexibility in implementing such improvements;
- Whether such information would be useful to policymakers at state and local levels;
- Whether the proposed disclosures comport with "smart disclosure" principles;
- Whether the proposed disclosure would lead to adverse unintended consequences for consumers and mobile wireless providers; and
- Whether the Commission should consider other measures, including alternative informational disclosures, performance standards or voluntary measures, or refer issues of what information would be helpful to consumers to an advisory committee before acting.
Because documents normally available on the FCC's web site cannot be accessed during the government shutdown, we will provide a copy of the Commission's Network Resilience Reporting NPRM to interested clients upon request. FCC Seeks to Reduce Barriers to Deploying Small Cells and Temporary Wireless Towers With demand for wireless broadband services growing at an exponential rate, the FCC has issued a Notice of Proposed Rulemaking ( NPRM ) seeking remove barriers to the deployment of infrastructure necessary to support these services. Comments on the Commission's Wireless Facilities Siting NPRM will be due 60 days after the item is published in the Federal Register, and reply comments will be due 90 days following Federal Register publication. We note that normal Federal Register publication of items not directly related to the performance of governmental functions necessary to address imminent threats to the safety of human life or protection of property has been suspended during the government shutdown. Among other things, the NPRM seeks comment on: - Streamlining the environmental and historic preservation review processes for newer technologies, including small cells and distributed antenna systems;
- Removing barriers to the deployment of temporary towers, that are used in cases of emergencies or to add capacity during short term events;
- The meaning of terms included in a provision of the Middle Class Tax Relief and Job Creation Act of 2012 which states "a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station;" and
- Clarification of issues addressed in the Commission's "shot clock" order which set time periods for state and local governments to complete review of wireless siting applications.
The FCC believes that increasing certainty in the Commission's processes and removing barriers to infrastructure deployment will spur public and private investment, while expanding wireless coverage and capacity. Because documents normally available on the FCC's web site cannot be accessed during the government shutdown, we will provide a copy of the Commission's Wireless Facilities Siting NPRM to interested clients upon request. Law & Regulation
FCC Proposes Elimination of UHF Discount On September 26, 2013, the FCC released a Notice of Proposed Rulemaking which considers eliminating a provision that gives special treatment to UHF channels under its national television ownership cap. Known as the "UHF Discount," the provision was adopted approximately 30 years ago when, according to the FCC's News Release, UHF signals were regarded as technically inferior to VHF. As a result, the UHF discount allows stations broadcasting on UHF channels to count only 50% of the television households in their Designated Market Areas, as opposed to the 100% requirement for VHF stations, toward the broadcast ownership cap of 39% of total television households nationwide. With the transition of full-power stations to digital broadcasting in 2009, the FCC continues, the technical inferiority of UHF appears to be a thing of the past and the technical justification for the UHF discount no longer exists. The proposal has already earned some backlash from legislators, as House Commerce Committee Chairman Fred Upton (R-MI) and Communications and Technology Subcommittee Chairman Greg Walden (R-OR) issued a statement criticizing the NPRM the same day. Public Safety and Homeland Security Bureau Seeks Comment on EAS Test Results On September 23, 2013, the FCC's Public Safety and Homeland Security Bureau released a Public Notice seeking comment on the resolution of various issues identified during the nationwide test of the Emergency Alert System (EAS). Comments are due October 23, 2013, and reply comments are due November 7, 2013. The test, conducted on November 9, 2011, identified a number of issues that are highly technical in nature, but can be broken down into four main sets: (i) EAS header code processing issues; (ii) visual crawl and audio accessibility issues; (iii) National Test Event Code issues; and (iv) issues associated with the impact of national test length on EAS equipment. The EAS is a nationwide emergency warning system used through broadcasters and other media service providers. The Wireless Emergency Alert (WEA) system (formerly known as the Commercial Mobile Alert System (CMAS)), is a related warning system that allows customers who own certain wireless phone models and other enabled mobile devices to receive geographically-targeted, text-like messages alerting them of imminent threats to safety in their area. WEA and the EAS are part of FEMA's Integrated Public Alert and Warning System (IPAWS). Clients that participated in the 2011 EAS test and want to file comments should contact the firm. Effective Date Set for New Rules Governing Unlicensed Operations at 57-64 GHz The Federal Register has published an FCC Report and Order, concluding a rulemaking proceeding begun in 2004 that raises the power limits for operations in the 57-64 GHz band. The new rules will become effective on October 30, 2013. The 7 GHz of spectrum is the largest contiguous band of frequencies in the FCC's frequency allocations and what's more, operation in this band does not require a license. As a practical matter, however, propagation in this portion of the RF spectrum is so poor as to render the band virtually unusable except for very short range communications. The rules have now been modified to allow higher emission limits in this band for devices that operate outdoors with very high gain, narrow beam width antennas to encourage broader deployment of point-to-point broadband systems. The amended rules will allow longer communication distances and thereby extend the ability of such systems to provide broadband service, particularly to office buildings and other commercial facilities. The FCC believes that the enhanced 57-64 GHz systems allowed by these rule changes will help to fulfill the objective of bringing broadband access to every American by providing additional competition in the broadband market, lowering costs for small business owners accessing broadband services, and supporting the deployment of 4G and other wireless services in densely populated areas. FCC Announces Tentative Agenda for October Open Meeting On September 30, 2013, The FCC issued the tentative agenda for its Open Meeting scheduled for Tuesday, October 22, 2013. The tentative agenda includes: - consideration of a Report and Order and Further Notice of Proposed Rulemaking to address problems associated with completion of long distance calls to rural areas;
- consideration of a Report and Order that implements an industry solution to provide interoperable service in the lower 700 MHz band; and
- consideration of a Report and Order adopting technical rules for the 700 MHz broadband spectrum licensed to the First Responder Network Authority.
The Open Meeting is scheduled to commence at 10:30 a.m. in Room TW-C305, at 455 12th Street, S.W., Washington, D.C. Audio/Video coverage of the meeting will be broadcast live with open captioning over the Internet from the FCC Live web page at www.fcc.gov/live . Industry FTC Steps Into the Fray Against Patent Trolls The New York Times is reporting that the Federal Trade Commission has voted to begin an investigation of so-called "patent trolls," companies whose primary business is to amass a stockpile of patents and then sue other companies for infringing upon them. According to the article, the effort is intended to "document the costs and benefits of a rising tide of patent litigation." Specifically, the FTC said it would seek information via subpoena from approximately 25 companies that buy and sell patents, and 15 other companies that manufacture devices and write software and applications. The subpoenas would request information about the financial operations of the firms, seeking to uncover how much these entities earn from patent lawsuits and licensing and how the profits are distributed to investors. In the recent past, rural telcos have been targeted by such entities. As we reported in the January 23, 2013 edition of the BloostonLaw Telecom Update, a Texas law firm representing an entity located in the Philadelphia suburbs appeared to have sent over 100 letters to various rural telephone companies, Internet service providers and others alleging that they were in violation of six DSL-related patents. The Philadelphia firm appeared to have a history of buying up cheap older patents, threatening or filing lawsuits claiming infringement of those patents, and seeking monetary settlements to go away. Their strategy appeared to be to find smaller firms that are more likely to be reluctant to undertake the effort and cost of defending against a patent infringement lawsuit. We continue to advise clients to make sure that equipment acquisitions include express contract language: (a) warranting that the vendor has licensed any and all applicable patents; (b) promising that the vendor will indemnify the purchaser for any and all patent infringement damages or settlements and patent licensing fees with respect to the equipment; and (c) promising that the vendor will take over, defend and bear the full cost of any and all patent infringement litigation with respect to the equipment. To the extent possible, clients should purchase DSL equipment from companies likely to remain in business during the foreseeable future. BlackBerry Posts Nearly $1 Billion Loss, Future Uncertain On Friday, September 27, BlackBerry announced a quarterly loss of nearly $1 billion, casting a long shadow on the future of one of the last remaining physical-keyboard producing phone companies. The Wall Street Journal reported that BlackBerry's revenue was $1.57 billion, down from $2.86 billion a year ago, and that analysts were previously expecting revenue of nearly twice that amount. The dramatic loss came only days after, BlackBerry had announced that it reached a preliminary deal with its biggest shareholder, Fairfax Financial Holdings Ltd., to take the company private for about $4.7 billion, or $9 a share. Despite the loss, the head of Fairfax Financial Holdings Ltd. said he has every intention of completing the acquisition of BlackBerry. The New York Times reported that BlackBerry shipped just 3.7 million phones, and that most of those phones were older models that it plans to phase out. According to the Times, the loss mainly reflected "a $934 million write-down of a growing inventory of unwanted BlackBerry Z10 phones, the devices that the company had hoped would restore its fortunes." Calendar At A Glance
Oct. 7 – Comments on proposed changes to FCC Form 555 (annual Lifeline ETC certification) are due.
Oct. 8 – Electronic filing deadline for Form 497 for carriers seeking support for the preceding month and wishing to receive reimbursement by month's end.
Oct. 14 – Deadline to seek extension of CALM Act small provider grace period.
Oct. 15 – Filing deadline for FCC Form 481
Oct. 16 – Reply Comments are due on FCC's Notice of Proposed Rulemaking on E-Rate 2.0.
Oct. 16 – Reply Comments are due on FCC's Notice of Proposed Rulemaking on Advanced Wireless Services.
Oct. 17 – Comments are due on NECA's 2014 Modification of the Average Schedule Universal Service High-Cost Loop Support Formula.
Oct 22 – FCC Open Meeting.
Oct. 23 – Comments are due on EAS Testing Issues.
Oct. 28 – Responses to FCC Census Blocks that price cap carriers have requested funding to serve as part of the second round of CAF Phase I are due.
Oct. 30 – New 57-64 GHz Rules become effective.
Nov. 1 – Reply Comments are due on FCC's guidelines for human exposure to RF electromagnetic fields.
Nov. 1 – Reply comments are due on NECA's 2014 Modification of the Average Schedule Universal Service High-Cost Loop Support Formula.
Nov. 4 – Comments on the continuation of the BroadbandMatch website tool are due.
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.
Dec. 2 – Form 323 – Biennial Ownership Report due.
Jan. 15 – Annual Handset Accessibility Compliance Report due. | 
David George and Bill Noyes
