Under rules that are effective as of yesterday, the FCC has expanded its communications network outage reporting requirements to include providers of interconnected Voice Over Internet Protocol (VoIP) services. As a result, when a VoIP provider suffers an “outage,” defined by the FCC as “a network failure or degradation that significantly degrades the end user’s ability to make or maintain communications,” the VoIP provider must report the outage to the FCC if the outage meets specific criteria. The FCC states that in the case of interconnected VoIP, it interprets "outage" to mean a complete loss of service and/or connectivity to customers, and the provider is deemed to have suffered a reportable outage: 

• "If the outage even potentially affects a 911 special facility and lasts at least 30 minutes, then within 4 hours of having knowledge of the outage, the provider has to notify the FCC of the outage, through NORS [the Network Outage Reporting System]. The interconnected VoIP service provider also has to contact, as soon as possible, the appropriate personnel at the affected or potentially affected 911 special facility with information that could help mitigate any effects of the outage.
• If the interconnected VoIP service provider experiences an outage on any of its own facilities or those it operates, leases or otherwise uses (not including 911 special facilities) and the outage lasts at least 30 minutes and has the potential to affect at least 900,000 user minutes, then within 24 hours of having knowledge of the outage, the provider has to notify the FCC of the outage, through NORS.
• If the outage even potentially affects any “special offices and facilities” and the outage lasts at least 30 minutes, then within 24 hours of having knowledge of the outage, the interconnected VoIP service provider has to notify the FCC of the outage, through NORS."

The expanded rules now apply to facilities-based and non-facilities-based interconnected VoIP providers. The rules define a VoIP service as “interconnected” if it (1) enables realtime, two-way voice communications; (2) requires a broadband connection from the user’s location; (3) requires Internet protocol-compatible customer premises equipment (CPE); and (4) permits users generally to receive calls that originate on the public switched telephone network. "Special offices and facilities" include certain military, government, power plant and airport facilities. The rules apply even if the VoIP service is not “facilities based,” meaning that the VoIP provider neither owns nor has a possessory interest in the “channels of communication” used to provide the service. As a result, these FCC rules explicitly extend to so-called “over-the-top” VoIP providers.

On Friday, the FCC published a small entity compliance guide that discusses these new requirements. As network outage issues gain attention and VoIP services expand, interconnected VoIP providers should become familiar with these requirements. This guide provides a useful starting point in anticipation of the next severe weather event or possible service disruption. 

Here is a brief summary of the outage reporting rules that will apply to interconnected VoIP providers:

Facilities-based and non-facilities-based interconnected VoIP providers are subject to new reporting obligations. In contrast to the more onerous rules initially proposed by the FCC, providers will only need to report significant outages where customers lose service or connectivity, and are therefore unable to access 9-1-1 services. The FCC reasoned that interconnected VoIP providers have the ability to monitor VoIP-enabled end-user devices to determine whether connectivity is lost. The FCC does not expect that interconnected VoIP providers will need to purchase any equipment or software in order to comply with the new reporting rules.

The definition of "outage" will be the same definition that is in Part 4 of the FCC's rules: "a significant degradation in the ability of an end user to establish and maintain a channel of communications as a result of a failure or degradation in the performance of a communications provider's network." A "significant degradation" is one that results in "the complete loss of service or connectivity to customers."

When Outage Reports will be Required:

• An interconnected VoIP provider will be required to electronically notify the FCC within 24 hours of an "outage" it has experienced, on any facilities it owns, operates, leases or otherwise utilizes that is at least 30 minutes long and potentially affects (1) at least 900,000 user minutes of service and results in a complete loss of service, and (2) any special offices and facilities. Examples triggering this notification include a complete loss of an access router and a loss of all facilities connecting the access router to the backbone.
• An interconnected VoIP provider also will be required to file an electronic report within 240 minutes of discovering it has experienced on any facilities it owns, operates, leases or otherwise utilizes an outage of at least 30 minutes that potentially affects a 9-1-1 special facility. In addition, for this second category, the interconnected VoIP provider must contact by telephone of other means the point of contact for the 9-1-1 special facility, and shall convey information that might be useful to managing the affected facility in mitigating the effects of the outage on efforts to communicate with that facility. Examples would include loss of all facilities connecting a router to the Public Safety Answering Point (“PSAP”) and the complete loss of the ability to provide location information for interconnected VoIP calls.

Outage reports will be filed electronically using the FCC's Network Outage Reporting System (NORS). In addition to the initial reports, interconnected VoIP providers also must file a final report within 30 days after discovering the outage. The NORS system uses an encrypted technology to ensure the security of the reported information. The information reported will be "presumptively confidential."

In adopting the rules, the FCC emphasized the "public's increased reliance" on interconnected VoIP services and the critical needs of communications infrastructure for public safety goals. The new rules are merely the latest in a series of FCC actions to apply traditional telephone service regulations to Interconnected VoIP providers.  

Below is our take on some of the main provisions of the legislation as it applies to spectrum policy and wireless broadband services. 

Incentive Auctions and Band Clearing

Aside from public safety, the main driver of spectrum legislation was the need to address the spectrum crunch (real or imagined) for mobile wireless interests. To do this, Congress decided to offer TV broadcasters compensation to voluntarily relinquish their spectrum for repurposing by the FCC for broadband uses. Congress granted specific authority for a two-phase voluntary "incentive auction" that would clear a portion of the TV band (Channels 2-51) for mobile interests and, as part of that process, change the TV "white space" landscape. Because Channel 51 is adjacent to the Lower 700 MHz A Block (formerly Channel 52), the FCC is expected to attempt to "re-pack" the TV stations into the lower portion of the UHF band (beginning with Channel 14). The auction process is expected to take several years.

Under the legislation's language, "relinquishment" of a TV station means (1) relinquishing all usage rights to a channel, (2) relinquishing a UHF channel for a VHF channel, or (3) sharing a channel with another TV station. In lieu of relocation reimbursement, TV stations can obtain, as appropriate, a waiver of FCC rules to make flexible use of their spectrum so long as the TV broadcaster provides at least one programming stream at no charge. Depending on how the FCC ultimately interprets this provision, TV broadcasters could obtain a limited right to offer broadband on their spectrum alongside video service, but only if they forego relocation reimbursement.

Significantly, the FCC is required to reallocate and auction the T-Band (470-512 MHz, i.e., Channels 14-20) used by public safety in 11 major markets, with the spectrum sale used to cover relocation costs. Although not stated in the legislation, the FCC can also clear other users -- land mobile, for instance -- out of the TV bands. The FCC also can relocate radioastronomy users on Channel 37 at a cost of up to $300 million. The ability to relocate Channel 37 users could be a significant band-clearing opportunity because that channel operates as a nationwide encumbrance in the heart of the TV band.

TV White Spaces

Early House Majority versions of the bill would have required the FCC to auction all unlicensed spectrum (though it was unclear whether this included white space spectrum that had previously been allocated). The version of the legislation that passed essentially creates two flavors of white space.

• First, the existing TV white space and the TV white space remaining after the re-packing -- remember, that's several years away -- will be available for fixed and mobile wireless use. There will no doubt be a loss of TV white space in many markets as a result of the incentive auction, but Congress and FCC staff expect that there will vacant TV channels will remain in many rural areas after the re-packing. The re-allocation of Channels 14-20 will create additional spectrum in major markets for TV stations to relocate, and the possible relocation of Channel 37 radioastronomy users will also clear spectrum.
• Second, the FCC has the discretion to use relinquished spectrum or other spectrum to implement guard bands that would, in practice, create a nationwide unlicensed allocation as recommended in the National Broadband Plan. The FCC may "permit" the use of guard band for unlicensed use, but is not required to, and the guard bands must "be no larger than is technically reasonable to prevent harmful interference between licensed services outside the guard bands." (Reports were that earlier versions of the bill used the phrase "technically necessary.") Based on our discussions with the FCC, they see a guard band acting as a "duplex gap" band between LTE-Advanced uplink/downlink spectrum allocations, though this thinking is only preliminary and the ultimate band plan, channel sizes and technical rules will be determined through an FCC rulemaking proceeding. The limits of the FCC's discretion on guard bands appear to be subject to interpretation.

3550-3650 MHz

Earlier versions of both the Senate and House bills would have required the FCC to auction the 3550-3650 MHz band (with certain exceptions). The band is not allocated for commercial use; rather, the Department of Defense uses it at present. The final version removed the auction mandate, but requires NTIA to give priority to options involving exclusive non-Federal use and to choose sharing only if NTIA and OMB determine that relocation of a Federal user is not feasible because of technical or cost constraints. Thus, the 3550-3650 MHz band could be subject to auction ("exclusive use") unless it is not feasible to relocate Federal users.  If that's the case, commercial and Federal users could share the band under technical rules the FCC would adopt. The radar uses in the 3550-3650 MHz band may be difficult to relocate, which would make the case for shared unlicensed use easier.

Other Unlicensed Bands

The spectrum legislation identifies two additional bands for possible unlicensed use. First, NTIA, the Department of Defense and other agencies will study spectrum-sharing and risks to incumbent Federal users if unlicensed U-NII devices were allowed to operate in the 5350-5470 MHz and 5850-5925 MHz bands – a total of 195 MHz of spectrum. The agencies will issue reports on their findings. The report for the 5350-5470 MHz band is due in eight months, and the report on the 5850-5925 MHz band is due in 18 months.

Wireless Facilities Deployment

An under-appreciated section of the bill provides significant benefits to wireless companies, fixed and mobile, that want access to towers owned by state and local governments. Under the legislation, a local government must approve an "eligible facilities request" to modify an existing wireless tower or base station that does not "substantially change" the physical dimensions of the tower or base station. An "eligible facilities request" is a request to collocate new transmission equipment, remove transmission equipment or replace transmission equipment. The FCC will decide how to interpret "substantial change" pursuant to a rulemaking proceeding. In addition, GSA is required to develop master contracts for wireless antenna structures on property owned by the Federal government.

Conclusion

The new spectrum legislation is a beginning, not an end. Many details have yet to be determined, but many interests – including broadband providers, whether fixed or mobile, broadcasters, public safety users and others -- can find something to like in the new legislation.

In the trial, participants will have access to elements of the database that are designed to protect TV stations, cable headends and broadcast auxiliary stations and registered wireless microphones.  Once the trial concludes – and the FCC can extend the trial beyond the November 2 end date – Spectrum Bridge is required to give the FCC a report that notes any problems and changes to the channel availability calculator. 

Chairman Genachowski took the rather unusual step of issuing a News Release announcing the Spectrum Bridge trial, stating that “[u]nleashing white spaces spectrum will enable a new wave of wireless innovation.  It has the potential to exceed billions of dollars in economic benefit from wi-fi, the last significant release of unlicensed spectrum, and drive private investment and job creation.”  The Wireless Innovation Alliance (WIA) and Public Knowledge were quick to hail the FCC’s initiation of the first database trial.

Meanwhile, at the Super WiFi Summit in Austin this week, attendees got a full slate of information about white space technology, databases and legislation.  On the latter point, Michael Calabrese of New America Foundation reiterated many of the points made in his recent House testimony and discussed the potential for spectrum reform legislation to sharply reduce, if not eliminate, the amount of white space available in many markets.  He detailed WIA‘s efforts to ensure that unlicensed white space is preserved and that Congress does not mandate auctions for future unlicensed bands.  I provided insight into the perspective of wireless Internet service providers (WISPs) that could be harmed by the proposed legislation and noted the “boots on the ground” efforts of the Wireless Internet Service Providers Association (WISPA) to better educate Congress on the consumer benefits of unlicensed spectrum.  To that end, and as just one example, WISPA member Brian Webster created a map using data from the NTIA’s mapping program showing the census blocks in Illinois that are uniquely served by WISPs in both licensed and unlicensed spectrum (not including coverage offered by the cellular technologies or satellite internet).  From the map below, one can see the obvious benefits that WISPs, and only WISPs, provide to consumers.  As Congress pushes forward to consider legislation in the next few weeks, these will be important messages to convey.

(click map below to enlarge)

Broadband deployment data are critical to spectrum and broadband policy, both in Congress and at the Federal Communications Commission. Incomplete or incorrect data about infrastructure can hinder FCC initiatives, such as efforts to promote competition, to implement the National Broadband Map or proposals to direct Universal Service funding to underserved areas. Nevertheless, the FCC has determined that many service providers have not complied with mandatory reporting requirements designed to drive the FCC’s data collection, even as an open FCC proceeding considers possible reforms to the program. 

To encourage participation and to improve compliance, earlier today, the FCC hosted a webinar to review the basics of the rules and procedures for filing FCC Form 477 – the FCC’s primary data collection tool for broadband, voice and other services. The filing requirement applies to several categories of service providers, including facilities-based providers of broadband connections to end users, providers of wired or fixed wireless local exchange telephone service, providers of Interconnected VoIP and facilities-based providers of mobile telephony. As a result, the rules apply to companies such as telcos (fixed or mobile), cable operators, satellite companies, Wireless ISPs, managed ISPs, and VoIP providers (including “over-the-top” providers). The filing deadlines for Form 477 occur twice per year: March 1st (providers must file data as of December 31 of the previous year) and September 1st (providers must file data as of June 30 of the same year). 

In the webinar, Wireline Competition Bureau Chief Sharon Gillett emphasized two points for service providers. First, the requirement to file Form 477 is mandatory, and providers are expected to comply. Second, data submitted in Form 477 are afforded confidential treatment, meaning that no provider-specific information is shared with outside parties.  

The Bureau’s chief data officer Steve Rosenberg described how data collection or Form 477 submission problems often fall into three categories: 

• Nonfilers: According to Rosenberg, several hundred providers don’t file with the FCC, so their data aren’t counted.
• Improper certifications: Rosenberg indicated that sometimes outside consultants gather and submit the data, but he said that such certifications may make data more difficult to correct and may raise questions of reliability of the data.
• Repeated mistakes: Rosenberg pointed out that some filers simply file incorrect data, for example, by putting too many subscribers into one census block in a county or build upon incorrect data from prior filings, even after working with FCC staff to correct prior filings. 

Yes, the Form 477 instructions are a bit dense, and gathering data at a granular level can be time-consuming for many providers. The key takeaway from the FCC’s webinar is that the FCC is prioritizing education and compliance efforts for broadband data collection – a move that is often a precursor to stepped-up enforcement efforts.

In another sense, the Public Notice actually provides some clarity to ISPs on how to comply with the disclosure rules.  The FCC once again stated that the guidance is illustrative and that broadband providers can implement other approaches that will comply.  Here are the five areas where the FCC provided clarification: 

• Point-of-Sale Disclosures – The Open Internet Order requires ISPs to disclose network management practices, performance characteristics and commercial terms “at the point of sale.”  The Order further stated that, to meet this requirement, a provider must prominently display links to disclosures on a public website.  The FCC clarified that providers do not need to create or distribute hard copies of disclosure materials or to train sales employees to make such disclosures. Providers instead may direct prospective customers to the web page (not just the ISP’s home page) orally and/or prominently in writing.  In retail offices, broadband providers should have available devices that consumers can use to access the disclosures.
• Service Description – The Open Internet Order requires broadband providers to disclose accurate network performance information.  For fixed broadband, the 13 large ISPs that are participating in the FCC’s SamKnows speed test can use the results as a sufficient representation of what their customers can expect.  Those ISPs that are not participating in the project can use the methodology to measure actual performance.  The FCC plans to release the methodology and the results before the rules become effective.  Alternatively, ISPs may disclose actual performance based on internal testing, consumer speed tests or other reliable third-party sources.  For mobile broadband, the FCC is collecting data on broadband performance and, when that information has been analyzed, the FCC plans to provide further guidance.  Until that time, mobile broadband providers may disclose the results of their own or third-party testing.  For all broadband providers, the Public Notice encourages disclosure of the source and methodology used to evaluate performance, and expects disclosure to be modified if actual performance materially differs from the disclosure. Expect the standards of disclosure to evolve based on comments filed in the FCC's separate "Need for Speed" proceeding, where the FCC has sought comment on the types of broadband speed and performance information that would be of most use to consumers.
• Extent of Required Disclosures – The Commission stated in the Open Internet Order that its list of potential disclosure topics “is not necessarily exhaustive.”  Obviously, this statement aroused anxiety in ISPs who were concerned that potential findings of non-compliance for disclosures the FCC didn’t even mention.  Given this vagueness – and the potential legal pitfalls that could ensue – the Public Notice “clarified” that certain information contained in the Order will suffice for compliance “at this time,” though the FCC can determine in the future that that different disclosures are appropriate “at that time.”  The compliance disclosure topics are in paragraphs 56 (for all broadband providers) and 98 (for mobile broadband providers) of the Order and are summarized in this presentation.
• Content, Applications, Service and Device Providers – The Open Internet Order requires disclosure to content, application, service and device providers.  Given the uncertainty over what broadband providers must disclose to these edge providers, the Public Notice clarified that the disclosures sufficient to enable consumers to make informed choices will generally satisfy the disclosure obligations to edge providers.  Thus, the FCC anticipates that broadband providers should only need to have one set of disclosures, and “technologically sophisticated” edge providers should be able to rely on a disclosure statement that the broadband ISP provides to consumers.
• Security Measures – In response to claims that disclosure of numerous and constantly evolving security techniques would be unduly burdensome on broadband providers, the Public Notice reiterated the “touchstone” of its transparency rules – disclosure of information sufficient for consumers to make informed choices.  As examples, the FCC expects broadband providers to disclose if security measures intended to spread of viruses, malware, spam and other threats also prevent end users from running mail or web servers.  The FCC does not expect ISPs to disclose internal security measures that do not affect consumer choice, such as routing security practices.

Left unaddressed was the uncertainty surrounding enforcement of the Open Internet rules.  As we wrote in our earlier blog post, the FCC’s failure to articulate timing of decisions on complaints and remedies for non-compliance made it difficult for broadband providers to assess the risk associated with the complaint process.  At least with the guidance offered in the Public Notice, broadband providers have a little more clarity that will, hopefully, spur disclosures that are not put to the enforcement test.

The report, entitled “Information Needs of Communities: The Changing Media Landscape in a Broadband Age,” could be a potential road map for the FCC moving forward on overhauling and updating the agency’s regulatory approach to print, broadcast, cable and the Internet. The report’s conclusions and recommendations are important because they signal the most current thinking of FCC staff about their roles as regulators.  Nevertheless, a lengthy process remains to transform these recommendations into regulations and policy.  It is unclear how many recommendations ultimately will be adopted. 

The working group comprises journalists, scholars, entrepreneurs and government officials, all of whom the FCC selected.  In 2009, a bipartisan commission by the Knight Foundation considered how technology is changing how the media functions and communities receive and process information.  The Knight Commission called on the FCC to examine these issues more closely, which led to formation of the working group.    

The report presents an optimistic view of the state of journalism.  News and information gathering is more vibrant than ever, and local news continues to play a vital role for media.  Commercial and nonprofit media are working on collaborative projects.  Nonprofit media have become more varied and more important.  The Internet has led to the free exchange of ideas and information.  The report, however, observes that the abundance of media outlets does not necessarily translate into an abundance of reporting. 

How does the working group propose to bridge this gap between the growth of media outlets and the reduction in reporting?  Through a combination of reducing regulatory burdens on media, encouraging entrepreneurship and philanthropy, and focusing on the historically underserved.  Here are some key components of the report: 

Online Disclosure and Transparency.  The report advocates that broadcasters should be required to provide more information about their operations online.  For example, the report recommends: 

• eliminating the FCC’s requirement that local television stations retain a paper copy of their quarterly-issues programs lists and replacing it with a streamlined, web-based form. The form could include the amount of community-related programming, news-sharing and partnership arrangements, how multicast channels are being used, sponsorship identification, disclosures and the level of website accessibility for people with disabilities. 

• requiring broadcasters to disclose any pay-for-play arrangements online in addition to the current required on-air disclosures. 

• requiring satellite operators to post their disclosure forms online. 

• migrating online or eliminating any material that FCC licensees are required by law to keep in public files and repealing the burdensome enhanced disclosure rules adopted in 2007.  These rules, which have not taken effect, were designed to replace the broadcaster’s quarterly issues/programs lists with a standard form that would report detailed programming information to the Commission and would post the completed form on the Internet. 

• terminating the FCC’s localism proceeding, which proposed among other items that broadcast stations create community advisory boards, require staff to be on site whenever a station was on the air and provide reports on the quantity of local music played. 

• formally repealing any remnants of the Fairness Doctrine, which was stricken in 1987. 

Universal Broadband. The report finds that local media innovation, as well as the information health of communities, requires a universal and open Internet. Efforts to expand broadband would include the use of voluntary incentive auctions for commercial and noncommercial broadcasters. 

Underserved Audience.  The report recommends that the FCC ensure that modern media work for people in historically underserved areas.  The report suggests: 

• reserving TV channels 5 and 6 for TV and radio opportunities for new small businesses, including those owned by minorities and women. 
• implementing the Local Community Radio Act in a manner that supports the growth of LPFM stations. 
• that Congress restore the tax certificate program to promote diversity in media ownership. 

State-based C-SPANs. To promote the availability of local public affairs programming, the working group recommends establishment of a state-based C-SPAN in every state and that Congress give regulatory relief to multichannel video programming distributors who help facilitate such networks. 

Media Ownership and Access.  The report remains neutral with respect to increased media ownership, favoring an approach that considers the impact of the Commission’s rules as currently crafted or proposed on local news and public affairs reporting in the community as a whole.  The report implies that the focus of media ownership is whether the arrangement contributes to the overall media health of the community.  This approach may give some hope to broadcasters in smaller markets that the FCC may someday be more open to consolidation. The report also recommends re-assessment of the effectiveness of the satellite TV set-aside for educational programming and of cable TV leased access systems. 

Public Interest.  The report’s public interest analysis is its most interesting and surprising aspect.  The report concludes that many rules intended to advance public interest goals are ineffective and out of sync with the information needs of communities and the nature of modern local media markets.  In some cases, policies do not achieve their intended goals.  In other cases, policies that might have once made sense have not kept up with changes in media markets.  Several policies are not sufficiently oriented towards addressing the local information gap.  Most of all, any rules or policies must live within and respect the essential constraints of the First Amendment. 

Notably, the report states that government is not the solution to providing robust local news and information but can remove obstacles confronting those working to solve these problems.  Instead, most of the solutions to today’s media problems will be found by entrepreneurs, reporters and creative citizens, not by legislators or administrative agencies. 

In 475 pages filled with recommendations, the report defies a quick and simple analysis.  At first blush, one is stricken by the report’s ambitious, comprehensive nature; in the end, however, such scope guarantees that each and every recommendation will not ultimately become law.  Some will face Constitutional challenges (such as any laws that specifically favor minorities or females as opposed to small businesses) and others will face challenges from competing interests and other stakeholders.  All of this assumes of course that there is no change in administration next year, in which case the report could find itself relegated to the dustbin of history, as have so many previous reports. 

One last point: it does not necessarily follow that adoption of these recommendations will result in massive government deregulation.  For example, while substitution of a new disclosure form for the quarterly issues/programs list and elimination of the enhanced disclosure form is certainly welcome news, the report does recommend adopting a new disclosure form.  A parallel example may be the changes in the FCC’s Equal Employment Opportunity (“EEO”) policies; a change from the agency’s traditional analysis to the modern EEO Program Reports.  Although the changes modernized the EEO process, by no means did it unburden broadcasters’ EEO obligations. 

Even with these provisos, the report represents an impressive accomplishment in bringing the discussion of journalism, localism and the media into modern times.

Today’s announcement comes after the FCC staff’s completion of nearly 100 channel changes since lifting its filing freeze on May 30, 2008. FCC staff apparently believes that licensees have had sufficient time to evaluate engineering options and presumes there is no pent-up demand for channel changes. Such speculation might have been avoided if instead of an immediate freeze, a short filing window was established to permit filings for channel changes before the freeze became effective. 

FCC staff indicates that the freeze is necessary to facilitate the re-packing and reallocation of portions of the TV Band for broadband services, as recommended in the National Broadband Plan. While the FCC lacks authority to conduct incentive auctions, it may re-pack the TV band to create more spectrum for wireless broadband. FCC Chairman Julius Genachowski signaled his interest in repacking the TV band in his April 12, 2011 remarks at the NAB Show. FCC staff has been doing a road show around the country promoting the benefits of incentive auctions, so this action comes as no great surprise. 

What is becoming clear is that TV stations should begin contemplating a second DTV transition and the possibility of changing channels yet again. In the meantime, FCC staff has taken a step toward minimizing the number of moving parts in this transition by making sure that TV stations stay put, for now. 

For more information, don’t change that channel …

            In 1992, the FCC adopted rules requiring circuit-switched wireline providers to file reports of outages.  In 2004, this requirement was extended to providers of paging communications over wireless, cable and satellite communications.  And since 2005, the FCC has required interconnected VoIP providers to provide 9-1-1 emergency calling capabilities to their customers.  The FCC now seeks to make the outage rules applicable to interconnected VoIP providers and broadband ISPs, who would be required to make “presumptively confidential” reports to the FCC as a means to “help providers recover or prevent future outages, and ensure to the extent possible that broadband networks are prepared for natural and man-made disasters.”  The FCC states that its existing reporting obligations provided numerous benefits in the aftermath of Hurricane Katrina in 2005.  The FCC also noted that almost 30 percent of voice calls are made using VoIP service.

            The FCC proposed the actual language of its proposed rules – something that was almost never done in previous administrations but is becoming more common under Chairman Julius Genachowski.  The FCC has requested comment on the following proposal, which adopts certain “triggers” for the reporting requirement: 

            For broadband providers to non-mobile users, the number of IP addresses affected would be used to calculate “user minutes.”  For broadband access providers to mobile users, the number of potentially affected users should be determined by multiplying the maximum number of simultaneous users by a concentration ratio of 8.

            Among other things, the FCC asks throughout the NPRM for comment on the burdens and costs associated with the extended reporting requirements.  The FCC specifically asks whether the burdens would be greater on smaller VoIP providers and broadband ISPs, and asks for alternatives (though according to the Initial Regulatory Flexibility Analysis, the FCC considered but did not propose waivers for smaller entities).  

            Importantly, the FCC proposes to treat data collected through the reporting process as “presumptively confidential,” just as it treats existing outage information.  The FCC also asks for comment on whether it should be allowed to share information with other Federal agencies on a presumptively confidential basis. 

            Curiously, the FCC waited until the end of the NPRM to request comment on whether it has the legal authority to impose the new requirements.  The NPRM concludes that the FCC has “ancillary authority” to adopt the rules because it has general jurisdiction covering the regulated subject and the regulations are “reasonably ancillary” to the FCC’s performance of its statutory responsibilities.  For VoIP providers, the FCC finds that collecting outage information is “reasonably ancillary” to ensuring that VoIP providers are able to satisfy their 9-1-1 obligations and to enable the FCC to improve the reliability of 9-1-1 services.  For broadband ISPs, the FCC relies on the same authority, but to get around the fact that broadband providers do not have 9-1-1 obligations, the FCC states that they are subject to outage reporting because interconnected VoIP services ride on broadband networks.  As noted above, Commissioner Robert McDowell – who has a reputation for doubting the FCC’s “ancillary authority” – has questioned whether the FCC can impose these requirements. 

            The record from last year’s preview was predictable, with public safety advocates supporting extension of outage reporting requirements and private industry telling the FCC that the rules should not be extended.  There’s little doubt that the record this time around will be similar.  But at least we have specific language of proposed rules to consider.

Earlier today, the FCC granted a six month extension of time to November 1, 2011 for Educational Broadband Service (EBS) licensees to comply with the substantial service test. The filing itself will now be due on or before November 15th. The substantial service test requires licensees to demonstrate how they are using each licensed channel at least 20 hours per week to fulfill their educational mission.  The substantial service deadline for Broadband Radio Service (BRS) licensees is not affected by today's action, and that deadline remains May 1, 2011.

In this video, I discuss the FCC's decision and its ramifications for EBS licensees and others. 

Video Blog-EBS.mov

With limited exceptions, intrastate, interstate and international providers of telecommunications services and interconnected VoIP services in the United States must file FCC Form 499-A within one week of offering service to the public and by April 1 of each year. Form 499-A registers the provider with the FCC and the Universal Service Administrative Company. The Form 499-A filing also paves the way for the provider, where required, to file quarterly and annual regulatory filings for its contributions to the Universal Service Fund (“USF”) and other federal programs. The amount of a service provider’s contribution is based on a government-established percentage of a “contribution base,” which is usually based on the provider’s report in Form 499-A of revenues from interstate and international services. Form 499-A also serves to designate the provider’s agent for service of process in the District of Columbia. 

Interconnected VoIP providers take note: due to the difficulties in separating interstate revenues from intrastate revenues for interconnected VoIP service, the FCC has established a “safe harbor” percentage for interconnected VoIP providers, who may choose to report their interstate revenues as 64.9 percent of their total VoIP service revenue.  Interconnected VoIP providers also may calculate their interstate revenues based on their actual revenues or by using traffic studies. Interconnected VoIP providers are required to make USF contributions unless such contributions would be de minimis under FCC rules. Contributions are considered de minimis if the amount owed for a particular year would be less than $10,000 based on the FCC’s formula, which takes into account revenues from interstate traffic. Nevertheless, even providers that qualify for the de minimis exception must file FCC Form 499-A annually and must retain documentation of their contribution base revenues for three years. There is no filing fee for the form (contributions are billed separately during the year), but failure to file the form may lead to FCC enforcement action. Late, inaccurate, or untruthful filings may result in actions to recover costs or other penalties. 

Ben Franklin once said that “you may delay, but time will not” – so it is with the Form 499-A deadline. So, procrastinators who have not yet tackled their form have until April 1, 2011 to determine whether the FCC’s rules require filing of Form 499-A, and if no exemption applies, to gather the required revenue data and other information to complete the form on a timely basis. Service providers will also need to keep detailed records and to determine whether their service triggers requirements to make other common filings with the FCC. For those who are required to File Form 499-A, and have not already done so, don’t forget Henry Longfellow’s words to the wise: “time is fleeting.”

The main point for all licensees and operators: facilities need to be built and actual service needs to be provided to pass the substantial service test with flying colors.

Here is what you need to know:

First, until May 16, 2011, EBS licensees and BRS BTA licensees can electronically file "substantial service" showings via the Universal Licensing System (ULS).  BRS "incumbent" licensees must file their "substantial service" showings as part of license renewal applications on or before May 2, 2011.  "Substantial service" notifications are filed on Form 601 as "NT" filings with an appropriate exhibit (discussed below).  Though the filing process has already begun, the FCC would not guarantee when it might begin to take action on individual "substantial service" showings.  The FCC did say, however, that it doesn't plan to wait for all notifications to be filed before taking action.  In cases where a "substantial service" showing is lacking, FCC staff said it will afford the licensee an opportunity to provide clarity or further information.  In these cases, the FCC indicated that it would return the notification to the applicant and would provide the licensee with a deadline to submit additional information. The FCC may also informally contact a licensee or its counsel for follow-up, so having accurate contact information in ULS is a must. 

Second, the FCC plans to "accept" many "substantial service" notifications only by providing notice in ULS – in other words, there will be no public notice of filing or of acceptance.  In some cases -- presumably the more tricky ones or cases where the FCC concludes a licensee has failed to pass the "substantial service" test – the FCC will issue written decisions.  FCC staff also confirmed to me that there is no right in the rules for parties to file petitions to deny against "substantial service" notifications or against requests for extension of time to comply. It is hoped that this will deter frivolous filings made only to obstruct or cause delay and mischief. 

Third, the public notice also makes clear that the FCC will not review any "substantial service" showing filed by a licensee that has transitioned but has not filed its post-transition modification application to change to the "new" frequencies.  In response to my suggestion, FCC staff also indicated that "acceptance" in ULS of compliant "substantial service" showings would be the only FCC action -- this would put investors on notice that they should not wait for a public notice announcing "acceptance." 

Fourth, any licensee that does not file a "substantial service" showing (by the May 16 filing deadline) or an extension request (by May 1) will have its license automatically terminated.  This statement presumes, of course, that the Commission does not grant the pending request for a six-month extension for EBS.  

FCC staff offered some guidance on what it will be looking for in "substantial service" notifications.  In all cases, the licensee must demonstrate "substantial service" within its geographic service area ("GSA") – service in white spaces or adjacent areas will not count.  For BRS and EBS point-to-multipoint and mobile operations relying on the 30% coverage "safe harbor," licensees should include a map showing where they provide a "reasonably reliable" signal using generally acceptable engineering practices.  Clearwire is developing a methodology for calculating coverage percentages, so perhaps all licensees can get behind a single method.  Licensees are required to use the most recent official Census data.  Licensees also need to indicate the type of service they are providing.  For BRS and EBS licensees relying on the point-to-point "safe harbor" of six permanent links per million pops, the FCC will not require the submission of maps but will want a list of the endpoint coordinates and a description of the spectrum use.  In addition, licensees relying on the rural service “safe harbor” (i.e., for mobile services, coverage to at least 75% of the geographic area of at least 30% of the rural areas within the service area and for fixed services, construction of at least one end of a permanent link in at least 30% of the rural areas within its licensed area) must provide in addition to the other information applicable to their type of service the area and population for counties that the licensee considers “rural” and must indicate which rural counties are receiving service. 

For EBS, the FCC will be looking for a more detailed demonstration for licensees that are relying solely on their educational usage “safe harbor” and do not meet other "safe harbors” (including the 30% coverage, permanent links or the rural safe harbors).  At a minimum, EBS licensees should submit a brief description of (1) the services they are providing in the GSA, and (2) how they are meeting the educational programming and minimum usage requirements. I note the use of the word “and” is in the Public Notice despite the fact that the version of the rule in the Code of Federal Regulations (p.330), in the associated Federal Register publication (p. 35190) and in the attachment to the FCC Order adopting the rule (p.165) uses the word “or.” This may be largely academic because the FCC has wide latitude to interpret its rules and it has repeatedly warned EBS licensees that actual service and use of 20 hours per channel per week is required. Merely transmitting signals is not enough. 

There are some surprises relating to the amount of detail that is to be provided in the substantial service showing, based on the FCC's Public Notice:

• Licensees relying on the "permanent links" safe harbor must provide, in addition to the coordinates of each end of each link, the population within the geographic service area, an indication of the uses for the links and the bandwidth of the links;
• Licensees relying on the "30 percent coverage" safe harbor must indicate the signal level that they believe indicates coverage and the percentage of time such a signal is available within the service area; and
• Licensees relying on the "EBS" safe harbor must provide, in addition to specific descriptions of the service being provided, the names and addresses of any accredited institutions to which the licensee is providing service.

The FCC is sensitive to the workload (ours and theirs) and will not require detailed showings of things like programming schedules, though it will require addresses where service is being provided if it is not being provided to the licensee itself.  Licensees that have channel-loaded or channel-shifted should mention this in their exhibits. 

Finally, a few words about extensions.  The FCC will look at extension requests on a case-by-case basis, and such requests should be filed at least 30 days before May 1.  Though the FCC did not offer a lot of guidance, we expect that a licensee would need to demonstrate that financial difficulties or events beyond its control require additional time and that it is reasonable for the licensee to meet "substantial service" in the near future.  Extensions also will be filed on Form 601 with the "EX" application code. 

Given the lack of any objections in Comments filed last week and the FCC staff’s “receptiveness” to the needs of educators, prospects are excellent that the FCC will grant the blanket extension some time after March 1 when Reply Comments are due. My view is that the blanket extension will be granted this week by March 4th (this is the week of the national NEBSA conference) by circulation to the FCC Commissioners. After all, it would be unfair to leave licensees twisting in the wind not knowing if more time will be provided. 

There is some concern that a government shutdown this week could throw a monkey wrench in the whole process. The reason is that ULS will automatically cancel the EBS license if a substantial service showing is not timely made, and of course if the government is shut down, so is the FCC – and ULS. While it seems unlikely that a government shutdown would extend beyond the applicable deadlines, no one wants to risk losing operating authority, so some licensees may rush to file their showing before Friday’s possible shutdown. If not, having lived through the last shutdown, I believe that there is little risk licenses will be lost during the FCC closure – if it even happens. 

The main point for all licensees and operators: facilities need to be built and actual service needs to be provided to pass the substantial service test with flying colors.

The problems for Utah Broadband occurred in part because the frequencies that the government uses for TDWR systems are shared with commercial users of unlicensed devices – called UNII devices – in the 5600-5650 MHz band.  UNII devices are authorized under Part 15 of FCC rules and are subject to specific technical requirements, including the obligation to use Dynamic Frequency Selection (DFS) in the 5470-5725 MHz band to help allow the device to avoid using channels occupied by nearby TDWR systems.  Toward the end of 2007, TDWR systems began encountering interference at various locations nationwide.  In February 2009, the Federal Aviation Administration (FAA) asked the National Telecommunications and Information Administration (NTIA) and the FCC to assist in resolving the interference problem.   In response, the government conducted initial field testing at the station near San Juan International Airport in Puerto Rico, a station that was subsequently found to be experiencing “severe” interference.  FAA and FCC field engineers agreed that the interference was caused by UNII devices.  

The FCC also halted certifying devices for operations in this band and began to engage an industry group to help develop new testing parameters for equipment certification, while also looking for a short-term solution. Manufacturers wanted to see equipment certifications re-examined.  Wireless ISPs wanted to gain access to additional spectrum – the 5600-5650 MHz band and the 30 megahertz on either side of that block, for a total of 110 megahertz.  The FAA and NTIA wanted to see the interference disappear.  The FCC was acting as the broker for all of these interests, attempting to balance the interests of the public and the governmental sectors.  After months of talks, and with the encouragement of the agencies, the Wireless Internet Service Providers Association and Spectrum Bridge (both clients of our law firm) established a voluntary database by which UNII users could register their technical data and locations.  The registration would be for UNII devices operating within 35 km of a TDWR location on frequencies within 30 megahertz of the TDWR center frequency.  The database proved to be somewhat successful, but interference problems have persisted.  As a “stick” for the database “carrot,” the FCC took the unusual step of writing a memorandum to manufacturers and operators explaining the problem and issuing a stern warning that enforcement would continue.

For the government, detecting and rooting out interference is a bit like playing Whac-A-Mole – interference would disappear at some stations, only to reappear later and in different locations.  In San Juan, in the wake of near-continuous interference, the FAA actually shut down the TDWR station and the FCC sanctioned a company called Ayustar.  TDWR stations in Miami, Ft. Lauderdale, New York, Chicago, Dallas and Salt Lake City have suffered periodic interference.

These developments bring us to the Utah Broadband decision.  Amid reports of substantial interference to the Salt Lake City TDWR station, FCC and FAA enforcement visited the Salt Lake City area in October 2010 and found that Utah Broadband was doing many things wrong:

• Operating UNII devices outside the authorized frequencies.
• Disabling DFS functionality
• Likely operating at power above the maximum permitted by FCC rules
• Repeatedly and willfully violating FCC rules

Although detecting the source of interference is apparently not easy, when the inspectors enabled DFS to block operations on spectrum used by the TDWR station, the interference from Utah Broadband’s operations disappeared.  Citing “the totality of the evidence, the number of unauthorized systems in operation, and the gravity of the public safety risks posed by the unauthorized operation,” the FCC slapped Utah Broadband with a $25,000 fine, representing an upward adjustment over the base fine and an increase over the forfeiture imposed against Ayustar.  The FCC also required Utah Broadband to make a “blackboard apology” by sending a signed statement into the FCC certifying its compliance with the equipment authorization and FCC rules.

According to the FCC, about two-thirds of the interference cases involve intentional abuses of Commission rules similar to the violations for which Utah Broadband was cited.  We should expect the FCC and the FAA to continue their enforcement efforts to find violators and issue stiff fines.

For a long-term answer, the FCC remains interested in finding solutions that will enable UNII devices to operate in the band while reducing – or eliminating – potential interference to TDWR stations.  DFS requirements and the voluntary database have had a limited impact because rogues will always look for ways around the rules.  Unfortunately, these bad apples have spoiled it for the vast majority of UNII device manufacturers and operators that operate legitimately.

The FCC is expected to commence a rulemaking proceeding this year.  Among other things, the FCC will consider mandatory database registration for all new devices certified under new testing parameters.  This database could be manual – requiring device users to enter technical and location information into a database – or GPS-based – requiring the devices themselves to automatically register in the database under procedures similar to those recently adopted for TV white space devices.  This approach is a bit problematic for legacy devices, which are not equipped for geo-location registration, but mandatory registration will provide the FCC with another “carrot” – compliance by registration – and a “stick” – fines and other sanctions for failing to register. 

For now, the Utah Broadband decision shows that FCC and FAA inspectors remain in the field looking for violators and will take action to address wrongdoers that cause illegal interference.  Aside from the obvious ramifications to manufacturers and operators in the 5.6 GHz band, it’s important for industry to understand that responsibly sharing spectrum with the government can open doors for additional spectrum use down the road.

As we’ve previously described, the FCC often uses its merger-review authority to help advance objectives that may ordinarily exceed the agency’s reach. In light of the continuing legal battles over the scope of the FCC’s legal authority to regulate the Internet, it is noteworthy that Comcast and NBCU, in an effort to obtain FCC approval, agreed to some enforceable commitments and conditions to govern the new entity’s participation in the online video marketplace. While these conditions are specific to the transaction, they will affect how Comcast-NBCU will negotiate with third parties who want access to Comcast-NBCU content.

A key question: what “marketplace”? In conditioning its approval, the FCC expressed concern that Comcast-NBCU would have the “incentive and ability” to discriminate against two FCC-defined categories of online video distributors: 

• Multichannel video programming distributors (or “MVPDs”) such as cable operators, satellite providers or other providers of such multichannel programming; and
• Non-MVPD distributors of online video programming, such as standalone “over-the-top providers” like Hulu (in which NBCU has an ownership stake), Netflix, GoogleTV and iTunes.  

In general, these categories contrast MVPDs (as providers combinations of linear program streams such as cable or broadcast channels of programming) with more “over-the-top” video services (such as on-demand and pay-per-view services). To complicate matters further, in a footnote, the FCC left open the possibility that certain types of OVDs also could be deemed MVPDs. The FCC determined that “regardless of whether online video is a complement or substitute to MVPD service today, it is potentially a substitute product” and sought to implement conditions to address these “nascent” online video services. The FCC’s decision has consequences for online video and in other contexts. For example, just yesterday DirecTV asked the FCC to clarify which entities constitute MVPDs for purposes of regulations involving set-top boxes. 

With respect to the marketplace for online video, Cardozo Law School professor Susan Crawford's blog post on Comcast-NBCU provides an interesting analysis of the FCC’s decision to apply conditions to protect OVDs. She asserts that the FCC has “created a market” by designating OVDs as a category entitled to protection. In my view, the “OVD” designation is more like a class of service providers than a market, because the FCC declined to identify current potential substitutes for the provision of these services and implicitly raised the question of whether some OVDs compete in a separate market for the provision of multichannel programming service. For these reasons, and in light of the definitional ambiguities surrounding the “MVPD” designation, the “marketplace” for OVD services, however defined, is an evolving concept. 

Acronym soup notwithstanding, the FCC sought to address Comcast-NBCU’s purported incentives to discriminate against rival OVDs (whether MVPD or not). For example, the FCC expressed concerns that Comcast-NBCU would raises prices for rivals to access its affiliated programming or would refuse to provide this programming in a timely manner or in the same quality. The FCC found that its program-access rules – i.e., rules designed to prevent vertically integrated program suppliers from improperly favoring affiliated cable operators – would not provide sufficient protection because strategies of uniform price increases would not discriminate among service providers. Instead, the FCC required Comcast-NBCU to provide affiliated programming to rival MVPDs at fair market value and on nondiscriminatory prices, terms and conditions.   

For OVDs seeking access to Comcast-NBCU programming, the FCC provides the following rights. 

• An OVD may decide to become an MVPD and, like other MVPDs, would be entitled to access Comcast-NBCU-affiliated content for online display at fair market value and on nondiscriminatory prices, terms and conditions.  
• An OVD may request that Comcast-NBCU offer its video programming to the OVD on the same terms and conditions that would be available to an MVPD, provided that the OVD is willing to pay the economic equivalent of the price, terms and conditions on which Comcast-NBCU provides video programming to MVPDs. If the OVD qualifies, Comcast-NBCU must provide “materially” the same programming that it offers to other “similarly situated” MVPDs; however, if the other MVPD is obligated to make the programming available through a linear stream, the OVD’s obligation must be “materially similar.” 
• An OVD will be entitled to access to “comparable programming” available on economically equivalent prices, terms and conditions if the OVD enters into an arrangement to distribute programming from one or more of Comcast-NBCU’s non-affiliated “peers.” Who are these peers? They include certain broadcast networks, cable programmers, production studios and film studios whose names you’ve heard before (e.g., they are affiliated with Disney, Time Warner, News Corporation, Viacom, Warner Bros., 20th Century Fox or Sony Pictures) or otherwise must be one of a handful of the largest players in their industry. Unlike the second option, this programming need not be provided in linear streams.

So what’s the upshot? Comcast describes these procedures as a “focused mechanism for online video providers to obtain access to certain NBC Universal content [that is] carefully crafted to be fair to all players.” That said, these conditions clearly serve as a filtering function to help ensure that Comcast-NBCU only has to share programming with companies that demonstrate certain “bona fides.” OVDs may opt to enforce these conditions via arbitration, but the legal text is replete withdense interpretive issues. Moreover: 

• If the OVD opts to become an MVPD, that is an expensive proposition. The OVD must consider the costs of deploying networks, negotiating carriage and programming rights, and obtaining local franchises, as well as the prospects of being deemed another cable company.
• If the OVD decides to compete on an equal footing with an MVPD, that too is an expensive proposition. The MVPD must consider the costs of economically equivalent programming and the likely requirement that the programming would have to be provided as a linear stream offered on an “all or nothing” basis – i.e., akin to real-time distribution of a program channel as opposed to on-demand programming.
• If the MVPD enters into an agreement with a Comcast-NBCU “peer” for comparable programming, that is – you guessed it – an expensive proposition. This trigger requires an agreement with one of the largest industry players, who no doubt would have to be presented with a compelling business case to sign an agreement with an unaffiliated distribution partner because many of these participants already have extensive distribution channels.  

In addition, Comcast provides some online programming on an “authenticated” basis to only those individuals who subscribe to Comcast MVPD service. Comcast will continue to be allowed to do so, subject to these sets of conditions. Comcast-NBCU also will not be allowed to put certain online programming behind a paywall for as long as at least one of the other major broadcast networks provides a similar service. 

The FCC has tried in other ways to implement enforceable “fair play” conditions on Comcast-NBCU. Comcast-NBCU may not enter into agreements to hamper online distribution of its or another’s video programming. Comcast-NBCU also must continue to offer standalone broadband Internet access services, at reasonable prices and of sufficient bandwidth that customers can access online video services without being required to purchase a Comcast-NBCU subscription for cable television services. The company may not disadvantage rival online video distribution services through its broadband services and/or set-top boxes. Finally, Comcast-NBCU has agreed to abide by the FCC’s “Open Internet” rules (a.k.a "Net Neutrality"), and it appears that this commitment would remain even if those rules are successfully stricken or modified by judicial appeal. 

As for Hulu, as a result of the FCC’s approval, neither Comcast nor NBCU will be permitted to exercise any rights to influence Hulu’s conduct or operation, but the companies may retain a purely economic interest. Recent media reports indicate that Hulu is considering an MVPD-style approach to online video distribution. Just yesterday Hulu CEO Jason Kilar posted his thoughts about the future of TV and argued that consumers, advertisers and content owners will play a more important role than distributors in the future of online video – an interesting take in light of the FCC’s actions to limit Comcast-NBCU’s oversight. 

In the end, the FCC’s “transaction-specific” conditions will have major implications for the “over the top” providers who had no part in the transaction. Time will tell how the FCC’s actions, and the reactions of Comcast-NBCU and the competition, will influence the evolution of online video services. In light of this unprecedented vertical combination, all eyes will be on the industry to spot the next players in line with plans to create a similar combination of content and distribution.

In the database order, the FCC approved these companies to act as database administrators:

•     Comsearch
•     Frequency Finder Inc.
•     Google Inc.
•     KB Enterprises and LS Telcom
•     Key Bridge Global LLC
•     Neustar Inc.
•     Spectrum Bridge Inc.
•     Telcordia Technologies
•     WSdb LLC

All of these companies had submitted requests to be selected for the administrator role. Each entity will have until February 28, 2011 to amend its proposal to comply with the new rules adopted in September. The selected companies also will need to attend mandatory workshops -- the first of which will be March 10, 2011 -- and to work closely with the FCC "to ensure competency, consistency and compliance" with the rules. Each administrator must trial its database for at least 45 days before it can make its database available for actual use by TV bands devices. The administrators will be subject to a five-year term running from the date on which the FCC announces that a particular database is publicly available.

The FCC intends to exercise careful supervision over the databases. In addition to technical compliance, the administrators are subject to privacy and security rules and may not engage in discriminatory or anti-competitive behavior.

Under the experimental license granted to CWT, the Yurok Tribe will be the first Native American tribe in the nation to take advantage of white spaces. Notably, the FCC's National Broadband Plan identified white spaces as presenting a significant opportunity for provision of broadband service to Tribal lands. With this experimental license, CWT joins the white space ecosystem and signals plans to become a major player.

Not that anyone here in the Washington area is wishing for more snow, but if a large dose of the white stuff is what it takes to get the FCC to act on white spaces, let it snow, let it snow, let it snow!

      "[T]he rules effectively preclude fixed white space operations in large portions of the country."

     At the top of the list: a few rules are subject to reconsideration.  Most prominently, a consortium of trade associations, database administrator applicants and equipment manufacturers led by the Wireless Internet Service Providers Association (“WISPA”), a Rini Coran, PC client, asked the FCC to relax its tower height and out-of-band emission rules for fixed white space devices.  In the September 2010 order, the FCC limited the maximum height of tower sites to 76 meters above average terrain (HAAT).  Together with the 30-meter tower height limit adopted in November 2008, the rules effectively preclude fixed white space operations in large portions of the country.  As shown in the maps provided by Comsearch at Appendices B and D in WISPA's FCC filing, the areas affected by the height restrictions are, not surprisingly, rural, hilly and mountainous areas of the country where white space spectrum could otherwise be used to provide much-needed broadband service – indeed, the intended targets of white space services.

            The petitioners asked the FCC to adopt a 250-meter HAAT limit while also increasing the keep-out zones for co-channel and adjacent-channel TV stations to ensure that there would be no increase in harmful interference to broadcasters.       

            The September order also tightened the spectral mask for adjacent channels, limiting the amount of usable spectrum and adding cost to equipment and deployment.  Led by Motorola, petitioners asked the FCC to relax the emission mask to reduce costs and promote spectral efficiency, while increasing the adjacent-channel keep-out zones to protect incumbent TV stations. 

             Also on the white spaces wish list: the FCC still has not released its long-awaited order designating geo-location database administrators and establishing final database governance rules.  Long anticipated since the release of the second TV white spaces order, the would-be administrators still have no marching orders.  No doubt, the FCC’s Office of Engineering and Technology has been pre-occupied with net neutrality and a spate of other important orders. The reality is that the FCC can only authorize experimental operations until the database administrators are selected and ready.  The good news is that OET is expected to issue its order any day now, so hopefully that roadblock soon will be in the rear-view mirror.

             Not far behind is the certification of TV white space equipment.  Because of the need for equipment to have geo-location capabilities that are linked to the databases, the FCC cannot certify equipment until the databases are established and certification procedures finalized.  No word on how long the certification process will take, but hopefully that can be measured in days and weeks and not months.

             Fortunately, the FCC only has a few issues to address in the reconsideration phase, so the proposed changes to the height and emission mask rules likely can be implemented soon.  Even so, once the database administration process is set and equipment is certified, white space deployments can begin right away in those parts of the country where the HAAT and mask issues are not impediments. 

On January 13, 2011, the FCC announced a $25,000 fine against RAMCO Broadband Services for numerous violations of the FCC’s tower lighting and antenna structure registration rules. The FCC requires tower owners to paint and light antenna structures that may present a hazard to air navigation, and it requires such owners to register with the FCC when their antenna structures meet the criteria for notification to the Federal Aviation Administration.  According to the Enforcement Bureau’s Notice of Apparent Liability for Forfeiture, RAMCO Broadband Services owned a tower that because of its height, must be painted, lit and registered with the FCC.  In response to a complaint, an FCC agent visited the tower site in January, February and March 2010.  The FCC agent noticed that the antenna structure was registered to the previous tower owner and not to RAMCO.  In addition, the agent found that the tower was not lit after sunset, that RAMCO had not notified the FAA of a light outage, and that the antenna structure registration number was not displayed in a readily visible manner at the base of the tower.  According to the NALF, the agent warned RAMCO of these violations orally. 

A subsequent inspection of the tower in September 2010 indicated that RAMCO had not corrected any of the violations.  In the NALF, the FCC fined RAMCO a total of $25,000; $6,000 for failing to update the ownership information for the tower; $4,000 for failing to post the antenna structure registration number and $15,000 for failing to comply with lighting requirements.  RAMCO has until February 12, 2011 to either pay the forfeiture or to seek reduction or cancellation of the forfeiture based on inability to pay or other grounds. In addition, RAMCO must provide the FCC by January 28, 2011 a certification that it has taken certain remedial steps or a timetable for completing repairs and for continued notifications to the FAA regarding the lighting outage.

Why so serious? This decision illustrates an important lesson. All too quickly, what may seem at first glance as “minor” violations of the FCC’s rules can escalate into more serious infractions.  Here, the FCC found that the owner failed to update tower ownership information or properly post the antenna structure registration number at the base of the tower.  These infractions are much less serious than failing to have tower lights that function at night or failing to notify the FAA of such outages.  The rules are designed to give notice to the FAA and to pilots of known hazards to air traffic, and inaction by a tower owner can increase the potential for loss of human life and property damage.  The upshot is that, as RAMCO has learned, the FCC takes violations of these rules very seriously.