Federal Communications Commission (FCC)

FCC turned down CTIA’s request for open-ended extension of Sept. 30 deadline for all telecom carriers to comply with packet- mode communications electronic surveillance under Communications Assistance for Law Enforcement Act (CALEA). While rejecting blanket request for more time, which Justice Dept. had opposed, Commission gave carriers until Nov. 19 either to upgrade packet networks to comply with wiretap requirements or to seek individual relief. Order, voted Sept. 18 and released Wed., also temporarily suspended Sept. 30 date for carriers to implement punch-list electronic surveillance capabilities for FBI. Agency said it planned to set date for all punch-list capabilities that would let carriers be “fully CALEA-compliant” by June 30. Action came as interest in broadening wiretap capabilities of federal govt. were receiving increased attention in wake of last week’s terrorist attacks (CD Sept 19 p3).

Last week’s terrorist attacks appear to have dimmed prospects, for now, of wireless industry’s obtaining quick decision on relocating military spectrum users for 3G wireless. While insiders continue to stress need for additional spectrum for advanced wireless services, several told us that if nothing else, logistics of defense agencies focusing on response to last week’s attacks meant that Pentagon policymakers attention was focused elsewhere. On other hand, several wireless industry officials said key role played by mobile communications in aftermath of attacks, including final calls from passengers on hijacked planes, underscored very publicly importance of adequate wireless coverage.

FCC unveiled details of its restructuring plan at Thurs. agenda meeting, most dramatic of which would be combination of Cable and Mass Media Bureaus into newly named Media Bureau. As expected, bureau would include separate Office of Broadcast License Policy, which would be headed by current Mass Media Bureau Chief Roy Stewart, FCC Chief of Staff Marsha MacBride said at media briefing. Also as expected (CD Aug 29 p1), bureau would handle “postlicensing” policy for direct broadcast satellites (DBS), which would be shifted from International Bureau. Common Carrier Bureau would be renamed Wireline Competition Bureau and would have greater emphasis on technical and economic analysis, said Mary Beth Richards, special counsel to FCC Chmn. Powell, in presentation after meeting’s regularly scheduled business. Under changes, which require approvals from labor union, 8th floor and congressional appropriators, Consumer Information Bureau would carry new name of Bureau of Consumer Information & Intergovernmental Affairs and have broader policy functions. Wireless Bureau and Enforcement Bureau would assume some new duties, but their structure would remain intact. “This is a substantial effort at reorganization but it’s not radical,” Powell said.

At time when some in GPS, aviation and wireless community are voicing concerns to NTIA and FCC about potential of ultra-wideband (UWB) technology to cause interference, dozens of UWB trials and demonstrations are under way at federal agencies. Several industry observers said that sets up tough policy dynamic for NTIA between vocal criticism by GPS and aviation community and quieter interest of govt. agencies already using technology, which works by sending pulses at very low power levels in very short time periods over wide swath of spectrum.

AT&T Wireless (AWS) asked FCC for extension of Sept. 30 packet-mode capability under Communications Assistance for Law Enforcement Act (CALEA) requirements. Because surveillance equipment won’t be ready from vendors in time, AWS requested one- year extension of compliance deadline for short message service (SMS) and 21-month extension for general packet radio service (GPRS), 2.5-generation wireless technology. For older cellular digital packet data network (CDPD), AWS sought confirmation from FCC that CALEA solution wasn’t required because CDPD was information service. In quiet filing earlier this month, AWS also asked Commission to “reject the FBI’s attempts to impose an unnecessary and duplicative SMS surveillance capability on the industry.” AT&T request came shortly after CTIA sent letter to FCC Chmn. Powell that said individual wireless carriers were preparing waiver requests for upcoming deadline on packet mode assistance capability under CALEA (CD Aug 17 p5). Wireless association said individual carriers had been eyeing waivers nearly year after CTIA filed petition to suspend deadline, on which FCC hasn’t yet acted.

Federal court in Ark. Thurs. rejected appeal by Advanced Communications in case in which defunct DBS startup attempted to sue MCI for “tortious interference” with FCC in 1995 decision that led to auction of spectrum it lost because of failure to meet milestones. MCI mailed letter to then FCC Chmn. Reed Hundt that urged Commission to auction Advanced orbital locations and channels and said it would be willing to pay $175 million. Hundt subsequently sent copies of letter to other commissioners while Advanced was appealing decision to deny extension of milestone requirements.

Cable companies shouldn’t be allowed to pass through to basic tier subscribers expenses for sales of ads, National Assn. of Telecom Officers & Advisers (NATOA) and Montgomery County, Md., said in ex parte presentation to FCC officials. Original petition filed by Pasadena, Cal., seeks FCC ruling that federal law and Commission rules don’t allow passthrough to subscribers of cable operators’ franchise fee on revenue from nonsubscriber sources. Permitting passthrough of expenses for competitive cable services would “unfairly disadvantage competitors” to cable operators, NATOA and county said. Charter Communications is Cal. MSO in question. Comcast and Coxcom support Charter’s claim that passthrough is acceptable. NATOA and county said it was unfair for subscribers to have their cable bills increase whenever cable operator “makes money from advertising sales.” Among FCC officials in meeting were Chmn. Powell’s cable adviser, Susan Eid, and representatives of Comrs. Tristani, Copp, Martin.

Even among former Bell companies, FCC didn’t gain across-the- board support for its proposal to replace intercarrier compensation schemes with bill & keep, according to comments filed with agency Aug. 21 (CD Aug 22 p1). While BellSouth seemed to offer strongest support for FCC’s proposal, Verizon gave more measured response and used part of its filing to rail against somewhat unrelated issue of misuse of phone numbers. SBC said it’s been “firm proponent of bill and keep” for Internet traffic and supports extending it to wireless and other local calling. However, SBC said that while replacing access charges with bill & keep also “has much to recommend it,” some groundwork would have to be done first. Bells have tended to be proponents of unifying intercarrier compensation although filings by all 3 indicated caution about moving too quickly, particularly on access charges.

U.S. Cellular Corp. (USCC) and Rural Cellular Assn. (RCA) petitioned U.S. Appeals Court, D.C., for en banc hearing to reconsider its ruling that upheld FCC decision to remove carrier cost-recovery requirement as precondition to provision of Enhanced 911 service. Corr Wireless, part of rural carrier group challenging original FCC order, also is seeking D.C. Circuit review. In order, Commission had deleted carrier cost recovery precondition, which was seen as slowing down rollout of E911 services. Agency concluded carriers didn’t have to meet E911 Phase 1 and Phase 2 requirements until guaranteed state or local govt. funding was in place. Rural carriers, including USCC, had challenged FCC decision, and D.C. Circuit sided with Commission (CD July 2 p1). “Despite a directly analogous wireline model where the incumbent local telephone monopoly charges the state and local governments to provide comparable wireline E911 service, the panel decision affirmed the FCC’s orders that created this unfunded mandate on wireless carriers,” petition said. RCA and USCC argued that ruling ignored Sec. 201 of Communications Act, which limits FCC authority to regulate wireless carriers through Administrative Procedure Act and other legislative provisions. Calling decision to roll back carrier cost recovery conditions “irrational,” RCA and USCC asked court to rehear case and vacate FCC’s order. Rural carriers cited D.C. Circuit decision in 1996 in CompTel case in which court said Communications Act barred departures from principles of cost causation without compelling justification. Rural carriers contend that FCC order at issue departs from that principle because public safety answering point that orders E911 service from wireless carrier “has been excused from paying” for service. Petition said: “No reasonable court would sustain a federal order requiring ambulance makers to provide ambulances for free to state and local governments because the emergency rescue service was otherwise in the ‘public interest.’ Because the FCC orders at issue effectively require the very same thing, this court should rehear this case and vacate the FCC orders under review.” Rural carriers said issues were of “exceptional importance.” They said FCC mandate would require operators to spend billions of dollars to upgrade their networks to meet E911 Phase 2 deadline of Oct. 1.

Previous applicants for wireless licenses are suing FCC for $148 million, contending that’s current value of licenses on which they charged Commission reneged on promise to award spectrum via lottery. Class action litigation is led by lottery applicants that include Gene Folden, Boca Raton; Judith Longshore, Canton, N.Y., Coastal Communications Assoc., Charleston, S.C. Lawsuit, filed in U.S. Court of Federal Claims, argued that agency had breached “implied contracts” to award 7 cellular licenses by lottery, saying govt. owed them and other lottery applicants pro rata share of current market value of spectrum. Applicants said they paid U.S. $855,200 to participate in lotteries that Commission held in 1989. FCC later found lottery winners to be unqualified and scheduled replacement lotteries for 6 of 7 licenses in July 1996, cancelling re-lotteries few months later. In 1997, Congress cancelled FCC’s authority to use lotteries, replacing them with auctions. After that, FCC awarded spectrum to 3 of originally disqualified lottery winners at direction of Congress. Plaintiffs said FCC “apparently intends” to auction 4 remaining cellular licenses that had been at issue. FCC Wireless Bureau released order March 2 that denied reconsideration of lottery participants’ application for 7 licenses. Licenses at issue are in Ark., Fla., Minn., N.D., Pa., P.R. and Tex. and range in estimated value from $4 million to $53.5 million. Suit said FCC, by not awarding 7 licenses by lottery, deprived applicants “of their contract rights to have chances of winning licenses.” Robert Kerrigan, attorney for lottery applicants, said govt. took money from applicants, kept $200 per applications that had been paid and then used another system to award licenses. “Although the government can do that from a regulatory perspective, the folks who paid to enter the lottery are entitled to the benefit of their bargain, which in this case is their pro rata share of the fair market value of those licenses,” he said. Kerrigan has represented state of Fla. against tobacco industry. He said there were 926 members of class of lottery applicants for 7 licenses who would share value of $148 million on pro rata basis, depending on which lotteries they entered, “minus expenses and attorney fees.”