Broadband Law Advisor Blog : Broadband Lawyers & Attorneys : Davis Wright Tremaine Law Firm : National Broadband Plan Adoption & Infrastructure Updates

Following up on our post from last week, the FCC’s NPRM and NOI on ways to improve regulation of microwave wireless spectrum used for the “backhaul” transport of network traffic focuses in many parts on the need to balance efficient use of the wireless spectrum with measures to ensure facilities can be deployed quickly. Last Thursday’s FCC action begins implementation of one of the spectrum initiatives set forth in the National Broadband Plan. This initiative aims to remove regulatory barriers to the deployment of wireless backhaul links, which constitute a critical piece of the system architecture of broadband networks. Among other uses, backhaul can be used for linking wireless cell towers to the wired broadband networks.

The NPRM proposes three rule changes: removing spectrum use restrictions, altering technical rules, and changing licensing requirements. First, the FCC proposes to eliminate the service-specific restrictions on certain microwave frequency bands used for the Cable TV Relay Service (CARS) and Broadcast Auxiliary Service (BAS). This includes a proposal to open up the largest current CARS band – the 500 MHz allocation at 12.7 to 13.2 GHz – for alternative uses. While the CARS and BAS bands are currently designated for the transport of video programming by cable television system and broadcast stations, the proposed change would allow any parties to apply for FCC licenses in those spectrum bands for microwave backhaul of any kind of traffic. Similarly, the FCC proposes to eliminate a rule which prohibits broadcasters from using general fixed microwave spectrum to deliver video to studios when BAS frequencies are available. In proposing these changes, the FCC emphasized that no existing CARS or BAS license would be altered, and that any new users would be required to coordinate with existing licensees in these bands. The FCC asked for comment on a variety of aspects of this proposal, including whether opening up these bands would have an adverse impact on cable operators’ future use of CARS spectrum.

Next, the FCC proposes a minor change to allow for “adaptive modulation” technology, which can reduce signal fading and allow microwave signals to propagate further. The use of adaptive modulation requires temporary departures from the minimum payload capacity requirement for wireless traffic delivery, a rule designed to ensure microwave spectrum is being fully utilized. Under the proposal, the minimum payload thresholds need not be met while signal fading is occurring to allow parties to take advantage of the modulation technique.

Finally the FCC proposes a set of rule changes to allow the addition of “auxiliary stations” to existing microwave authorizations. Under the current rules, microwave applicants must provide specific site-based information to the FCC to obtain a license, and the FCC will issue authorizations only for the applied-for paths, frequencies, and antennas. Under the proposed rule, a holder of a microwave license for a given path and set of frequencies would be allowed to add multiple new antenna sites to an existing authorization, either on a conditional authority or blanket authority basis. This would allow license holders to “re-use” their authorized frequencies with additional antennas surrounding the licensed link, similarly to how mobile wireless licensees currently re-use spectrum within an area by transmitting signals from multiple base station antennas simultaneously. Proponents of the rule changes claim it will allow for more efficient microwave spectrum use, while opponents have expressed concerns that the changes could lead to congestion in the microwave bands and unacceptable interference to existing users. 

In the NOI the FCC asks whether rural broadband service deployments in particular could be accelerated by eliminating or revising certain microwave spectrum efficiency standards and antenna design requirements. The FCC noted that it often gives waivers of the capacity requirements for rural microwave systems to allow them to provide better service at lower cost through less efficient transmission standards, which would be impractical in heavily-trafficked urban environments but are acceptable where spectrum demand is lower. Along the same lines, the FCC asks whether it could revise its technical standards for microwave frequency usage (at least in certain bands or areas) so that smaller and more inexpensive antennas could be used without creating interference problems that would offset any gains from accelerated network deployments.

Comments and reply comments are due 60 and 90 days after publication of the item in the Federal Register.
 

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By Jim Smith

On July 15, 2010, the Federal Communications Commission (FCC) issued a new Notice of Proposed Rulemaking (NPRM) aimed at reinvigorating and reforming the perennially underutilized Rural Health Care (RHC) support mechanism of the Universal Service Fund (USF).

The deadlines for public comments and reply comments on this latest of the FCC’s initiatives to implement the recommendations of its omnibus National Broadband Plan have not yet been set, pending publication in the Federal Register, but are expected to be in early and late September, respectively.  We will send an update when these dates have been fixed. The FCC’s July 15 news release announcing the new proceeding can be viewed here, and the full text of the NPRM is here.

(Continue reading...)

UPDATE: Public comment dates on these proposals have now been set: Initial comments are to be filed by Sept. 8, and reply comments are due by Sept. 23.

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The FCC has commenced a proceeding to facilitate the use of spectrum for wireless backhaul and other point-to-point and point-to-multipoint communications, increasing the efficient use of spectrum for backhaul, and providing for the more flexible use of microwave frequencies to promote the deployment of wireless broadband and other services.  In an NPRM, the Commission seeks comment on proposals to increase the utilization and provision of increasing flexibility in microwave spectrum.  The NOI component of the proceeding seeks more generally comments on other proposals for more cost-effective and intensive use of microwave spectrum.  Initial comments will be due 60 days from publication in the Federal Register; reply comments will be due 90 days from publication.  More detailed analysis of this proceeding will be posted shortly. 

The FCC has also commenced a proceeding related to its Hearing-Aid Compatibility rules.  As we noted earlier, this proceeding foreshadows the impending passage of new federal legislation designed promote access to advanced communications, including Internet video, by the disabled community, discussed below. 

The Commissions has issued a Policy Statement basically declaring that people with hearing aids and cochlear implants should have access to advanced technologies, including modern smartphones.  In a Second Report and Order, the Commission clarified a number of issues related to its hearing aid compatibility rules, including that the rules apply to devices that have built-in speakers designed to be held to the ear; requiring disclosure of information about multi-band and multi-mode phones that operate in part over bands or modes for which technical standards have not been established; and amending the rules requiring manufacturers to deploy hearing-aid compatible handsets to apply to handsets sold through all distribution channels, not only through service providers.  Finally, in an NPRM, the Commission seeks comment regarding customer equipment used to provide wireless communications over any type of network; a requirement for some or all retail outlets to offer consumers in-store testing of hearing-aid compatible devices; and user-controlled reduction of power to meet standards for operations over legacy GSM interfaces in the 1900 MHz band.  The Commission also noted that it intends to initiate a comprehensive review of its wireless hearing aid compatibility rules later this year.  Initial comments will be due 45 days after publication in the Federal Register; reply comments will be due 75 days after publication.

The Hearing Aid Compatibility proceeding is especially significant given the recent passage of House and Senate accessibility legislation.  As noted earlier, House Bill 3101, Rep. Markey's "Twenty-First Century Communications and Video Accessibility Act of 2009" was adopted by the House and received in the Senate on July 27, 2010.  More recently, on August 5, it was read twice and placed on the Senate legislative calendar for consideration. 

At the same time, Sen. Pryor's companion bill (S. 3304), which we first mentioned here and here, was replaced by a substitute version proposed by Sen. Reid on August 5.  That version was agreed to and passed by the Senate by unanimous consent that same day.

With the House Bill now on the Senate's calendar, and the Senate having passed its version of the bill, passage of new accessibility legislation is expected very shortly.  As previously explained in detail, the new legislation is expected to update the Americans with Disabilities Act (ADA) by requiring advanced services and devices to be ADA-compliant, including Internet videos and mobile devices, and will reinstate the FCC's video description rules.  Accordingly, this legislation, when passed, will have a significant impact on manufacturers, content providers, and programming distributors, to name a few.   As soon as Congress passes the legislation, we will provide an in-depth look at what changes the legislation will make to the Communications Act and the FCC's ADA rules, among others.

For additional information about the legislation, please contact Maria Browne or Brian Hurh.

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As anticipated from the Commission's earlier tentative agenda, the agenda for the August 5th open meeting, released on Thursday, confirms that the Commission intends to initiate two proceedings this month.  The first is a hearing-aid compatibility Report and Order and Further Notice of Proposed Rulemaking that will seek to require modern advanced telephone voice communications devices to be compatible with hearing-aids.  As discussed earlier, this proceeding is a precursor to the Commission's goal of making broadband services and applications, including Internet video, accessible to the disabled community.  This proceeding will also follow on the heels of the House of Representative's recent passage of Rep. Markey's "Twenty-first Century Communications and Video Accessibility Act of 2009" (HB 3101), which we first talked about back in May, along with the companion bill S.3304 (Pryor).  On July 26, House Bill 3101 was easily adopted by a vote of 348 to 23, and the next day it was received in the Senate, where it is expected to pass.  As we discussed earlier, House Bill 3101, which is cited numerous times throughout the National Broadband Plan, would extend hearing aid compatibility requirements to "advanced services" (including non-interconnected VoIP and text messaging) and to manufacturers of devices for such services, as well as reinstate the FCC's "video description rules."

The second agenda item is a wireless backhaul Notice of Proposed Rulemaking and Notice of Inquiry that will seek to "remove regulatory barriers to the use of spectrum for wireless backhaul and other point-to-point and point-to-multipoint communications, in order to lower the cost of backhaul services and accelerate investment in broadband networks throughout the nation."

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The FCC has released its tentative agenda for its August 5th open meeting.  Like its July meeting, this one is fairly light, with only two agenda items scheduled for adoption.  One is a proposed NPRM and NOI which will "seek to remove regulatory barriers to the use of spectrum for wireless backhaul and other point-to-point and point-to-multipoint communications, to promote broadband competition and investment in rural and non-rural areas."  This issue was recommended by the National Broadband Plan, as we discussed earlier.

The other agenda item is not directly related to broadband, but can be seen as perhaps a precursor of things to come.  The second agenda item involves a Report and Order and FNPRM to ensure that advanced voice communication devices are hearing aid-compatible.  This comes during the FCC's celebration of the 20th anniversary of the Americans With Disabilities Act (ADA), which has recently become both a political and industry issue.  As we discussed earlier, both the House and Senate are currently considering similar bills that would update the ADA to require advanced services and devices be ADA-compliant, including Internet videos and mobile devices, as well as reinstate the FCC's video description rules.  The Senate bill (S.3304, Pryor) was recently moved out of subcommittee to the Senate Commerce Committee on July 15.  Similarly, the House bill (HR 3101, Markey) was heard and marked-up by the House Subcommittee on Communications, Technology and the Internet, then forwarded to the full Committee on Energy and Commerce on June 30.  As Sen. Kerry asserted during hearings on S.3304, Congress intends to pass new ADA laws before the end of the year.  With the finance and healthcare bills taken care of, and the fact that Markey's House bill, which had been stuck in subcommittee since June 2009, was marked up and sent to committee a couple weeks ago, we could indeed see a new law that would impose new ADA requirements on a broad spectrum of industry players, including content providers, programming distributors, device manufacturers and application developers.

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Last Thursday, the FCC voted to adopt a Notice of Proposed Rulemaking and Notice of Inquiry to encourage investment and deployment of terrestrial wireless facilities. This FCC action represents the first step in implementing the National Broadband Plan recommendation to provide Mobile Satellite Service (“MSS”) licensees with increased flexibility aimed at encouraging terrestrial spectrum build-out (as we previously advised).

By way of background, MSS licensees were originally authorized to provide satellite-to-earth communications services. In 2003, the FCC created rules to allow MSS licensees to provide terrestrial wireless services over the same frequencies. This terrestrial wireless service was to be provided in conjunction with the satellite offerings (known as the Ancillary Terrestrial Component or “ATC”) and would allow the MSS licensees to bolster and strengthen the signals sent from space stations, thereby providing a better overall service. The use of the ATC for enhanced services was contingent upon the MSS licensees providing fully functioning satellite services, so as to guarantee that the important public safety, federal government, and rural uses of MSS communications in this spectrum would not be foregone in favor of pure wireless broadband deployments. In the National Broadband Plan, the FCC identified 90 MHz of MSS spectrum suitable for wireless broadband services in the 1.5 GHz, 1.6 GHz, 2.1 GHz, 2.2 GHz, and 2.4 GHz bands.

The NPRM proposed two concrete rule changes, one largely procedural, and the other substantive. First, the FCC proposes to amend its spectrum allocation tables to create co-primary fixed and mobile wireless allocations along side the current satellite allocation for 40 MHz of the broadband-suitable MSS spectrum, in the 2.1 and 2.2 GHz bands. Noting that MSS and ATC service deployments in these bands have been slow, the FCC stated that the change to the spectrum allocation takes the first formal step to “lay[ing] the groundwork for future flexibility in use of this spectrum…” The Commission followed this proposal by asking about next steps in the NOI, such as whether current MSS licensees in these bands should be allowed to recover money in a voluntary “incentive auction” of the spectrum for terrestrial wireless services only. In the same vein, the FCC asked whether disaggregations or modifications of the MSS licenses should be allowed to facilitate third party wireless deployments in these bands.

The second change proposed in the NPRM would apply the FCC’s spectrum leasing rules, first adopted in 2003 and now applicable to most FCC-licensed wireless services, to all MSS spectrum as well. The spectrum leasing rules allow third parties to contract with FCC spectrum licensees to deploy services and benefit from operations over the spectrum, while the licensee retains varying levels of oversight or legal control and responsibility for use of the spectrum. The Commission observed that it had already approved one MSS spectrum leasing arrangement and had tentatively cleared a second MSS licensee to do so, subject to certain restrictions on spectrum leases to the two largest wireless carriers. The FCC asked for comment on whether its wireless spectrum leasing rules should be applied in full to MSS licensees or if restrictions should be built in to account for the unique nature of MSS spectrum, or to protect competition in wireless services.
 

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At long last, the FCC’s Further Notice of Proposed Rulemaking for Implementation of Section 224 of the Communications Act (pole attachments) was published in the Federal Register this morning, starting the clock for comments and replies.  Initial comments are due on Monday August 16, and replies are due on Monday September 13.

The FNPRM, originally adopted at the FCC’s May 20 open meeting, proposes a host of new rules governing the rates, terms and conditions of pole access to encourage broadband deployment and competition consistent with recommendations made in the National Broadband Plan.   In particular, the Commission proposes to (1) lower the telecommunications pole rent formula to establish more uniform rates applicable to “all” attachers; (2) adopt additional pole access rules that could make pole contract negotiations more difficult and increase penalties for unauthorized attachments; and (3) improve the enforcement process at the FCC.  For further information, read our earlier blog post and our DWT Advisory on the issue.

For additional information, please contact Chris Fedeli or Jim Tomlinson.

UPDATE: At the May 20 open meeting, the Commission actually adopted both an FNPRM and an Order regarding pole attachments. As discussed in more detail in our DWT Advisory, the brief Order made two distinct findings. First, the Commission clarified that Section 224 allows communications providers to use space- and cost-saving attachment techniques where practical and consistent with a pole owner's use of those techniques. Second, the Commission affirmatively held that the right to just and reasonable access to poles under Section 224 includes the right of timely access.

This morning's Federal Register indicates that only the FNPRM has been published (e.g., the publication is listed as Proposed Rules and not Final Rules, and only the text of the FNPRM has been published). However, the ordering clauses at the end of the publication state that the "Order and Further Notice of Proposed Rulemaking...is adopted." Nevertheless, we understand that the Order will be separately published in the Federal Register shortly.

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As expected from its tentative agenda released in late June, the Commission's July 15 open meeting will address three agenda items, including an NPRM to reform the Universal Service Rural Health Care Fund, and an NPRM and NOI to "increase value, utilization, and investment in the 2 GHz, Big LEO, and L-bands of the Mobile Satellite Service."   (The third agenda item deals with transitioning to an electronic tariff filing and formatting process.)

The July 15 Meeting Agenda can be downloaded here.

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Last week the Federal Communications Commission released its tentative agenda for its July 15 open meeting.  According to the agenda, the Commission plans to discuss three items, two of which are related to the Commission's broadband efforts to implement the National Broadband Plan.  Specifically, the Commission intends to adopt a Rural Health Care Reform NPRM to "expand the reach and use of broadband connectivity by health care providers throughout the nation."  The Commission also intends to adopt a Spectrum Flexibility NPRM and NOI "seeking comment on ways to encourage investment in terrestrial broadband services within spectrum allocated to mobile satellite services, while maintaining robust mobile satellite capability."  (The third item relates to transitioning to an electronic tariff filing process.)

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