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. 31 |
July 29, 2015 |
The BloostonLaw Telecom Update newsletter will be on our traditional August recess, in light of the usual slowdown in the news cycle at this time of year. We will resume publication on September 3. Meanwhile, we will keep clients apprised of significant developments via memos and special supplements.
Headlines
FCC Officially Grants AT&T-DIRECTV Merger
On July 24, the FCC officially granted the AT&T-DirecTV merger, about which Chairman Wheeler issued an initial statement last week. According to the Order, AT&T will acquire DirecTV in a stock-and-cash transaction in which each share of DirecTV common stock will be converted into $28.50 in cash plus the right to receive between 1.724 and 1.905 shares of AT&T common stock, depending on AT&T’s stock price prior to closing.
At closing, DirecTV will merge with and into a wholly owned subsidiary of AT&T, Steam Merger Sub LLC, which will be the surviving entity and will be renamed “DIRECTV.” The new DIRECTV will own the stock of the subsidiaries of the pre-transaction DIRECTV, and these subsidiaries will continue to hold the FCC licenses and other authorizations they held prior to the transaction.
A news statement issued earlier today set out key conditions of the merger:
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Fiber to the Premises (FTTP) Deployment. Post-merger AT&T-DirecTV must expand FTTP service to 12.5 million customer locations.
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Gigabit Service to E-rate Eligible Schools and Libraries. AT&T-DirecTV must offer gigabit service to any E-rate eligible school or library where AT&T deploys FTTP service.
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Non-Discriminatory Usage-Based Practices. AT&T-DirecTV must refrain from imposing discriminatory usage-based allowances or other discriminatory retail terms and conditions on its broadband Internet service.
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Internet Interconnection Disclosure Requirements. AT&T-DirecTV must submit its Internet interconnection agreements to the FCC so that the FCC may monitor the terms of such agreements to determine whether AT&T is denying or impeding access to its networks in anticompetitive ways through the terms of these agreements.
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Discounted Broadband Services for Low-Income Subscribers. AT&T-DirecTV must make available an affordable, low-price standalone broadband service to low-income consumers in its broadband service area.
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Compliance Program and Reporting. AT&T-DirecTV must retain both an internal company compliance officer and an independent, external compliance officer that will report and monitor, respectively, the combined entity’s compliance with all conditions of the merger.
FCC Task Force Seeks Input on Internal Process Reform
On July 21, Chairman Wheeler's Special Counsel published a blog post providing an update on the recently formed task force that will consider ways to improve the effectiveness of the FCC's internal processes. According to the post, the task force is seeking comment on:
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the use of delegated authority, and practices for providing notice of matters being handled on delegated authority;
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procedures for pre-vote circulation of FCC-level matters;
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procedures associated with editing FCC decisions;
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practices to encourage efficient FCC decision-making, such as the Consent Agenda;
- approaches for providing increased transparency of FCC procedures and protocols, and practices to track, disclose and encourage prompt Commissioner votes on items on circulation.
No filing deadline was listed, which means the opportunity to comment could end at any time. Clients interested in filing comments on the FCC internal process reform should contact the firm for more information.
Law & Regulation
Media Bureau Suspends Comment Deadline in Vacant Channel Proceeding
The Commission has just suspended until further notice the August 3 comment deadline for the NPRM in the Incentive Auction Vacant Channels proceeding (MB Docket 15-146). The June 11 NPRM (FCC 15-68) tentatively concluded that the Commission would preserve at least one vacant UHF band TV channel in each geographic service area for white space devices and wireless microphones.
In addition to this vacant TV band channel, unlicensed users will be able to conduct operations in whatever guard bands are needed to accommodate the paired 600 MHz band plan for mobile service (which will vary from market to market based on the participation level of broadcasters in the incentive auction) and in the 11 megahertz duplex gap that exists between the 600 MHz mobile uplink and downlink bands.
Google and Intel and other large white space and unlicensed spectrum advocates have consistently urged the Commission to ensure that a significant amount of unlicensed spectrum will be available in the TV Bands after the incentive auction and repacking of broadcasters has been completed. However, LPTV, TV translator and Broadcast Auxiliary Service stations, which are important operations but which are licensed with secondary status in the TV bands, were seemingly left out of the discussion, and some advocates have argued that these vital services may be irreparably harmed and their substantial investments impaired by the Incentive Auction process.
Per the FCC Order (DA 15-867), which was adopted and released this afternoon, the National Association of Broadcasters (NAB) is requesting that the Commission suspend the comment and reply comment deadlines for the Vacant Channels NPRM until further notice. NAB's motion for extension of time argues that an extension is necessary because if the Commission decides to allow a limited number of broadcast TV stations to be reassigned to channels within the duplex gap, this could impact the use of this spectrum by white space devices and wireless microphones. The possibility that even just a few TV broadcast operations may be relocated to the duplex gap in just a handful of markets has a wide array of commenters, and especially broadcasters, up in arms.
In somewhat of a subtle understatement, the Chief of the FCC's Media Bureau observes at Para 3 of the Order that proposals set forth in the Vacant Channel NPRM are "animated by a concern that, following the incentive auction and the repacking process, there will be fewer unused television channels available for use by white space devices and wireless microphones.”
The FCC says "animated," but under the circumstances it may have been more appropriate to say “agitated.” Either way, the comment and reply deadlines on the Vacant Channels NPRM are suspended until further notice. Depending on the outcome of the pending proceeding, the LPTV industry may consider a challenge to the Incentive Auction rules if the FCC doesn't listen to and address the concerns of incumbent operators, even if they are operating on secondary status. Regardless of the merits, a judicial challenge could very well delay or add uncertainty to the planned start date for the auction in early 2016. As we noted in the last BloostonLaw Telecom Update, the FCC is scheduled to vote on an Auction Procedures Public Notice next week. If adopted in its current form, the PN would set Tuesday, March 29, 2016 as the official start date for the Broadcast Incentive Auction.
FCC Reorganizes Enforcement Bureau Field Offices
In an effort to modernize its enforcement efforts, the FCC has adopted a plan that is designed to “improve efficiency, better position the agency to do effective radio interference detection and resolution and to meet other enforcement needs, and save millions of dollars annually after implementation is complete.”
What does this mean? After more than 20 years, the Commission has determined that there is a significant need to change the way its Enforcement Bureau conducts business. In large measure, this initiative is the result of significant technological changes over the years and limited tax dollars. The FCC has stated that this reorganization should not be perceived as a step-back from its enforcement activities. Rather, the reorganization of its field offices is intended to align the Enforcement Bureau structure and operations with the FCC’s priorities, including the elimination of radio frequency interference. However, some industry members have expressed concern that it may become more difficult to get the Commission’s attention in the event of an interference problem.
As part of the reorganization, the FCC is changing the qualifications for its field agents and realigning its offices. Of significance, all field agents will now be required to be electrical engineers. While the FCC will continue to operate offices in Atlanta, Boston, Chicago, Columbia, Maryland, Dallas, Denver, Honolulu, Los Angeles, Miami, New Orleans, New York, Portland, Oregon and San Francisco, it will be closing its offices in Anchorage, Buffalo, Detroit, Houston, Kansas City, Norfolk, Virginia, Philadelphia, San Diego, San Juan, Seattle and Tampa. In order to make up for these office closures, the FCC will rotate field agents through Anchorage, San Juan and Kansas City on a periodic basis. Finally, the FCC will also base rapid deployment or strike teams in Denver and Columbia, Maryland in order to supplement enforcement efforts at the remaining field offices as well as support high-priority enforcement actions.
GPSPS Fined $9 Million for Cramming, Slamming and Other Violations
On July 23, the FCC’s Enforcement Bureau issued a Forfeiture Order to GPSPS, Inc. assessing a fine of over $9 million for cramming, slamming, and submitting falsified evidence to government regulatory officials as proof that 41 consumers had authorized the company to switch their long distance providers.
As we reported in the March 4 edition of the BloostonLaw Telecom Update, the Bureau reviewed more than 150 complaints against GPSPS that consumers filed with the Commission, the Federal Trade Commission (FTC), the Public Utility Commission of Texas (Texas PUC), and the Better Business Bureau (BBB). All complainants contended that GPSPS switched their preferred long distance service provider without their authorization, and most affirmatively asserted that they had never heard of or spoken to GPSPS before discovering GPSPS’s charges on their telephone bills. Some complainants indicated that GPSPS told them the company had audio recordings evidencing the authorization and that, upon hearing those recordings, contended they were fake. GPSPS also apparently failed to respond full and in a timely manner to the Bureau’s investigation.
Senate Subcommittee Votes to Block Funding for FCC Net Neutrality Enforcement
On July 22 the Senate appropriations subcommittee voted on a broad funding measure that, among other things, prohibits the FCC from regulating rates under the net neutrality order. The bill would also cut the FCC’s funding by $20 million from last year’s funding. It will be voted on by the full committee on Thursday; however, it must still be signed by President Obama before becoming law — a very unlikely possibility given the President’s vocal support for Net Neutrality.
As we reported in the June 17 edition of the BloostonLaw Telecom Update, a bill was passed by the House Financial Services Subcommittee would impose the same spending restriction, cut the FCC budget by $25 million, requires newly proposed regulations to be made publicly available for 21 days before the Commission votes on them, and prohibits the FCC from regulating rates for either wireline or wireless Internet service.
Industry
Politico Takes RUS to Task over Broadband Funding
According to a recent article in POLITICO, “RUS has strayed from its rural mission. Even the agency’s staunchest defenders in Congress have learned: When it came to funding broadband projects, RUS never found its footing in the digital age.”
The news source reports that a recent investigation it had conducted found that “roughly half of the nearly 300 projects RUS approved as part of the 2009 Recovery Act have not yet drawn down the full amounts they were awarded” and that “[m]ore than 40 of the projects RUS initially approved never got started at all, raising questions about how RUS screened its applicants and made its decisions in the first place.” The canceled projects amounted to approximately $300 million in loans and grants, and approximately $277 million in awarded funding remains to be drawn (with any money that is not drawn by the end of September being forfeited, possibly stranding the amounts already drawn in unfinished projects).
“We are left with a program that spent $3 billion,” Mark Goldstein, an investigator at the Government Accountability Office, told POLITICO, “and we really don’t know what became of it.”
In criticizing RUS, POLITICO offers a quote from Iowa senator Tom Harkin that will likely strike a chord with anyone dealing with the FCC’s letter of credit requirements for its recent support mechanisms. At the 2005 nomination hearing of James Andrew to be the administrator of RUS, Harkin said, “We were not risk averse when we put telephone lines out to farmsteads and our small towns in America. We knew there was risk in doing that, but we managed it. RUS manages risk. And that is what I am asking in broadband, manage risk. Don’t be so risk adverse that you say, ‘We cannot give a loan out there because we want to make 100 percent certain that the company we give it to will not default and will not fail. Some of them will …”
State Attorneys General Urge Companies to Offer Call Blocking Technology to Customers
Multiple news outlets are reporting that on July 22 forty-five state attorneys general sent a letter to AT&T, Sprint, Verizon, T-Mobile and CenturyLink urging them to take “full advantage” of the FCC’s June 18th clarification that call-blocking technology does not violate federal law, and to offer such technology to their customers. According to the letter, previous discussions regarding the implementation of call-blocking technologies were cut short by concerns of such violations, but that the FCC’s clarification “should remove any doubt” about the carriers’ legal authority “to empower consumers by providing call-blocking technology to help stop robocalls, scam text messages and unwanted telemarketing calls.”
Deadlines
JULY 31: FCC FORM 507, UNIVERSAL SERVICE QUARTERLY LINE COUNT UPDATE. Line count updates are required to recalculate a carrier's per line universal service support, and is filed with the Universal Service Administrative Company (USAC). This information must be submitted on July 31 each year by all rate-of-return incumbent carriers, and on a quarterly basis if a competitive eligible telecommunications carrier (CETC) has initiated service in the rate-of-return incumbent carrier’s service area and reported line count data to USAC in the rate-of-return incumbent carrier’s service area, in order for the incumbent carrier to be eligible to receive Interstate Common Line Support (ICLS). This quarterly filing is due July 31 and covers lines served as of December 31, 2014. Incumbent carriers filing on a quarterly basis must also file on September 30 (for lines served as of March 31, 2015); December 30 (for lines served as of June 30, 2015), and March 31, 2016, for lines served as of September 30, 2015).
JULY 31: CARRIER IDENTIFICATION CODE (CIC) REPORTS. Carrier Identification Code (CIC) Reports must be filed by the last business day of July (this year, July 31). These reports are required of all carriers who have been assigned a CIC code by NANPA. Failure to file could result in an effort by NANPA to reclaim it, although according to the Guidelines this process is initiated with a letter from NANPA regarding the apparent non-use of the CIC code. The assignee can then respond with an explanation. (Guidelines Section 6.2). The CIC Reporting Requirement is included in the CIC Assignment Guidelines, produced by ATIS. According to section 1.4 of that document: At the direction of the NANPA, the access providers and the entities who are assigned CICs will be requested to provide access and usage information to the NANPA, on a semi-annual basis to ensure effective management of the CIC resource. (Holders of codes may respond to the request at their own election). Access provider and entity reports shall be submitted to NANPA no later than January 31 for the period ending December 31, and no later than July 31 for the period ending June 30. It is also referenced in the NANPA Technical Requirements Document, which states at 7.18.6: CIC holders shall provide a usage report to the NANPA per the industry CIC guidelines … The NAS shall be capable of accepting CIC usage reports per guideline requirements on January 31 for the period ending December 31 and no later than July 31 for the period ending June 30. These reports may also be mailed and accepted by the NANPA in paper form. Finally, according to the NANPA website, if no local exchange carrier reports access or usage for a given CIC, NANPA is obliged to reclaim it. The semi-annual utilization and access reporting mechanism is described at length in the guidelines.
AUGUST 1: FCC FORM 499-Q, TELECOMMUNICATIONS REPORTING WORKSHEET. All telecommunications common carriers that expect to contribute more than $10,000 to federal Universal Service Fund (USF) support mechanisms must file this quarterly form. The FCC has modified this form in light of its recent decision to establish interim measures for USF contribution assessments. The form contains revenue information from the prior quarter plus projections for the next quarter. Form 499-Q relates only to USF contributions. It does not relate to the cost recovery mechanisms for the Telecommunications Relay Service (TRS) Fund, the North American Numbering Plan Administration (NANPA), and the shared costs of local number portability (LNP), which are covered in the annual form (Form 499-A) that was due April 1. BloostonLaw contacts: Ben Dickens and Gerry Duffy.
AUGUST 1: 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 August 1. 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 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.
AUGUST 29: COPYRIGHT STATEMENT OF ACCOUNTS. The Copyright Statement of Accounts form plus royalty payment for the first half of calendar year 2015 is due to be filed August 29 at the Library of Congress’ Copyright Office by cable TV service providers.
SEPTEMBER 1: FCC FORM 477, LOCAL COMPETITION AND BROADBAND REPORTING FORM. Three types of entities must file this form.
- Facilities-based Providers of Broadband Connections to End User Locations: Entities that are facilities-based providers of broadband connections — which are wired “lines” or wireless “channels” that enable the end user to receive information from and/or send information to the Internet at information transfer rates exceeding 200 kbps in at least one direction — must complete and file the applicable portions of this form for each state in which the entity provides one or more such connections to end user locations. For the purposes of Form 477, an entity is a “facilities-based” provider of broadband connections to end user locations if it owns the portion of the physical facility that terminates at the end user location, if it obtains unbundled network elements (UNEs), special access lines, or other leased facilities that terminate at the end user location and provisions/equips them as broadband, or if it provisions/equips a broadband wireless channel to the end user location over licensed or unlicensed spectrum. Such entities include incumbent and competitive local exchange carriers (LECs), cable system operators, fixed wireless service providers (including “wireless ISPs”), terrestrial and satellite mobile wireless service providers, MMDS providers, electric utilities, municipalities, and other entities. (Such entities do not include equipment suppliers unless the equipment supplier uses the equipment to provision a broadband connection that it offers to the public for sale. Such entities also do not include providers of fixed wireless services (e.g., “Wi-Fi” and other wireless ethernet, or wireless local area network, applications) that only enable local distribution and sharing of a premises broadband facility.)
- Providers of Wired or Fixed Wireless Local Telephone Services: Incumbent and competitive LECs must complete and file the applicable portions of the form for each state in which they provide local exchange service to one or more end user customers (which may include “dial-up” ISPs).
- Providers of Interconnected Voice over Internet Protocol (VoIP) Service: Interconnected VoIP service is a service that enables real-time, two-way voice communications; requires a broadband connection from the user’s location; requires Internet-protocol compatible customer premises equipment; and permits users generally to receive calls that originate on the public switched telephone network and to terminate calls to the public switched telephone network. Interconnected VoIP providers must complete and file the applicable portions of the form for each state in which they provide interconnected VoIP service to one or more subscribers, with the state determined for reporting purposes by the location of the subscriber’s broadband connection or the subscriber’s “Registered Location” as of the data-collection date. “Registered Location” is the most recent information obtained by an interconnected VoIP service provider that identifies the physical location of an end user.
- Providers of Mobile Telephony Services: Facilities-based providers of mobile telephony services must complete and file the applicable portions of this form for each state in which they serve one or more mobile telephony subscribers. A mobile telephony service is a real-time, two-way switched voice service that is interconnected with the public switched network using an in-network switching facility that enables the provider to reuse frequencies and accomplish seamless handoff of subscriber calls.
A mobile telephony service provider is considered “facilities-based” if it serves a subscriber using spectrum for which the entity holds a license that it manages, or for which it has obtained the right to use via lease or other arrangement with a Band Manager.
SEPTEMBER 30: FCC FORM 396-C, MVPD EEO PROGRAM REPORTING FORM. Each year on September 30, multi-channel video program distributors (“MVPDs”) must file with the Commission an FCC Form 396-C, Multi-Channel Video Programming Distributor EEO Program Annual Report, for employment units with six or more full-time employees. Users must access the FCC’s electronic filing system via the Internet in order to submit the form; it will not be accepted if filed on paper unless accompanied by an appropriate request for waiver of the electronic filing requirement. Certain MVPDs also will be required to complete portions of the Supplemental Investigation Sheet (“SIS”) located at the end of the Form. These MVPDs are specifically identified in a Public Notice each year by the FCC.
Calendar At A Glance
July
Jul. 31 – Reply comments are due on Part 4 Outage Reporting NPRM.
Jul. 31 – FCC Form 507 (Universal Service Quarterly Line Count Update) is due.
Jul. 31 – Carrier Identification Code (CIC) Report is due.
August
Aug. 1 – FCC Form 502 due (North American Numbering Plan Utilization and Forecast Report).
Aug. 1 – FCC Form 499-Q (Quarterly Telecommunications Reporting Worksheet) is due.
Aug. 5 – Comments are due on Transparency Exemption proceeding.
Aug. 13 – Effective date for Lifeline rule revisions (including document retention requirements).
Aug. 17 – Comments on Lifeline Further Notice of Proposed Rulemaking are due.
Aug. 21 – Comments due on Video Programming Competition Report.
Aug. 29 – Copyright Statement of Accounts is due.
September
Sep. 1 – FCC Form 477 due (Local Competition and Broadband Report).
Sep. 4 – Reply comments are due on Transparency Exemption proceeding.
Sep. 15 – Reply comments on Lifeline Further Notice of Proposed Rulemaking are due.
Sep. 21 – Reply comments are due on Video Programming Competition report.
Sep. 25 – Comments are due on Section IV.B of the Special Access Data NPRM.
Sep. 30 – FCC Form 396-C (MVPD EEO Program Annual Report).
| BloostonLaw Private Users Update |
Vol. 16, No. 7 |
July 2015 |
Enforcement Alert: FCC Finding Tower Violations Through Antenna Structure Registration Database
Recently, the FCC has noticed a trend where applications for antenna structure registration (ASR) contain defects that point to violations of the FCC’s ASR rules that could result in significant fines. These violations include:
- Failing to obtain both a Determination of No Hazard from the Federal Aviation Administration and an ASR registration prior to constructing the antenna structure
- Failing to notify the FCC within five days of completing construction of the tower or dismantling the tower
- Installation of obstruction marking and lighting that differs from the specifications authorized by the FCC in the ASR system and/or specified on the Determination of No Hazard issued by the FAA.
- Failing to update the ASR registration database upon receipt of a new/updated Determination of No Hazard from the FAA for an antenna structure.
- Failure to report ownership changes
Additionally, now that the FCC’s ASR application process includes an environmental assessment, the filing process has become more complex and confusing. The application is now a two-step process, with the second step occurring after the environmental process has been completed. As a result, the FCC is also taking this opportunity to remind applicants that ASR applicants may not prematurely certify that the antenna structure would not have a “significant environmental effect.” Doing so could result in the imposition of monetary forfeitures. In this regard, the FCC has found that this issue generally arises when the “Step 2” amendment is made, including:
- The applicant uses ASR Certification Option No.1 (indicating that the construction is exempt from environmental notification due to
another agency’s review before an environmental review has actually been completed);
- The applicant uses ASR Certification Option No. 3 (asserting that an environmental notification has been completed, and that the FCC has notified the applicant that an Environmental assessment is not required before the Bureau has notified the applicant that an Environmental Assessment is not required); or
- The applicant uses ASR Certification Option No. 4 (asserting that the FCC has issued a Finding of No Significant Impact before the FCC has issued such finding).
In order to avoid the potential for monetary forfeitures, it is very important that our clients ensure that their ASR filings are made in a timely manner and in compliance with the FCC’s environmental rules. We recommend that clients consult us with any questions, or have us assist with preparation of their filings, to avoid fines.
FCC Reorganizes Enforcement Bureau Field Offices
In an effort to modernize its enforcement efforts, the FCC has adopted a plan that is designed to “improve efficiency, better position the agency to do effective radio interference detection and resolution and to meet other enforcement needs, and save millions of dollars annually after implementation is complete.”
What does this mean? After more than 20 years, the Commission has determined that there is a significant need to change the way its Enforcement Bureau conducts business. In large measure, this initiative is the result of significant technological changes over the years and limited tax dollars. The FCC has stated that this reorganization should not be perceived as a step-back from its enforcement activities. Rather, the reorganization of its field offices is intended to align the Enforcement Bureau structure and operations with the FCC’s priorities, including the elimination of radio frequency interference. However, some industry members have expressed concern that it may become more difficult to get the Commission’s attention in the event of an interference problem. For our clients, the danger is that the Bureau may seek to “magnify” the impact of its reduced enforcement capability by really clobbering those entities that are caught in a violation, especially smaller companies that are less likely to mount a serious legal challenge.
As part of the reorganization, the FCC is changing the qualifications for its field agents and realigning its offices. Of significance, all field agents will now be required to be electrical engineers. While the FCC will continue to operate offices in Atlanta, Boston, Chicago, Columbia, Maryland, Dallas, Denver, Honolulu, Los Angeles, Miami, New Orleans, New York, Portland, Oregon and San Francisco, it will be closing its offices in Anchorage, Buffalo, Detroit, Houston, Kansas City, Norfolk, Virginia, Philadelphia, San Diego, San Juan, Seattle and Tampa. In order to make up for these office closures, the FCC will rotate field agents through Anchorage, San Juan and Kansas City on a periodic basis. Finally, the FCC will also base rapid deployment or strike teams in Denver and Columbia, Maryland in order to supplement enforcement efforts at the remaining field offices as well as support high-priority enforcement actions.
FCC Seeks Comment on LMCC Proposed 800 MHz Interstitial Channel Interference Contours
The FCC is seeking comment on the Land Mobile Communications Council’s (LMCC’s) proposed 800 MHz Interstitial Channel Interference contours in connection with the Commission’s ongoing800 MHz rule making proceeding. Comments are due 30 days after publication in the Federal Register.
Essentially, LMCC has proposed interference contours that would apply when stations of various modulation types are operated on the interstitial channels (12.5 kHz spacing) adjacent to the “standard” 25 kHz spacing stations that are also operated with various modulation types. LMCC first made its proposal in 2010, but due to significant changes in equipment offerings over the past 5 years, determined that the interference criteria in its original proposal were no longer adequate.
Please contact us if you would like to review a copy of the LMCC proposal.
FCC Seeks Comment on Request for Waiver to Permit Equipment Certification for Sale of In-Vehicle Mobile Phone Signal Boosters
Kathrein Automotive GmbH & Ko. has filed a request for waiver of the FCC’s Consumer Signal Booster anti-oscillation and labeling requirements in order to permit the certification of in-vehicle, pre-installed Wideband Consumer Signal Boosters. The FCC’s rules currently require that Consumer Signal Boosters self-monitor and mitigate any unintended uplink and downlink oscillations. Alternatively, Kathrein requests that the FCC determine that its signal booster complies with the FCC’s Rules, through the use of protection measures that are equivalent to the Network Protection standard. Kathrein is also requesting a waiver of the labeling requirements for Consumer Signal Boosters – in particular, that the labeling be on the device packaging and on the device itself, since the device will be installed in vehicles by the vehicle manufacturer. Instead, Kathrein proposes that the vehicle manufacturers provide the necessary advisories to their customers at the time that a signal booster equipped vehicle is sold.
Comments in this proceeding are due August 10, 2015; Reply Comments are due August 20, 2015.
FCC Grants Waiver of 90.617 to Permit Assignment of License to Oakland County, Michigan
The FCC has granted a waiver of Rule Section 90.617 in order to permit the assignment of various 900 MHz frequencies in the Industrial/Business Pool by the Suburban Mobility Authority for Regional Transportation (SMART) to Oakland County, Michigan. A rule waiver was required because Oakland County, as a local government, is not eligible to hold this spectrum.
Pursuant to Rule Section 90.421, SMART authorized the County’s Road Commission to utilize some of SMART’s 900 MHz spectrum since the Road Commission was available to assist SMART in emergencies and so that both entities could communicate. In this regard, SMART arranged for the County’s Road Commission to install several hundred 900 MHz mobile data units in the Commission’s vehicles so that SMART could communicate with these vehicles, in order to determine the relevant road conditions.
Because SMART is migrating its operations away from the 900 MHz band, it has proposed to assign to the County those 900 MHz frequencies it is currently using, while deleting those channels that are not being used. In granting the rule waiver, the FCC noted that the County’s long-time use of the industrial 900 MHz channels was consistent with the FCC’s rules and that SMART’s action to delete those channels not used by the County would make that spectrum available to other industrial users.
Robo-Calls net Time Warner Cable a $229,500 Penalty for 153 Automated Calls to Customer’s Number
Yesterday, the United States District Court for the Southern District of New York granted summary judgment against Time Warner Cable for violations of the Telephone Consumer Protection Act of 1991 (the “TCPA”), which prohibits the placement of calls by an automated dialing machine without prior consent of the called party. The plaintiff, Ms. Araceli King, was awarded $229,500 – 153 violations at $1,500 per violation. The FCC has since clarified the TCPA rules to make it more clear that when a company is sloppy about calling a customer number that has been reassigned (or customer consent has been revoked), it will face steep penalties.
Time Warner argued that its system did not qualify as an automated dialer because it did not generate numbers, but rather compiled them from Time Warner’s customer base (specifically, customers who were behind on their bills). The court found, however, that since a human did not compile the list, and in fact no human involvement was identified at any stage in the process, the system is fully automated from start to finish and is therefore an automated dialer. “Whether it actually dialed King’s number randomly or from a list is irrelevant.”
Time Warner also argued that only calls that actually connected – in this case, around 70 – could possibly violate the TCPA. Here, the court ruled that the plain language of the statute makes it unlawful to make any call using an automated dialing system – whether the call is answered by a person, a machine, or not at all is irrelevant.
Finally, Time Warner argued that it placed the calls with the consent of the consumer. Specifically, Time Warner argued that (a) the plaintiff had consented through her agreement with the company and (b) it thought it was calling a Mr. Luiz Perez, whose consent it had also obtained. However, after a few months of calls, the plaintiff informed a Time Warner representative that she was not Mr. Perez, and asked the company to stop calling her. The court found that this constituted revocation of consent, and that all calls placed after the revocation (153) were violations of the TCPA.
The court found that treble damages were appropriate in this case because Time Warner Cable had full knowledge through its agent that the plaintiff had revoked consent. Plaintiff’s phone records corroborated her claim that she spoke to a representative, and Time Warner Cable was not able to refute it. Further, the court found that Time Warner Cable’s assertion that it lacked knowledge of non-consent “incredible” in light of the fact that the calls continued after it had been served with the instant suit. “Defendant harassed Plaintiff with robo-calls until she had to resort to a lawsuit to make the calls stop, and even then TWC could not be bothered to update the information in its IVR system. The calls placed after March 26, 2014 are particularly egregious violations of the TCPA and indicate that TWC simply did not take this lawsuit seriously. Treble damages are unquestionably appropriate to reflect the seriousness of TWC's willful violations.”
FCC Fines Mobile Relay Associates $25,000 for Causing Harmful Interference on Shared Channels
The FCC has issued a Notice of Apparent Liability against Mobile Relay Associates (MRA) for causing harmful interference to co-channel licensees. In particular, the FCC determined that MRA failed to (a) monitor before transmitting on shared frequencies and (b) take other precautions in order to avoid causing harmful interference to another licensed co-channel station. Following an inspection of MRA’s station, the FCC notified MRA of the monitoring requirement. However, it appears that MRA failed to modify the operation of its station in order to remedy the interference issue. As a result, the FCC has proposed a $25,000 fine.
In response to interference complaints, the FCC’s Los Angeles Office investigated the MRA station on several occasions and found that MRA was operating its station on nearly a continuous basis with a 96 to 97 percent and did not restrict its transmissions to the minimum time required. Additionally, the FCC noted that MRA did not operate the station in a trunked configuration even though the MRA license only authorized trunked operations.
In response to the FCC violation notice, MRA claimed that it was not operating on a continuous basis because it (a) had a large amount of radio traffic, (b) programmed its system to pause for 5 seconds once each 5 minutes and (c) programmed its system not to restart transmissions if another transmitter began to broadcast during that 5 second pause. MRA also asserted that it was compliant with the FCC’s Rules because the rules did not specify a time interval.
The FCC’s Rules clearly outline the obligations that licensees have to avoid causing harmful interference. These obligations are especially critical because the channels are shared. In particular, Rule Section 90.403 (e) requires licensees to take reasonable precautions to avoid causing harmful interference. This includes monitoring the frequency for communications that are in progress before transmitting, and other measures in order to prevent harmful interference to other licensed co-channel operations. Because most of the Part 90 private radio channels are shared, it is important to configure your system so that it does not cause harmful interference to other authorized users. This means that you should monitor, and also ensure that communications are kept to the minimum time required and that your stations do not monopolize the airwaves.
For those of our clients who operate non-centralized trunked systems on shared channels (station class FB6), it is important to note that the system must be configured so that it cannot transmit on a trunked frequency if a signal from another system is present on that channel. FB8 centralized trunking systems are exempt from monitoring.
Any client with questions regarding the appropriate configuration for their system should contact our office.
FCC Grants Waiver for Travelers Advisory Station
The FCC has granted Avon Grove Regional Emergency Management’s application to construct a new Travelers Advisory Station in Chester County, Pennsylvania. This grant is significant because the FCC waived its rules which restrict the height of the antenna to 15 meters and the field strength to 2.0 m V/m at a distance of 1.5 km from the transmitter site.
In requesting its waiver, Avon noted that the Travelers Advisory Station is dual purpose, since it is also designed to provide emergency information to the community in the event of a disruption in electrical service.
As part of its station design process, Avon Grove tested its antenna at various locations using the 15 meter antenna height, but found that the signal distortion from an adjacent antenna tower limited its ability to provide adequate coverage in all directions. Avon Grove provided engineer statements which demonstrated that it would not cause harmful interference to an adjacent channel AM broadcast station in Lindenwold, New Jersey. The FCC conditioned its grant upon the stipulation that Avon Grove may not cause any interference to an AM broadcast station and must accept any interference.
FCC Expands Opportunities for Experimentation and Market Trials
The FCC has updated its Experimental Radio Service (ERS) rules to provide licensees with additional flexibility to keep pace with technical changes. In particular, the Commission has added three new types of experimental licenses: (a) the program license, (b) the medical testing license and (c) the compliance testing license. Additionally, the FCC also modified its market trial rules in order to make its policies clearer.
The FCC has modified its rules in response to three petitions for reconsideration, as follows: (a) consistent with past practice, the FCC will permit conventional ERS licensees and compliance testing licensees to use frequency bands that are allocated for passive services under certain circumstances; (b) clarified that licensees may recover some costs from end users for the testing and operation of experimental medical devices during clinical medical trials under the FCC’s market trial rules and (c) added a new definition for “emergency notification providers” in order to clarify that all participants in the FCC’s Emergency Alert System (EAS) are emergency notification providers.
 Passive Services
The Commission clarified that its intent in the underlying Report and Order was to continue the previous practice regarding conventional ERS licenses. The Commission stated that “[d]ue to the nature of the compliance testing process, we will not impose on them most of the limitations and reporting requirements that we are imposing on program licenses. Specifically, because compliance testing often involves emission measurements in restricted bands, compliance testing licensees will be exempt from the prohibition on operating in the restricted bands . . . and from operating in the bands allocated exclusively to the passive services.”
Medical Testing
Confusion exists because FDA and FCC cost recovery rules for medical trials differ. Generally, the FCC’s rules prohibit the operation and marketing of RF equipment before an equipment authorization is issued – except in limited circumstances, such as pursuant to an experimental license with “market study” authority. The restrictions on marketing are intended to prevent the distribution and sale of experimental devices in the general stream of commerce where devices may not be easily recalled by the manufacturer or distributor. The question became whether accepting FDA authorized reimbursements would fall under the FCC’s definition of marketing. While the FCC noted that it would, it also concluded that the market trial exception under Part 5 of the FCC’s Rules would apply. As a result, the FCC has clarified that medical device manufacturers may recover their costs to the extent permitted by the FCC’s Part 5 market trial rule.
EAS
The Commission has added a definition of “Emergency Notifications” to its rules and now clarifies that “all participants in the Emergency Alert System are emergency notification providers, and are therefore entitled to notification of program experiments that might affect them, as well as protection from harmful interference that such experiments might cause.” The underlying Report and Order specified that for program license experiments that might affect critical service bands (i.e., bands used for the provision of commercial mobile services, emergency notifications or public safety purposes), the program licensee would be required to take the additional step of developing a specific plan to avoid causing harmful interference.
Further Notice of Proposed Rule Making
The FCC has proposed to modify it program rules in order to permit experimentation on frequencies listed in Rule Section 15.205(a), provided that the device being tested is designed to comply with all applicable service Rules under Parts 18 – Industrial, Scientific and Medical Equipment; Part 95 – Personal Radio Services Subpart H – Wireless Medical Telemetry Service or Part 95 Subpart I – Medical Device Radio Communication Service. The FCC believes that the proposed changes will establish parity between all qualified medical device manufacturers when conducting clinical trials with RF based medical devices as it related to permissible frequencies.
Comments will be due 30 days after publication in the Federal Register; reply comments 45 days after publication in the Federal Register. |
Courtesy of GCSAR Flight For Life, pictured here during an earlier rescue, was instrumental in saving a man experiencing severe altitude sickness at Bowen Lake in the Neversummer Range on Tuesday, July 28.
