Federal Communications Commission (FCC)

Rural ILECs and their competitors agreed in comments filed Mon. at the FCC that the advent of competition in rural areas was placing a strain on the universal service program but they offered widely divergent ways of fixing the problem. The comments responded to a variety of questions and recommendations by the FCC and the Federal State-Joint Board on Universal Service, generally about the process for designating competitors as eligible telecommunications carriers (ETCs) and the concept of portability.

CTIA, NAB and PCIA planned to file an intervenor brief late Wed., siding with the FCC and asking that the U.S. Appeals Court, D.C., deny a challenge by environmental groups to the Commission’s environmental requirements for towers. Earlier this year, the American Bird Conservancy, Forest Conservation Council and Friends of the Earth asked the court to direct the FCC to prevent the building of new towers until it completed a program-wide environmental impact statement on its tower licensing decisions in the Gulf Coast area. The groups also sought a halt in new tower approvals until the Commission implemented requirements for bird protection measures and initiated certain public participation procedures. The groups cited alleged FCC violations of the National Environmental Policy Act (NEPA), the Migratory Bird Treaty Act (MBTA) and the Endangered Species Act (ESA). They charged that towers killed 4-5 million birds annually. CTIA Gen. Counsel Michael Altschul said: “While we dispute the scientific basis for these figures, they mean nothing without some context. A recent University of Wisconsin study found that domestic cats kill between 7.8 and 219 million birds annually just in rural Wisconsin.” The Forest Conservation Council and other groups had petitioned the FCC earlier this year to require environmental assessments under NEPA for 5,797 antenna structures on the Gulf Coast that they said were harming migratory birds. The broadcast, public safety and wireless towers challenged by the groups cover a coastal region that spans 6 states. The NAB, PCIA and CTIA intervenor brief wasn’t available at press time. But CTIA said its filing noted “tower siting decisions are the result of purely private actions, with no federal funding, and minimal oversight, control or participation by the FCC.” CTIA said that when a tower was sited, there was no federal action that fell under the purview of the ESA, which controlled an “agency action;” the MBTA, which oversaw the conduct of hunters or poachers; or NEPA, which regulated a “major federal action.” CTIA said that when a tower was sited, there was no federal action for those statutes to regulate. It also said those laws don’t apply to tower builders, “as they are neither government agencies nor hunters.” The FCC, in a response brief filed late Wed., said because the Commission hadn’t “unreasonably delayed” acting on the 2 migratory bird matters that the groups said were still pending, they aren’t entitled to the extraordinary relief of mandamus to compel agency action. The FCC asked that the court turn down the petition for mandamus. The D.C. Circuit directed the FCC March 31 to respond to the mandamus petition and discuss the factors in a 1984 ruling, Telecommunications Research & Action Center v. FCC, for determining whether an agency’s action had been delayed unreasonably. The Commission told the court that the groups had participated in meetings held by the Fish & Wildlife Service Communications Tower Working Group, which was formed to develop research on the impact that towers might have on birds. They have participated in other proceedings pending before the FCC, the Commission said. In the matters cited in the court challenge, however, the FCC hasn’t acted, or failed to act, in a way that would warrant mandamus, the agency said. In the case of the Gulf Coast petition, which was filed in Aug. 2002, and a Jan. 2002 order by the Wireless Bureau, neither has “been pending for as long as even 18 months,” the FCC said. “That does not constitute an unreasonable delay, especially when, as here, the agency faces no statutory deadline.” The FCC also said the extent of the claimed injury to migratory birds raised in the petition was “speculative and the FCC has more substantial and pressing priorities that require immediate attention.”

FCC Chmn. Powell pledged Thurs. a more “proactive approach” to environmental and historic preservation issues related to tower siting, ranging from better coordination with other agencies to stepped-up enforcement. Under an “environmental and historic preservation action plan,” he told reporters the Commission would take up a proposal addressing human radiofrequency exposure and open an inquiry to evaluate the impact of towers on migratory birds. Powell also wrote Thurs. to Fish & Wildlife Service Dir. Steven Williams suggesting the agencies agree on streamlining measures, such as identifying tower categories that posed little risk to endangered species and could be excluded from routine review under the Endangered Species Act (ESA).

Stakeholders who are deploying Enhanced 911, including state regulators, wireless carriers and public safety officials, told the FCC Tues. that coordination efforts were improving, in part due to a culture shift toward more cooperation. But at the first meeting of the agency’s E911 Coordination Initiative, they cited remaining challenges, including the raiding of state E911 funds for other purposes and the extent to which new wireless devices should be built with E911 in mind. National Emergency Number Assn. Pres. John Melcher said a new estimate forecast that it would cost public safety agencies $8.4 billion over the next 5 years to implement wireless E911 in every county.

The FCC this month made 2 enforcement decisions that had legal significance because they asserted the agency’s jurisdiction in interconnection disputes, FCC Comr. Abernathy said at an FCBA seminar Mon. The seminar offered lawyers basic information about the FCC’s enforcement activities. Abernathy said there had been uncertainty about the Commission’s authority under Sec. 208 of the Communications Act and it could be resolved only in a complaint proceeding. She said the cases, which involved CLEC complaints against SBC and Verizon (CD April 18 p5, April 24 p8), were significant not because of the merits as much as the fact that “the Commission has now grappled with this difficult jurisdictional question and we unanimously found that Sec. 208 does provide jurisdiction to adjudicate interconnection disputes.” She said the courts would have the final say on the issue but she expected them to agree with the FCC. She emphasized, however, that she thought the agency’s involvement in adjudicating violations of interconnection agreements would be limited. There are 2 reasons for that, she said: (1) Sec. 208 would apply only if the complaining party had adhered to all the requirements of the interconnection agreement, including “change-of-law provisions that govern how FCC decisions will be implemented.” A CLEC can’t file an FCC complaint before going through the contractually prescribed steps, she said. (2) A carrier that invokes arbitration by a state commission and loses has no alternative but to file an appeal in federal district court and can’t “collaterally attack the state action before the FCC in a Sec. 208 complaint.”

The FCC and the National Communications System (NCS) opened a national campaign Thurs. to urge public safety answering points (PSAPs) to register in the Telecom Service Priority (TSP) program. The FCC said joint research conducted with NCS indicated less than 10% of 7,500 PSAPs in the U.S. now participated. The program, created in 1988, gives govts. and key industries priority over other telecom users in emergencies. In case of a national emergency, the program ensures certain dedicated voice, backbone and access circuits for priority users can operate despite severe network congestion or disruption. The FCC said 911 centers “readily qualify” because they offer services essential to health and safety. NCS Deputy Mgr. Brenton Greene and FCC Office of Engineering & Technology Chief Edmond Thomas wrote to the National Emergency Number Assn. (NENA), National Assn. of State 911 Administrators (NASNA) and the Assn. of Public Safety Communications Officials (APCO), which are part of the campaign on TSP. “Lack of participation could jeopardize the restoration of essential service provided by the PSAP administrators during times of disaster and could put citizens at substantial risk of injury or loss of property at times when they are most vulnerable,” they wrote. The FCC said it would be the federal TSP sponsor for all PSAP administrators because, under the program, all non-federal organizations seeking coverage must have a federal sponsor. The Commission developed initial guidelines to help PSAPs enroll. It said in an attachment to the letters to the public safety community that since Sept. 11, 2001, the agencies had been reviewing the “scope and effectiveness” of the TSP program. While they found it operated well in disasters, certain groups were underrepresented, particularly PSAPs. “This lack of participation by certain key organizations represents a serious vulnerability in our homeland security,” FCC and NCS said. The current lag in PSAP participation “could jeopardize the restoration of essential services provided by the PSAP administrators during times of disaster and, therefore, put citizens at substantial risk of injury or loss of property at times when they are most vulnerable.” NCS and the FCC said PSAPs might not join the program because they mistakenly believed telecom service providers automatically gave a high priority to restoring their lines in emergencies. NCS said it would expedite its processing of TSP applications by PSAPs. Current rules give NCS up to 30 days to do so, but it pledged to process valid PSAP TSP applications within 14 days -- only 3 days for most of them. APCO said that, along with industry standards bodies, it would develop additional “industry-specific guidelines” for PSAPs to assist in their enrollments. The FCC stressed Thurs. that a PSAP user didn’t have to purchase TSP coverage for all its lines. Typically, there’s a one- time charge of $100 for a local line and a monthly charge of about $3, but it said most TSP users sought coverage for only a portion of their lines to keep costs down. NASNA said it would provide information to its members to help enroll in the program and do follow-up with 911 center administrators. NENA said it also would provide information to its members and propose revisions in its standards to reflect adequate levels of TSP participation by PSAPs.

An upcoming report by the Center for Strategic & International Studies (CSIS), drafted by a commission led by former Defense Secy. James Schlesinger, will recommend a White House-level body examine spectrum policy. The recommendation has received broad backing from govt., industry and academic participants involved in the drafting. The report, to be released next month, comes as the concept of a White House-level structure to take a broad look at spectrum management has gained traction among federal policymakers, sources said.

The FCC opened an inquiry Wed., asking for comments on whether providing broadband communications services over power lines could cause interference and how to best measure emissions. Commissioners said the technology could offer consumers a 3rd way to obtain broadband service, in addition to DSL and cable modems, although it still was in the experimental stage.

WorldCom asked the FCC Wireless Bureau to rule that SkyTel and its other wireless affiliates were eligible to participate in Commission auctions. In dispute is whether SkyTel qualifies to compete in a May 13 paging band auction amid questions over the default status of 2 Multipoint Distribution Services (MDS) licenses held by Wireless One, another WorldCom affiliate. FCC rules stipulate bidders are eligible to take part in an auction only if they have satisfied outstanding installment payment defaults.

FCC Chmn. Powell emphasized to members of Congress Tues. that he didn’t plan to delay the June 2 completion of the FCC’s media ownership review. He used a 3-page letter to reply to nearly a month’s worth of letters from Capitol Hill -- some of which asked Powell to expedite the proceedings while others sought a delay.