Federal Communications Commission (FCC)

A program agreement that would streamline wireless and broadcast tower siting reviews ran into trouble last week when the Advisory Council on Historic Preservation (ACHP) raised concerns about how certain types of sites would be excluded, sources said. FCC and some industry officials said they remained bullish that differences could be worked out relatively quickly. But they said a key unresolved issue was one that had drawn recent Capitol Hill attention: Treatment of sites “potentially” eligible for listing on the National Register of Historic Places.

The broadband over power line (BPL) industry welcomed as helpful in the FCC’s BPL inquiry the Federal Emergency Management Agency’s new position that not all BPL technologies posed interference problems (CD Jan 29 p11). “It’s nice to see that FEMA is backing away from what they have earlier stated,” Brett Kilbourne, regulatory dir. of the United Power Line Council, told us. He said it seemed from FEMA Undersecy. Michael Brown’s letter to FCC Chmn. Powell that “they are open minded about” BPL and the agency didn’t intend to say, as it did in its original filing with the Commission, that all approaches to BPL would cause interference. Jay Birnbaum, pres. of Current Technologies, said FEMA’s original filing with the FCC did seem to indicate that the agency didn’t have any homegrown data about interference potential and was relying on 3rd-party assessments and studies. “I don’t think that it would be fair to look at the first filing and say they found interference.” Brown’s letter was confirmation that the agency hadn’t done any research on interference potential and was conceding that BPL and emergency communications systems should be able to “peacefully coexist,” he said. Both Kilbourne and Birnbaum said the FEMA filing would make a big difference to the industry in the FCC’s inquiry into the technical aspects of BPL. The Commission is expected to come out with its conclusions in the first quarter. “If the earlier [FEMA] filing made the FCC think twice, then this is a positive development and it should help,” Birnbaum said: “But if the FCC hadn’t given the earlier filing too much weight, then this is a nice clarification.” At the very least, Brown’s letter would make the Commission look at the original FEMA filing in a different light, he said. Some industry sources found it unusual that FEMA had filed comments directly with the FCC instead of going through the NTIA as was the norm for govt. agencies that had spectrum issues.

With Comr. Martin dissenting, the FCC voted 4-1 to grant eligible telecom carrier (ETC) status to Virginia Cellular for commercial mobile radio service operations in rural areas of that state. The FCC, in an order released Fri., filled in the details of a public interest standard it said would apply to all ETC designations for rural areas pending before the agency. Martin said he objected to parts of the order, including its decision to not require ETCs to: (1) Provide equal access, which rural ILECs already must offer. (2) Offer the same type and quality of service throughout a geographic area as a condition of receiving universal service funding.

The FCC Technological Advisory Council (TAC) wrestled Fri. with how to move public safety operators more quickly toward IP-based systems, including Wi-Fi, while meeting local govt. money concerns. Sean O'Hara, research & communications engineer for the Syracuse Research Corp., said that in the last year public safety had had a greater voice on standards for 802.11 and beyond. But he warned that emergency responders still must be “sold” on the benefits of cognitive radio.

FCC Comr. Abernathy called on the Commission to act on AT&T’s petition for exemption from paying access charges for calls that are routed primarily on Internet backbone “sooner rather than later.” In an interview with reporters after her speech at a conference on digital issues sponsored by the FCC and the Catholic U. Law School Thurs. in Washington, she said: “I have thought that maybe we can deal with that in a bigger proceeding, but the problem is… the present uncertainty may be distorting competition and the flow of capital… So, we should try to resolve that tension and provide at least some immediate clarity.”

The Federal-State Joint Board on Universal Service appears to be “very much divided” in its effort to seek improvements in the Universal Service Fund (USF)and, as a result, probably will present the FCC with some “conflicting views,” Western Wireless CEO John Stanton said Tues. in an interview with Communications Daily. Even in areas where there’s a majority view in the Joint Board’s recommendations, there probably will be an “active minority” view, perhaps leading to divisions at the FCC as well, Stanton predicted.

Using a speech at the National Press Club as his latest platform to warn against too much regulation of IP telephony, FCC Chmn. Powell Wed. challenged proregulation forces to prove such action was needed. “The burden should be on the government to show if regulation is needed, not the other way around,” he told journalists and communications industry officials. While the speech didn’t break new ground, it led one audience member to note privately that Powell had repeated this message in several speeches recently, possibly indicating the need to convince industry officials and other regulators, including other members of the Commission, of the wisdom of light-touch regulation.

The FCC asked for comments on whether certain rules applying to the operations of telecom service providers should be repealed or modified because they were “no longer necessary in the public interest as the result of meaningful economic competition.” The Commission released a notice of proposed rulemaking as part of its biennial regulatory review of regulations administered by the Wireline Bureau. It asked for comments on whether it should continue to require carriers to file annually FCC Form 395 and the report of employment-related discrimination complaints. It also sought comments on some of its rules on: (1) Jurisdictional separations procedures. (2) Implementation of Secs. 251 and 252 of the Communications Act. (3) Telephone numbering. (4) Implementation of Sec. 272. (5) Requirements in Sec. 271 of the Act. (6) Universal service. In a separate statement, FCC Comr. Copps questioned the wisdom of seeking comment on the continuing need for Sec. 1.815 of the Commission’s rules: “How can it be that at a time when we are trumpeting the significance of our Advisory Committee in Diversity of Communications in the Digital Age, we also are suggesting that information gathering about the diversity of the telecommunications work force is no longer in the public interest? It looks like one hand of the agency is not talking to the other.” He said the information collected under that rule was “exactly the kind of granular data the Committee will find useful to complete its mission. I fear efforts like this one may emasculate this new group and make their already difficult tusk more complex.” Comments are due 30 days after publication in the Federal Register, replies 15 days later.

Two former Clinton Administration officials were credited last month with saving a rural broadband loan program, but due to a shortage of funds among the effort’s beneficiaries, their lobbying efforts were performed free of charge. Former NTIA Dir. Greg Rohde and former Rural Utilities Service (RUS) Dir. Christopher McLean in 2003 grossed more than $200,000 from companies involved in rural broadband issues, Rohde revealed last week in lobbying disclosure filings with the Secy. of the Senate. However, he told us that the lobbying he did in the Senate to save the RUS broadband program was done pro bono, as the lead entity in the effort, the Wireless Communications Assn. International (WCAI), couldn’t afford to pay them, a difficulty confirmed by WCAI Pres. Andrew Kreig.

The National Wildlife Federation (NWF) and other environmental groups asked the FCC to order its Wireless Bureau to conduct environmental analyses under the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA) before approving tower projects. NWF, the Mich. Audubon Society, Copper Country Audubon Club and Upper Peninsula Environmental Coalition filed an application for review at the FCC last week. Last year, NWF told the Bureau insufficient environmental analyses were done before tower construction and as a result the FCC was violating the ESA and NEPA. The group asked that the agency immediately conduct environmental assessments on 3 towers and evaluate the cumulative impacts of the tower permitting system on migratory birds and endangered species. The Bureau turned down those claims last month, saying the Mich. State Police and U.S. Fish & Wildlife Service (FWS) were conducting an avian collision study. (The FCC over the last few years has authorized the Mich. State Police to construct 181 towers across the state.) NWF told the FCC in its latest filing that the Bureau incorrectly had held that performing environmental assessments before the avian study was complete would be premature. “Postponing these analyses creates unacceptable risks to the endangered Kirtland’s warbler and other migratory species and violates the ESA and NEPA,” NWF said. It asked the FCC to “order the Bureau” to perform environmental analyses under ESA and NEPA and to consult with FWS. The group asked for a review of: (1) Whether the Commission violated the ESA by approving towers in and around the habitats of listed species “without conducting an assessment of impacts on the species and without consulting with the U.S. Fish & Wildlife Service regarding those impacts.” (2) Whether the FCC violated NEPA by approving towers in and around the habitats of migratory birds without first conducting an assessment of impacts on the birds. NWF took aim at an unpublished letter last month in which the Bureau concluded it didn’t have to analyze the environmental effects of Mich. State Police communications towers and ESA and NEPA until after the 2-year avian study was performed. The Bureau said its tower authorizations were categorically excluded from NEPA. NWF said its members lived near the towers, bird-watched in areas near certain towers and “are concerned about the economic impacts on ecotourism that would directly impact their economic livelihood.” The application for review said the “FCC’s failure to assess the impacts of the towers on the Kirtland’s warbler and other migratory birds has harmed these members’ esthetic, recreational and economic interests.” The groups told the FCC that if reviews under NEPA and ESA were to show that a particular tower harmed the birds, the Commission had the authority to order that the tower be removed or that the harm be mitigated. The groups contended the FCC was made aware in advance of the towers’ construction of the potentially harmful effect on nonlisted migratory birds as well as 4 ESA-listed species, but didn’t conduct reviews before licensing them.