Vol. 15

NTIA and RUS Announce Broadband Stimulus Details

Genachowski Begins Tenure with Emphasis on Broadband

Waivers Granted for Buy American Provisions for Broadband Stimulus Program

FCC Announces BRS Auction Procedures and Deadlines, Adjusts Minimum Bid Amounts

FCC Adopts Forbearance Procedures

FCC Opens Windows for New Digital LPTV and Translator Stations

FCC Backs Off Fines for Switched Digital Video

Commission Releases NPRM on Medical Body Area Networks

FCC Proposes Revising Terrestrial Fixed Wireless Rules

TRS VoIP Waiver Extended Until June 29, 2010

FCC Adopts TRS Rates

WTB Takes Action on Various Waiver/Extension Requests for 220 MHz, 39 GHz, and LMDS GHz Licensees

New FCC Staff Positions Announced

FCC Solicits Comment on Release of NRUF and LNP Data to DOJ for AT&T-Centennial Deal

Upcoming Meetings

The long-awaited Notice of Funds Availability (NOFA) for the broadband stimulus program was released on July 1 by the National Telecommunications and Information Administration (NTIA) and the Rural Utilities Service (RUS).  The NTIA grant program is called the Broadband Technologies Opportunity Program (BTOP) and the RUS loan and grant program is called the Broadband Initiatives Program (BIP).  Approximately $4 billion has been allocated by NTIA and RUS for distribution under this NOFA, with the remaining funds of the $7.2 billion broadband stimulus program available for distribution under two future NOFAs.  The application deadline for funding under this first NOFA is August 14, 2009 at 5 p.m. EDT.  A series of joint NTIA/RUS workshops explaining the programs will begin on Tuesday, July 7 in Washington, D.C. and will continue at various sites around the country until July 24. 

For additional information, please contact Andy Brown.

Brand new FCC Chairman Julius Genachowski left little doubt as to one of his top priorities in his new job as he devoted a large portion of the agenda of his first Commission meeting to the topic of broadband deployment.  The FCC has an obligation to present to Congress a national broadband plan by February 17, 2010, the anniversary of the legislation creating the broadband stimulus programs in the American Recovery and Reinvestment Act (ARRA).  Genachowski emphasized that he wants an open, transparent, and data-driven process for developing the plan, and stated that there will be numerous forums and workshops in the Fall seeking input for the plan.  In the near term there will be a series of workshops with FCC staff that will provide background for the initial phase of the planning process.  The information gathering workshops will be held between August 12 and September 3, and will concentrate on specific topics such as penetration rates, economic growth, technology opportunities and comparisons with other countries.  Findings of the workshops will be made available for public comment in September 2009.

For additional information, please contact Andy Brown.

For additional information, please contact Andy Brown.

The FCC has released a Public Notice announcing the procedures and minimum opening bid amounts for the auction of unassigned Broadband Radio Service (BRS) spectrum in the 2.5 GHz band.  Designated Auction 86, this auction is scheduled to begin on October 27, 2009 and will offer 78 licenses for BTA service areas encompassing up to 76.5 MHz.  Much of the available spectrum, however, is encumbered by incumbent licensees in the 2.5 GHz band.  In response to multiple commenters regarding the encumbered licenses, the FCC decided to adjust on a license-by-license basis the minimum bid amounts that must be paid upfront.  Under the revised formulas, the least encumbered licenses will be priced at $0.0125/MHz-pop, whereas the most encumbered licenses will be priced at $0.0025/MHz-pop.  The format of the auction will be the FCC’s standard simultaneous multiple-round auction format.  Anonymous bidding will be employed for Auction 86, as was done in the recent 700 MHz and AWS/PCS auctions.  Applications to participate in Auction 86 are due between August 5-18, 2009, and upfront payments are due by September 24, 2009.

For additional information, please contact Robert Silverman.

Acting on petitions filed by a number of competitive local exchange carriers, the FCC has adopted new procedures applicable to forbearance petitions filed pursuant to Section 10 of the Communications Act.  Under the new procedures, forbearance petitions must be complete as filed and must demonstrate how the petition meets each of the statutory forbearance criteria.  Additionally, forbearance petitions must state with specificity:  (1) each statutory provision, rule, or requirement from which forbearance is sought; (2) each carrier, or group of carriers, for which forbearance is sought; (3) each service for which forbearance is sought; (4) the geographic location, zone, or area in which forbearance is sought; and (5) any other factor, condition, or limitation relevant to determining the scope of the requested relief.  The burden of proof remains on the petitioner to establish that forbearance is warranted.  Additionally, the FCC will actively manage its procedures according to a general timeline to be posted on its web site.  Under this timeline, petitioners will not be permitted to withdraw or narrow the scope of the relief requested in their petitions after a date that is ten business days after the date that reply comments are due.  The FCC’s rules relating to the protection of proprietary data will continue to apply to forbearance petitions.  Except for the new rule requiring a petition to be complete upon filing, the new procedures will apply to pending petitions once they become effective.

For additional information, please contact Howard Shapiro.

The FCC has issued a Public Notice announcing its intent to accept applications for new digital low power television (LPTV) and TV translator stations, for major modifications to existing digital LPTV and translator stations, and for digital companion channels to be associated with existing analog LPTV and translator stations in both rural areas and nationwide on a first-come, first-served basis.  Applications for such stations in rural areas (defined as transmitter sites located more than 121 kilometers/75 miles from the FCC-established reference points for the top 100 television markets) may be filed beginning August 25, 2009 and applications outside of rural areas may be filed beginning January 25, 2010.  Applications for new stations will only be accepted for channels 2-51.  Applications for digital companion stations may propose to operate on Lower 700 MHz Band channels 52-59 but must certify that no suitable in-core channel exists and must notify all potentially affected 700 MHz Band wireless licensees of the spectrum comprising the proposed TV channel and the spectrum in the first adjacent channels thereto not later than 30 days prior to the submission of their long form application.  All digital companion channels will be licensed as LPTV channels on a secondary, non-interference basis and their licenses contain a condition to that effect.  At some as yet unspecified future date, stations that receive a companion channel will be required to return either their analog channel or the companion channel to the Commission.

For additional information, please contact Howard Shapiro.

In a decision reflecting a clean break with the administration of the previous FCC Chairman, the Commission has reviewed and vacated a series of forfeiture Orders issued against Time Warner Cable and Cox Cable in connection with their migration of certain cable programming services to a switched digital video (SDV) platform.  Under the previous FCC Chairman, who publicly ranted against the migration of services to SDV without any corresponding decrease in cable rates for non-SDV service tiers, the Enforcement Bureau issued a series of decisions imposing forfeitures in connection with certain Time Warner cable systems in Hawaii and Cox’s system in Fairfax County, Virginia.  The gist of the violation was that a small number of customers that used cable card equipped unidirectional cable products lost access to the services moved to the SDP which requires bidirectional functionality.  Upon review, the Commission reversed the Enforcement Bureau’s forfeiture orders (with one exception), finding that the deployment of SDV was in the public interest and that the language of the rules allegedly violated by the SDV deployment did not prohibit SDV deployment or support a finding that the rules had been violated.  The Commission did uphold one of the forfeiture Orders imposed by the Enforcement Bureau against Time Warner in connection with Time Warner’s failure to give 30 days’ advance notice of its SDV deployment to its customers and to the local franchising authority as required by FCC rules.  The Commission reaffirmed that the deployment of SDV was a “change in service” that triggers the notification requirements contained in its cable rules.

For additional information, please contact Howard Shapiro.

The FCC is seeking comment on allocating spectrum and establishing technical rules for Medical Body Area Networks (MBANs).  MBANs could be used to create wireless body sensor networks to monitor individual patient data such as temperature, pulse, blood pressure, and respiratory function.  MBAN systems would primarily be used in health care facilities.  The Notice seeks comment on the feasibility of using the 2.3, 2.4, or 5.2 GHz bands, and on licensing schemes that would be appropriate.  The Commission is also seeking comment on the potential for interference caused to incumbents and how such concerns might be mitigated.  Comments in ET Docket 08-59 will be accepted until August 28, 2009; reply comments are due September 28, 2009.

For additional information, please contact Erin Fitzgerald.

The FCC has released a Notice of Proposed Rulemaking (NPRM) and Order seeking comment on revisions to its rules governing terrestrial fixed wireless services in the 6 GHz and 23 GHz bands.  First, in response to a petition for rulemaking filed by the Fixed Wireless Communications Coalition (FWCC), the FCC proposes modifying Part 101 of its rules to provide fixed terrestrial wireless licensees with authority to operate on channels with wider bandwidths of as much as 30 megahertz in the 6525-6875 MHz band (Upper 6 GHz Band).  Second, on its own motion, the FCC proposes allowing applicants to operate pursuant to conditional authority on two additional channels in the 21.8-22.0 GHz and 23.0-23.2 GHz bands (23 GHz band).  The FCC seeks comment on whether these modifications would serve the public interest by facilitating the efficient use of the affected bands while continuing to protect other users from interference.  Lastly, in the Order, the FCC has granted a waiver request filed by FWCC that would allow licensees to operate pursuant to conditional authority in the 23 GHz band prior to the FCC completing its rulemaking.  Interested parties may file comments on the NPRM 30 days after publication in the Federal Register; reply comments will be due 45 days after publication in the Federal Register.

For additional information, please contact Robert Silverman.

The FCC’s Consumer & Governmental Affairs Bureau (CGB) has issued an Order extending until June 29, 2010 the limited waiver of its rule requiring traditional telecommunications relay services (TRS) providers to “automatically and immediately” call an appropriate Public Safety Answering Point (PSAP) when receiving an emergency 711-dialed call placed by an interconnected Voice over Internet Protocol (VoIP) user.  In the Order, which provides a further extension of a limited waiver that was most recently extended in April 2009, the CGB recognized that TRS providers are prevented from developing a compliant system due to technical and operational challenges.  In the meantime, however, TRS providers must maintain a manual system for routing the outbound leg of an interconnected VoIP-originated emergency 711 call to an appropriate PSAP.

For additional information, please contact Robert Silverman.

The FCC has released an Order adopting the National Exchange Carrier Association’s (NECA) proposed per-minute compensation rates for traditional Telecommunications Relay Service (TRS) and related services for the 2009-2010 fund year.  Rates will be $1.8311 per minute for interstate traditional TRS; $2.9621 per minute for interstate Speech-to-Speech (STS); $1.6778 per minute for interstate captioned telephone service (CTS) and intrastate and interstate Internet Protocol (IP) captioned telephone service (IP CTS); $1.2801 per minute for intrastate and interstate IP Relay; and tiered rates of $6.7025 for the first 50,000 monthly minutes, $6.4352 for monthly minutes between 50,001 and 500,000, and $6.2372 for minutes above 500,000 for intrastate and interstate video relay service (VRS).  Based on these rates, NECA set a carrier contribution factor of 0.01137 and a funding requirement of $890,992,075 for the 2009-2010 fund year.

For additional information, please contact Ken Johnson.

The Federal Communications Commission's Wireless Telecommunications Bureau (WTB) has addressed various requests for extension of wireless construction deadlines.  The WTB denied eight requests for extensions and/or waivers of the five-year construction requirement with respect to 220 MHz licenses.  The WTB found that the eight licensees made business decisions as to the use of the licenses and that the failure to timely construct was not the result of circumstances beyond the licensee’s control, but rather due to the business decisions not to pursue service applications for which equipment is available.  The WTB granted one licensee an extension to construct its 220 MHz licenses because it had completed construction at 395 sites in 17 states.  In addition, the WTB granted a subsidiary of AT&T an extension to construct its 39 GHz licenses based on previously granted extensions to other similarly situated licensees, and the WTB accepted a Local Multipoint Distribution Service (LMDS) licensee’s substantial service showing based on the construction of numerous facilities in its markets.

For additional information, please contact Marjorie Spivak.

FCC Chairman Julius Genachowski has announced the fulfillment of ten staff positions within his office at the Commission.  Edward Lazarus, most recently a partner at the Akin Gump law firm, will be Genachowski’s Chief of Staff.  Colin Crowell was named as Senior Counselor to Chairman Genachowski.  Crowell is a former aide to Representative Edward J. Markey (D-MA), the former Chairman of the House Subcommittee on Telecommunications and the Internet.  Bruce Liang Gottlieb, the legal advisor to Commissioner Copps for the past three years, was promoted to Chief Legal Advisor to the Chairman.  Priya Aiyar, a Rhodes Scholar, U.S. Supreme Court Clerk and private practice telecommunications attorney, will serve as a Legal Advisor to the Chairman.  Sherrese Smith, most recently V.P. and G.C. of Washington Post Digital, will also serve as a Legal Advisor.  Sherry Gelfand, who has held a variety of positions in the public and private sector, will serve as Confidential Assistant to the Chairman.  Also serving as a Special Assistant to the Chairman is Daniel Ornstein, a former CBS manager and new media  entrepreneur.  Mary Beth Richards has been appointed the new Special Counsel to the Chairman for FCC Reform.  Ms. Richards is a career FCC staffer who first came to the Commission in 1984.  Ruth Milkman, most recently a private practice attorney and a senior FCC staff member under both Republican and Democrat administrations, will lead the Chairman’s transition efforts.  Finally, Jen Howard, the former Press Director at Free Press, has been named Chairman Genachowski’s new Press Secretary.    

For additional information, please contact Daryl Zakov.

The FCC has released a Public Notice establishing a pleading cycle for those parties wishing to file comment on the Commission’s release of confidential reports and data to the U.S. Department of Justice (DOJ) as part of its review of AT&T’s acquisition of Centennial.  Specifically, for the purpose of assisting in its investigation, the DOJ has requested access to information contained in the Numbering Resource Utilization and Forecast (NRUF) reports filed by both operators and also to disaggregated, carrier-specific local number portability (LNP) data.  Section 251 of the Communications Act grants the Commission jurisdiction over numbering issues, but the Commission is also authorized to share that information with other government agencies.  Affected parties have until July 6, 2009 to oppose disclosure of NRUF and LNP data to the DOJ.

For additional information, please contact Daryl Zakov.

The Bennet & Bennet attorneys noted below will be presenting at or attending the following industry meetings.  For more information about a particular meeting, please visit http://www.bennetlaw.com/events.php.

• NTCA Regions 1, 2, & 3 Meeting (July 19-21, 2009):  Dee Herman
• OPASTCO 46th Annual Summer Convention & Tradeshow (July 25-29, 2009):  Andy Brown
• CoBank Communications Industry Executive Forum (August 18-20, 2009):  Carri Bennet
• NTCA 2009 Fall Conference (September 13-16, 2009):  Carri Bennet, Greg Whiteaker, Dee Herman, and Andy Brown

For additional information, please contact Traci Quan.