CommLawBlog

Fifth "White Space" Coordinator Begins Tests

Mitchell Lazarus — Wed, 19 Jun 2013 14:56:20 -0500

LS telcom AG seeks to join the two coordinators operating and two others awaiting approval.

TV “white space” devices operate on TV channels that are vacant in a given area. (On a map of frequency usage, these areas show up in white; hence the name.)

These devices must avoid causing interference to active TV stations, certain wireless microphones, and certain TV reception sites. To accomplish this, most are required to consult a complex and changing database that shows where they can safely operate.

The FCC has identified ten administrators for the database, expected to operate competitively. Before receiving FCC approval, each candidate must run a live test of its operations, submit test reports to the FCC, and survive public comment.

We here in the CommLawBlog bunker have covered developments on the white space database coordination front for several years. Most recently, those developments have been somewhat repetitive and our posts were all starting to look the same. We tried to mix things up a bit with poetry (limericks! a haiku!) . . . but soon found the limit to our poetic abilities.

So here’s what we plan to do going forward.

The table below reflects all the would-be database coordinators and all the steps on the way to FCC approval. Each time there is a new development, we will post an updated version of the table. Dates in the table reflect the dates of the FCC public notices relevant to the particular event. Clicking on a date brings up the respective public notice. The date shown in bold face red will always be the most recent event.

Coordinator	Test Started	Test Finished; Comments Sought	Coordinator Approved
Comsearch
Frequency Finder Inc.
Google Inc.	Feb. 27, 2013	May 29, 2013
LS telcom AG	June 18, 2013
Key Bridge Global LLC	March 4, 2013	May 29, 2013
Microsoft Corp.
Neustar Inc.
Spectrum Bridge Inc.	Sept. 14, 2011	Nov. 10, 2011	Dec. 22, 2011
Telcordia Technologies	Dec. 2, 2011	Feb. 1, 2012	March 26, 2012
WSdb LLC

Prosaic, perhaps, but far less taxing on our limited creative resources and, in the end, probably a more useful way of keeping our readers abreast of the overall database coordinator scene.

[Blogmeister's Note: We are hoping to work a deal with somebody (are you listening, Starbucks and Chipotle?) so that, when the table has been completely filled up, our readers will be able to print it out and present it for a free cup of coffee or maybe a burrito. Check back here for updates.]

Number, Please! Comment Deadlines Set in Telephone Numbering Proceeding

FHH Law — Wed, 19 Jun 2013 04:40:12 -0500

In April we reported on a Notice of Proposed Rulemaking and Notice of Inquiry (NPRM/NOI) in which the FCC has proposed changes in how telephone numbers are obtained by certain types of providers. The ultimate upshot of the Commission’s proceeding could eventually mean serious changes in what we understand a telephone number to represent. The NPRM/NOI has now been published in the Federal Register, which (as loyal readers should know by now) sets the deadlines for comments and reply comments. Anyone interested in commenting has until July 19, 2013; reply comments are due by August 19.

Update: Comment Deadlines Set in Big House Burner Ban Proceeding

FHH Law — Tue, 18 Jun 2013 04:19:48 -0500

Last month we reported on a Notice of Proposed Rulemaking (NPRM) looking to address the problem of contraband cell phone use in prisons. The NPRM has now been published in the Federal Register, which means that comment and reply comment deadlines have now been set. If you’re looking to chip in your two cents’ worth, you’ve got until July 18, 2013 to file comments, and until August 2 for reply comments.

Critical Infrastructure Proponents Seek Review of 14 GHz Turndown

FHH Law — Mon, 17 Jun 2013 20:18:54 -0500

Pleading asks full Commission to reverse decision of three bureaus.

We reported in May that three of the FCC’s bureaus turned down, after five years, a Petition for Rulemaking from the Utilities Telecom Council and Winchester Cator, LLC that asked the FCC to open the 14.0-14.5 GHz band for terrestrial point-to-point and point-to-multipoint critical infrastructure communications. It is probably not a coincidence that the FCC, just a few days before the rejection, had proposed use of this same band for air-ground broadband systems to facilitate Internet service for airplane passengers.

UTC and Winchester Cator have now filed an Application for Review asking the full Commission to reverse the bureaus’ decision. Comments are due on July 1, 2013 and reply comments on July 11.

5 GHz Reply Date Extended

FHH Law — Mon, 17 Jun 2013 19:51:32 -0500

Reply comments in the proceeding on 5 GHz unlicensed operation are now due July 24.

In February we reported on an FCC proposal that would not only add new 5 GHz frequencies but also overhaul – maybe even simplify – a confusing stretch of the rules. One possible upshot would be the opening up of 195 MHz of spectrum for Wi-Fi-type operation.

Comments were filed on May 28. The FCC has extended the date for reply comments, originally June 24, to July 24.

FCC to LPFM Applicants: Let the Uploading Begin!

Harry Cole — Mon, 17 Jun 2013 16:05:32 -0500

Media Bureau announces LPFM filing window opening October 15 and closing October 29 (at 6:00 p.m. EDT); applications may be uploaded, but not filed, starting now

Attention all you LPFM wannabes. Mark your calendars, get your CDBS and FRN account information in order, stock up on NoDoz® and let the games begin – because the count-down has started. The Media Bureau has announced that, on October 15, 2013, the first LPFM filing window in more than a decade will be flung open, and will stay open until 6:00 p.m. (EDT) on October 29, 2013. The window will permit the filing of applications for new LPFM stations and major changes to existing stations.

While applications can’t be filed until October 15, they may be uploaded to CDBS anytime between now and then – which gives would-be LPFM applicants plenty of time to undertake searches for channels and transmitter sites and prep their apps in anticipation of the opening of the window.

A few important threshold factors to keep in mind:

Eligibility. Eligibility to file an LPFM application is limited to three specific categories of applicant: (1) nonprofit educational organizations (NEOs); (2) Tribe or Tribally-controlled organizations (Tribes); and (3) state or local governments or non-government entities proposing to provide a “noncommercial public safety radio service to protect the safety of life, health, or property” (Public Safety Applicants). Nobody else gets a crack.

Any NEO may file only one application in this window, and Tribes may file no more than two. Public Safety Applicants may file more than one, but if they do so, they must designate one as the “priority” application; non-“priority” applications will be dismissed if timely mutually exclusive applications from other applicants are submitted.

If an NEO applicant files more than one application, all but the first one in the door will be tossed as “conflicting” pursuant to Section 73.3518 of the rules. While the Bureau’s public notice does not expressly address the point, Section 73.855 of the rules prohibits any person or entity from holding attributable interests in more than one LPFM station. And Section 73.860 prohibits all cross-ownership of full-service and LPFM stations, although it does permit some very limited cross-ownership of LPFM and FM translators. The application form (Form 318) is set up to ferret out information about such things.

One more eligibility consideration: applicants must be “local” as that concept is defined in Section 73.853 of the rules. Since that definition is particularly detailed in its requirements, we strongly suggest that prospective applicants thoroughly familiarize themselves with it before getting too deep into the project.

Protection Requirements. LPFM applications will have to protect: all existing vacant FM allotments; and all outstanding FM, FM Translator, FM Booster and TV Channel 6 authorizations; and all applications for any of those services that were on file prior to June 17, 2013 (the date of the public notice announcing the filing window).

Form 318. If you want to file in this window, you’ve got to use the April, 2013 version of Form 318. Since you have to file through CDBS, and since that version of the form is presumably the only one currently available, that shouldn’t be a problem. No filing fee is required. The public notice instructs applicants that CDBS will give them a confirmation that their applications have been “successfully filed” and that, unless they get such a notice screen, they should take steps to determine whether their applications really have been filed.

The Bureau also cautions that applicants should not share the CDBS account passwords with anyone not authorized to modify their proposals. Bear in mind that applications filed during the window period will not be publicly available until after the window closes.

Return of “Letter Perfect”. In what appears to be a variation on the “letter perfect” standard of days gone by, any application that is “incomplete” or “patently defective” or that does not afford the requisite protection will be dismissed with no opportunity to correct the deficiency. Such dismissals will occur after the window closes; until then (i.e., until 6:00 p.m. (EDT) on October 29), applicants will be able to amend their previously uploaded-and-filed applications. (You do that by opening a new Form 318 and checking “Amendment to pending application” in response to the “Application Purpose” question, i.e., Section I, Question 3.)

Looking for an LPFM Channel? The Bureau’s notice directs prospective applicants to the Bureau’s on-line LPFM Channel Finder, which has been updated to include technical changes adopted last November. Be mindful, though, that the Channel Finder is “intended solely to assist LPFM applicants in tentatively identifying available FM channels.” In other words, anybody using that facility should (in classic Reaganesque terms) be sure to “trust, but verify”. Hiring a competent consulting engineer would be a good start.

Once the window has closed, the Bureau’s staff will weed through them, toss the defective ones, and group the rest according to mutual exclusivity. MX applicants will apparently be given the opportunity to resolve their conflict through settlement, although the precise metes and bounds of such settlements aren’t described in the notice. MX groups that don’t get resolved that way will be subject to the Commission’s point system.

The formal announcement of an October 15 LPFM window is a testament to the way the Audio Division has played the very difficult FM translator/LPFM hand that it was dealt by the Commission, the courts and the Congress. Last November the Commission set October 15 as its target date, but to get there, the Division had to dispose of several thousand FM translator applications that had been hanging around since 2003. To be perfectly honest, we here in the CommLawBlog bunker were, um, skeptical about the October 15 goal. But, while it’s still possible that, as we get closer to October 15, there might be some slippage, the Bureau is obviously confident enough at this point to issue the notice and get the ball rolling. Props to them for getting that far.

FCC Proposes Tripled Fine for Unauthorized Two-Way Radios

Mitchell Lazarus — Fri, 14 Jun 2013 14:51:31 -0500

Base forfeiture tripled because offender is a multi-billion dollar global enterprise.

Here’s another reminder to stay on top of the licensing paperwork. Especially if your company is successful.

A company called Remel, Inc. manufactures and supplies microbiology products for clinical, industrial, and research laboratories. Its corporate parent, Thermo Fisher Scientific, Inc., is a global supplier of analytical instruments, laboratory and diagnostic equipment, chemicals and reagents, and related products and services.

The companies, like many others, use two-way radios. They say their radio supplier told them, incorrectly, that the radios did not require an FCC a license. (Apparently this happens a lot.) On finding out that a license is in fact required, the companies turned the radios off and applied to the FCC for a license on a different frequency for a higher-powered radio, which the FCC subsequently granted.

The FCC remained concerned, though, about the period of unlicensed operation, which spanned some nine years. Moreover, a frequency the companies used over that time was allocated to the General Mobile Radio Service (GMRS), a service intended for use by individuals, not companies. GMRS radios are popular with families on camping trips, and the like. In fact, only individuals, and not companies, are eligible for a GMRS license.

Not many individuals bother, though. Our friends over at SpectrumWiki.com note that the fee for a GMRS license is many times the cost of the radio equipment, so that only a very small fraction of GMRS operators actually obtain one. (Our law partner Peter Tannenwald wishes it known that he shelled out the eighty bucks and is duly licensed.)

The FCC could have acknowledged that Remel and Thermo Fisher made an honest mistake and fixed it, and then let the matter drop, or possibly charged a small forfeiture. Instead it proposed a forfeiture of $30,000. The FCC also emphasized that Remel and Thermo Fisher, not being individuals, would not have been eligible for a GMRS license. This put the FCC once again in the odd position of imposing sanctions for failing to obtain a license that the FCC would not have granted.

The base forfeiture for operating without a license is $10,000. The FCC tripled that on the ground that Thermo Fisher is a “multi-billion dollar global enterprise” and so “should expect the assessment of higher forfeitures for violations.”

The takeaway: Check your licenses. Don’t ever believe your radio supplier. And prepare for extra penalties if your company makes a lot of money.

Raisin' Defenses at the FCC

Jon Markman — Fri, 14 Jun 2013 12:32:31 -0500

A Supreme Court case offers a possible route to appealing a forfeiture without having to pay it first.

A pair of California raisin farmers might have made it easier to challenge an FCC forfeiture.

A party dinged with a forfeiture that it thinks is unfair now has two options under the Communications Act. One is to challenge the forfeiture order directly in the Court of Appeals. The problem with that approach is that, as a condition to getting into the Court of Appeals, the challenger must first pay the forfeiture. Since forfeitures can reach up into six and seven figures and, let’s face it, not everyone has that much spare cash lying around, that condition poses a serious disincentive to direct appeals.

The other option is to not pay the forfeiture and wait for the FCC (assisted by their friends from the Department of Justice) to bring suit in your nearest federal District Court. In that case, the burden is on the government to prove that you are in fact really liable for the forfeiture, which gives you an arguable advantage going in. But at least one appellate court has held that a party choosing this option is not allowed to raise the full panoply of defenses that might normally be available in challenging the forfeiture.

What does this have to do with raisins?

Enter Marvin and Laura Horne, mom-and-pop raisin growers, who failed to turn over a stated portion of their crop, as required, to the Department of Agriculture’s Raisin Administrative Committee. (Who knew that raisin growers are required, by a Great Depression-era law, to turn over a percentage of their crop to the government? Details here – it’s worth the read, because you can’t make this stuff up.) The powers-that-be in the Agriculture Department were not pleased, and they brought the enforcement hammer down. The fines and penalties for the Hornes’ alleged offense totaled more than $650,000.

Mr. and Ms. Horne sought to challenge these sanctions, arguing in part that the requirement to surrender their raisins was an unconstitutional “taking” under the Fifth Amendment.

Their dispute reached the U.S. Supreme Court on the question of how the Hornes could bring their case: (1) by a direct challenge through the routine federal courts (the Hornes’ preference); or (2) by paying the fines and penalties and suing to get the money back in a different court under the Tucker Act, which governs many kinds of claims against the federal government.

The Ninth Circuit had concluded that, if the Hornes wanted to press their “taking” argument, they would have to do it under the Tucker Act after paying the penalties because otherwise their claim, in an ironic turn of judicial phrase for a raisin-related case, would be “unripe”.

A unanimous Supreme Court reversed that holding. It found that the Hornes could and should have been permitted to make their “taking” argument in their direct challenge to the Agriculture Department’s enforcement efforts, rather than having to wait to raise that argument in a separate Tucker Act lawsuit after the fine was paid. The Supremes said in passing, and of interest to us:

In the case of an administrative enforcement proceeding, when a party raises a constitutional defense to an assessed fine, it would make little sense to require the party to pay the fine in one proceeding and then turn around and sue for recovery of that same money in another proceeding.

The regulatory scheme (and related judicial review provisions) governing the raisin business are very different from those of the Communications Act, so it’s by no means a given that the Supreme Court’s decision will necessarily be applicable to FCC enforcement actions. But the quoted passage could arguably be read to apply in that context, at least where the target of an FCC fine mounts a constitutional defense. The Horne case thus opens the possibility that an FCC forfeiture defendant – especially one with a constitutional defense – might get directly into the Court of Appeals without first paying the forfeiture. That could afford a small but important tilt in the balance between the FCC and the people it regulates.

Update: Reconsideration Sought in Experimental Licensing Order

FHH Law — Wed, 12 Jun 2013 14:22:26 -0500

Three petitions seek minor adjustments to rules.

The FCC’s order from last January expanding the scope of experimental licenses has drawn three petitions for reconsideration. Considering the broad reach of the order, the fact that only three were filed is a testament to the FCC’s foresight.

Sirius XM Radio and EchoStar Technologies, which provide satellite services to the public, seek a clarification and expansion of the term “emergency notifications,” the bands for which receive special protection from experimental licensees.

Medtronic, Inc., which develops medical devices, wants expanded eligibility for Medical Testing Experimental Radio Licenses to include all sponsors and sponsor-investigators as defined by the FDA, and requests a clarification that cost reimbursement for clinical trials is not a violation of the equipment marketing rules.

Our friend Michael Marcus of Marcus Spectrum Solutions LLC wants the “passive bands,” including those used for radio astronomy, made available to experimental licensees at frequencies above 100 GHz.

The FCC has put these on public notice. Comment due dates must await publication in the Federal Register. Watch this space.

Aero Freq Leaks: A Potentially Expensive Problem for Non-Cable MVPDs

Paul J. Feldman — Tue, 11 Jun 2013 18:09:33 -0500

Citation issued to Florida motel serves as reminder of possible penalties for leaky cable systems.

If you’re a school, or a hotel, or a hospital, or some other operation offering in-house cable TV service, you may be subject to a six-figure FCC fine, even though you might not think that you’re subject to the long arm of the FCC’s enforcement machine. The Commission has been kind enough to issue us all a reminder of that – in the form of a “Citation and Order” directed to the Parkway Inn Motel in sunny Miami Springs, Florida.

From its website you might not think the Parkway Inn (Motto: “Your Satisfaction is our Main Purpose”) would attract the FCC’s attention, but it did. According to FCC inspectors, the Parkway’s video system was leaking big-time (in one case by a factor of more than 100 times the permitted level) on a couple of aeronautical frequencies. Yikes!

As our faithful readers may recall, last August we reported on an FCC public notice warning “non-cable MVPDs” of their obligations relative to their useof aeronautical frequency bands. The notice – issued in connection with three separate citations notifying, respectively, an inn, an elder care facility, and a rehabilitation hospital, that they were all in violation of the rules – was an effort to get the word out to other unsuspecting non-cable MVPDs.

The FCC’s notice, and our related post, apparently weren’t entirely successful, since not everyone got the message – at least the Parkway Inn Motel didn’t.

The FCC has warned the folks at the Parkway that they’re currently breaking the law and that, if they don’t fix things, they could be tapped for a fine of more than $100,000. They’d have to sell a lot of potato chips out of their mini-bars to cover that.

Since the FCC is clearly still targeting non-cable MVPDs, we figure it’s a good idea to provide a brief refresher course to help non-cable MVPDs recognize that they are, in fact, non-cable MVPDs, and that they need to take appropriate steps to avoid problems with the FCC.

Am I a “non-cable MVPD”? You may be one, but not know it. A non-cable MVPD is an entity (other than a cable TV company) that “engage[s] in the business of making available for purchase, by subscribers or customers, multiple channels of video programming.” Generally, a non-cable MVPD system does not have to cross a public right of way to deliver its programming. This could include universities, hotels, apartment complexes, prisons, office buildings, and other facilities with in-house systems providing multiple channels of video programming available to subscribers or consumers.

What are aeronautical frequencies, and what’s the problem? The frequencies are the equivalent of analog cable channels 14-16, 25-53, and 98-99 (for the tech savvy, that’s 108-137 MHz and 225-400 MHz). They’re the same frequencies used by aircraft for certain operational functions. Gaps in MVPD video systems could allow signals to leak out and interfere with the operation of nearby aircraft. That would not be a good thing.

What are MVPDs supposed to do? All MVPDs must notify the FCC (on Form 321) before they transmit on any of the aeronautical radio channels, if the average power level on any of those channels hits certain levels. (The specifics of the leakage rules may be found in Sections 76.610- 76.616 of the rules; the monitoring and reporting rules are in Section 76.1804. Be warned, though – those rules are highly technical.) In addition, all MVPDs must regularly – at least once yearly – monitor their systems for leakage in the aeronautical bands. Since that requires specialized monitoring equipment and a skilled technician, it’s easier said than done, but it must be done if an MVPD is to comply with its obligations (and avoid citations from the FCC).

The moral of the story: if you’re a non-cable MVPD, consider yourself warned, again, about aeronautical frequency compliance issues. Calls to an engineer to measure for spectrum leakage, and to a communications attorney, may be in order.

Effective Date of Revised "Auditory Assistance Device" Rules Set

FHH Law — Tue, 11 Jun 2013 04:36:43 -0500

Last month we reported on an FCC decision to allow the use of Auditory Assistance Devices for simultaneous language translation. That decision – which involved some technical rule changes as well as the expansion of permissible uses to include translation – has now been published in the Federal Register, which means that the effective date of the new rules has been established. That effective date is July 11, 2013. Use of 72-76 MHz band devices for language translation will be permitted as of that date. The technical rule changes -- which require compliance with tighter out-of-band emission limits -- will apply to new equipment certification applications filed on or after January 11, 2015, and to importation, marketing and installation on or after July 11, 2016.

Update: Comment Periods in Receiver Standards Inquiry Extended

FHH Law — Mon, 10 Jun 2013 13:49:37 -0500

Last month we noted that the FCC (through its Office of Engineering and Technology) had requested comment on a white paper concerning technical standards for radio receivers, produced by its Technological Advisory Committee and entitled “Interference Limits Policy: The use of harm claim thresholds to improve the interference tolerance of wireless systems.” The basic idea is to add flexibility to the notion of “interference” from a nearby band.

The questions posed in the white paper are a matter of potentially major consequence. Probably because of that, three entities that have occasionally found themselves at odds on a number of substantive regulatory issues found common ground here, at least with respect to the need for more time to respond to the FCC’s invitation for comments: the National Association of Broadcasters, the Consumer Electronics Association, and the GPS Innovation Alliance filed a joint request for more time.

That request has been granted. As a result, comments are now due by July 22, 2013 and reply comments by August 7.

Quad Erat Demonstrandum? FCC Seeks Comment on MMTC Study

Harry Cole — Sun, 09 Jun 2013 14:40:05 -0500

Despite the FCC’s efforts in its 2002 and 2006 quadrennial review proceedings to relax (or maybe even eliminate) its newspaper-broadcast cross-ownership (NBCO) prohibition, that prohibition is still alive and kicking after nearly 40 years. In the 2010 quadrennial the NBCO is again in the Commission’s sights. And now the Minority Media and Telecommunications Council (MMTC) has provided arguable impetus for the Commission to try to pull the trigger, again.

MMTC has submitted a specially-commissioned study entitled “The Impact of Cross Media Ownership on Minority/Women Owned Broadcast Stations” (Study). Prepared by well-respected BIA/Kelsey Chief Economist Mark Fratrik, the Study presents evidence that “the impact of cross-media ownership on minority and women broadcast ownership is probably negligible”. In other words, the Commission could probably dump the NBCO without having to worry about adversely affecting minority- or female-owned stations. Since the FCC’s 2002 and 2006 quad efforts were criticized (by, among others, the U.S. Court of Appeals for the Third Circuit) because of the Commission’s supposed lack of attention to minority/female considerations, the Study helps fill in that arguable gap.

Based on questionnaire responses provided by only a relatively limited sample of broadcast stations, the Study is, by its own terms, “not dispositive”. Still, in light of its sponsor and its author, it may be viewed as a significant contribution to the record.

The FCC has invited public input on the Study. Comments are due by July 22, 2013; reply comments by August 6.

FCC Authorizes Progeny over Part 15 Objections

Mitchell Lazarus — Sat, 08 Jun 2013 13:24:41 -0500

Location service company is deemed to have satisfied the requirement that it not cause unacceptable interference to unlicensed devices.

The FCC has authorized Progeny LMS, LLC to begin commercial operation of its Location and Monitoring Service (LMS) network. Progeny’s system uses part of the 902-928 MHz band, which is heavily occupied by unlicensed devices regulated under Part 15 of the FCC rules. The FCC action came over vigorous objection from the companies that make and use Part 15 equipment.

“So what?” knowledgeable readers will ask. After all, unlicensed devices always have to accept interference from licensed services like LMS.

Not quite always. When the FCC authorized LMS back in 1995, the 902-928 MHz band was already home to a very large array of unlicensed devices serving both consumers and industry. (Their number, variety, and importance have increased many-fold in the years since.) To ensure that LMS did not obliterate unlicensed usage, the FCC adopted a unique rule: certain LMS licenses are “conditioned upon the licensee’s ability to demonstrate through actual field tests that their systems do not cause unacceptable levels of interference to [Part 15] devices.”

Fast forward to 2011, when LMS licensee Progeny requested and was granted a waiver that permitted one-way service and the location of assets other than vehicles. The waiver grant re-triggered the field testing requirement. Progeny conducted four sets of tests and submitted the results to the FCC, which then duly requested comments about the results. Providers of unlicensed wireless Internet service and manufacturers of unlicensed automatic meter reading equipment – both of which require reliable operation – challenged the conclusions. They claimed the tests used too few unlicensed devices, non-representative devices, and conditions artificially rigged to understate interference.

At the request of the FCC staff, Progeny and some of the Part 15 interests conducted further tests on meter-reading and Internet delivery equipment. The FCC requested further comment. Again, the two sides disagreed on how to interpret the results. Along with claiming actual interference, the Part 15 companies continued to insist that Progeny’s tests omitted a large range of unlicensed devices and conditions, and that more testing is needed to properly evaluate the impact of Progeny’s transmitters.

The FCC has now dismissed those arguments.

Part of the dispute turns on the requirement that Progeny not cause “unacceptable levels” of interference to unlicensed devices. The FCC has never before spelled out what that means. Now, it tells us the “unacceptable levels” limitation calls on LMS licensees merely to “minimize” interference to Part 15, but not necessarily to eliminate it altogether. A different reading, says the FCC, would elevate Part 15 in status above LMS, which the rules never intended. Moreover, the FCC goes on, unlicensed users should know to expect some level of interference, and have the option of using equipment that is capable of shifting to other parts of the band when needed. Progeny need not test with every type of Part 15 device, the FCC adds, as that could result in endless rounds of testing.

Progeny offered to: report periodically on its build-out and any interference complaints it receives; establish a toll-free help desk for Part 15 users experiencing interference; and, if it constructs in rural areas, work with local wireless Internet service providers on mitigating interference. The FCC required the first two conditions and encouraged the third.

Editorial comment: The enormous success of the FCC’s rules permitting – indeed, promoting – unlicensed operations has, ironically, caused problems for the agency. When the most-used parts of the current regime took effect in 1985, no one dreamed that unlicensed radio devices would become as prevalent as they are now. Because these devices have always been required to accept interference, the initial uses focused on applications that did not require great reliability. But as the decades went by, and the technologies used in Part 15 equipment evolved to become more robust against interference, the devices found use in more critical applications, including the control of overhead cranes, pipeline systems, and electric utilities.

“Robust,” though, is a relative term. Equipment that works perfectly well in the pre-existing 902-928 MHz environment of ISM, federal radar, amateur radio, and other Part 15 devices may falter when exposed to new interference sources, such as LMS. Yes, the rules say Part 15 users must accept interference and operate at their own risk; and yes, Progeny has a legal right to deploy, if it satisfies the field test requirement. Still, Part 15 equipment has become so important to so many industries – and to the economy generally – that it may have earned a higher status in the spectrum.

(FHH represented clients in this proceeding.)

Internet-on-Airplanes: Comments Due on Reconsideration Request

FHH Law — Fri, 07 Jun 2013 08:55:33 -0500

Open issues concern licensing, earth station technical requirements.

People who like to watch silly cat videos on airplanes no doubt were pleased with the FCC’s decision last December that regularized satellite service to and from aircraft in flight. No doubt even more pleased are the satellite providers, which now have access to a promising market: bored people strapped into their seats without much else to do.

Aircraft manufacturers, too, are enthusiastic about the prospect of the new service – at least, the folks at Boeing are. So much so that they have filed a petition for reconsideration and clarification “applaud[ing]” the Commission for its Earth Stations Aboard Aircraft initiative, but asking for several tweaks to the rules on licensing requirements and earth station technical specifics. Thanks to a notice in the Federal Register, we can tell you that comments on the requested changes are due on June 24, 2013 and reply comments on July 2.

Health Effects of Radio Waves: Effective Date of New Rules Set, Also Comment Deadlines

FHH Law — Tue, 04 Jun 2013 04:15:43 -0500

Back in April we reported on the FCC’s most recent foray into the thorny issue of health effects of radio waves. The FCC adopted minor tweaks to its existing rules, proposed further tweaks, and sought comments on broader issues, including the controversial question of whether the current radio-frequency exposure limits are safe, and if not, what they should be.

The document has now been published in the Federal Register, in two separate parts. The first part sets out the newly adopted rules; the second part poses the questions on which the Commission has requested comment.

Publication in the Federal Register establishes both (a) the effective date of the rule changes that were adopted and (b) the deadlines for comments on the out-for-comment questions. The adopted changes will become effective on August 5, 2013. Comments will be due on September 3, 2013, and reply comments on November 1.

FEMA WEA PSA's 'R' OK!

Harry Cole — Sat, 01 Jun 2013 22:29:51 -0500

In response to non-request for waiver, Public Safety and Homeland Security Bureau waives rules that may not need to be waived.

Broadcasters may be asked (many apparently already have been asked) by the Federal Emergency Management Agency (FEMA) to broadcast some PSA’s relating to the (relatively) new Wireless Emergency Alert (WEA) system. While some broadcasters have reacted to that request with understandable – and legitimate – reluctance, the FCC’s Public Safety and Homeland Security Bureau has now assured us that the PSA’s are OK for broadcast. . . as long as certain conditions are met.

The bottom line here is relatively simple; getting there, though, requires a surprising amount of explanation.

For years, FEMA and the FCC and others have been working to improve the overall ability of government officials to alert the citizenry to emergency situations. Broadcasters have observed one aspect of that effort in the overhaul of the Emergency Alert System. On the non-broadcast side, the FCC established the WEA system, through which the guv’mint can send geographically-targeted emergency messages direct to individuals’ mobile devices. The WEA has already been triggered in a wide range of situations – hurricanes, tornadoes, terrorist threats, missing persons, etc. – and has, according to the FCC, “proven to be a valuable tool”.

So what’s the problem?

When the WEA system is triggered, it sends out an “Attention Signal” to all mobile devices serviced by carriers participating in the system. That signal apparently sounds an awful lot like the standard two-tone EAS signal familiar to the broadcast audience. In addition, the signal is accompanied by a unique “vibration cadence” (we don’t know exactly what that feels like, but it’s probably worth checking out on a number of levels). The goal, obviously, is to get the attention of the person with the mobile device.

The good news is that the attention signal apparently works because it gets the user’s attention. The bad news is that a lot of users apparently don’t want their attention to be gotten. FEMA reports that “many people are startled or annoyed when hearing the WEA attention signal for the first time” and, worse yet, many have inquired about “opting-out” of the WEA system.

What’s an agency to do?

The answer is obvious: Prepare a bunch of PSA’s to convince the (supposedly) “confused” and (certainly) “annoyed” Great Unwashed that, rather than opting out, they should embrace the WEA Attention Signal. And how better to do that than to include the Attention Signal itself within the PSA?

Experienced broadcasters will see where this is going.

It is well-established – in Section 11.45 of the rules – that broadcasters are not supposed to broadcast EAS tones except in times of true emergency (or in connection with routine EAS tests). (Rationale: The FCC does not want to “dissipate[ ]” the “attention grabbing value” of the alert.) But there is no corresponding prohibition against broadcasting WEA Attention Signals. The closest rule on that score is Section 10.520, which says nothing at all about broadcasting. Still, because WEA signals so closely resemble EAS tones, a number of broadcasters presumably didn’t want to take the chance that the WEA signal might be mistaken for the EAS tones, leading to forfeiture notices and other unpleasantness. So they told FEMA “thanks but no thanks” when asked to air the FEMA PSA’s that included the WEA signals. The utility of the PSA component of FEMA’s effort to win public buy-in for the WEA system was thus threatened.

Since the problem appeared to arise from the FCC’s rules, FEMA wrote to the Bureau, asking for its “support in allaying the concerns . . . about playing a PSA that includes” the Attention Signal.

The Bureau, happy to play ball with FEMA, has agreed essentially to waive whatever rules might need to be waived to encourage the broadcast of the PSA’s.

The result is an interesting exercise in bureaucratic contortionism. Consider these elements: First, FEMA’s letter did not include any explicit request for any waivers; rather it just asked for the Bureau’s support. Second, the lack of a waiver request makes sense because there is no regulatory prohibition against the broadcast of WEA Attention Signals, so no waiver was technically necessary. Third, the Bureau’s goal here appears to be to convince broadcasters that they can and should ignore the instinct that screams “Danger – Likely Rule Violation Dead Ahead”, an instinct you’d think the FCC would want to encourage. And fourth, FEMA (with the Bureau’s help) is trying to convince people that they really shouldn’t be annoyed or confused when their mobile devices suddenly start to emit annoying and confusing signals.

The bottom line? An artful paragraph in which, on its own motion, the Bureau has granted

a limited waiver of Sections 11.45 and 10.520 of the Commission’s rules, for a period of one year from the release date of this Order, to allow the broadcast or transmission of the WEA Attention Signal in PSAs produced as part of FEMA’s WEA public education campaign. In doing so, we recommend that FEMA take steps to ensure that such PSAs clearly state that they are part of FEMA’s public education campaign.

The Bureau also cautioned that, in order to be permissible, FEMA’s PSA’s should not “predictably lead the public into concluding that an actual alert is being transmitted”. Example? “[L]eading off a PSA with a WEA Attention Signal, without warning.” The Bureau concedes that that could be “an effective attention-getting device”, but it’s nevertheless verboten because of the “predictable effect it could have” on the audience.

As silly as this bureaucratic dance might seem, the government’s heart is in the right place here. With mounting meteorological devastation across the country, not to mention potentially catastrophic accidents (e.g., three major railroad incidents in less than two weeks) and the constant threat of terrorism, the government’s ability to notify citizens of imminent danger is a matter of some legitimate urgency. That being the case, though, you might have thought that FEMA and the FCC would have worked out such details as public promotion of its WEA program before launching the program.

FCC Bars Transfer of New Kinds of Experimental License

Mitchell Lazarus — Thu, 30 May 2013 19:36:08 -0500

The task of ascertaining eligibility is sufficiently complex that the FCC would rather start fresh with an application for a new license.

Last February, when the FCC overhauled its rules to create new kinds of experimental licenses, it omitted mention of whether the licenses could be transferred to another party, as by assignment or transfer of control. Now the FCC has spoken. The answer is no.

The February order set up three new categories:

"program experimental licenses" for certain colleges and universities, research laboratories, manufacturers, and health care institutions;
"compliance testing licenses" for FCC-recognized test labs; and
"medical testing licenses" for health care facilities conducting clinical trials of wireless medical technologies.

Each of these categories has its own stringent standards for eligibility. None has yet taken effect, pending approval by the Office of Management and Budget. (The FCC left unchanged the current species of experimental license, which is available to pretty much anyone.)

The FCC has now decided that licenses in the three new categories may not be assigned or transferred. The task of ascertaining eligibility is sufficiently complex that the FCC would rather start fresh with an application for a new license.

The ruling sets up a potentially deadly trap for companies that acquire others, or that transfer technology-related assets. Ordinarily the two companies’ lawyers go through a well-worn routine of filing requests to assign or transfer two-way radio licenses, FCC certifications, and various other commonplace authorizations. (Transactions involving broadcast, satellite, and some wireless licenses are more complex.) Now, though the acquiring company may have to take on the additional step of applying anew for its own program experimental, compliance testing, or medical testing license. Processing at the FCC may take time. Worse, we can foresee situations in which the acquiring company may not qualify for the license.

Our best advice: plan ahead.

LoPo TV Warning: White Space Devices Are Coming - Have You Updated Your CDBS Information?

FHH Law — Wed, 29 May 2013 21:10:22 -0500

Special CDBS website unveiled as FCC tries to help rebroadcasting low power stations secure the protection to which they’re entitled.

If you’re the licensee of an LPTV or a TV Translator or a Class A TV station – collectively for our purposes here, “low power stations” – that rebroadcasts the over-the-air signal of another station, the FCC’s trying to help you out. In the near future, TV white space devices will take to the air, creating a potential source of interference to your ability to receive the signals you rebroadcast. As the FCC proceeds with tests of databases to control those white space devices, it has simplified the steps necessary to ensure the protection to which you are entitled from those devices.

White space devices, as we hope you know by now, operate in locally vacant TV channels. They are required to protect not only household TV reception but also various other facilities, including some (but not all) low power stations that rebroadcast the signals of other TV stations. These stations receive two kinds of protection. White space devices (except for those at very low power) are not permitted to operate inside or close to the stations’ service contours – a matter not at issue here. Also protected, and the subject of this post, are the receivers these stations use to pick up the signal of the originating station for rebroadcast.

White space devices will have to consult a special database to identify available channels. That database in turn will draw on CDBS to identify low-power stations whose receivers are entitled to protection.

A public notice announces a special web page at which qualifying stations can register their receiver channels into the FCC’s CDBS system.

For protection purposes, low power stations fall into one of three distinct situations:

Low power stations located within the protected service contour of the originating station they rebroadcast – these low power stations are automatically protected under the umbrella of the originating station.
Low power stations located outside the protected service contour of their originating stations, but within 80 km of the originating station’s service contour – these low power stations are entitled to protection from white space devices, but only if the low power station’s facilities have been properly entered in CDBS.
Low power stations located more than 80 km beyond their originating station’s protected service contour – these low power stations are not entitled to protection unless the FCC has granted a waiver.

The FCC reminds low power stations, particularly those in the second group described above above (or in the third group with waivers), to make sure that their CDBS entries are current and correct. When full-power stations changed channels as part of the 2009 digital transition, and low power stations adjusted their receivers accordingly, many forgot to tell the FCC. Since protection of those receivers from white space devices will be dependent on the information for those stations in CDBS, this is a good time to visit the FCC’s new web page and make sure all the information there is current and accurate.

White Space Database Update

Mitchell Lazarus — Wed, 29 May 2013 14:58:08 -0500

The FCC requests comment on white space database tests recently conducted by Google, Inc. and Key Bridge Global LLC.

In separate public notices, the FCC has asked for comment on white space database tests recently conducted by Google, Inc. and Key Bridge Global LLC. (The FCC paperwork misidentifies the second company as "Keybridge Global Inc.") Their respective test reports are here and here. Mark your scorecards: once approved, these will be database managers numbers 3 and 4.

Prior CommLawBlog entries on these tests are here and here.

Comments on both tests are due on June 13, 2013 and reply comments in June 20.

For background on the databases and what they do, see this article.

[Blogmeister’s Note: In keeping with the practice we introduced with our last white space database post, we have sought to capture the essence of these recent developments poetically:

An FCC Haiku to the Public

Key Bridge and Google
filed database test reports.
Comments? We’re all ears.]