Federal Communications Commission (FCC)

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.

Local govts. will oppose any federal action to harmonize public rights-of-way (ROW) regulations to spur broadband deployment, but will consider state legislation on lines of recently enacted Mich. ROW legislation. That was view that emerged from Washington panel Thurs. organized by Advisory Committee to Congressional Internet Caucus at which industry called for broad national action to lay down contours of “appropriate” local govt. management of ROW and assessment of fees. What’s needed is dialog between local govts. and industry and not one-size-fits-all approach, said Marilyn Praisner, vice chmn. of FCC’s Local & State Govt. Advisory Committee (LSGAC). While problem of delays in granting permits and charging ROW fees in excess of actual costs is “selective,” it has developed into one of national scope and calls for national action, said Martin Stern, co-founder of Telecom Industry Rights-of-Way Working Group (I-ROW).

CTIA told Office of Management & Budget (OMB) Tues. that FCC never conducted cost-benefit analysis of pending wireless local number portability (LNP) requirements. CTIA responded to OMB public notice that sought comment on draft report to Congress on costs and benefits of federal rules. OMB has been examining possible reform measures under fiscal 2001 Treasury and General Govt. Appropriations Act -- so-called Regulatory Right-to-Know Act. CTIA said that in general it supported institutionalizing formal regulatory impact analysis that would include assessment of costs and benefits of regulation and examination of regulatory alternatives. Verizon Wireless petitioned FCC in July 2001 for forbearance on requirement that commercial mobile radio service providers support wireless LNP in top 100 metropolitan statistical areas by Nov. 24, 2002. State PUCs have urged Commission to reject forbearance request, citing negative impact on consumers. CTIA told OMB that wireless LNP requirement carriers estimated price tag of $900 million for installation and $500 million in annual recurring costs for maintenance. “But the Commission has never conducted a cost-benefit analysis or considered the competitive alternatives that this investment could support.” CTIA also said wireline LNP requirement had created $3 billion in end-user costs “while consumers have not received commensurate benefits.” Association itemized regulations it had asked FCC to consider modifying or changing in its 2002 biennial review. Wireless group petitioned FCC recently to eliminate “unnecessary regulations” in policy areas such as wireless LNP. Group cited recent U.S. Appeals Court, D.C., decision that involved biennial review of broadcast ownership rules. FCC Chmn. Powell raised concerns that biennial review standard could evolve under Fox ruling from agency’s having to prove why it eliminated regulation to also include why rules should be kept (CD Feb 21 p1). CTIA reiterated to OMB what it already had told FCC in biennial review, that “the public interest requires that the Federal Communications Commission review, on an expedited basis, all regulations affecting CMRS carriers.”

FCC and state commissions should be required to balance national security policy with competitive policy, USTA Senior Vp-Law & Policy Daniel Phythyon said in USTA-sponsored Web conference Thurs. He detailed recommendations recently approved by USTA national security policy committee. Policy since Telecom Act of 1996 may be “inconsistent” with goal of building networks secure from both physical and cyber attacks, he said. “Telecom policy is driven to maximize competition” but open telephone “network configured to maximize competition is not necessarily a secured network,” he said: “The FCC needs to consider how new rules impact the security of networks.” USTA supports govt.-industry cooperation on development of national policy for security of telephone and data networks, Phythyon said: “This seems to be a no-brainer in this country where the government has relied on privately owned communications networks for more than 100 years,” but many other countries have govt.-owned networks. Security of U.S. networks is interrelated with those of other countries, he said. Other points: (1) Each service provider should bear responsibility for national security. Example given was background checks for technicians who work for CLEC that’s colocated in ILEC central office. ILEC shouldn’t be responsible for CLEC employees, he said. (2) Mandate to carriers for national security should be funded by govt. agency that requests it. (3) Regulations on national security “must be coordinated among all government entities with jurisdiction to avoid duplicative, unnecessary and inconsistent requirements.” Sept. 11 greatly expanded govt. agencies working on national security, Phythyon said: “It is difficult to get your arms around everything going on in Washington, let alone the state and local agencies crucial to the national security effort.” USTA encourages federal govt. to focus on what agencies are most important to “make sure they coordinate with the necessary state and local governments,” he said.