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

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 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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