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. 18, No. 4 | January 28, 2015 |
Connect America Phase II Report and Order Effective February 26On January 27 the FCC published its December 18, 2014 CAF Phase II Program Report and Order in the Federal Register, establishing an effective date of February 26, 2015 for those portions of the Order not requiring approval from the Office of Management and Budget. This includes reductions to HCLS payments based on frozen national average cost per line; the elimination of support in areas where an unsubsidized competitor provides voice and broadband service across 100 percent of an RLEC service area; and the increase to 10/1 Mbps of the broadband speed requirement for companies receiving CAF Phase II support or high cost support (up from the current 4/1 Mbps). Headlines
Petitions Filed for Supreme Court Review of Tenth Circuit Transformation Order DecisionThis week saw the filing of Petitions for Writ of Certiorari with the U.S. Supreme Court of the Tenth Circuit’s opinion denying all petitions for review of the FCC’s USF/ICC Transformation Order of 2011. Specifically, Petitions were filed by: NARUC, United States Cellular Corporation, Allband Communications Cooperative, and Cellular South, Inc. Certiorari is the process by which a party asks the Supreme Court of the United States to review a lower court’s judgment for reversible legal error. As most cases cannot be appealed to the Supreme Court as a matter of right, a party that wants the Supreme Court to review a decision must file a Petition for Writ of Certiorari. If the Court grants the Petition, then it will hear the case and issue a decision. A minimum of four of the nine Justices of the Supreme Court is required to grant the writ of certiorari. Grant of a Petition for Writ of Certiorari is rare; approximately 1% of the petitions filed in the term concluding in June of 2009 were granted. Further, the granting of a petition for writ of certiorari does not necessarily mean the Supreme Court disagrees with the lower court’s decision; just that at least four of the Justices believe the circumstances described in the Petition for Writ merit further review. NARUC’s Petition asks the Supreme Court to resolve two questions: - Do the explicit rules of statutory construction in §601(c)(1) of the 1996 Telecom Act and 47 U.S.C. §152(b) place any limits on either the FCC’s or a reviewing Court’s interpretation of agency authority?
- • Does the “Chevron” standard of deference to an administrative agency’s expertise permit the Tenth Circuit to confirm interpretations of the Communications Act, including the FCC’s redefinition of the term “reciprocal compensation,” that cannot be reconciled with the plain text of the statute, applicable principles of statutory construction, and precedent from this Court?
As this edition of the BloostonLaw Telecom Update went to press, copies of the other Petitions for Writ of Certiorari were not available. FCC to Consider Contentious Items at January 29 Open MeetingThe FCC has issued the official agenda for its January 29, 2015 Open Meeting, which includes the 2015 Broadband Progress Report on “whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion,” a report required by Section 706 of the Communications Act. As we noted in the January 14 edition of the BloostonLaw Telecom Update, the Progress Report is expected to raise the definition of “broadband” to 25Mbps downstream and 3Mbps upstream for the purposes of the Report (it is not a legal requirement, but rather a threshold for how the FCC reports to Congress whether broadband is being suitably deployed). Earlier this week, NCTA filed a letter with the FCC expressing concerns about the decision to raise the speed benchmark. According to the letter, “there is no basis in the record for the Commission to look solely to broadband services with speeds of 25 Mbps/3 Mbps or faster in carrying out its mandate under Section 706 to evaluate whether the deployment of “advanced telecommunications capability” is “reasonable and timely.” Rather, NCTA argued that only “a relatively small percentage of consumers who have access to speeds of 25 Mbps/3 Mbps actually choose to purchase service at those speeds, while most consumers tellingly opt for lower speeds that meet their needs.” NCTA also points out the “obvious tension” with the FCC’s recent decision to increase the actual broadband speed requirement for CAF Phase II and high cost support to 10/1. The Report is paired with a Notice of Inquiry asking what action the FCC should take to accelerate deployment of such capability by removing barriers to infrastructure investment; and an Order announcing the conclusion of the Ninth NOI on broadband deployment. The FCC will also consider a Report and Order to ensure that accurate caller location information is automatically provided to public safety officials for all wireless calls to 911, which recently came under fire for its reported inclusion of a proposal to have 911 emergency systems use the Russian Federation’s GLONASS precision navigation and timing satellite system to locate people calling 911 from their mobile phones. “In view of the threat posed to the world by Russia’s Vladimir Putin, it cannot be seriously considered that the U.S. would rely on a system in that dictator’s control for its wireless 911 location capability,” Rep. Mike Rogers, Alabama Republican and chairman of the Armed Services subcommittee on strategic forces, wrote in a letter to the secretary of defense and director of national intelligence obtained exclusively by the Washington Times. “Our response to Russia’s hybrid warfare, arms control cheating, illegal invasions of sovereign nations, and energy-based extortion must be broad-based isolation and counter-leverage.” The FCC will also hear a presentation on the new Consumer Help Center. CFC Seeks Waiver of Bank Eligibility Requirement for Rural Broadband ExperimentsOn January 21, the National Rural Utilities Cooperative Finance Corporation (CFC) and its affiliate, the Rural Telephone Finance Cooperative (RTFC), filed a Petition for Waiver of the FCC’s bank eligibility requirements for rural broadband experiment projects, which requires banks to be insured by the FDIC or the Farm Credit System Insurance Corporation. Interested parties may file oppositions by Monday, February 2, 2015, and reply comments by Monday, February 9, 2015. As many readers will already know, CFC is the largest non-governmental lender to rural utilities in the United States, and it manages and funds RTFC, which in turn makes loans primarily to its telecommunications provider members and affiliates. Because FDIC insurance is only available to depository institutions and FCSIC insurance is only available to agricultural credit banks, it is impossible for CFC to meet the FCC requirement. Nevertheless, argues CFC, “the unique role of CFC and RTFC as key lenders for rural electric utilities and telecommunications companies and their access to capital through the Department of the Treasury’s Federal Financing Bank (“FFB”), a revolving credit commitment from the Federal Agricultural Mortgage Corporation (“Farmer Mac”), and multi-year committed revolving credit facilities from significant private banks, as well as CFC’s strong internal controls, strict adherence to all relevant laws and regulations, and best practices in corporate governance, provide the financial stability and liquidity to fund its obligations under LOCs issued pursuant to the program.” Despite the comment window remaining open for this proceeding until February 9, the FCC reminds provisionally selected winning bidders that they must submit, through Form 5620, a letter from an acceptable bank committing to issue a letter of credit by February 3. FCC Sets Comment Deadline on 911 Outage NPRMAs reported in the November 25 BloostonLaw Update, the FCC is requesting comment on a proposal to expand the requirements in Section 12.4 of its rules and adopt additional mechanisms designed to ensure the reliability of 911. The FCC proposes the new requirements in response to recent multi-state 911 outages that "resulted from the failure of software and databases consolidated in a handful of locations but used to process 911 calls for jurisdictions across the country." According to the FCC, the proposed rules would address 911 network architectures where multiple service providers or sub-contractors, including non-carriers, provide call routing and ALI/ANI capabilities and ensure that each link in that chain is treated equally under Section 12.4. Comments on the NPRM are due March 9 and reply comments are due April 7. The NPRM includes the following proposals: - Expand the scope of entities covered by Rule 12.4 (i.e., the definition of “covered 911 service provider”) to include all entities that provide 911, E911, or NG911 capabilities, such as call routing, automatic location information (ALI), automatic number identification (ANI), location information servers (LIS), text-to-911, or the functional equivalent of those capabilities, regardless of whether they provide such capabilities under a direct contractual relationship with a PSAP or emergency authority.
- Require notification to the Commission and the public of major changes in any covered 911 service provider’s network architecture or scope of 911 services that are not otherwise covered by existing network change notification requirements
- Require covered 911 service providers that seek to discontinue, reduce, or impair existing 911 service in a way that does not trigger already existing authorization requirements should be required to obtain Commission approval.
- Require covered 911 service providers that seek to offer new services that affect 911 call completion to certify to the Commission that they have the technical and operational capability to provide reliable 911 service.
- Assign the role of 911 network operations center provider for each jurisdiction to the entity responsible for transport of 911 traffic to the PSAP or PSAPs serving that jurisdiction
Verizon Files Application for Review of Data Roaming Declaratory RulingNot surprisingly, Verizon has followed the same course as AT&T by filing an Application for Review of the Declaratory Ruling that granted T-Mobile’s Petition for Declaratory Ruling on data roaming issues and provided additional guidance on how to evaluate data roaming agreements under the standard in Section 20.12(e). The FCC has announced a consolidated deadline of February 4 for opposing both applications for review. Verizon claimed the Bureau’s Declaratory Ruling unlawfully changed the Commission’s 2011 Data Roaming Order, and said modifications must be made through rulemaking – and must be made by the full Commission, not by the Bureau. AT&T similarly argues that the Declaratory Ruling is inconsistent with the Data Roaming Order and renders the “commercially reasonable” standard for data roaming negotiations unlawfully vague under the Administrative Procedures Act and the Due Process Clause of the US Constitution. As previously reported, the FCC’s ruling has provided welcome guidance that could help small and rural carriers to negotiate more fair roaming terms with the nationwide carriers. Law & Regulation
Democrats Introduce Community Broadband ActOn January 22, U.S. Senators Cory Booker (D-N.J.), Edward J. Markey (D-Mass.), and Claire McCaskill (D-Mo.) introduced the Community Broadband Act, which seeks “to promote competition [and] to preserve the ability of local governments to provide broadband capability and services.” The proposed legislation states simply, “No statute, regulation, or other legal requirement of a State or local government may prohibit, or have the effect of prohibiting or substantially inhibiting, any public provider from providing telecommunications service or advanced telecommunications capability or services to any person or any public or private entity.” The Act also provides that “[e]ach public provider that intends to provide telecommunications service or advanced telecommunications capability or services to the public is encouraged to consider the potential benefits of a public-private partnership before providing the capability or services,” and further requires notice and an opportunity to be heard before any public provider begins offering service. “As Mayor of Newark, I saw firsthand the value of empowering local communities to invest and innovate. The Community Broadband Act provides cities the flexibility they need to meet the needs of their residents,” said Sen. Booker in a press release on the proposed legislation. “This legislation will enhance economic development, improve access to education and health care services, and provide increased opportunity to individuals in underserved areas. At a time when local governments are looking for ways to ensure their communities are connected and have access to advanced and reliable networks, the Community Broadband Act empowers local governments to respond to this ever-increasing demand.” FCC Proposes $1.6 Million Fine for Failure to Contribute to USF, TRS, and LNPOn January 26, the FCC released a Notice of Apparent Liability for Forfeiture proposing a penalty of $1,588,988 against Advanced Tel, Inc. (“ATI”) for its apparent failures to timely file and pay required contributions to the USF, TRS Fund, the LNP cost recovery mechanism and federal regulatory fees over several years. According to the Notice, USAC referred ATI to the Enforcement Bureau in May of 2008 for potential enforcement action, alleging that ATI had failed to comply with the Commission’s USF contribution Rules. ATI apparently failed to contribute fully and timely to the USF beginning in July 2006, and attempted to remedy the issue by requesting a structured payment plan allowing it to pay its delinquent USF balance in November of 2007. ATI apparently stopped making payments on this plan in December of 2008, and its apparent noncompliance continued from there — even after the Company became aware of the Bureau’s investigation in November 2009. In December 2009, the Notice recounts, ATI again requested a payment plan allowing it to pay its outstanding USF balance in installments and did make some payments toward its delinquency between December 2009 and March 2010, but failed to also make timely and complete payments on its current USF obligations. All told, ATI’s apparent USF violations include the nonpayment of “at least 36 USF invoices assessed between October 22, 2011 and September 22, 2014,” which violations will continue “until ATI cures them with full payments.” The FCC further found that, “[d]ata from ATI and USAC demonstrate that the highest amount ATI owed for USF contributions, including amounts transferred under the DCIA, was $1,407,310.76 in October 2009. Notably, ATI’s substantial payment failures continued year after year, even though ATI collected over $2,500,000 for USF assessments from its customers between 2006 and 2014. Verizon Agrees to $5 Million Settlement in Rural Call Completion InvestigationAlso on January 26, the FCC entered into a $5 million Consent Decree with Verizon over an Enforcement Bureau investigation into whether Verizon failed to investigate evidence of low call answer rates to 26 different rural areas across the country in 2013. Specifically, Verizon will pay a fine of $2 million and will implement a compliance plan in which it commits to spend an additional $3 million over the next three years to improve call completion to rural areas across the country. According to the Consent Decree, Verizon began to collect weekly samples of its call answer rates to individual rural incumbent LECs, identified by OCN, from April through December in 2013, periodically providing its weekly reports to the Enforcement Bureau. After reviewing all of Verizon’s reports for 2013, the Bureau issued a letter of inquiry (LOI) to Verizon seeking information about what efforts Verizon had made to investigate the causes of its persistently low call answer rates in specific rural OCNs. In its April 4, 2014 response to the LOI, Verizon acknowledged that, although it had previously initiated investigations or taken remedial action for 13 of the 39 OCNs, it had not done so for the remaining 26 OCNs prior to being served with the LOI. Verizon reportedly did undertake an investigation of the remaining 26 OCNs after receiving the LOI and provided the results to the Bureau showing that, in Verizon’s estimation, the low call answer rates “were not attributable to Verizon’s network or call completion practices.” In entering into the Consent Decree, the FCC noted that in its 2014 Rural Call Completion Reconsideration Order, it had expressly stated that a failure “to investigate evidence of a rural call delivery problem or to correct a problem of degraded service about which [a carrier] knows or should know ... may lead to enforcement action.” Industry
Snowden Files Reveal Canadian Global Internet Surveillance ProgramMultiple news sources are reporting that Canada’s electronic spy agency — the Communications Security Establishment (CSE) — has been intercepting and analyzing data on up to 15 million file downloads daily as part of a global surveillance program. Details of the program, known as “Levitation,” were revealed in a document reportedly obtained by infamous document leaker Edward Snowden and recently released to CBC News. According to the CBC article, Canada can access data from 102 free file upload sites, such as Sendspace, Rapidshare, and the now-defunct Megaupload (though other sites were not named). Based on a list of “suspicious downloads” included in the document, the U.K., U.S., Spain, Brazil, Germany and Portugal are also subject to surveillance. Once a “suspicious download” is identified, according to the article, analysts reportedly plug that IP address into a database run by the British electronic spy agency Government Communications Headquarters (GCHQ) to see five hours of that computer's online traffic before and after the download occurred. In one example the Snowden document, analysts also used a U.S. National Security Agency database that keeps online metadata on people for up to a year to search for further information about a target's Facebook profile. It reportedly helped analysts find an email address. CSE’s surveillance is part of its role in the “Five Eyes,” a long-private arrangement dating back to 1946 between the U.S. and the U.K., and which now also includes Australia, Canada, and New Zealand, to share intelligence and not to spy on one another. Interestingly, the article reports that under Canadian law, CSE isn’t allowed to target Canadians and is supposed to mask the identities of un-targeted Canadians before passing surveillance information on to others. "Every single thing that you do — in this case uploading/downloading files to these sites — that act is being archived, collected and analyzed," said Ron Deibert, director of the University of Toronto-based internet security think-tank Citizen Lab, who reviewed the document. Deadlines
FEBRUARY 2: 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 2 (as February 1 falls on a Sunday this year). 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
January
Jan. 29 – Deadline for Special Access Data Collection for large businesses with more than 1,500 employees.
Jan. 30 – Comments are due on the FCC’s Incentive Auction Procedures.
Jan. 31 – FCC Form 555 (Annual Lifeline ETC Certification Form) is due. February
Feb. 2 – FCC Form 499-Q (Quarterly Telecommunications Reporting Worksheet) is due.
Feb. 2 – FCC Form 502 (Number Utilization and Forecast Report) is due.
Feb. 2 – Oppositions are due on CFC Bank Eligibility Requirement Waiver Request.
Feb. 4 – Oppositions are due on AT&T/Verizon Applications for Review of T-Mobile Data Roaming Petition.
Feb. 5 – Comments are due on Technology Transitions NPRM.
Feb. 5 – Comments are due on Windstream Petition for Declaratory Ruling on DS1/DS3 Access.
Feb. 6 – Comments are due on Unlicensed Use of TV Band and 600 MHz Band Spectrum.
Feb. 6 – Comments are due on Part 1 Competitive Bidding NPRM.
Feb. 9 – Reply comments are due on CFC Bank Eligibility Waiver Request.
Feb. 9 – Comments are due on the IntraMTA Petition for Declaratory Ruling.
Feb. 17 – Filing deadline for Community Connect grant applications.
Feb. 25 – Reply comments are due on Unlicensed Use of TV Band and 600 MHz Band Spectrum.
Feb. 26 – Reply comments are due on Part 1 Competitive Bidding NPRM.
Feb. 27 – Deadline for Special Access Data Collection for small businesses with less than 1,500 employees.
Feb. 27 – Reply comments are due on the FCC’s Incentive Auction Procedures. March
Mar. 2 – Copyright Statement of Account Form for cable companies is due.
Mar. 2 – Annual CPNI Certification is due.
Mar. 2 – FCC Form 477 (Local Competition & Broadband Reporting) is due.
Mar. 9 – Reply comments are due on Technology Transitions NPRM.
Mar. 9 – Reply comments are due on Windstream Petition for Declaratory Ruling on DS1/DS3 Access.
Mar. 9 – Comments are due on 911 Outage NPRM.
Mar. 11 – Reply comments are due on the IntraMTA Petition for Declaratory Ruling.
Mar. 31 – FCC Form 525 (Delayed Phasedown CETC Line Counts) is due.
Mar. 31 – FCC Form 508 (ICLS Projected Annual Common Line Requirement) is due.
Mar. 31 – International Circuit Capacity Report is due. | BloostonLaw Private Users Update | Vol. 16, No. 1 | January 2015 |
Companies Examine Use of Private Radio for Critical Communications When Commercial Wireless Services FailOver the past several years, several Part 90 private radio licensees have made the decision to use cellular and similar commercial wireless services to meet their internal communications needs. While cellular can be convenient, it can also be problematic in the event of a local, regional or national emergency – as America found out after the terrorist attacks on September 11, 2001. More recent events (such as the Derecho Storm at the end of June 2012 and Superstorm Sandy, as well as a string of tornadoes in the Midwest) have shown that reliance on commercial wireless networks is becoming problematic, as ever more frequent disasters render these networks inaccessible for significant periods of time. For instance, in various states located along the notorious Tornado Alley, it has become increasingly obvious that cellular networks can become unusable during tornadoes and similar disasters, either because of damage to the network itself or the overload of the system with traffic. Following these natural disasters, it was not uncommon for emergency officials to pass knocked-down power lines and cell towers while looking for survivors – whether it be in Joplin, Missouri, Oklahoma City, Kentucky or Indiana. If a company or agency in the area of a disaster is relying solely on commercial communications systems, they may suffer loss of communications with their personnel even if there were little or no damage in their area. Therefore, several companies are deciding to maintain their private internal radio systems (or to license a new system) to ensure the capability to communicate with personnel in the event of an emergency. This dynamic was discussed in a study by Grainger Center for Electric Machinery and Electromechanics, Department of Electrical and Computer Engineering, University of Illinois at Urbana-Champaign, entitled “Hurricane Katrina: Damage Assessment of Power Infrastructure For Distribution, Telecommunication, and Backup”, which concluded that “If the PSTN fails, not only wireline subscribers may lose service but also a significant portion of the wireless network may become isolated or even lose service. . . . Two-way private radio systems, such as those used by police and other emergency services, are more useful.” Licensees considering cancellation of their private radio licenses should assess whether their system can be maintained at a reasonable cost to serve in this emergency backup role. FCC Partially Grants Suffolk, VA Request to Short Space Other Government EntitiesThe City of Suffolk, Virginia filed a request for waiver of the FCC’s Rules to permit it to add channels and locations that would be short-spaced to public safety co-channel operations in the City of Hopewell, Virginia as well as Chesterfield and Henrico Counties, Virginia. In seeking its waiver, Suffolk indicated that it was not able to obtain a consent letter from any of these licensees. The basis of the Suffolk waiver request is that it is unable to enhance its coverage to fill-in “dead spots” within its coverage area while maintaining the required co-channel short-spacing separation distance required by Rule Section 90.621(b)(4). In support of its request, Suffolk provided contour studies that purported to demonstrate that it would be able to provide the same interference protection as required by Rule Section 90.621. However, in reviewing the contour plots, the FCC noted that Suffolk had complied with the 1000 watt ERP assumption for Chesterfield County but not for the other co-channel licensees. Upon redoing the interference analysis with all incumbent licensees operating at 1000 watts ERP in accordance with the short-spacing table in Rule Section 90.621(b)(4), the FCC’s staff determined that the interference contours for two of Suffolk’s three proposed base stations would overlap with the coverage contours on a number of the incumbent co-channel facilities. Based upon the results of these studies, the Commission concluded that only one site would qualify for a rule wavier. In making its determination, the Commission noted that the lack of 800 MHz public safety spectrum was not an unusual or unique factual circumstance that would justify favorable action on the waiver request. Attention Equipment Manufacturers: FCC Outsources RF Equipment Certification, and Updates Testing and Measurement StandardsOn December 30, 2014, the FCC issued a Report and Order in ET Docket No. 13-44, updating the Commission’s radio frequency (RF) equipment authorization program to expand the use of Commission-recognized Telecommunications Certification Bodies (TCBs) as a faster and less expensive way to certify equipment. The TCB program up until now allowed equipment manufacturers to go to a private sector certification contractor rather than going through the full FCC Equipment Certification process, but only for certain categories of equipment. The new rules essentially outsource the entire certification process to the TCBs, in the name of facilitating the more rapid introduction of new and innovative products to the market while ensuring that these products do not cause harmful interference. Specifically, the new rules: - Discontinue FCC acceptance of applications for equipment Certification of RF equipment and instead permit TCBs to process and grant all applications for Certification (FCC will stop accepting certification applications upon the effective date of the Order, which is 30 days after Federal Register publication);
- Codify a pre-grant approval procedure that TCBs must currently follow when certifying equipment based on new technology that requires consultation with the FCC;
- Clarify a TCB’s responsibilities in performing post-market surveillance of products it has approved;
- Specify steps for addressing instances of deficient TCB performance, including appropriate sanctions for deficiencies that do not warrant rescinding a TCB’s authority to issue a grant of Certification;
- Modify the rules to reference new standards used to accredit TCBs that approve RF equipment under Part 2 of the Commission’s rules and terminal equipment under Part 68 of the Commission’s rules;
- Require accreditation of all laboratories that test equipment subject to any of the certification procedures under Part 2 of the Commission’s rules and codify a procedure through which the Commission currently recognizes new laboratory accreditation bodies;
- Update references to industry measurement procedures in the Commission’s rules; and
- Provide greater flexibility under the Office of Engineering and Technology’s (OET) existing delegated authority to enable it to address minor technical issues that may be raised when updating to the latest versions of industry standards that are referenced in Parts 2, 5, 15, and 18 of the Commission’s rules.
Until now, TCBs were generally not allowed to certify new technologies, because such situations often involved the interpretation of what may be vague aspects of the FCC rules and policies. The FCC will overcome this obstacle by identifying certain scenarios where the certifying body will be required to consult with the FCC’s Office of Engineering and Technology (OET) before certifying a device that raises unique issues. All items that were on the exclusion list or considered under the “permit-but-ask” procedure will now be considered under the pre-approval guidance procedures. In rare cases, OET can require submission of a sample device to the TCB or the FCC (i.e., similar to the old system). Each TCB will have authority to dismiss an application for certification submitted to it; and each TCB can rescind a certification it issued within 30 days, if it concludes that the certification was issued in error; however, it cannot rescind a certification issued by a different TCB. FCC Rule Section 2.911 has been modified to codify the established practice that applicants must provide the TCB with all information required for the TCB to determine whether the subject device complies with the Commission’s equipment Certification requirements; and the FCC amended Section 2.962 to require TCBs to document via the Electronic Authorization System (EAS) all information relevant to the processing of an application for certification, including pre-approval guidance inquiries and the dismissal of any applications. The FCC also amended Section 2.1033 of the rules to require that applications for Certification include photographs or diagrams of the test setup for each of the required types of tests applicable to the device for which Certification is requested. The photographs or diagrams must show enough detail to confirm other information contained in the test report, and any photographs must clearly show the test configuration used. A silver lining: There are currently 36 TCBs recognized by the Commission to provide equipment authorization services and manufacturers can choose their TCB based upon a variety of factors most relevant to them, including experience, speed, and cost. Other Details
Surprise Inspections: Equipment manufacturers will need to maintain methods for ensuring that their equipment continues to meet the specifications certified under the new procedures, as TCBs are under an obligation to conduct what amounts to surprise inspections of equipment following certification. TCBs are required to be accredited, and accreditation is conditioned on their performance of “post-market surveillance” on products that it has certified. The FCC codified the guidelines currently appearing in its Knowledge Data Base (KDB) for conducting post-market surveillance, placing them into Section 2.962 of the Commission’s rules as mandatory requirements. In addition to performing post-market surveillance on devices selected by the TCB, the FCC’s Office of Engineering and Technology (OET) may select samples for the TCB to test. This is designed to prevent a manufacturer or TCB from selecting “golden samples” that are unlikely to raise questions about the original grant of Certification. The FCC provides the grantee with a right to challenge a TCB’s finding that a device does not comply with the FCC rules. A sample rate of at least 5 percent of all of a TCB’s certified devices has been deemed by the FCC as appropriate. The FCC is even requiring post-certification sampling in cases involving the use of a permissive change or an FCC ID change. Several commenters supported the proposal of vouchers and/or selecting samples randomly from the distribution line, and the FCC agreed that this would help ensure that devices being post-market tested are representative of the devices being marketed. For this reason, grantees, upon request, must provide a voucher to the Commission or the TCB which authorizes the TCB to obtain a sample of the product from the marketplace at no cost to the Commission or TCB. As an alternative to providing a voucher, the grantee can allow the Commission or TCB to select a product randomly from the manufacturing or warehousing location. Furthermore, if special software or specialized mechanisms, methods, or modifications are required to test such unmodified production devices, the manufacturer must make these available (at no cost) along with any necessary instructions to the Commission or TCB upon request. Updating Measurement Procedures: The FCC is updating equipment measurement requirements by incorporating references to ANSI C63.4-2014 and ANSI C63.10-2013 into the rules as the measurement procedures for determining the compliance of unintentional and intentional radiators, respectively. While the new rules go into effect 30 days after publication in the Federal Register, the FCC is providing a transition period for ANSI C63.4, which ends one year after the effective date of the rules. During this transition, parties may continue to comply with either ANSI C63.4-2003, ANSI C63.4-2009 (consistent with current practice) or with the new ANSI C63.4-2014; and after the transition period date only compliance with ANSI C63.4-2014 will be accepted. The FCC will apply the same one-year transition period for use of the new edition of ANSI C63.10-2013. The FCC continues to believe that there is insufficient evidence that rod antennas, artificial hands or absorber clamps produce accurate, repeatable measurements, and that short-duration emissions can produce as much nuisance to radio communications as continuous emissions. Therefore, the FCC will continue to exclude ANSI C63.4-2014 sections that allow for these methods. The FCC also addressed the so-called “2 dB rule,” which is a method used to limit the amount of testing needed by determining the worst-case configuration (e.g. number of cables required to be attached) for equipment with multiple ports of the same type. ANSI C63.4-2009 included a change from ANSI C63.4-2003 that revised this procedure, particularly when measurements are showing emissions levels to be near acceptable limits. Some industry members were concerned that this change would place an additional burden on testing labs resulting in substantial increases in costs. To reduce potential burdens on equipment manufacturers, the FCC will continue to accept the use of the “2 dB” method in ANSI C63.4-2003 for demonstrating compliance with the requirement in Section 15.31(i), at least until the Commission adopts further revisions to the standard. On a related matter, the FCC remains unconvinced that it should allow the use of the measurement procedures in CISPR 22 for unintentional radiators, as an alternative to the ANSI-ASC standards being incorporated into the rules at this time. The FCC also noted that the use of the ANSI C63.4-2014 standard is an improvement over the 2009 standard, in that provides a means for the use of hybrid antennas that is appropriate and reliable for providing accurate radiated emissions measurements. Transition Period for TCBs: Testing laboratories currently listed by the Commission under the Section 2.948 process will remain recognized for the sooner of one year from the effective date of the new rules, or until the date that their listing expires. As of the effective date of the rules, new laboratories must be accredited in order to be added to the Commission’s list of recognized testing laboratories, and the Commission will not recognize new 2.948-listed laboratories. Testing laboratories whose 2.948-listings expire within one year of the effective date of the rules may renew their listing but the renewal will be valid only until one year after the effective date of the rules. The transition to the new site validation criteria will require testing laboratories to demonstrate compliance with the site validation criteria in ANSI C63.4-2014 clause 5.5.1 a) (CISPR 16-1-4), no later than three years after the effective date of the rules. Applicants for grants of Certification using recognized 2.948-listed testing laboratories that test devices up until one year after the effective date of the rules must submit those test reports for grants of Certification within 90 days of the end of the one-year transition period (i.e., within approximately 15 months of the effective date of the rules). FCC Provides Guidance for Licensing Former 700 MHz Narrowband Reserve SpectrumAs reported in the October 2014 edition of the Private Users Update, the FCC adopted rules which implemented changes to its rules governing the 700 MHz public safety narrowband spectrum (769-775/799/805 MHz) that were designed to promote the flexible and efficient use of public safety spectrum in the 700 MHz band. The FCC has now released its public notice providing guidance for licensing these channels. The FCC has indicated that the 700 MHz reserve channels were released for general use under the administration of the 700 MHz Regional Planning Committees for the benefit of state and local public safety users. Additionally, the FCC noted that with the UHF T-Band Markets (which are Boston, Chicago, Dallas/Fort Worth, Houston, Los Angeles, Miami, New York/Northeast New Jersey, Philadelphia, Pittsburgh, San Francisco/Oakland, Washington, DC/Virginia/Maryland), the Commission was giving priority access to T-Band incumbents within 80 km of the city center coordinates specified in Part 90 of the FCC’s Rules. Additionally, the FCC also stated that it would provide priority access to any T-Band incumbent that received a waiver of the 80 km distance requirement. This five-year priority access window T-Band incumbents to license the former 700 MHz reserve spectrum will close on January 9, 2020. Additionally, the 700 MHz Regional Planning Committees will have until June 2, 2015 to file amendments to their planning documents to incorporate the former 700 MHz reserve channels as part of the channel block to be used for deployable trunked systems. If no plan amendment is filed within a particular planning region, the former 700 MH reserve channels will automatically revert to General Use in that region.
Applicants that are seeking to license the former 700 MHz reserve channels will be required to file a Form 601 application together with a concurrence letter from the affected 700 MHz Regional Planning Committee. Additionally, T-Band incumbents will also be required to include an attachment which demonstrates the applicant’s commitment to return an equal number of UHF T-Band channels, including a list of the call signs covering the T-Band frequencies that they intend to return. A Petition for Reconsideration (Petition) of the new 700 MHz narrowband rules has been filed by Telecommunications Industry Association (TIA). Oppositions to the Petition must be filed on or before February 11, 2015. Replies to an opposition must be filed on or before February 23, 2015. In its Petition, TIA requests that the Commission amend its Order to “reflect that at the time a manufacturer submits . . . a device for type approval [to the Commission] it may not yet be feasible or possible to have completed yet all the requirements for [the] Project 25 Compliance Assessment Program (P25 CAP) certification.” As a result, TIA believes that the Commission should not treat the completion of the P25 CAP certification process as a prerequisite to the submission of an application for FCC type acceptance. We also note that the National Regional Planning Council (NRPC) has requested clarification regarding whether the new Air to Ground 700 MHz narrowband channels (formerly Secondary Trunked Channels) will be subject to the trunking requirements of Rule Section 90.537(a) – which requires blocks of six channels or more to be operated in a trunked mode. The NRPC believes that these channels should be exempted from the requirements of Rule Section 90.537(a) since it believes that most licensees will deploy these frequencies in a conventional mode and that the application of Rule Section 90.537(a) would hamper the effective conventional use of these frequencies. FCC Denies Request to Postpone Pre-Coordination and Application Filing Deadlines for 800 MHz Expansion Band and Guard Band ChannelsIn response to the FCC’s recent Public Notice announcing the completion of the 800 MHz Band Reconfiguration in nine additional National Public Safety Planning Advisory Committee (NPSPAC) regions, the Land Mobile Communications Council (LMCC) had requested that the Commission postpone the pre-coordination and application filing dates for 120 days, until May 13 and June 10, 2015, respectively. LMCC’s request was based upon the concern that while the Frequency Advisory Committees had begun work on a Memorandum of Agreement (MOA) to govern the pre-coordination process and resolve potential application conflicts, additional time was needed to complete the negotiations and implement the MOA. LMCC pointed out that “[t]he opportunity for mutually exclusive applications is high, absent an MOA designed specifically for these bands that also ensures that the spectrum is made available in a clearly defined, equitable and public beneficial manner.” The FCC responded that LMCC did not explain why an MOA was necessary – especially since an MOA did not exist with respect to NPSPAC regions that had previously completed their 800 MHz rebanding. Because LMCC did not demonstrate that the lack of an MOA had caused significant problems in the licensing of Expansion Band and Guard Band channels in those regions, it could not conclude that LMCC had met its burden to justify a postponement of the pre-coordination and application filing dates. Supreme Court Allows Telecom Tower In Residential AreaIn T-Mobile-South v. City of Roswell, Georgia, a 6-3 majority of the US Supreme Court reversed a ruling by the U.S. Court of Appeals for the Eleventh Circuit in favor of Roswell, which had rejected T-Mobile's proposal to build a tower on a tract of land surrounded by single-family homes, even though the tower would have been camouflaged to look like a tree. The federal appellate courts had divided over how and when local governments should explain their reasons for denying a tower approval, as required by Section 332 of the Communications Act. Congress crafted Section 332 as an attempt to strike a balance between the rights of state and local governments to regulate safety and aesthetics, versus the Federal interest in ensuring ubiquitous wireless services. It requires that any decision denying construction or modification of a wireless service facility be in writing and “supported by substantial evidence contained in the record.” The Supreme Court’s decision is not a blank check for tower proponents, and the underlying permit decision must be read in the context of the facts of the case, including existing wireless coverage in the target community. But the ruling seems to suggest that state and local governments must be more precise in their handling of tower permit denials. The Eleventh Circuit had ruled that Roswell had satisfied Section 332, because T-Mobile had its own transcript of the meeting in which the city council voted against the tower, and a written letter describing the decision and advising T-Mobile that it could obtain the minutes. The Supreme Court ruled that the law requires that the tower proponent be provided the reasons for the permit denial. Those reasons “need not be elaborate or even sophisticated,” but “simply clear enough to enable judicial review.” Aside from the letter to the tower proponent, “[a] locality may satisfy its statutory obligations if it states its reasons with sufficient clarity in some other written record issued essentially contemporaneously with the denial,” the majority opinion stated. Although Roswell stated the reasons for the denial in the minutes of the city council meeting, it issued those minutes 26 days after the date of the written denial and just four days before T-Mobile's deadline for seeking judicial review. The Supreme Court indicated that, because the issuance of the denial letter starts a 30-day challenge clock, the reasons for the denial must be issued at approximately the same time as the letter. Justice Samuel Alito Jr. concurred, writing: “Nothing we say today should be read to suggest that when a locality has erred, the inevitable remedy is that a tower must be built. The court has not passed on what remedial powers a ‘court of competent jurisdiction’ may exercise. This unanswered question is important given the federalism implications of this statute.” Chief Justice John Roberts Jr., joined by Justice Ruth Bader Ginsburg and in part by Justice Clarence Thomas, dissented. He said Roswell lost “because of a question of timing: The written record was not made available roughly the same day as the denial—a requirement found nowhere in the text of the statute.” Justice Clarence Thomas also dissented. Iowa Supreme Court Rules Telecom Tax Applies to VoIP ProvidersOn December 19, the Iowa Supreme Court issued a ruling that says companies that provide phone service through the Internet must be taxed the same as traditional telephone service providers. This is significant because at least one state has now defined VoIP as a telecommunications service that is subject to higher fees and taxes than Internet based services — especially with the battle heating up as to whether or not Internet services should be regulated by the FCC as a telecommunications service. According to the ruling, VoIP providers operate “telephone lines” even though the calls are transmitted (at least initially) over broadband networks. As a result of the ruling, VoIP companies in Iowa are now subject to annual state property tax assessments on telephone companies, which are calculated based on the size of their service networks. This outcome could trickle down to VoIP customers in the form of higher costs.
The ruling comes as a result of a challenge by Cable One Inc., an Arizona-based company that provides cable, internet and VoIP service in the Sioux City area, of two years’ worth of Iowa Department of Revenue assessments totaling $1.4 million, which Cable One argued didn’t apply because the company doesn't operate a telephone line. According to an article in the Washington Times, Justice Edward Mansfield “reached back 130 years in [the Supreme Court’s] own history” to overturn the decisions below, noting that the original law (which dated back to 1878) technically applied only to telegraph lines but that the Iowa Supreme Court later ruled that it also applied to telephones because they were similar technologies. “The foregoing cases support the view that the definition of ‘telephone line’ adapts with changing technology, so long as there is a line and a comparable service is being provided,” Mansfield wrote. “Cable One operates a transmission system to carry voice signals from one fixed location to another over a series of wires; therefore, it operates a telephone line.” Justice Mansfield said the decision was also “bolstered by Cable One’s own marketing material,” noting that the company told customers that its phone service was similar to a traditional landline. FCC Turns Down Part 90 License Sale Because Station Had Permanently Ceased OperationsIn response to a Petition to Deny filed by Mobile Relay Associates (MRA) against a pending application for FCC consent to the assignment of the license for Industrial/Business Pool Service station WQCA755, the FCC opened an investigation into the status of this station in order to determine whether or not the licensee “permanently discontinued” operation. Permanent discontinuance results in cancellation of the license. The FCC has traditionally required a high standard of proof before concluding that a licensee has permanently discontinued operation. Here, MRA demonstrated (a) that it had monitored the affected frequency since 2008 without detecting any radio transmissions from the licensee and (b) that the licensee lost access to the facility when its site lease expired on January 4, 2013 without a renewal from the landlord. In addition, the FCC requested that the licensee provide information regarding operational status of the station and in so doing, advised the licensee that a failure to respond could result in the Commission concluding that it had permanently discontinued operation. Based upon the evidence provided by MRA and the fact that the licensee never responded to the FCC’s inquiry, the FCC concluded that the license for station WQCA755 had permanently discontinued operation. As a result, the FCC updated the Universal Licensing System license database to reflect the cancellation of the license for station WQCA755 and dismissed the license assignment application. It is important to note that under the FCC’ Rules, private land mobile facilities are deemed to have permanently discontinued operation if they are off the air for more than one year. Even shorter discontinuance periods apply to certain types of radio services. In those circumstances where a station is deemed to have been permanently discontinued by operation of the FCC’s Rules, the license authorization for that facility automatically cancels without any action by the FCC. As a result, when purchasing a facility, it is important to ensure that proper due diligence is completed to ensure that the station is being operated in accordance with the FCC’s Rules and that the station has not permanently discontinued operation; and that the seller indemnifies you against any loss if the license is later invalidated because of Seller’s failure to operate. As this case demonstrates, a permanent discontinuance of operation or even a failure to timely construct will result in the automatic cancellation of a license authorization without action by the FCC. In those cases where a license has automatically cancelled (but the license remains as “Active” in the FCC’s ULS license database), the FCC can go back and rescind a grant since there can be no assignment or transfer of a cancelled license. We note that in this case the licensee did not respond to an FCC inquiry regarding the status of its license. A failure to respond to correspondence from the FCC can lead to adverse consequences that are based upon assumptions. Unfortunately, in many circumstances, it could become difficult to undo these consequences. As a result, it is very important that you notify our office upon the receipt of any letter from the FCC so that we can assist you in making an appropriate response. County Ignores FCC – FCC Responds by Proposing Modification of Public Safety LicenseIn June 2012, Union County, Florida received a license to operate a repeater base station on the frequency 155.985 MHz on a secondary, non-interference basis, since the primary use for this channel was mobile only. In October 2013, APCO notified the FCC that it had received an interference complaint from Baker County Emergency Services. Baker County, Florida received its license to operate on an adjacent frequency approximately 18 months prior to Union County’s grant. As a result, APCO proposed to relocate Union County to a new frequency that would resolve the interference issue with Baker County. Unfortunately, Union County stated that it was not willing to relocate, since it had been legitimately licensed and could not afford to make the frequency change. Because Union County was not cooperative, APCO notified the FCC. Union County continued to ignore the matter and failed to respond to the FCC’s inquiries. It is important to note that the FCC requires licensees to make good faith efforts to cooperate in the resolution of interference complaints. Here, it appears that Union County continued to ignore the FCC’s overtures to resolve the interference problem, including scheduled conference calls and e-mails. As a result, the FCC has issued an Order Proposing Modification of Union County’s license to delete the frequency 155.985 MHz. The FCC states that if Union County does not respond, it will be deemed to have consented to the modification and that any further operation on the frequency 155.985 could result in enforcement action.
Any time you receive correspondence from the FCC, it is very important that you contact our office in order to determine the best strategy for a timely and accurate response. A failure to respond to the FCC could result in enforcement action including dismissal of applications, cancellation of licenses as well as fines. |
David George and Bill Noyes
