Howard Buskirk

The FCC handed down a $100,000 notice of apparent liability of forfeiture against CenturyTel Thurs. for “willfully and repeatedly” failing to route calls to ported numbers Nov. 24, 2003-April 14. Wireless carriers highlighted the order as a sign that the FCC was getting tough on wireline carriers that don’t follow the Commission’s local number portability (LNP) rules. The fine was mentioned prominently in a CTIA phone call Thurs. on wireless LNP.

In a move already causing anxiety among broadcasters, the FCC Thurs. approved a rulemaking that could clear the way toward the use of more unlicensed devices in the white spaces between TV channels, especially by wireless Internet service providers (WISPs).

The FCC should take into account the major implications for service quality as it completes a nationwide programmatic agreement on tower siting, Sprint urged the Commission in a filing welcomed by others in the wireless industry. The argument, filed in the FCC docket on CMRS competition, adds a wrinkle to ongoing discussions over tower siting rules.

Nextel late Tues. warned the FCC it would reject any rebanding plan that gives it spectrum at 2.1 GHz instead of the 1.9 GHz in the “consensus” proposal on file at the Commission. Meanwhile, law enforcement officials told us they're increasingly concerned a deal could fall apart unless Nextel gets the 1.9 MHz in the agreement.

Much of the behind-the-scenes discussion in the 800 MHz proceeding is now focusing on whether Nextel will get 10 MHz at 2.1 GHz instead of the spectrum at 1.9 GHz it had sought. The FCC is reportedly looking closely CTIA’s April 30 proposal, which, sources said, was offered in part in reaction to Commission concerns. Sources said that even if the FCC adopts the 2.1 GHz proposal it could still reach a decision in a matter of weeks because key staff have already given related issues substantial attention.

Citing national security, the Dept. of Homeland Security (DHS) and the Justice Dept. (DoJ) said the FCC should reject any move to relax the Sec. 214 authorization process for commercial mobile radio service (CMRS) carriers providing international service. The FCC has a rule that carriers only partly owned by another carrier with a 214 certificate can’t start service without prior notification. In March, FCC released a rulemaking asking whether the Commission should relax this rule and allow carriers to essentially use their parent’s certificate. CMRS carriers argue they shouldn’t be subject to the same regulation as wireline communications. The carriers note that Sec. 214 of the Communications Act was written to apply to wireline communications. “CMRS providers have always viewed themselves as a newer service that should be subject to less regulation,” one regulatory attorney said Fri.: “They look at all these rules that apply to wireline service and they say we're different.” But DHS and DoJ worry that without a prior notice requirement a carrier could be partly owned by a terrorist organization. DHS and DoJ said they “strongly urge” the FCC to keep the mandate in place. “The rule is necessary to protect the public interest in preventing entities who may present a risk to national security or law enforcement interests from providing service pursuant to a parent entity’s Section 214 authorization,” the departments said. “Elimination of the rule would significantly and adversely impact our ability to safeguard national security and critical law enforcement concerns -- at the very time when we are striving to identify and plug any gaps in our national security.”

NTIA acting Dir. Michael Gallagher said Fri. he still gives the spectrum transition fund bill, which has by most accounts stalled in the Senate, a good chance of passing in the remaining months of the Congress. At an FCBA lunch, Gallagher called the bill NTIA’s “top legislative priority.” Gallagher also said he was hopeful an amendment to the Senate version by Northpoint has a good chance of being removed from the bill. Inclusion of a Northpoint provision when the bill was marked up last year has been viewed as a stumbling block. “There is very active discussion about how that bill needs to be crafted to get it across the finish line today in the Senate,” Gallagher said: “There is very strong senatorial support. The challenge is what is being hung on it.” Gallagher noted that, as one of a few bills that has a chance of passage, it’s a target for amendment. But Gallagher said he has heard Northpoint amendment may be withdrawn. “The political weight of Northpoint and the Northpoint amendment is lessening day by day,” he said: “The fact is the Commission auctioned that spectrum. Over $100 million was garnered in auction by the Commission for auctioning that spectrum. That is well known and is sinking into the debate.” Gallagher said wireless carriers have been actively promoting the legislation on the Hill: “They're talking to staff. They're talking to members. They're working all the different circuits so that they know it’s a priority. I'm sensing plenty of support. We can always use more.” Gallagher also said the report of the Administration’s Spectrum Policy Initiative is on track for release the next few weeks. He said it has not yet been submitted to other agencies, including the Office of Management & Budget, for vetting before release. “The clearance process can move quickly,” he said.

The Senate’s failure to confirm Acting NTIA Dir. Michael Gallagher is hurting his effectiveness, especially on international issues, Gallagher acknowledged Fri. in response to questions. Several former federal agency heads also have told us the failure of the Senate to act on the nomination is increasingly damaging Gallagher’s effectiveness.

The Spectrum Task Force’s proposal that the Commission adopt the new metric of “interference temperature” to quantify and measure interference is widely viewed as a nonstarter and should be rejected by the Commission, commenters said in replies to the FCC. “Of the approximately 45 timely filed comments, representing a broad cross-section of the telecommunications industry, none wholeheartedly supports the notice,” said the Fixed Wireless Communications Coalition: “Skepticism extends even to the unlicenced device industry, which would be a direct beneficiary of the Commission’s proposals.” Sprint also called on the FCC to pull back from its interference temperature inquiry: “There is broad consensus that the ITemp concept is not in the public interest… Virtually all commenters, representing the gamut of the telecommunications industry -- including unlicensed device interests -- conclude that the FCC should not pursue the ITemp concept. The comments demonstrate that the ITemp concept is not technically feasible in mobile wireless service bands.” CTIA said only 3 commenters support the implementation of ITemp: “Even those parties note that ITemp, as proposed in the [notice of inquiry] suffers practical implementation issues.” Several sources said they expect the FCC to eventually back away form the concept. “The unanimous opinion among the comments I've seen is this idea stinks. Nobody wants it,” one regulatory attorney said.

Only a handful of commenters raised any questions about the proposed Cingular-AT&T Wireless merger, which would create the largest U.S. wireless carrier in FCC filings. But sources said that, though quiet at the FCC, some state attorneys general and competitors are already reaching out to the Justice Dept., which will review the merger. The only players to loudly oppose the merger at the FCC have been Consumer Federation of America (CFA) and Consumers Union in a joint filing.