Federal Communications Commission (FCC)

Consumer Federation of America (CFA) accused FCC of “attempting to illegally deregulate advanced telecommunications,” in comments filed on Commission’s rulemaking on regulation of broadband technology delivered over cable networks (CD June 19 p7). CFA, along with Tex. Office of Public Utility Counsel, Consumers Union and Media Access Project, said FCC didn’t clearly distinguish telecom information services, thereby ignoring distinction made by Congress. As result, agency’s definition of telecom as “part and parcel” or “integral” to cable modem service isn’t legal or technical conclusion, “but a business decision” made by cable companies, they said.

Following what wireless industry called “Herculean effort” in Congress that passed legislation delaying 700 MHz auctions, FCC followed suit Wed. by postponing bidding and planning for much smaller auction this summer, as directed by Congress. After whirlwind of Senate and House votes derailed timing of lower 700 MHz auction late Tues., attention on Hill and industry turned to larger spectrum issues that new law buys extra time for policymakers to address, including proposed spectrum relocation fund, 3G viability assessment, 800 MHz reconfiguration proposals. Rep. Pickering (R-Miss.) told reporters Wed. that moving bill that would create trust fund to reimburse federal agencies that had to relocate from bands auctioned to commercial users was “achievable priority” this year. Industry sources said they also expected release shortly of viability assessment from Administration that could free up close to 90 MHz, rather than 120 MHz that industry had sought, for 3G services, with trade-off being that bands would carry assurances of being usable in relatively short term.

FCC received more than dozen petitions for reconsideration of its March ultra-wideband (UWB) order, seeking review on wide array of issues, ranging from power limits to transparency of device testing that Commission had planned over next year. Petitions reflected similar split of views that had made original proceeding controversial, including filings from numerous UWB developers that cited types of devices that couldn’t be deployed under certain provisions they argued were more restrictive than needed to protect against interference. Among companies that urged FCC to tighten certain power limits and not add flexibility to others were Sprint, Cingular Wireless, XM Radio, Sirius Satellite Radio, Satellite Industry Assn., Air Transport Assn., Qualcomm. They cited continuing interference concerns, characterizing limits of final order as insufficiently protective for systems such as GPS, PCS wireless systems, satellite radio.

Dozens of cities and municipalities said FCC didn’t have authority to usurp local govt. control of public rights-of- way under either Communications Act or Constitution, in comments filed jointly at FCC Mon. in rulemaking on appropriate regulatory treatment of broadband access to Internet over cable facilities. Cities -- more than 55, including Nashville, Minneapolis and Oklahoma City -- said they would lose $1.8 million this year, more than $2.5 million in next 2 years and more than $50 million over course of 15-year franchise because of FCC’s declaratory ruling that cable modem service was “interstate information service” not subject to Title II requirements. That ruling, if it withstands court challenges (CD April 2 p1), means service wouldn’t be subject to local franchise fees.

CTIA Pres. Tom Wheeler said FCC decision to open a notice of inquiry on collection of wireless competition data was start of Commission effort to expand regulation of wireless industry (CD June 14 p4). Wheeler told Communications Daily that federal regulators would collect data from wireless industry in similar fashion as they do for monopoly phone services. “It’s the first step down a slippery slope towards oblivion,” Wheeler said. “It'd be used as a tool for regulation that would impose monopoly standards on a competitive market.” He said he was “dumbfounded, swept away, aghast,” at FCC decision. He charged federal regulators were increasingly anxious to impose new restrictions on wireless industry.

FCC approved notice of proposed rulemaking (NPRM) at Thurs. agenda meeting that for first time would allow commercial use of 71-76 GHz, 81-86 GHz and 92-95 GHz. Proposed rules would cover fixed point-to-point operations in that spectrum, which developers have been eyeing for rollout of gigabit-per-sec. broadband capacity with fixed wireless applications in areas where fiber capacity can’t reach easily. “The proposal we are making today will promote greater sharing between federal and non-federal users and encourage commercial deployment of technologies developed in military type environments,” said Office of Engineering & Technology Chief Ed Thomas. Potential uses of spectrum include high-speed wireless local area networks, broadband access systems and point-to-multipoint and point-to-point communications, FCC said. Spectrum now is undeveloped, although new technology developments have made commercial uses practical, officials said.

With court-requested date for FCC ruling less than 2 weeks away, question remains at Commission whether mobile carrier may seek compensation from IXC for long distance traffic terminated on wireless network. U.S. Dist. Court, Kansas City, last year stayed litigation brought by Sprint PCS against AT&T, directing companies to take those issues to FCC. U.S. Dist. Judge Nanette Laughrey said if Commission didn’t rule on referred issues by June 24, litigation would move forward. Several sources said this week that direction Commission would take on issue still wasn’t clear. Sprint PCS has argued in ex parte filings that no federal law or Commission policy bars it from recovering all termination costs from AT&T. But AT&T told agency in filing last week that “any decision to modify current compensation arrangements between CMRS providers and IXCs is better suited to the intercarrier compensation proceeding where all the relevant factors can be evaluated.”

Rep. Stearns’ (R-Fla.) “auction 35” opt-out bill (HR- 4738) is top legislative priority for Verizon Wireless, said Howard Woolley, vp-federal relations. Bill would compel FCC to return remaining deposits of bidders in NextWave re- auction. In March, Commission returned 85% of deposits from re-auction but concluded winning bidders, such as Verizon Wireless, should be held to nearly $16 billion on potential auction obligations until pending Supreme Court review."It’s very important to remove this roadblock to effective spectrum policy,” he said. Verizon Wireless is talking with members about bill and is communicating with “key senators” on introduction of Senate version, Woolley said. Verizon Wireless officials said “whole market” was paralyzed by uncertainty of auction 35. Another policy priority for Verizon Wireless is requirements that spectrum be vacated before it is auctioned, Woolley said. “Future auctions should be conducted only after the clearing process,” he said.

General Accounting Office (GAO) report that will help guide Sen. Burns (R-Mont.) in developing spectrum management reform legislation is expected next week, his spokesman told us. At Comcare Conference in Washington, Burns said he was looking toward end of year for introduction of bill. He acknowledged there wouldn’t be time to move bill through Congress this session, but said he wanted to get debate started. He said he was working with Sens. Hollings (D-S.C.) and Inouye (D-Hawaii) to develop effective bipartisan bill addressing many aspects of spectrum management. “We think it should be comprehensive,” Burns said. He requested GAO report on U.S. spectrum management system nearly a year ago and it’s expected to examine system comprehensively, spokesman told us. Spokesman for Hollings told us Senate Commerce Committee chmn. believed FCC’s policy on spectrum had “flipped the law,” allowing companies to act as if they owned spectrum, instead of renting it. Spokesman cited NextWave case, saying company was allowed to treat spectrum allocations as though they were company property instead of property that it rented from govt. “If a company fails to make a payment, the license should go back to the government,” Hollings spokesman said. If NextWave case creates precedent on spectrum policy, FCC wold become “moot” in regard to spectrum, spokesman said.

Several public safety groups voiced support at FCC for request by Federal Law Enforcement Wireless Users Group (FLEWUG) that asked Commission to start rulemaking on several issues. FLEWUG asked that FCC: (1) Approve certain flexible licensing mechanisms to provide state and local access to parts of federal interoperability spectrum. (2) Adopt Incident Command System (ICS) protocols for procedures in emergency. (3) Adopt Project 25 public safety interoperability standard in bands below 512 MHz, similar to step agency took at 700 MHz. (4) Adopt public safety receiver performance standards. On issue of public safety receiver standards below 512 MHz, private radio section of Wireless Communications Div. of Telecom Industry Assn. (TIA) told FCC in comments last week that interference also was affected by characteristics of transmitting systems and by “Commission rules defining the type of operation allowed,” such as whether base station use is permitted in given band segment. TIA group cautioned “the Commission against assuming that imposing receiver standards on public safety equipment is the primary solution for interference.” To extent it proposes receiver standards, group recommended FCC turn to standards developed by TIA. Public Safety Wireless Network (PSWN) program, led by Justice and Treasury Depts., backed FLEWUG recommendation that FCC and NTIA draft memorandum of understanding to establish system for licensing nonfederal public safety entities on designated federal interoperability spectrum for use in emergencies. PSWN reiterated position “that co-equal access between and among users at all levels of government will be an essential component of nationwide interoperability. The events of the past year have made this long-standing objective even more pressing.” Assn. of Public Safety Communications Officials International (APCO) also supported Commission adoption of Part 25 as requirement for digital communications on designated interoperability channels in public safety bands. Project 25 so far has been voluntary standard that local and state agencies may use, but haven’t been required to do so. “Without a common standard, there will remain the risk that future digital radio systems in the same geographic area and operating on the same frequency band will lack interoperability,” APCO said.