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

In adopting its Second Memorandum Opinion and Order during yesterday's open meeting, the FCC is pressing forward with its plan to allow unlicensed fixed and mobile wireless devices to operate in unused parts of TV spectrum (the TV “white spaces”).  According to FCC Chairman Genachowski, this is the first significant block of spectrum made available for unlicensed use in more than 20 years.

Yesterday’s unanimous decision modified certain provisions of the FCC’s November 2008 White Spaces Order (a copy of which is available here; and discussed in detail in an earlier DWT Advisory) in response to seventeen petitions for reconsideration. While the Second Memorandum Opinion & Order upholds the majority of the FCC’s findings in the 2008 White Spaces Order, the Commission did make some widely anticipated changes to the original rules.

Eliminated the Device Sensing Requirement - First, the Commission revised a portion of a two-part requirement that the new white space devices use sensing technology that can detect when spectrum is actually being used, and consult with an incumbent spectrum user database when a device seeks to locate available white space for transmitting its signal. The Commission eliminated this “belt and suspenders” approach and determined that the device sensing requirement will no longer be mandatory – just encouraged. The FCC also indicated that it has not yet selected the private companies that will administer the geolocation database of incumbent spectrum users. Further, the FCC’s Office of Engineering & Technology still has to finalize technical standards relating to the database.

Additional Interference Protection - The Commission also revised its original rules to provide additional interference protection to existing white spaces spectrum users, which are predominantly TV broadcasters and wireless microphone users. Specifically, the revised rules now will reserve two vacant UHF channels on a nationwide basis for wireless microphone use. In addition, the revised rules will allow large users of wireless microphones (users of more than 12 microphones), such as Broadway shows and sports stadiums, to register for protection in the incumbent spectrum user database, but the registration must have been done in advance of the event and the public will be given the opportunity to review and comment on the request. Further, the revised rules will maintain a separation distance between TV white space devices and wireless microphones permitted to be registered in the database.

Cable Headend/TV Translator Protection Issue - The original rules provided that cable headend and TV translator receive sites located beyond 80 km from the edge of a television station's protected contour cannot register for protection in the incumbent spectrum user database. In yesterday’s Order, the Commission recognized that cable headend, TV translator and other MVPD receive sites beyond that 80 km distance may also need protection. Under the revised rules, operators of such sites can petition for inclusion within 90 days of the effective date of yesterday’s order. It is possible that if such requests are not opposed that they would summarily be granted. If an operator misses that window, it would be much more difficult to obtain protection for preexisting sites, so operators should consider now whether they have such sites and if they wish to request protection.

Chairman Genachowski seemed to indicate that the FCC would press forward with its implementation of the White Spaces plan regardless of the pending legal challenges filed against the 2008 White Spaces Order by the broadcast industry.
 

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In yesterday's open meeting, the FCC adopted an order that implements the E-rate reforms proposed as part of the agency's implementation of the National Broadband Plan. The most significant reforms that were adopted are:

• Increase in funding by indexing the $2.25 billion to the rate of inflation (resulting in "less than" $25 million in additional funding in the coming year). This increase will be funded by repurposing funding relinquished by competitive "ETCs" exiting the high cost program, as was decided in a decision earlier this month (responding to a petition from Corr Wireless, a copy of which is available here.)
• Existing dark fiber to be funded under the "miscellaneous" category on the Eligible Services List ("ESL") in order to avoid having to categorize dark fiber as either a telecommunications or information service. The initial proposal did not include (at least not explicitly) the requirement that only existing fiber be eligible, and appears to have been added out of concern that e-rate funding would be used for build-out costs.
• Off-campus use of wireless devices to be initially only explored in pilot programs.
• Community, after-hours use of e-rate funded facilities at schools approved, as anticipated.

Commission staff had indicated that they were unlikely to issue the text of the order that day, and it does not appear that the order has been released on the FCC's website yet. In the meantime, the press release and statements of the Chairman and Commissioners are available at:

Press release
Genachowski Statement
Copps Statement
McDowell Statement
Clyburn Statement
Baker Statement

UPDATE: The Commission's E-Rate Order is now available here.

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Following its open meeting yesterday, the Commission released its tentative agenda for its next open meeting scheduled for October 14.  Among the three items to be addressed at the meeting is the Commission's adoption of a Third Report and Order and Order on Reconsideration that revises the FCC’s CableCARD rules with respect to "video navigation devices" for cable services.  As we discussed in depth in our earlier DWT Advisory, based on an NPRM released in April, the Commission is attempting to address perceived short-term CableCARD issues - including HD DTAs, SDV and tuning adapters, 1394 and other outputs, installation, pricing, and certification - before its longer-term gateway regime emerges.  For more background on CableCARD and other set-top box issues, see our DWT Advisory on the National Broadband Plan's proposals regarding navigation devices.

The other two items to be discussed at the October open meeting are an NPRM to address "bill shock" for unexpected wireless charges, and an NPRM for the proposed use of universal service funds to support investment of wireless networks in unserved areas.

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The FCC recently released a Public Notice in which it announced that the Wireline Competition Bureau will hold a workshop on the morning of Tuesday, September 28, 2010. The stated purpose of the Workshop is for the Commission and staff to learn from the experiences of state regulators regarding its proposed pole attachment regulations (W.C. Docket No. 07-245). More details about the Workshop topics and logistics are expected to be released soon. DWT attorneys will attend the Workshop and will report shortly thereafter about its highlights and major topics of discussion. 

For more information, please contact Jim Tomlinson.
 

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Today the FCC released a Public Notice seeking comments on what the FCC calls the "business broadband marketplace."  While this comment cycle is not directly related to any current FCC proceeding (the docket number - WC Docket No. 10-188 - was only created yesterday), the magnitude of information sought hints at the establishment of future regulatory policies, if not rules, regarding broadband service offerings to businesses, that may impact aspects of other Commission broadband initiatives.  Indeed, the Public Notice suggests that the Commission intends to institute regulatory policies over the business broadband marketplace, stating up front that the "business broadband marketplace...requires policies that enable...competitive retail markets, incentives for investments in facilities, and access where competitive infrastructure cannot be economically deployed."  In addition, the Public Notice indicates that the Commission recognizes that "[d]ifferences in the technology used to provide a particular service may cause that service to be subject to significantly different policies, which may undermine competition policy objectives."  This seems to suggest that the Commission prefers a single, uniform policy over broadband business services, regardless of the transmission, technology or facilities used.  (The Public Notice could also be a precursor to the Commission's forthcoming rulemaking in Q4 of this year regarding the collection and analysis of industry-wide data on key broadband metrics (subscribership, prices, performance) for business (and retail) customers.)

Basically, the Commission wants to know everything about "the universe of business broadband service inputs, where they are available, and how they are used."  The Public Notice specifically identifies a number of issues for which it seeks further information, including, among other things, (1) the different types of transmission services, technologies and facilities used to provide business broadband; (2) the various combination of services, technologies and facilities used; (3) trends in the business broadband marketplace, including pricing and technology trends; and (4) the impact of non-traditional marketplace participants (e.g., cable and wireless) and non-carrier wholesale customers (e.g., consumer electronics companies embedding broadband services in their devices) on the marketplace.

Comments are due October 15, 2010.  Reply comments are due November 4, 2010.

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Yesterday the Federal Communications Commission announced that its recent Open Internet Public Notice, which seeks comment on two "under-developed issues" in the Open Internet Proceeding, was published in the Federal Register, thus setting the comment cycle for this public notice.  Comments are due October 12 and reply comments are due November 4.

As we discussed earlier here, the Open Internet Public Notice is part of the Open Internet proceeding, which was initiated on October 22, 2009 and designed to impose “network neutrality” rules on Internet service providers, including nondiscrimination obligations, limits on network management techniques, and disclosure requirements. This Public Notice seeks additional comments regarding (1) "managed" or "specialized" services, and (2) open Internet principles for mobile wireless services.

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This week the Federal Communications Commission issued three important items related to the National Broadband Plan, and broadband services generally. 

On September 1, the Commission issued a Public Notice to initiate a Further Inquiry Into Two Under-Developed Issues In The Open Internet Proceeding (GN Docket No. 09-191, and WC Docket No. 07-52).  The original Open Internet NPRM (which we discussed at length here) was released October 22, 2009 over two partial dissents, and was designed to impose “network neutrality” rules on Internet service providers, including nondiscrimination obligations, limits on network management techniques, and disclosure requirements.  As discussed in more detail in the Public Notice, comments submitted in this and other proceedings have prompted the Commission to further solicit public discussion regarding two "complex" issues that were addressed "in less detail" than other issues in the NPRM.   First, the Commission seeks additional comments about concerns and policies related to "managed" or "specialized" services.  The NPRM had appeared to be more sensitive to allowing innovation in IP managed services outside of Open Internet regulations, so the Further Inquiry could affect the regulations as originally proposed. 

Second, the Commission seeks additional comment on "how, to what extent, and when" its "openness principles" should apply to mobile wireless services.  The Public Notice specifically noted the fact that, since the NPRM was released in October, recent developments warranted updating the record on certain questions related to wireless, namely, the emergence of new business models by certain wireless carriers to introduce pricing plans that charge different prices based on consumers' level of data consumption, and Verizon's and Google's recent proposal for open Internet legislation that would exclude wireless.

Today, the FCC released an Order extending the deadline for filing reply comments in its pole attachment rulemaking proceeding (WC Docket No. 07-245) to Monday, October 4, 2010.  Reply comments previously were due on September 13, but in response to a petition for extension filed by an industry organization representing electric utilities, the Commission decided to extend the deadline by three weeks.

Also today, the Commission released its tentative agenda for its September open meeting.  According to the release, the Commission intends to discuss four items: (1) TV White Spaces Second Memorandum Opinion and Order; (2) E-Rate Broadband Order; (3) E911 Location Accuracy Second Report and Order; and (4) E911 Location Accuracy FNPRM and NOI.

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