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. 34 | September 25, 2013 |
Headlines
Shootings Demonstrate Interoperability Lacking Between State/Local and Federal First Responders Following the 1982 Air Florida plane crash into the Potomac River, the Metropolitan Washington Council of Governments (COG) recognized the need for interoperable communications between the various federal, state and local jurisdictions in Washington, DC, Maryland and Virginia. By the late-1990s, several of the COG jurisdictions were well on the way to an interoperable communications solution using 800 MHz frequencies. Today, most local governments in the National Capital Region are on the 800 MHz system and first responders are able to communicate with one another on major incidents. However, the shootings at the Washington Navy Yard brought out one aspect that seemingly has not been addressed effectively — namely interoperability between state/local and federal first responders. News reports coming out of the Navy Yard shooting have indicated that some of the interoperability issues resulted from Washington, DC's recent conversion to a digital communications system while responding federal agencies were still using analog equipment. As a result, the federal agencies (FBI, US Navy, NCIS, Capitol Police, US Park Police, etc.) and the DC Police and Fire were unable to communicate with each other effectively. Additionally, there are also reports of equipment failures involving Navy police radios as well as equipment assigned to first responders with the DC police and fire departments. In a letter to the National Telecommunications and Information Administration (NTIA) and the FCC, Rep. Henry Waxman (D-Calif), Energy and Commerce Committee Member and Rep. Anna Eshoo (D-Calif) directed these agencies to investigate the Navy Yard communications failures and ensure that FirstNet (which was established by the Middle Class Tax Relief and Job Creation Act of 2012 in order to create a seamless, nationwide broadband public safety communications system) is able to address the communications failures. Beyond the lack of interoperability between DC and federal first responders, the Congressional letter also indicated there had been issues including inadequate indoor coverage, radio interference caused by fire alarms, and the inability to communicate with non-Navy first responder radio systems — all of which were known issues well before the Navy Yard shooting. Reps. Waxman and Eshoo have requested that information be provided to FirstNet so that any problems identified at the Navy Yard can be addressed in the FirstNet system design. Former FCC Economist Points to Risks if Incentive Auction Bid Restrictions are Imposed A former FCC Chief Economist and Duke Business School Professor has concluded that restricting Verizon and AT&T's participation in the FCC's upcoming broadcast incentive auction will "put at risk [the Commission's] twin priorities of raising significant revenue and reallocating a substantial amount of spectrum from broadcast to mobile wireless services." Not surprisingly, these and related conclusions are contained in a 45-page report prepared by Leslie Marx, PhD and included in a September 18 ex parte filing by Verizon in the FCC's incentive auction docket (GN Docket No. 12-268). The report further asserts that "any restriction that causes a material reduction in the participation of Verizon and AT&T risks a significant reduction in auction revenue and a failure of the auction." Professor Marx's report is the latest salvo in an ongoing "battle of economists" that is taking place in the incentive auction docket. Economists hired by Sprint and T-Mobile have previously asserted that restricting auction participation by larger bidders might encourage smaller companies to participate more robustly. March 2013 Reply Comments of T-Mobile support a cap on spectrum below 1 GHz that any one carrier or its affiliates may hold, and urge the FCC to reject Verizon and AT&T's objections such a spectrum cap. The FCC is expected to reach a decision on the Incentive Auction rules by the end of the year. Tenth Circuit Denies FCC Motion to Change Oral Argument Framework On September 18, 2013, the U.S. Court of Appeals for the Tenth Circuit denied a motion filed by the FCC to reconsider the oral argument framework for the appeal of the USF/ICC Reform Order. If the FCC request had been granted, the current November 19, 2013 date for oral argument may have been pushed back, delaying any potential relief for rural ILECs. In its motion, filed on the 17th, the FCC argued that the current framework did not provide it with sufficient time to prepare. Under the current framework, the petitioners are free to decide which arguments will be heard and how much time (within limits) will be allotted to each, and need not inform the FCC of their decisions until November 1, 2013, a little less than three weeks before the oral argument hearing. In (swiftly) denying the motion, the court said, "the specific issues of concern to the petitioners have been known to the FCC since as long ago as December 2012," recognizing that, "the petitioners are faced with the formidable task of determining the time allocations in the first instance, and they oppose moving up the date by which that task must be completed, the petitioners oppose moving up the date by which they must determine the issues and time allocations for oral argument." Given the breakneck-pace the FCC set in releasing the USF/ICC Reform Order—one of the points on appeal in this proceeding—the FCC's delay request is somewhat ironic. Law & Regulation
FCC Approves AT&T Acquisition of ATNI / Allied Wireless Assets The FCC last Friday conditionally approved AT&T's proposed acquisition of the U.S. retail wireless operations of Atlantic Tele-Network, Inc (ATNI). Under the terms of the deal, AT&T will pay $780 million in cash to acquire ATNI's wireless properties, including licenses, network assets, retail stores and approximately 585,000 subscribers. ATNI holds these assets through a subsidiary company, Allied Wireless Communications Corporation ("Allied"). Allied's business was created in 2008 from licenses divested in connection with the FCC and Justice Department's conditional clearance of Verizon's $28 billion purchase of Alltel. Allied operates under the Alltel name in the U.S., and its network covers approximately 4.6 million people in primarily rural areas across six states — Georgia, Idaho, Illinois, North Carolina, Ohio and South Carolina. The acquisition includes spectrum in the 700 MHz, 850 MHz and 1900 MHz bands. Allied currently operates a retail CDMA network for its subscribers in these areas, and AT&T plans to transition ATNI's customers to 3G HSPA+ and 4G LTE technology. The FCC's ruling ( DA 13-1940 ) found that limited competition and other public harms of the transaction in certain markets were mitigated by AT&T commitments on network deployment, roaming and customer transition. AT&T will continue to provide CDMA voice/data roaming services over ATNI's facilities. AT&T has indicated it will offer Allied post-paid customers handsets comparable to their existing devices without charge and without requiring a contract extension. AT&T is obligated to file quarterly progress reports on the implementation of commitments over the next three years or until the conditions are fulfilled to the agency's satisfaction. FCC Releases Agenda for September Open Meeting On September 19, 2013, The FCC issued the final agenda for its September 26, 2013 Open Meeting. The final agenda appears to have one new item since we reported on the tentative agenda on September 11, 2013: an NPRM that seeks comment on proposals to improve consumer choice and facilitate improvements to the resiliency of mobile wireless networks during emergencies, no doubt in response to continuing reverberations from Superstorm Sandy and other recent catastrophes. In addition to that NPRM, the FCC will also consider an NPRM to accelerate deployment of wireless infrastructure; an NPRM on the UHF discount to its national television multiple ownership rule; and an Order to resolve a complaint by Bloomberg L.P. that Comcast violated the news neighborhooding condition of the Comcast/NBCU transaction. The Media Bureau will present an update on progress towards the October 15 – October 29, 2013 open filing window for applicants seeking to operate new Low Power FM radio stations. 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 . FAA to Consider Wireless Device Rules; Cell Phone Use to Remain Out of the Mix The long-standing rule that all personal electronic devices must be turned off during take-off and landing is about to be changed, especially since flight crews are now using Apple iPads in the cockpit rather than paper charts and check lists. The current electronics restriction is an outgrowth of a rule first adopted in the 1950s when it was determined that portable FM radios could cause interference with VOR navigation systems. Several news outlets are reporting that an FAA advisory panel is expected to meet this week and recommend that the FAA approve a single policy for the use of personal electronic devices gate-to-gate that would apply to all airlines and aircraft rather than specific wireless devices. Under this model, airlines would be required to certify that their aircraft could "tolerate" electronic device use. Rather than proposing the certification of specific devices, the FAA panel is proposing that the FAA require the certification of all airlines and aircraft. The panel believes that once the airlines have taken this action, which is similar to the process used to certify aircraft for the use of Wi-Fi, wireless devices could be in use as early as next year. Aviation experts contend that the likelihood of interference from personal electronic devices to avionics systems aboard aircraft is extremely unlikely due to their relatively low power. Additionally, studies by the Airline Passenger Experience Association and the Consumer Electronics Association found that as much as 30 percent of passengers indicated that personal wireless devices, including cell phones, were left on during take-off and landing. And, to date, there is no known link to an aviation accident from a modern personal electronic device. Because of the potential for interference to ground based wireless communications, the FCC's rules will continue to prohibit airline passengers from making cellular calls or checking e-mail over a cellular network while the airplane is in-flight. House Hearing on Challenges and Opportunities in the 5 GHz Spectrum Band The Subcommittee on Communications and Technology has announced a hearing, titled "Challenges and Opportunities in the 5 GHz Spectrum Band" to be held on Tuesday, October 1, 2013 at 10:30 a.m. in 2123 Rayburn House Office Building. At this time, a list of witnesses is not available, but will be announced by the Subcommittee on its website . Industry Chairman Rockefeller Calls on Motorola to Cease Campaign to Undermine FirstNet Senator John D. (Jay) Rockefeller IV, Chairman of the Senate Commerce, Science and Transportation Committee, is deeply concerned by reports that Motorola Solutions is engaging in efforts to undermine FirstNet, the nationwide, interoperable wireless public safety broadband communications system. Senator Rockefeller authored the legislation creating FirstNet, which was signed into law last year. The creation of FirstNet fulfills one of the final recommendations of the 9/11 Commission. In a September 20, 2013 letter to Motorola Solutions CEO Gregory Brown, Senator Rockefeller points to recent news reports that have suggested Motorola and its paid consultants have engaged in behind-the-scenes activities to undermine FirstNet. Rockefeller also calls on Motorola Solutions to work constructively with FirstNet to bring more competition to public safety communications "Your company's actions to oppose this important effort to strengthen our Nation's public safety communications systems directly contradicts the intent of Congress, and it potentially endangers the success of a network that will benefit millions of law enforcement officers, firefighters, emergency medical technicians, and other first responders," Rockefeller wrote. Rockefeller added, "I will not abide a return to the model of costly, and often proprietary, equipment that our nation's first responders face in narrowband communications. This model has led to disparate systems even among public safety agencies in the same jurisdiction. And I will not stand by while your company continues to defend a business plan solely because you are unwilling to make the investments and commitments necessary to be a true competitor on the new level playing field for public safety communications equipment. "I urge you to immediately cease your campaign and to work constructively with the FirstNet board. I urge your company—under its own letterhead—to compete head-to-head with other vendors to provide the best equipment for FirstNet and our nation's first responders." Motorola would not comment directly on the allegations about the campaign, but in a statement reiterated its support for FirstNet: "The need for a nationwide public safety network has been communicated to Motorola by its customers for many years on behalf of the millions of citizens they are entrusted to protect and serve," the company said. "We have not only listened, but appreciate and share their views. Moreover, we're pleased to join them and dozens of public-safety organizations to support FirstNet. It should be noted that Motorola was a strong supporter of the legislation that created FirstNet, and the company believes the law that established FirstNet should be implemented to give all public safety end-users fair and reasonable access to this critical resource. Again, our objective is to help make FirstNet a success and enable local first responders to do their jobs more safely and effectively." In his letter, Senator Rockefeller acknowledged Motorola's public support of FirstNet, but said the company's private actions tell another story. He said the stories indicated that Motorola is financing a public relations and lobbying campaign to erode support for FirstNet. Motorola Solutions should not be confused with phone maker Motorola Mobility, which was acquired by Google in 2011. ITU Broadband Report Ranks US 24th in Global Internet Usage The International Telecommunication Union (ITU) and the United Nations Educational, Scientific, and Cultural Organization (UNESCO)'s Broadband Commission released a report discussing the universalization of broadband and its growth across the globe. According to the report, the United States ranks 24th globally in terms of percentage of individuals using the Internet in 2012 with 81%. The No. 1 economy was Iceland, with 96%, followed closely by Norway (95%), Sweden (94%), Denmark (93%) and the Netherlands (93%). The report also makes a number of policy recommendations to maximize the impact of broadband, including: - competitive regulation — "Competition has been a key driver of higher levels of uptake and investment in communication networks and services in many countries.";
- legal certainty — "Countries need to update their legislative and regulatory frameworks to provide businesses and users with legal certainty and allow for expanded electronic commerce, as well as the proper protection of personal data, copyright, rights in user-generated content, and other issues", and
- expanded universal service funds — "USFs can be expanded to include programmes for broadband adoption, containing all the elements needed to get unserved or underserved people online, including content, subscriptions, devices, and digital training, as well as infrastructure."
The report also discusses a number of broadband-related topics, including the growing demand for mobile spectrum, universal broadband policy, trends in expression via content. A full copy of the report can be found here . Calendar At A Glance
Sept. 26 – FCC Open Meeting
Sept. 27 – Challenges 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. 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. 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.
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. 8 – Electronic filing deadline for Form 497 for carriers seeking support for the preceding month and wishing to receive reimbursement by month's end. | 
David George and Bill Noyes
