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. 17, No. 21 | May 28, 2014 |
Deadline Reminder: FCC Form 395 Due June 2 Common carriers, including wireless licensees, must file their annual Common Carrier Employment Reports (FCC Form 395) by May 31 each year. This year, May 31 falls on a Saturday, meaning that under the FCC’s rules the filing is due the following Monday, June 2. The Employment Report tracks carrier compliance with rules requiring recruitment of minority employees and must be filed by any carrier with 16 or more full-time employees. Any common carrier, regardless of the number of employees, must report any employment discrimination complaints received during the past year. The FCC encourages carriers to complete the discrimination report requirement by filling out Section V of Form 395, rather than submitting a separate report. Clients who would like assistance in filing Form 395 should contact Richard Rubino . Headlines
NASUCA Seeks Stay of Verizon Applications to Retire Copper Loops The National Association of State Utility Consumer Advocates ("NASUCA") has asked the FCC to stay action on Verizon's network change notifications to retire copper loops and replace them with fiber facilities in specific wire centers in Virginia and New York, raising both service quality and procedural questions about Verizon's proposal. NASUCA argues that Verizon's proposed network change will impair service for competitors and therefore, where Verizon "retires the copper, fiber must [be] unbundled, at TELRIC rates." NASUCA also argues that the loss of copper "means no standalone digital subscriber line service (‘DSL‘), which removes a broadband option and is not good for consumers." NASUCA questions whether voice service over fiber meets the requirements of the ETC obligation and that "the substitution of FiOS leads to the possibility of abusive or deceptive marketing, so that consumers are upsold, to services that have fewer consumer protections." Finally, NASUCA argues that "the FCC should ensure that the fiber network has adequate back-up power, and make clear that states have jurisdiction to impose back-up power requirements for both the local network and the customer premises." NASUCA also argues that the FCC should suspend the filing until it issues a Report and Order in WC Docket No. I 0-188 (copper retirement rules), the IP Trials (GN Docket No. 13-5) are completed, or the investigation requested by Public Knowledge regarding forcing customers off copper-based service is completed. In addition, NASUCA asks that the Verizon network change notification proceeding be placed on the Commission's Electronic Comment Filing System ("ECFS"), or that Verizon and the information service and telecommunications providers that file objections serve all filings electronically on interested parties. T-Mobile Seeks FCC Guidance on “Commercially Reasonable” Data Roaming Terms T-Mobile USA has asked the FCC to provide “prospective guidance and predictable enforcement criteria” with respect to the “commercially reasonable” standard that applies under FCC rules to data roaming agreements. The request came in the form of a Petition for Declaratory Ruling that T-Mobile filed this week in the CMRS Roaming Docket (WT Docket No. 05-265). By way of background, the FCC adopted its current data roaming rule in April of 2011, because it found that wireless carriers require access to data roaming in order to be able to compete. An extensive record in that proceeding showed that many service providers were having difficulty obtaining access to data roaming on reasonable terms. Verizon Wireless then sued to block implementation of the Commission’s Data Roaming Order, claiming the FCC lacked the statutory authority to regulate broadband. However, a unanimous panel of the DC Circuit ruled in December 2012 that federal law gives the FCC broad authority to regulate the use of electromagnetic spectrum, and that data roaming rules fit comfortably within that authority. As impetus for this latest effort, T-Mobile contends that smaller providers are still being stymied in their efforts to negotiate data roaming agreements on commercially reasonable terms, and it blames this inability on a lack of clarity from the FCC regarding the practical application of the commercially reasonable standard. “[A] lack of practical guidance in the data roaming context has left carriers with insufficient real-world guidance in the negotiations, and has encouraged “must-have” roaming partners to engage in unreasonable tactics by exploiting ambiguity in the rules to deny roaming requests,” wrote T-Mobile. “Problems have included offers of wholesale data roaming rates many orders of magnitude higher than the offering carrier’s retail rates to its own data customers, delays of more than eight months to obtain even initial responses to roaming requests, requests for detailed long-term traffic projections, proposed hefty penalties for any resulting deviations from those projections, and testing procedures and queues that would drag on for undisclosed or indeterminate periods of time.” The T-Mobile petition cites to a 2012 NTCA survey of nearly 900 rural independent telephone companies which found that 58 percent of respondents identified “negotiating roaming agreements” as a major area of concern, and that 69 percent categorized their experience in negotiating data roaming and in-market roaming agreements with other carriers as “moderately to extremely difficult.” A declaration by former FCC Chief Economist Dr. Joseph Farrell in support of T-Mobile proposes four benchmarks that the FCC should adopt in order to provide greater certainty to the negotiation and enforcement of data roaming agreements. These are: (1) whether a wholesale roaming rate offered to a retail competitor greatly exceeds a “suitable measure” of retail price; (2) whether a wholesale roaming rate substantially exceeds roaming rates charged to foreign carriers when their customers roam in the U.S.; (3) whether a wholesale roaming rate substantially exceeds the price for wholesale data service that a seller charges to MVNO customers (keeping in mind that MVNO customers may use the host carrier’s network in substantially different ways compared to a roaming customer of a facilities-based competitor); and (4) how the proposed wholesale roaming rate compares to other competitively negotiated wholesale roaming rates (understanding that some prevailing roaming rates may reflect the past exercise of market power or attempts to weaken rivals). T-Mobile’s efforts in the United States are part of a larger push to promote access to data services for its customers worldwide. In this regard, recent reports indicate that T-Mobile’s customers that have opted for the Company’s “Simple Choice” unlimited international data and text plan are using 28 times more data when traveling outside their home countries than before the Simple Choice plan. With the T-Mobile Petition for Expedited Declaratory Ruling now on file with the Commission, the agency has a year to decide whether or not to issue the requested guidance. It may dismiss the petition if it does not believe further guidance is necessary, or it may issue a Public Notice seeking industry comment on the petition, and further evidence of disparities in the data roaming market it can use as the basis for a formal ruling. We will keep an eye on the Commission’s data roaming docket to see how AT&T and Verizon Wireless respond, and to determine how best our clients can participate. Clients who would like to support the T-Mobile data roaming petition in joint comments or those who have specific anecdotes or evidence they would like to enter into the record should contact Bob Jackson or Cary Mitchell. USDA Accepting Grant Applications for Advanced Communications Technology On May 22, the U.S. Department of Agriculture’s Tom Vilsack announced that the USDA is accepting applications for grants “to enhance telecommunications and broadcast services in rural areas.” Specifically, funding will be available through four USDA programs: the Community Connect Grant Program, the Distance Learning and Telemedicine Program, and the Public Television Station Digital Transition Grant Program. Applications are due July 7. Through the Community Connect Grant Program, the USDA plans to provide up to $13 million “to fund broadband in unserved areas to support economic growth and deliver enhanced educational, health care and public safety services.” Under program requirements, awardees must serve an area where broadband does not exist, provide a community center with broadband access, and offer broadband service to all residential and business customers. Through the Distance Learning and Telemedicine Program, the USDA is making available up to $19.3 million “to fund access to rural education, training and health care resources,” supporting telecommunications-enabled equipment and advanced technologies. Finally, the Public Television Station Digital Transition Grant Program will make up to $2 million available as part of the USDA's continued support of rural telecommunications and broadcast services. These funds can be used to acquire, lease or install equipment or software to complete the transition to digital broadcast signals. Law & Regulation
Compliance Deadline for Revised Part 79 Closed Captioning Rules One Year Out Under the Twenty-First Century Communications and Video Accessibility Act of 2010 ("CVAA"), distributors of video programming have an obligation to make emergency information accessible to individuals who are blind or visually impaired. Emergency information is information about a current emergency that is intended to further the protection of life, health, safety, and property, i.e., critical details regarding the emergency and how to respond to it. We remind our firm’s clients that are providers of cable TV or other multichannel video services that the deadline for achieving compliance with the Commission’s revised Part 79 “closed captioning” rules adopted in the Accessible Emergency Information Report and Order (FCC 13-45) is May 26, 2015, i.e., just one year away. To ensure timely compliance, and to surface potential issues that may necessitate a waiver request, these companies should be working with local broadcasters to ensure that their video systems are capable of transmitting aurally the on-screen emergency information provided during non-newscast programming via the secondary audio stream. Clients with questions regarding this or other CVAA regulatory obligations should contact Gerry Duffy or Cary Mitchell. FCC Issues Tentative Agenda for June Open Meeting The FCC issued a tentative agenda for its June 13, 2014 Open Meeting. At the meeting, the FCC will: - hear a presentation with an update on the efforts to transition circuit-switched networks to Internet Protocol (IP) networks, which will include a status report on the voluntary experiments proposed by AT&T and designed to assess how the transition to IP networks affects users; and
- hear a presentation on the continuing efforts to launch “new and diverse voices to the American public” via increased access to Low Power FM radio stations.
The Open Meeting is scheduled to commence at 10:30 a.m. in Room TW-C305, at 445 12th Street, S.W., Washington, D.C., and will be shown live at http://www.fcc.gov/live at that time. FCC Issues Protective Order Re: Confidential Access Charge Tariff Information On May 23, the FCC issued a Public Notice announcing the procedures for carriers to obtain access to confidential information provided with the 2014 annual access charge tariff filing in support of a carrier’s tariff review plan. The procedure was originally adopted in the FCC’s Tariff Streamlining Order of 1997 (included with the Public Notice), and remains unchanged for the 2014 tariff filing proceeding. Because there will be limited time for review, the FCC suggests that carriers complete the necessary declaration (also included in the Public Notice) ahead of time to expedite obtaining and reviewing confidential information. Industry
T-Mobile Takes Sprint’s No. 3 Spot in Smartphone Purchases Tech news outlet GigaOM is reporting that, according to market research conducted by technology market research firm Counterpoint, a technology market research firm, T-Mobile was the third-largest U.S. purchaser of smartphones in the first quarter this year, overtaking Sprint. Earlier this year, Sprint’s parent company SoftBank expressed some determination in acquiring T-Mobile, stating it was the only way rival AT&T and Verizon. Other interesting facts from the report include: - Samsung was the top handset supplier while Apple was the top smartphone supplier
- Apple & Samsung together captured more than two-thirds of the smartphone market
- TCL-Alcatel became the fourth largest handset supplier and fifth largest smartphone supplier in USA, mainly taking share away from Huawei
- Android share rose to 59% of the total smartphone shipped during the quarter & Windows Phone grew to slightly under 4%
- Three out of four smartphones shipped during the quarter were LTE smartphones
- Apple & Samsung combined captured more than 70% of the LTE shipments
- In terms of in-carrier share for the brands, Apple dominated the big two carriers capturing more than half of Verizon & AT&T’s smartphone shipments and more than a third of smartphone shipments at T-Mobile & Sprint respectively
AT&T Launches Wireless Home Phone / Internet Service Offering Nation Wide Telecompetitor is reporting that AT&T’s “Wireless Home Phone and Internet” service recently went nation-wide, meaning the service is now available in any part of the country covered by AT&T’s wireless network. According to an AT&T executive blog post made on Thursday, May 22, the AT&T Wireless Home Phone & Internet allows customers to complete calls from their existing home phone handset using the AT&T wireless network via a wireless “home base” device instead of a landline connection. The home base also provides 4G LTE service for up to 10 Wi-Fi capable devices. The blog post indicates that the Wireless Home Phone & Internet will be priced as follows: $20 per month for voice calls and $60, $90, or $120 for 10, 20, or 30 GB of internet service per month. Customers can also add the home base device to an existing Mobile Share Value plan for $30 per month. Calendar At-A-Glance
May
May 29 – Comments are due on the short form Tariff Review Plans. June
Jun. 2 – FCC Form 395 (Employment Report) is due.
Jun. 3 – Reply comments are due on 2014 TRS Payment Formulas and Funding Requirements.
Jun. 6 – FCC Application Filing Fees increase.
Jun. 16 – ILEC Tariff filings made on 15 days’ notice are due.
Jun. 16 – Connect America Fund ICC Data Filing (Access Recovery Charge changes) is due for tariff filings made on 15 days’ notice.
Jun. 18 – Retransmission consent rules become effective.
Jun. 23 – Petitions to suspend or reject tariff filings made on 15 days’ notice are due.
Jun. 24 – ILEC tariff filings made on 7 days’ notice are due.
Jun. 24 – Connect America Fund ICC Data Filing (Access Recovery Charge changes) is due for tariff filings made on 7 days’ notice.
Jun. 26 – Replies to petitions to suspend or reject tariff filings made on 15 days’ notice are due.
Jun. 26 – Petitions to suspend or reject tariff filings made on 7 days’ notice are due.
Jun. 27 – Replies to petitions to suspend or reject tariff filings made on 7 days’ notice are due. July
Jul. 1 – FCC Form 481 (Carrier Annual Reporting Data Collection Form) is due.
Jul. 1 – FCC Form 690 (Mobility Fund Phase I Auction Winner Annual Report) is due.
Jul. 15 – Comments are due on the Open Internet NPRM.
Jul. 31 – FCC Form 507 (Universal Service Quarterly Line Count Update) is due.
Jul. 31 – Carrier Identification Code (CIC) Report is due. September
Sep. 10 – Reply comments are due on the Open Internet NPRM. | BloostonLaw Private Users Update | Vol. 15, No. 5 | May 2014 |
State of Montana Obtains Cancellation of its 700 MHz Narrowband Public Safety Licenses The FCC has granted the State of Montana’s application for cancellation of its 700 MHz narrowband public safety licenses in advance of the upcoming June 13, 2014 construction deadline. As a result of this license cancellation, the 700 MHz narrowband spectrum will be subject to relicensing, based upon the recommendation of the state’s 700 MHz regional planning committee – just like the other 700 MHz spectrum allocated for public safety uses. Under the FCC’s construction rules, the State of Montana would have been required to demonstrate that it was providing (or prepared to provide) “substantial service” to at least one-third of their population or territory by June 13. The FCC has announced by Public Notice that state government licensees that do not meet this interim buildout obligation by the June 13 deadline are subject to license cancellation or modification. According to Scott Bradford – Communication Technology Manager for the State of Montana’s Department of Administration, because there is no 700 MHz public-safety narrowband system in the state of Montana or plans to deploy a network in the 700 MHz band, the State requested that the FCC cancel its 700 MHz narrowband public safety licenses. In this regard, Mr. Bradford noted during an interview with ICWE’s Urgent Communications that “for some time, we’ve known that we – as a state – were not going to deploy the spectrum in the required time.” While there is need for public-safety spectrum in Montana, the propagation characteristics and other economic realities of 700 MHz frequencies do not make it practical to build a network using the spectrum, Bradford said. Rather, “[w]e have a need for spectrum up here, but the problem is that all agencies – except for the city of Billings, which uses 800 MHz – are VHF [systems],” he said. Although Montana’s license for the 700 MHz narrowband spectrum has been canceled, the spectrum has not necessarily been lost permanently. As indicated in the FCC’s April 7, 2014 Public Notice, reclaimed 700 MHz narrowband public safety spectrum will be available for general public safety use, subject to the regional planning committee process. The FCC has indicated that it will issue further guidance to the regional planning committees at a future date in order to facilitate future licensing of any spectrum recovered from state licensees. FCC Announces Two Actions to Implement Positive Train Controls The Federal Communications Commission has entered into two agreements with the seven Class I freight rail companies to address the construction of positive train control facilities without the required environmental and Section 106 historic preservation review. As a result of these agreements, the railroads will be able to use the nearly 11,000 previously constructed poles for testing and other preparatory activities for the ultimate provision of Positive Train Control service. As part of the settlement with the FCC, the freight rail companies have agreed to establish a Cultural Resource fund in the amount of $10,000 to provide funding directly to the Tribal Nations and State Historic Preservation Offices in order to support cultural and historic preservation projects, which will be administered by a third party administrator. Additionally, each freight rail company will train its employees on environmental and historic preservation compliance and relationship building with the Tribal Nations. Finally, on May 16, 2014, the Advisory Council on Historic Preservation voted to approve a Program Comment that modifies the FCC’s usual procedures for historic preservation review. This comment established a process that is tailored to the unique circumstances surrounding the deployment of PTC facilities and will provide a mechanism for timely review by all parties. FCC Expands Licensee Eligibility for Certain Wireless Microphone Users On May 15, the FCC adopted rules which expand eligibility under Part 74 of the FCC’s Rules to include professional sound companies and venues that routinely use 50 or more wireless microphones, where the use of the microphones is an integral part of the major events host-ed at the venues. By expanding the eligibility under Part 74, these users will have interference protection for their operations – especially since they involve large scale use of microphones. Users who routinely deploy fewer than 50 wireless microphones will continue to operate on a secondary, unlicensed basis. Those clients who operate wireless microphones or large venues should contact our office for additional information. FCC Denies Waiver Request of Central Ohio Joint Fire District The FCC has denied a request for waiver filed by the Central Ohio Joint Fire District (COJFD) to use the frequency 172.225 MHz for mobile repeater use. In denying the request, the FCC noted that this frequency is allocated for public safety use by the Federal Government. In seeking to justify its waiver request, COJFD stated that its mobile repeater system would require 10 MHz of separation from its operational frequencies. This assertion was confirmed by APCO, which stated that it had “per-formed an exhaustive search of available VHF high band frequency resources and cannot recommend a frequency which would be normally available to this applicant, and is compatible with the frequency separation requirements posed by Pyramid [Pyramid Communications, Inc.]” In response to a request for comments, the FCC received both comments in support and in opposition. The Forestry Conservation Communications Association (FCCA) noted that the FCC had previously determined that the use of filters in Pyramid equipment could reduce the required frequency spacing from 10 MHz down to 2 MHz. As a result, FCCA argued that COJFD should be required to demonstrate that there were no public safety frequency assignments available in the 150-160 MHz band. COJFD responded that because of the various frequencies that it operates on, including mutual aid frequencies, the 2 MHz spread in the 150-160 MHz band was still insufficient to meet its needs. Additionally, the National Telecommunications Information Administration (NTIA) filed a letter requesting that the FCC deny the waiver since the Department of Agriculture and the US Forest Service make extensive use of channels in this band, including the frequency 172.225 MHz While COJFD had indicated that it would accept a secondary assignment – meaning that it would be required to accept the potential for harmful interference from federal users, NTIA opposed secondary status since public safety services should not be put at risk by creating conflicts with primary Federal safety operations and that neither the Federal users, nor COJFD would want to face interference or other coordination conflicts during an emergency operation. In denying the waiver request, the FCC concluded that COJFD has the ability to apply for any Part 90 non-federal public safety channel and that the denial would protect the USDA and Forest Service’s forest ranger, conservation and forest firefighting operations from harmful interference. FCC Upholds Waiver Grant to Weld County; Changes Process for Consideration of Interservice Waiver Requests In April, 2013, the FCC granted Weld County’s request for waiver of the freeze on intercategory sharing in order to license two frequencies in the 800 MHz Business/Industrial/Land Transportation (B/ILT) Service for public safety use in the Greeley, Colorado area. The basis for the waiver request was the unavailability of 800 MHz public safety spectrum. Subsequent to the filing of the waiver request, Sprint vacated two channels in the Weld County area, which could have been used by the County. Unfortunately, in connection with an amendment to Weld County’s waiver request, the frequency coordinator did not verify the continuing accuracy of its prior certification that no spectrum was available. Following the grant of the waiver request, Enterprise Wireless Alliance (EWA) requested reconsideration of the grant. EWA argued that the two Sprint-vacated public safety channels had been available and that the FCC should require Weld County to use those Sprint-vacated channels instead of the two B/ILT channels that had been granted by the FCC. Weld County noted that to change frequency as requested by EWA would result in an expenditure of $30,000 in public funds so that it could operate on the Sprint-vacated channels. More importantly, in addition to the financial cost, Weld County noted that “there is an operational impact to all State and Local government agencies as far as interruption in communications service to accomplish the rework and the time and effort to coordinate this activity.” While EWA was sympathetic to Weld County’s plight, it was only willing to withdraw its petition if the FCC gave the two Sprint-vacated frequencies to the B/ILT pool in the Weld County area. The FCC determined that it will not undo the waiver granted to Weld County and will not require it to operate on the Sprint-vacated channels due to the financial and operational consequences that would result. Additionally, it also declined to make the Sprint-vacated channels available to the B/ILT pool since they are reserved for public safety use for three years and critical infrastructure use during years four and five. Because of the problems created in this situation, the FCC has made it clear that on a going-forward basis, proponents of a waiver for inter-category sharing freeze must keep their waiver requests current and report to the Bureau if any material assertions, including the unavailability of suitable public safety channels, are no longer correct. The FCC has indicated that applicants who fail to keep their requests current run the risk of having their waiver requests denied, or if granted, revoked at a later date. | 
David George and Bill Noyes
