Federal Communications Commission (FCC)

Comments on FCC’s unbundled network element (UNE) regime poured into FCC late Fri., offering views from nearly every perspective. Bells asked agency to scale back on UNE sharing, CLECs warned of “irreparable” harm if that happened, Progress & Freedom Foundation said reform would encourage broadband investment, National Telecom Co-op Assn. (NTCA) urged FCC to consider impact on rural areas. Telecom industry considers UNE review one of most important regulatory actions under way at FCC because debate touches on CLEC competition, Bell company participation in broadband, other issues. Commission is considering whether current UNE list can be reduced and whether such reduction could be made on geographic or service-specific basis. UNE regime requires Bell companies to lease portions of their network to their competitors for prices that Bells say are far too low.

Debate over FCC’s triennial review of unbundled network elements (UNEs) continued Thurs. with several parties expressing concerns about effect on competition and USTA warning that UNE process stymied investment. Today (Fri.) is deadline for comments in proceeding on whether current UNE list can be reduced and whether such reduction could be made on geographic or service-specific basis. UNE regime requires Bell companies to lease portions of their network to their competitors.

Industry and govt. spectrum users agreed on need for more regulatory certainty and flexibility in govt. spectrum policy at NTIA Spectrum Management & Policy Summit Thurs. But at start of 2-day summit, panels struggled with how to define spectrum property rights, incumbent relocation, global harmonization, incentives for efficient spectrum use, accurate forecasts of future demand. FCC Chmn. Powell and NTIA Dir. Nancy Victory stressed renewed commitment of both agencies to engage in regular spectrum planning meetings. While overarching govt. goal is to develop national spectrum policy and improve spectrum management policy, Victory said NTIA was in “listening mode” to assess what was and wasn’t working under current policies. “This is clearly a significant moment in spectrum management,” she said, noting spectrum review outcome could involve changing “slightly or drastically” way bands are managed. Much of day-long discussion focused on thorny transitional issues that face govt. policymakers in areas such as how incumbents are treated when more flexible spectrum policies like sharing and leasing are introduced. “Our challenge is this: How do we fit new world-leading technologies into the U.S.’s own cramped spectrum allocation,” Commerce Secy. Donald Evans said.

Federal Election Commission (FEC) rescheduled closed meeting in which agency will attempt to implement campaign finance reform bill recently signed by President Bush. Date was changed to 10 a.m. April 11 from April 10. FEC must revise regulations affected by new law that: (1) Restricts corporate and labor union expenditures for broadcast, cable and satellite “electioneering communications.” (2) Prevents broadcasters from offering lowest unit charge to buyers of ads mentioning political opponents. National Rifle Assn., Sen. McConnell (R-Ky.) and Rep. Barr (R-Ga.) separately filed suits in U.S. Dist. Court, D.C., challenging law’s constitutionality. NRA said an inadvertent consequence of law would be Internet regulation, since many online communications traveled via cable and satellite (CD March 28 p 7). Injunctions are sought against FEC, FCC and Dept. of Justice to block implementation and enforcement of law. Another item on agenda is review on audit report on 2000 Presidential campaign of Sen. McCain (R-Ariz.).

CTIA asked FCC to again delay 700 MHz auction now scheduled for June 19, citing “numerous contradictions and many uncertainties” that surround process. “While a June auction might be called an ‘auction,’ in reality it would be the U.S. government opening a casino and collecting the ante for a much bigger private auction to enrich broadcasters at the expense of rational spectrum policy and the welfare of American taxpayers,” CTIA Pres. Tom Wheeler wrote to FCC Chmn. Powell. Last year, FCC Wireless Bureau postponed planned Sept. 12, 2001, auction of TV Ch. 60-69 spectrum now occupied by analog broadcasters for 5th time. CTIA’s request for delay came one day after Pax TV Chmn. Lowell Paxson told reporters that if there were another delay in 700 MHz auction, there would be no voluntary clearing of that spectrum by analog TV stations to make way for nonbroadcast users (CD April 3 p5). Request also came as Cingular Wireless was floating plan to ameliorate interference issues faced by public safety users at 800 MHZ that would move those licensees to 700 MHz, necessitate delay in auction and require congressionally mandated certainty as to when broadcasters would move. FCC officials have emphasized in recent weeks that Commission is preparing for auction of Chs. 52-59 and Chs. 60-69 at 700 MHz. FCC faces Sept. 2002 statutory deadline for depositing proceeds from Ch. 52-59 auction into U.S. Treasury. In 2000, congressional leaders signaled their support for Ch. 60-69 auction’s slipping beyond statutory deadline of Sept. 30, 2000, for depositing proceeds from auction of that band. CTIA argued in its petition that Congress had given agency conflicting instructions. It has directed FCC to auction Ch. 52-59 spectrum by Sept. 30, but that deadline conflicts with Sec. 309 of Communications Act, which directs Commission to ensure parties have time to develop business plans, assess market conditions and evaluate availability of equipment for relevant services, CTIA argued. “The uncertainty of the band-clearing process does not allow carriers to properly assess market conditions and make rational business decisions,” group argued. “In situations where there is a statutory conflict such as the one that is present here, the conflict may be reconciled through reasonable statutory interpretation,” Wheeler wrote. “A reasonable interpretation of these conflicting statutes should lead the Commission to postpone both of the 700 MHz auctions to further its statutory and public interest spectrum management responsibilities.” CTIA also noted Administration’s budget proposal earlier this year would postpone 700 MHz auctions. Budget blueprint said that if upper band auction were moved to 2004 from 2001 and Ch. 52-59 bidding to 2006 from 2002, budget offset of $2.6 billion for fiscal 2002 would be provided. “The uncertainties surrounding both of the 700 MHz auctions increases the risk that the auctions will be skewed so that licenses are not awarded to the parties who value them most highly, and who will provide the services consumers most desire,” Wheeler said. Responding to Paxson’s “media alert” on possibility of another FCC postponement of auctions, Wheeler said: “Paxson’s hell-bent-for-auction attitude is so strong he objects to our filing even before it is submitted” to FCC. Broadcasters, he said, now want to use spectrum they promised to turn back “for personal enrichment by exploiting a carefully crafted legislative loophole.” Meanwhile, Cingular is proposing plan that would offer alternative to Nextel’s band reconfiguration scheme that would swap spectrum at 700 MHz, 800 MHz and 900 MHz for new capacity at 800 MHz and 2.1 GHz. Private wireless users have raised concerns about disruption to their services under Nextel plan. Cingular plan, which hasn’t been formally unveiled and is still under development, would move public safety operators to 700 MHz and put 800 MHz spectrum now occupied by public safety users up for bid, said Brian Fontes, Cingular vp-federal relations. “This plan is just a draft,” he stressed: “We are circulating it to a number of different people or groups seeking their comment.” Fontes called plan “realistic approach” to interference public safety users are experiencing at 800 MHz, saying it has benefits for commercial, public safety and private wireless users. Proposal also would require reallocation of affected spectrum for public safety and homeland security uses, he said.

Ground-penetrating radar (GPR) manufacturers and service providers are raising concerns about FCC’s recently approved ultra-wideband (UWB) order, contending power limits in pending rules could eliminate many GPR uses. Final text of UWB order, adopted at Feb. 14 meeting, hasn’t been released. Order paves way for imaging systems, vehicular radar systems and communications and measurement technologies that use UWB to be deployed under certain power limits and in particular bands. Imaging systems covered include GPR, which must limit intentional emissions to below 960 MHz or between 3.1 and 10.6 GHz. FCC summary of order said GPR operation was to be restricted to law enforcement, fire and rescue organizations, scientific research institutions, commercial mining and construction companies. Letter circulated in GPR industry last week by Arlington, Mass.-based Infrasense Pres. Kenneth Maser and Waltham, Mass.-based Radar Solutions International Pres. Doria Kutrubes contended FCC rules would “severely limit and in many cases eliminate the use of ground penetrating radar.” Reflecting concerns of Mass. companies that use GPR technology, Senate Small Business Committee Chmn. Kerry (D-Mass.) also has written to FCC Chmn. Powell, lauding FCC’s intention to revisit UWB restrictions in next 6-12 months. But Kerry said he was “afraid that the immediate impact on these small business will be severe.”

GSM-based pilot wireless priority access service (PAS) program will be implemented in N.Y. and Washington in May, National Communications System (NCS) Deputy Mgr. Brent Greene told James Quello Communication Policy & Law Symposium Tues. VoiceStream has partial waiver request pending before FCC and company told Commission last month it was in “final negotiations with NCS” to roll out PAS system in those 2 markets. Greene said NCS was close to finalizing competition for initial PAS capability that would have national reach by year-end, with “full operational capability” in 2003. NCS is looking at ways to broaden “and radiate out our systems to provide other kinds of networks that can be ready in the event that we have other kinds of emergencies.” Several panelists said new challenges faced policymakers involving balancing competition and consumer interests against national security concerns. On broader issue of broadband access, NTIA Dir. Nancy Victory said theme she had seen emerge among all providers was that accessing public rights of way and tower sites might be holding back network construction.

ORLANDO -- One theme that emerged at CTIA Wireless 2002 here this week was need for more flexible federal spectrum policy, although govt. and industry officials pointed to new crop of questions raised by regulatory changes in that direction. “It’s an important concept and I congratulate the FCC for introducing it,” said Brian Fontes, vp-federal relations, Cingular Wireless. “However, I express a great deal of caution as you address the issue of flexibility that it doesn’t have the effect of reallocation,” he said on panel discussion. Flexible allocation issues have involved secondary markets proceeding at FCC, Spectrum Policy Task Force recently created by Commission and pending proceedings such as New ICO petition to deploy terrestrial services in mobile satellite service spectrum.

ORLANDO -- FCC and NTIA officials at CTIA Wireless 2002 show here Sun. cautioned that tough spectrum policy choices lay ahead in light of new homeland security considerations, including re-evaluation of how well current priority access service (PAS) rules are working. Panelists on homeland security roundtable repeatedly stressed importance of making sure public safety community had adequate spectrum and that existing allocations were being used efficiently. Several officials also pointed to complicated govt. jurisdictional issues raised by factors such as PAS, particularly as some states contemplate legislation on their own version of wireless priority access. While Administration hasn’t formulated stance on what should be done with priority access service, “the concern that we would [do so] is against classification of network where you could have displacement of emergency calls from individuals because of priority access calls coming from government,” said NTIA Deputy Asst. Dir. Michael Gallagher.

FCC declared Thurs. that cable modem service interstate was “information service” and said Internet delivered over cable wasn’t subject to common carrier regulation that required unbundling or -- in cable parlance -- “open” or “forced” access. Ruling marked critical turn for cable, which has become country’s No. 1 provider of high-speed Internet access and feared that it would become subject to access requirements and vulnerable to new fees and taxes imposed by states and municipalities. In addition to declaratory ruling, which was passed in 3-1 vote, Commission issued Notice of Proposed Rulemaking (NPRM) to measure regulatory treatment of cable modem service against that of DSL. FCC last month made tentative conclusion that wireline- delivered broadband, too, was information service (CD Feb 15 p1). NPRM will examine which govt. agencies, if any -- FCC, state or local franchising authorities (LFAs) -- have power to regulate cable modem service and invited comment on whether, “in light of marketplace developments, it is necessary or appropriate at this time” to require multiple ISP access. Marjorie Green, assoc. chief of Cable Bureau, said in her presentation that some cable companies had begun offering multiple ISPs to customers on their own.