Vol. 13

Sprint and Clearwire Headline a Multiparty WiMax Joint Venture

Congress Assaults Reverse Auctions

CTIA Study Finds $22 Billion Price Tag for 3G in Rural America

Net Neutrality Resurfaces in Congress

Progeny Requests Extension of Construction Deadlines for M-LMS Licenses

Court Rejects Sprint Nextel Challenges To 800 MHz Rebanding

Wilmington, North Carolina Slated For DTV Transition Pilot

Trade Groups Seek Changes To FCC Antenna Siting Rules

Kansas Seeks FCC Permission to Regulate Mobile ETCs

Senate Bill to Promote Transparency in Prepaid Calling Card Fees

Chairman Martin Announces Acting Advisors

FCC Seeks Comment on Proposed Regulatory Fees, Announces New Lock Box, Addresses BRS Fee Structure

FCC to Discuss Part 90 Rules, 700 MHz in Open Meeting

FCC Extends Stay of TRS Restrictions

NECA Establishes TRS Rates

News Bites

Ten months after scuttling a previous attempt to join efforts in building out a nationwide WiMax network, Sprint and Clearwire, along with other big names in the telecommunications, cable, chipset and content sectors, unveiled plans to create a new company to deliver mobile broadband across the country.  The new entity will operate under the Clearwire name and assume ownership and operational control over both companies’ WiMax networks.  Sprint will retain nominal control of the new company, with a 51% stake.  Existing Clearwire shareholders will own an additional 27%.  The remaining 22% will be owned by Intel, Google, Comcast, Time Warner and Brighthouse Networks after investing a combined $3.2 billion in financing support.  Sprint and Clearwire also announced a series of commercial wholesale agreements allowing network access to those companies holding a minority interest.

For additional information, please contact Daryl A. Zakov.

Senators Byron Dorgan (D-ND) and Chuck Hagel (R-NE), and a host of other mostly rural Senators, have sent a letter to FCC Chairman Kevin Martin asking the Chairman to scrap reverse auctions.  The Senators assert that reverse auctions will “stymie innovative communications infrastructure” in the most rural and expensive-to-serve areas or the country.  The letter applauds the Chairman for examining universal service and says the time has come to eliminate the identical support rule.  Rural members of the U.S. House of Representatives also sent a similar bipartisan letter to the FCC Chairman.

For additional information, please contact Ken Johnson.

CTIA – The Wireless Association®, in a commissioned study, estimated that the investment dollars needed to deploy EVDO and HSPA in unserved areas of the United States would top $22 billion.  This finding was part of a recent FCC filing by the advocacy group filed under the Wireline Competition Bureau’s docket dealing with the high cost of universal service support.  Not surprisingly, the study found that certain states lagged behind others when it came to both total population and road miles currently covered by 3G networks.  The study, conducted by CostQuest Associates, came to the conclusion that a true nationwide 3G footprint would require an additional 16,000 new towers, albeit, with 10 states accounting for over half of those deployments.  The CTIA filing calls for a change in the way universal service funding is currently distributed, so that wireless operators have greater access to funding and that the distribution of those funds on a per-line basis is closer to parity rather than weighted heavily in favor of wireline operators.

For additional information, please contact Daryl A. Zakov.

Representatives John Conyers Jr. (D-MI) and Zoe Lofgren (D-CA) have introduced the “Internet Freedom and Nondiscrimination Act” (HR 5994) which, if passed, would prohibit broadband providers from favoring their own content or blocking access to lawful content and applications.  The bill would also allow users to attach “nonharmful” devices to the network.

For additional information, please contact Ken Johnson.

The FCC is seeking comments on a request for waiver and limited extension of time filed by Progeny LMS, LLC regarding the construction deadlines for its 228 Multilateration Location and Monitoring Service (M-LMS) licenses in the 902-928 MHz band. Progeny’s licenses currently have a five-year construction deadline of July 19, 2008 and a ten-year construction deadline and expiration date of July 19, 2010.  Progeny requests a four year extension of both the five and ten year benchmarks arguing that the lack of M-LMS equipment has prevented it from meeting its construction requirements. Comments are due by June 4, 2008, and reply comments by June 19, 2008.

For additional information, please contact Marjorie Spivak.

The United States Court of Appeals for the District of Columbia Circuit has rejected Sprint Nextel’s challenge to the FCC’s June 26, 2008 deadline for it to vacate portions of the 800 MHz band in order to allow for public safety operations to move into the vacated frequencies.   Sprint Nextel argued that by forcing it to relocate before public safety operations are ready to move into the vacated spectrum, its existing operations will be significantly impaired and that the FCC acted arbitrarily by refusing the company’s request to be allowed to remain on the channels until such time as the public safety users were ready to relocate their operations.  The court found that the FCC balanced the interests of Sprint Nextel against the needs of public safety and reasonably concluded that the deadline should be met regardless of whether public safety agencies are currently prepared to relocate their operations into the spectrum vacated by the company.

For additional information, please contact Howard Shapiro.

The FCC has selected Wilmington, North Carolina as the first market to undergo the transition to digital television in advance of the February 17, 2009 deadline for the nationwide DTV transition.  Beginning on September 8, 2008, the local Fox, ABC, NBC,  CBS and Trinity affiliates in the Wilmington market will cease their analog broadcasts and operate only in digital.  The purpose of the test is to observe whether and what types of problems might arise so that they can be addressed before the nationwide DTV transition.  Wilmington was chosen as one of a limited number of test markets because all the commercial stations in the market have already completed construction of their DTV channels and are operating at full post-transition power.  The FCC will have a team in place in the market prior to the test to coordinate the various industries affected and to assist the public.

For additional information, please contact Howard Shapiro.

The FCC is seeking comment on a Petition for Expedited Rulemaking filed by a coalition of trade groups, including CTIA, NAB, PCIA and the National Association of Tower Erectors, seeking amendments to Part 1 and 17 of the FCC’s rules regarding Public Notice procedures for processing ASR applications. The Coalition filed its Petition in response to the U.S. Court of Appeals for the District of Columbia Circuit’s Decision in the American Bird Conservancy Case to remand the case to the FCC to determine how it will provide notice of pending tower applications that will ensure public involvement in implementing NEPA procedures.  The Coalition proposes rules for notice, comment and approval of ASR applications modeled after the process for transfer and assignment applications.  Comments are due by May 27, 2008.

For additional information, please contact Marjorie Spivak.

The FCC has released a Public Notice seeking comment on a petition filed by the Kansas Corporation Commission (KCC) for a declaratory ruling affirming the lawfulness of its procedure for certifying eligible telecommunications carriers’ (ETC) receipt of federal universal service support.  At issue is a KCC rule forbidding ETCs from spending federal high cost support in areas served by non-rural Southwestern Bell.  The KCC reasons that since Southwestern Bell does not receive high cost support, competitors should not be able to spend their high cost support in Southwestern Bell territory.  US Cellular and RCC challenged the rule in the Kansas District Court, claiming that the KCC rule is preempted by federal law.  The KCC argued that the FCC should decide the case and the court agreed.  Comments on the KCC petition are due by June 2, 2008 and reply comments by June 17, 2008.

For additional information, please contact Ken Johnson.

Senator Bill Nelson (R-FL) has introduced legislation that would require the providers and distributors of prepaid calling cards to clearly and accurately disclose the terms and conditions of the cards they sell to consumers.  Entitled “Prepaid Calling Card Consumer Protection Act of 2008,” the bill would empower the Federal Trade Commission to regulate those companies provisioning prepaid calling cards.  Under the proposed legislation, companies would be required to disclose to consumers not merely the per-minute rates, but also all applicable interstate per-minute rates, all international preferred destination rates, and any other fees or tariffs.  The bill was co-sponsored by both Democrats and Republicans, and was enthusiastically praised by the National Association of Regulatory Utility Commissioners as a means to both protect consumers and allow regulation and enforcement at the state and Federal level.

For additional information, please contact Daryl A. Zakov.

FCC Chairman Kevin J. Martin has announced changes to his staff.  Elizabeth Andrion is serving as Acting Legal Advisor for Media Issues, and Amy Bender is serving as Acting Legal Advisor for Wireline Issues.  Ms. Andrion previously served as Deputy Chief of the Office of Strategic Planning and Policy Analysis, and Ms. Bender previously served as Legal Counsel to the Chief of the Wireline Competition Bureau. 

For additional information, please contact Robert Silverman.

The FCC has released a Notice of Proposed Rulemaking and Order seeking comment on its proposals to revise its Schedule of Regulatory Fees for Fiscal Year (FY) 2008,  announcing the new lock box address for payments to the Commission, and addressing proposed changes to the BRS regulatory fee structure.  Congress has required the FCC to collect $312,000,000 in fees for FY 2007, an increase of $21,704,840 from FY 2007.  The overall increase in mandated funding amounts to an approximate 7.47 percent upward adjustment across the board in proposed regulatory fees for all telecommunications services in FY 2007.  Comments on the FCC’s regulatory fee changes are due on or before May 30, 2008 and reply comments are due on or before June 6, 2008.

In its Order, the FCC addressed proposed changes to the regulatory fee structure for BRS.  In 2006, the FCC adopted a new, three-tiered regulatory fee structure for BRS based on BTA population size.  In last year’s FY 2007 NPRM regarding regulatory fees, the FCC sought comment on implementing this new BRS fee structure.  After reviewing the record, the FCC has concluded that it will continue the current practice of charging a flat fee per license until the BRS/EBS transition to the new band plan.

For additional information, please contact Robert Silverman.

The FCC has announced the agenda for its next Open Meeting to be held on Thursday, May 14, 2008 at the FCC’s Washington, DC headquarters at 9:30 a.m.  The FCC will consider (i) a Fourth Memorandum Opinion and Order in Part 90 rulemaking proceeding addressing a petition for reconsideration and a request for clarification of the Third Report and Order in connection with the transition to 6.25 kHz narrowband technologies in the 150-174 MHz or 421-512 MHz bands, and (ii) a Second Further Notice of Proposed Rulemaking seeking comment on rules governing the Upper 700 MHz D Block, the public safety broadband spectrum, and the 700 MHz Public/Private Partnership.  A copy of the agenda is available on the FCC’s website.

For additional information, please contact Robert Silverman.

The FCC’s Consumer & Governmental Affairs Bureau (CGB) has released an order extending the stay of certain sections of a November 2007 telecommunications relay service (TRS) Declaratory Ruling.  Specifically, the CGB is extending the stay of paragraphs 95 and 96 of the Declaratory Ruling, which restricts TRS providers from using consumer or call databases to contact TRS users.  These restrictions have been challenged on Constitutional grounds and currently are pending judicial review in federal court.  The stay postpones the effective date of these restrictions until May 28, 2008. 

For additional information, please contact Robert Silverman.

The National Exchange Carrier Association (NECA) has submitted its annual payment formula and fund size estimate for the Interstate TRS Fund for the period July 1, 2008, through June 30, 2009.  NECA proposes the following proposed rates:  $1.5938 for interstate traditional TRS;  $2.7248 for interstate Speech-to-Speech (STS);  $1.6569 for interstate captioned telephone service (CTS) and interstate and intrastate Internet Protocol (IP) captioned telephone service (IP CTS);  $1.2865 for interstate and intrastate IP Relay;  and tiered rates of $6.7362 for the first 50,000 monthly minutes, $6.4675 for monthly minutes between 50,001 and 500,000, and $6.2685 for minutes above 500,000 for interstate and intrastate Video Relay Service (VRS).  Based on these rates, NECA proposes a carrier contribution factor of 0.01012, and a Fund size requirement of $805.5 million.

For additional information, please contact Ken Johnson.

The FCC has announced the appointment of Eric Bridges from the American Council of the Blind as an additional member to the FCC’s Consumer Advisory Committee.  This appointment is effective immediately and terminates November 17, 2008, or when the Consumer Advisory Committee is terminated, whichever is earlier.  * * *  A pleading cycle has been established for the FCC’s March 8, 2008 BRS/EBS Notice of Proposed Rulemaking in which the FCC seeks comment on how to license unassigned and available EBS spectrum and whether to assign EBS spectrum in the Gulf of Mexico. Comments are due July 7, 2008 and reply comments are due August 6, 2008. 

For additional information, please contact Robert Silverman.