FCC Makes Important Rule Changes On Continued Operation And Renewals

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Today, the FCC released a Report & Order in WT Docket No. 10-112, which is intended to harmonize the Commission’s Rules between services for license renewal and discontinuance of operation, as well as some other minor tweaks.

In the FCC’s Summary, the Report and Order is designed to do the following:

Establishing a consistent standard for renewing wireless licenses;
*     Setting forth safe harbors providing expedited renewal for licensees that meet their initial term construction requirement and remain operating at or above that level;
*     Adopting consistent service continuity rules, which provide for automatic termination of any license on which a licensee permanently discontinues service or operation;
*     Eliminating unnecessary, legacy “comparative renewal rules”; and,
*     Requiring that when portions of geographic licenses are sold, both parties to the
transaction have a clear construction obligation and penalty in the event of failure, closing a loophole used to avoid construction requirements.

For Part 90 licensees, there are significant changes regarding license renewals:

For Wireless Radio Service licensees, the licensee must demonstrate that it provided and continues to provide service to the public (details on safe harbors are in the Order), or operates and continues to operate to address the licensee’s private, internal communications needs.  Seems simple enough, but a very important change can be found beginning in paragraph 72.  In that and subsequent paragraphs, the Commission specifically disallows the use of “channel keepers” to meet construction rules.  This is significant.  Years ago, the use of multi-frequency transmitters burping out nothing more than call signs were used to justify construction of many newly-issued 800 MHz licenses.

Another important change relates to the Commissions permanent discontinuation of operation rules.  Previously, the rules differed by Subpart of the Commission’s Rules, and even within a Subpart.  For example, an 800 MHz SMR system is considered to have permanently discontinued operations after 90 days (47 C.F.R. Section 90.631(f)).  In contrast, a non-SMR system in same band may remain off the air for up to a year (47 C.F.R. Section 90.157).

The FCC’s changes provide as follows:

For wireless providers, “permanently discontinued” is defined as a period of 180 or 365
consecutive days (for geographic and site -based licenses, respectively) during which the licensee does not provide service to at least one subscriber that is not affiliated with, controlled by, or related to, the provider.
For such private, internal communications, “permanent discontinuance” is defined as a period of 180 or 365 consecutive days (for geographic and site-based licenses respectively) during which the licensee does not operate.

License renewals and construction rules have always troubled Part 90 licensees, primarily because most licensees authorized under Part 90 are not full time communications providers.  Rather, they use communications as a tool to advance their business (or public safety efforts).  Thus, this represents a good time to look at this problem a little closer.

As Mr. White said in Tom Hanks’ That Thing You Do, it’s a common tale.  A Part 90 license doesn’t get renewed because the contact person listed retired, the business moved, or many other reasons.  In the past, it was a fairly low bar to simply apply for a new license on the same frequency.

However, those days have long past.  Freezes (T-Band, 800 MHz), trunking of previously shared spectrum (VHF and UHF) and simple unavailability of unassigned spectrum makes paying attention to the renewal process increasingly important.  While the FCC provides renewal reminders, it’s not obligated to do so, noting that “a licensee’s obligation to file a timely renewal is not dependent on the FCC sending a renewal notice.  Thus, it is squarely the responsibility of the licensee to maintain the validity of their FCC license(s).

Failure to renew a license can have significant consequences.  The FCC has sought to levy significant fines for unlicensed operations where the license(s) had expired, from a proposed forfeiture of $7,500 for a small electric membership cooperative, $16,000 for Florida Power and Light, $96,200 for Union Oil, to $135,000 for Constellium Rolled Products.

Initially, one may look at these fines, and argue that these are large companies, and surely the FCC would take similar action against a small business.  However, the FCC has made clear that a licensee’s status as a small business is an insufficient basis for granting a waiver to renew a license.  The FCC even proposed to fine a ski resort $6,500 for failure to file a single license renewal, and $5,200 for a small trucking company and $6,400 for a University.

Even when there is no fine, the FCC frequently refuses to grant a waiver and retroactively renew the license.  The Commission’s files contain many examples of failed renewal petitions.  Whether the former licensee is a public utility (public utility non-renewals seem to be a recurring theme), a concrete company, and an oil company.

Entities licensed in the public safety services are not necessarily immune to the Commission’s refusal to renew expired licenses.  Failed waiver requests include a Housing Authority and the State of Nebraska.

Even when a waiver is granted, it may not be for the same authority as the original license.  For example, one licensee was relegated to secondary status.  But where the Petition isn’t granted, and alternative spectrum is not available, there can be devastating consequences.  In the case of Federal Express, the entity was forced to discontinue the operation of a five channel 900 MHz system that covered all of Boston, Massachusetts.  The impact on FedEx’s business at the time, requiring the dismantling an expensive radio system, and trying to find alternative service, was significant.

There are several methodologies to ensure timely renewal filing, as well as construction notifications and other required FCC licensee requirements.  While the obvious choice may be having an employee at the company take this responsibility, there are numerous potential problems can arise.  For licensees with a limited number of FCC authorizations, there is often an unfamiliarity with the FCC’s requirements, leading to license revocations.  In other cases, the responsible employee leaves the company, the FCC’s files aren’t updated, and the renewal form is thrown in the trash.

A designated employee works much better at a company with many licenses, but not always.  Since this is rarely the employee’s only responsibility, there is a tendency to be unaware of FCC changes that may require action, such as the FCC’s VHF/UHF narrowbanding initiative.

In either of these cases, licensees should associate with an outside Firm, expert in Part 90 licensee requirements.  Some licensees rely on land mobile radio trade associations, some entities rely on law firms, and some entities rely on so-called “licensing assistance offices.”

No matter what avenue is selected, ensure that those you trust with your valuable asset are familiar with the FCC’s requirements, and there is a clear delineation of responsibilities between the licensee and the outside firm.  Finally, if you rely on an outside firm to file applications (renewals or otherwise) and to keep you apprised of deadlines, please ensure that the firm has business insurance.  This may not seem obvious, but as noted above there can be significant consequences associated with a loss of license.  If the loss is a direct result of the failure of the outside firm to act properly, insurance can help soften the blow and provide some level of compensation for the loss.

In the case of law firms, we are required to have malpractice insurance.  Non-law firms should have similar insurance.  While utilizing an outside Firm is a good idea, ensure that you are fully protected.  Further, don’t assume that a law firm will automatically be more expensive than a licensing assistance firm.  A law firm that provides Part 90 licensing services typically employ trained licensing personnel that can provide services similar to licensing assistance offices at competitive rates, but with the added benefit of attorney oversight.

Regardless of your selected methodology for ensuring license compliance, take the responsibility seriously.

To FirstNet Or Not To FirstNet, That Is Your Question

FireWatching the FirstNet decision making process by states has been a fascinating experience.  As of this date, a number of states have opted-in, at least one state having “barely considered” opting-out.  In contrast, other states have issued RFPs to determine whether in fact alternatives exist which are economically and technically feasible.  The State of Michigan has even gone as far as to select Rivada Networks as a vendor if the state opts-out.

Having discussed opt-in and opt-out scenarios with a number of stakeholders, and sat in on some FirstNet meetings, there are some serious concerns that have been raised about the plans put forth by AT&T.  In fact, one of the complaints was that there was a distinct lack of plans, even for those that had full access to the portal.

For example, from what has been presented, it does not appear that FirstNet has planned a complete eco-system for delivery of information enabled by broadband access.  Instead of an end-to-end managed service, it appears to some attendees that what is intended is essentially the same basic voice/data service delivered by every commercial carrier, with the added feature of ruthless preemption.  Perhaps this is a fallacy, but it’s not clear to many public safety folks.

One can assume that apps being developed for the network can be used for any carrier (the apps are clearly not band dependent, unless they’re made proprietary, and public safety has been down THAT road before).  It would also seem that any radio units developed for FirstNet can be configured for any carrier.   If true, it would seem that any carrier offering ruthless preemption can essentially replicate the AT&T offering.

That’s not necessarily a bad thing, as it gives states and municipalities the ability to look at apples-to-apples comparisons between offering for the state, negotiate where needed, and make appropriate decisions.  Even if a state opts-in, a municipality would still have the ability to review whether to take FirstNet/AT&T service, or use a competing carrier willing to offer ruthless preemption, just not on Band 14.

This last possibility is an interesting one.  If a state opts-in, a municipality might not have the best AT&T coverage in their area at this time.  If Verizon (for example) presently has better coverage in the area, and AT&T’s Band 14 build-out in that area isn’t being completed for another four years, it would seem that the municipality would consider remaining on Verizon, particularly if they can get identical services (ruthless preemption, apps, interoperability, etc.).  AT&T would be incented to build-out “better” in that area, and all of the entities would then compete on price.

Given AT&T’s statement that it is only going to build-out Band 14 where AT&T does not already has adequate coverage and capacity, one might question if the cost of the multi-year fight to create FirstNet was worth it.  If there isn’t anything special about Band 14, and we can do ruthless preemption, etc. on non-Band 14 spectrum, if Band 14 did not enable anything that couldn’t be done on the rest of a carrier’s network, was the cost of public safety’s T-Band spectrum worth it?  It’s not abundantly clear at this time.

In the meanwhile, it’s important that we do a bit of myth busting about FirstNet.  First(Net), please read some of the myth busting by UrgentComm’s Donny Jackson in this article.  Donny has a great ability to put land mobile radio issues into understandable text.

At one of the FirstNet meetings that I attended, a long time public safety employee believed that if a state opted-in, local public safety was obligated to take service from FirstNet, and narrowband systems would go away.  Not true.  It is readily acknowledged that these systems will operate in parallel, at a minimum until mission critical public safety services (like peer-to-peer networking) become a reality.  That won’t happen for quite a while, and even then there will be a lengthy transition period.

Once these services are available, individual municipalities will have multiple choices: (1) FirstNet and the existing narrowband system; (2) FirstNet alone; (3) An alternative broadband provider and the existing narrowband system; (4) An alternative broadband provider alone; or (5) retaining the existing narrowband system, and not obtaining broadband service at all.

With regard to this last option, it will be interesting to see what traditional land mobile radio manufacturers offer in terms of narrowband equipment in the coming years.  Certainly, a few major manufacturers have agreements with broadband providers, and you’ll see multi-mode equipment.  However, manufacturers without such alliances will hopefully be energized to come up with new and innovative equipment and services to somewhat compete with broadband services, or at least make such equipment so cost competitive as to give a municipality pause before signing up for broadband.  Given the age of the P25 standard, such innovation would be welcome (and will make for exciting discussions at IWCE, which in 2018 will be in Orlando, Florida for the first time in many years.  Of course, IWCE will be after states have made their opt-in or opt-out decisions, but certainly within the zone of municipalities deciding whether to take service.  See you there!

 

 

 

Time To Review Your FirstNet State Plan

I’ve discussed previously the importance of State’s reviewing FirstNet’s plan in depth prior to making a decision.  I’ve emphasized the importance of being able to compare and contrast the FirstNet proposal with other options.  Now that the plans are out, it’s time for action.

In Vermont, a group of firefighters wants the State of issue an RFP for comparison purposes, following the model of several other states.  In Michigan, the State’s Department of Technology, Management and Budget wants the State to review a bid from Rivada to determine whether an opt-in is in the State’s best interests.  These folks (and others) clearly recognize the importance of consideration of options.

It is important to recognize that even if a State opts-in, individual municipalities are not required to take service from FirstNet.  That will be the second layer of review (at some point).  For now, your goal is to ensure that your opt-in decision includes a build-out plan and functionality that best suits your state.  Since these are draft plans, you have a terrific opportunity to ask questions, obtain feedback and negotiate amendments to ensure that your needs, both long term and short term, are met.

In your review, remember that there are big pictures items that are applicable to every state, and items that are specific to your municipality and/or region.  Please don’t forget those local coverage issues.

A good place to start is to discuss what your municipality wants out of this system, and then whether this plan addresses those concerns.  Is having access to broadband video your primary concern?  Do you understand how preemption will work?  Is the coverage sufficient?  How will systems (LTE, LMR, E911, in-building camera access, etc.) tie together to ensure there’s no confusion on scene?  What will you have to provide (personnel or money) to augment the system’s implementation to ensure usability?

Another critical component of these FirstNet negotiations is having the proper team in place.  In 800 MHz rebanding, we saw numerous instances where the municipality’s negotiation team was not adequately represented by counsel steeped in rebanding knowledge.  As a result, some municipalities did not receive what they were due.  While I recognize that this sounds like an advertisement, please recognize that these are extremely complex negotiations on behalf of a State.  Thus, make sure that your negotiation team is composed of personnel with the wide set of qualifications that this particular negotiation requires, including public safety dispatch and at-the-scene experience (including police/fire/transit interoperability), public safety wireless experience, public/private partnerships and high level negotiation experience.  The right team can help ensure the right outcome.

 

Shared Part 90 Spectrum Means Monitoring Before Transmitting

Walkie TalkieOn May 16, 2017, the Federal Communications Commission issued a Notice of Violation (NOV) to Utility Mapping Services Inc. (UMSI) for its operation of a Trimble R8-Model 2 Global Navigation Satellite System (GNSS) Receiver modem on 461.075 MHz, a Part 90 UHF shared frequency, in a manner that caused interference to co-channel users.

By way of background, units such as this Trimble unit are utilized by surveyors.  The UHF radio portion of the unit is utilized for data transfer.  Because the data modem transmits over Part 90 frequencies, a license for that operation must be obtained by the user.

For those not familiar, the license application is submitted to one of the FCC’s designated Frequency Advisory Committees (FAC).  The FAC (also called a Frequency Coordinator) selects an appropriate frequency within the band where the unit operates, and for which the entity has eligibility.  That application is then sent to the FCC for grant.

As a general rule, Part 90 frequencies in the UHF Band (450-470 MHz) are only assigned on a shared basis, pursuant to 47 C.F.R. Section 90.173(a).  Therefore, licensees are expected to cooperate in use of their assigned spectrum, in order to avoid causing harmful interference, pursuant to Section 90.173(b).  Traditionally, this has meant that licensees must “listen” for other users before they transmit (either manually or through electronic means), and limit communications to the minimal practical transmission time, pursuant to Section 90.403(c).  Licensees failing to do so may be fined by the FCC.

It should also be noted that stations on shared frequencies may not continuously transmit.

Thus, it is clear the units such as the Trimble R8-Model 2, when using shared UHF spectrum, must monitor the frequency for co-channel emissions before transmitting.  It doesn’t appear that the units themselves have the ability to do so automatically (Motorola calls it “polite mode” for Motorola equipment), so users must manually monitor before transmitting.  However, given the number of complaints which I’ve heard about in the field, it is clear that many users do not do so.

In the early 2000s, our office, in conjunction with our client, the Personal Communications Industry Association (PCIA, now WIA) attempted to address the issue of low power data systems on Part 90 non-public safety UHF frequencies, by proposing the creation of certain pools of frequencies on what had previously been known at the UHF “offset” frequencies.  With the support of the Land Mobile Communications Council (LMCC), the FCC adopted issues an Order creating these pools.  The pools are as follows:

Group A1 – Coordinated frequencies, voice and non-voice on a co-primary basis. Base, mobile and operational fixed stations authorized of various power levels.  More limited power within 50 miles of the Top 100 major urban areas.  Max 75 foot antenna height.

Group A2 – Similar to A1, without the Top 100 limitation.

Group B – Coordinated frequencies.  However, non-voice operations are primary, and voice operations are secondary.  Six watt power limits for base station, two watts for mobiles. Max antenna height of 20 feet.

Group C – Non-coordinated frequencies for itinerant use (operation of a radio station at unspecified locations for varying periods of time).  Voice and non-voice co-primary.  Six watt and two watt limitations as per Group B.

Group D – Central Alarm frequencies.

As you can see, Group B and C frequencies are the perfect home for these survey operations.  Group B, in particular, is appealing because of the primary non-voice designation.  While monitoring before transmit is necessary to avoid harmful interference to primary users, there is no need with regard to secondary users.  For this purpose, a secondary user may not cause interference, and must accept interference, from a primary user.  Thus, it is highly recommended that survey operations utilize Group B frequencies to the extent possible.

In a “Tech Tips” article for an industry magazine in 2008, Robert Reese reported the difficulty in finding a clear UHF channel to use in California for his Pacific Crest Corporation radios.  He also discussed alternatives.  Either way, it is important that users adhere to the FCC’s Rules when using such devices, in order to avoid the time consuming and potentially expensive NOV process.

Should Your State Opt-Out Of FirstNet?

OK, I admit it, the headline is click-bait.  However, given everyone’s opinion on this, now that AT&T is about to roll out state plans, it really is appropriate to fully discuss at this time.

Right now, the proper answer is “I don’t know.”  And the reason for that non-committal response is several fold: (1) you haven’t seen your state plan, so it’s impossible to know yet if the FirstNet plan makes sense for your state, regardless of what you’ve been told by people “in the know”; (2) every state is different, there cannot be a cookie cutter answer. What works for one state may not work for another; and (3) I don’t know what you’ve done so far to research your options.

This last point is important. Since the legislation was adopted, I have recommended in every FirstNet-related speech that I’ve given that states should act immediately to prepare an opt-out plan. I urged that the plan needed to be ready to compare side-by-side with the eventual FirstNet winning bidder to ensure that the FirstNet deal was the best possible.

Those urging states to not look at anything else other than FirstNet perhaps have never made a “purchase” of this size before. When negotiating a business deal, and frankly that’s what this is, you always want to know upfront your options. And the FirstNet plan for your state might be the best thing since sliced sourdough bread (my fav). But, you don’t know that until you know what else is potentially out there. Further, without knowing your options, you’re in no position to negotiate with AT&T where your state plan falls short, or is missing a crucial consideration specific to your state. In short, by not researching options, you’ve relinquished every piece of negotiating leverage you ever had.

Fortunately, a number of stated heeded the advice, and are well down the road of having every piece of information necessary to make an informed choice. Starting that process now will certainly be difficult to accomplish, but not impossible. However, the limited amount of time to respond to the FirstNet plan mandates immediate action if options are to be reviewed. I’m aware of FirstNet knowledgeable folks such as Andy Seybold working on state reviews, and I suggest the continuation of these efforts.

The band Tower of Power has a song that is titled “A Little Knowledge Is A Dangerous Thing.” When reviewing the FirstNet plan, don’t have a little knowledge, have a lot.

Small Cell Deployment – Your Chance To Provide Input

After Net Neutrality, perhaps the most controversial current proceeding at the Federal Communications Commission is the Broadband Deployment proceeding.  This proceeding deals with how wireless carriers and other tower companies can implement small cell, 5G systems in communities without significant barriers.

This proceeding has pitted numerous parties against each other.  The Federal Government, State Government, Local Government, Carriers, Tower Companies and Local Residents.  Each has a differing interest, and differing views.  Local informational meetings have turned into events that rival Town Halls with Congressional Representatives.

The FCC’s proceeding is an important step in reaching compromise and consensus which takes into account the varying interests of each group.  Another important step was the creation by the FCC of a Broadband Deployment Advisory Committee.  This Committee, originally recommended by the Government Wireless Technology & Communications Association (GWTCA), is a broad-based (no pun intended) group which is set to provide the FCC with needed input by bringing together the disparate groups.

Small Cell deployment has a significant impact on communities, their ability to take advantage of advances in wireless, and importantly the aesthetic impact.  However, there is also an important future impact on the ability of communities to participate in smart cities initiatives.  For there to be truly interconnected cities, as envisioned by many city planners, the ability to deploy wireless facilities must be considered as a crucial element to success.

On April 21, 2017, the FCC issued a Notice of Proposed Rule Making in the proceeding, and Comments are due on June 15, 2017. For the FCC, the most impactful comments are those that give thoughtful consideration to all the issues posed and bring real world solutions to this difficult problem.