1. TechComm Industry Update PATTON BOGGS LLPPatton Boggs TechComm Industry UpdateJuly 20, 2012 July FCC Open Meeting The following items were discussed at the Federal Communication Commission’s (FCC) July 19, 2012 Open Meeting: • Next-Generation Mapping Presentation: The FCC staff presented new mapping tools available at FCC.gov/maps, and discussed how to use mapping tools to increase transparency and data-driven decision-making. • Wireless Broadband White Spaces Presentation: The Wireless Telecommunications Bureau and the Office of Engineering & Technology provided an update on new technological developments that will permit increased use of wireless broadband white spaces. • Measuring Broadband America Report 2012 Presentation: This presentation updated the FCC’s Report from last year that tested and reported broadband speeds and performance data in collaboration with Internet Service Providers. Items Tentatively Proposed for August FCC Open Meeting The following items are tentatively scheduled for the FCC’s August 3, 2012 Open Meeting: • Cable Television Technical and Operational Requirements: The FCC will consider an NPRM to update its rules to reflect the cable industry’s transition from analog to digital operations. • Removing Barriers to Wireless Backhaul: The FCC will consider an order and NPRM that seeks to remove regulatory barriers to make better use of Fixed Service (FS) spectrum and provide additional flexibility to enable FS licensees to reduce operational costs and facilitate the use of wireless backhaul in rural areas. Television Stations Must Start Placing Local Public Files Online Beginning August 2, 2012 Beginning August 2, 2012, television stations will be required to post new local public file (LPF) documents to the FCC’s LPF website and will have six months to upload existing LFP documents to the FCC’s LPF website. Only affiliates of the four top television networks in the top 50 markets are required to post their political file materials beginning August 2. The remaining television stations will be required to post their political file materials beginning July 1, 2014. Television stations are not required to post any of their political file materials dated before August 2.This information is not intended to constitute, and is not a substitute for, legal or other advice. You should consult appropriate counsel or otheradvisers, taking into account your relevant circumstances and issues. While not intended, this Update may in part be construed as anadvertisement under developing laws and rules. This Update can be accessed at: http://www.pattonboggs.com/newsletters/techcomm/2012_07_19_TechCommUpdates.htmYou may receive this Update from other people, which often occurs. To SUBSCRIBE or change your address, firstname.lastname@example.org. To UNSUBSCRIBE or OPT-OUT, simply e-mail email@example.com with "UNSUBSCRIBE" in thesubject line.
2. Patton Boggs LLP TechComm Industry UpdateThe FCC held a public demonstration of its LPF website on July 17, 2012. The FCC rejected a request filed bythe National Association of Broadcasters (NAB) to stay the FCC’s online LPF rules. NAB also filed a Petitionfor Review and Emergency Motion for Stay Pending Judicial Review with the U.S. Court of Appeals for theD.C. Circuit. NAB claims that the rules are arbitrary and capricious, and inconsistent with the BipartisanCampaign Reform Act. The organization further claims that the “balance of hardships and the public interestalso favor a stay.”Draft Eligible Service List for Funding Year 2013 for the Schools and Libraries or E-rate ProgramAvailable for CommentThe Funding Year (FY) 2013 E-rate Program draft eligible services list (Draft ESL) was recently released bythe FCC for comment. The FCC reorganized the Draft ESL to “reflect how school and library applicants planfor and seek technology and services” but did not make any service eligibility changes from the FY 2012 ESL.Priority One eligible services are divided into three categories: Communications Connectivity (digitaltransmission services, fiber and Internet access), Voice Services (telephone services, telephone servicecomponents and interconnected VOIP), and Other Designated and Related Services (E-mail, voice mail andweb hosting). Priority Two eligible services are also divided into three categories: Internal Connections, BasicMaintenance of Internal Connections, and Miscellaneous. Comments and reply comments are due by August6, 2012, and August 11, 2012, respectively.First Responder Interoperability Requirements Transmitted to FirstNetThe FCC formally transmitted technical standards to govern interoperability on the 700 MHz nationwide publicsafety broadband network to the First Responder Network Authority (FirstNet), the authority charged withbuilding the network. Under the Middle Class Tax Relief and Job Creation Act that Congress passed earlierthis year, the FCC was asked to assemble a board of experts, the Technical Advisory Board for FirstResponder Interoperability, to develop minimum technical requirements to ensure a nationwide level ofinteroperability. As required by the law, FirstNet must incorporate all of the recommendations that are aimedat ensuring interoperability into their requests for proposals (RFPs). Commissioner Jessica Rosenworcelpraised the Interoperability Board for doing “a stellar job” and noted that the Interoperability Board’srecommendations have received widespread recognition for their technical rigor and for providing FirstNet withthe flexibility necessary to get the network up and running. Those guidelines had been prepared and given tothe FCC in May by the Interoperability Board that was comprised of state and local officials, public safetyrepresentatives, company executives and others. Now, FirstNet must take the requirements and, withoutmaterial change, incorporate them into the RFPs on construction, operation and management of the network.FCC Workshop on TV Broadcaster Relocation Fund and Incentive AuctionsThe FCC recently held a workshop to discuss the structure of the TV Broadcaster Relocation Fund, which willbe used to reimburse broadcasters for their costs associated with channel reassignments as a result of therepacking authorized by the Middle Class Tax Relief and Job Creation Act to facilitate incentive auctions.Broadcasters emphasized the need for the FCC to build flexibility into the process and to include enoughfunding to cover hidden costs. Wireless providers stressed that they also need time for planning and certaintyas to when the spectrum will be available.FCC Enforces Sirius XM Radio and Comcast-NBCU Merger ConditionsThe FCC and Sirius XM Radio entered into a Consent Decree terminating the FCC’s investigation intowhether the company raised its prices in violation of the pricing merger condition included in the FCC’sapproval of the Sirius-XM Radio merger. Sirius-XM agreed to a $240,000 forfeiture and the pricing mergercondition was not extended. Page 2 of 8
3. Patton Boggs LLP TechComm Industry UpdateComcast entered into a Consent Decree with the FCC because the company allegedly has not adequatelymarketed its standalone broadband services as required by a condition of the FCC’s approval of theComcast/NBCUniversal merger. Comcast agreed to an $800,000 forfeiture and a one year extension of themerger condition. Chairman Genachowski said: “Today’s action demonstrates that compliance withCommission orders is not optional. The remedies announced today will benefit consumers and fostercompetition, including from online video and satellite providers, by ensuring that standalone broadband is trulyavailable in Comcast’s service areas.”FCC v. Fox Indecency Decision – “Void for Vagueness”The Supreme Court ruled in FCC v. Fox Television Stations, Inc. that the FCC’s application of its 2004 revisedindecency policy to events that occurred in 2002 and 2003 did not provide adequate notice under the DueProcess clause of the U.S. Constitution’s Fifth Amendment. The FCC eliminated the fleeting expletiveexemption from its indecency policy in 2004. Writing for the Court in a 7-0 decision, Justice Kennedyexplained that the FCC’s application of its 2004 indecency policy to broadcast content from 2002 and 2003failed under the Court’s “void for vagueness” doctrine, because neither Fox nor ABC could have known in2002 or 2003 what conduct the FCC’s indecency policy proscribed. The narrow decision does not address theunderlying constitutionality of the FCC’s indecency policy but, it did state that the FCC is “free to modify itscurrent indecency policy in light of its determination of the public interest and applicable legal requirements.”Court Upholds FCC Rules to Reallocate USF Funds for BroadbandThe U.S. Court of Appeals for the D.C. Circuit upheld the FCC’s order to allocate reclaimed USF funds fromwireless carriers to the Connect America Fund, which supports the expansion of broadband service. ChairmanGenachowski stated: “Funding previously relinquished by some carriers has been used as a fiscallyresponsible down payment on those reforms. The Court’s opinion ensures that the FCC will continue to beable to use funds on hand to rapidly implement the Connect America Fund and spur billions of dollars inprivate investment, without increasing contributions paid by consumers and businesses.”Future of Wireless Broadband ForumAt the FCC’s Future of Wireless Broadband forum, participants discussed the impact of developments infiltering technology on band planning, LTE trends and their implications for future band plans, and networkoperator perspectives on band plan design. In his opening remarks, FCC Chairman Genachowski stressedthe need to change the way parties think about wireless band plans as we migrate from voice to data. Othertopics included the role of guard bands, standard setting, whether more spectrum should be set aside fordownlink operations than for uplink, and device interoperability.Executive Order: Accelerating Broadband Infrastructure DeploymentPresident Barack Obama issued an Executive Order focusing on broadband infrastructure deployment onfederal land, buildings and rights of way; tribal areas; and underserved communities. In general, executivedepartments and agencies are to facilitate the expansion of broadband infrastructure, establish a multi-agencyworking group to facilitate broadband deployment, and review “dig once requirements” for broadbanddeployments.RUS Broadband AmendmentThe Senate approved a broadband-related amendment and rejected two others as part of its consideration ofthe Farm Bill. The approved amendment from Sen. Mark Warner (D-VA), requires the Department ofAgriculture to ensure at least 25 percent of households in a proposed project area qualify as unserved or Page 3 of 8
4. Patton Boggs LLP TechComm Industry Updateunderserved. In the past, critics have argued that too much of this government money went to areas thatalready have sufficient connectivity. The amendment also calls for government accountability by boostingreporting requirements, and it requires that more robust information be included in broadband mapping. Criticsof the Warner amendment, however, say its conditions could encourage overbuilding and that eligibility andreporting requirements will discourage applications, thereby leading to delays in rolling out broadband tounderserved and unserved areas. Two other broadband amendments, sponsored by Sen. Jim DeMint, wererejected. Both amendments essentially aimed to reign in or lower broadband-related spending by theAgriculture Department.Telseven $1.8 million USF Contribution NAL for Forfeiture – FCC Pierces the Corporate VeilThe FCC issued a Notice of Apparent Liability for more than $1.7 million against Telseven, LLC, for failure tomake required contributions related to the Universal Service Fund (USF), the North American NumberingPlan, and local number portability. The proposed fine included an upward adjustment of approximately$500,000 to the base forfeiture, representing one-half of the largest amount of the company’s unpaid USFcontributions. Notable was the FCC’s proposal to “pierce the corporate veil” in the context of a forfeitureproceeding, and hold Telseven’s sole officer and director individually liable for the actions of Telseven, eventhough Telseven is 100 percent owned by a revocable trust. This is a sharp departure from prior practice. TheFCC stated that it could “pierce the corporate veil” in this context based on (1) a common identity of officers,directors or shareholders; (2) common control between entities; and (3) a need to preserve the integrity of theCommunications Act and prevent entities from defeating its purposes.FCC to Host Supplier Diversity Conference and WorkshopOn July 20, 2012, the FCC will host a supplier and diversity conference workshop for small, minority-ownedand woman-owned businesses. The agenda includes speakers from private telecommunications andtechnology companies, the Department of Defense, the Department of Transportation and the FCC. Topicswill include contracting and procurement best practices. One-on-one counseling for companies with thespeakers will also be available during the afternoon session.Cybersecurity Bill to be ConsideredThe Senate could take up S. 2105, the Cybersecurity Act of 2012, on the floor as early as next week.However, the main issues of contention continue to be (1) whether standards for critical infrastructure will bevoluntary or mandatory, and (2) privacy/civil liberties issues concerning information sharing. In the meantime,Army General Keith Alexander, Head of the U.S. Cyber Command and the National Security Agency (NSA)spoke to Congress stressing the need for immediate passage of the bill before there is a crisis.FCC Oversight HearingAll five FCC Commissioners testified at a House Subcommittee on Technology and Communications hearingtitled “Oversight of the Federal Communications Commission.” Major themes of the hearing included theupcoming incentive auctions, special access rules, and the suspension of BTOP grants. Chairman JuliusGenachowski stated that proposals for the design of the incentive auctions would be considered by this fall.Rep. Doris Matsui (D-CA) suggested that 1755-1780 MHz spectrum be reallocated by the government andpaired in the auctions. Several members of Congress spoke vehemently against the proposed suspension ofBTOP grants; namely Reps. Greg Walden (R-OR) and Joe Barton (R-TX). Rep. Henry Waxman (D-CA) askedthat the FCC carefully scrutinize Verizon’s proposed deal with SpectrumCo. There was a consensus amongthe Commissioners and the Committee that the FCC needs more data to reconsider its special access rules.New U.S.-Mexico Spectrum Sharing Agreements Page 4 of 8
5. Patton Boggs LLP TechComm Industry UpdateThe FCC announced two Protocols between the U.S. and Mexico that provide for sharing spectrum in the 800MHz and 1.9 GHz bands along the U.S.-Mexican border. The execution of these agreements marks thebeginning of the final phase for the nationwide rebanding of the 800 MHz band. The Protocols will helpsupport commercial broadband services and public safety mission-critical communications along the U.S.-Mexico border and throughout the U.S. Specifically, the new 800 MHz Protocol (1) allots band segmentsbetween the U.S. and Mexico, (2) specifies technical parameters for operation on these band segments within110 kilometers of the common border and (3) creates a bi-national Task Force to support the transition ofincumbent operators along the border to the new allotment plan.Senate Commerce Privacy Protections HearingThe Senate Commerce, Science and Transportation Committee held a hearing titled “The Need for PrivacyProtections: Is Industry Self-Regulation Adequate?” The key issue at the hearing was the extent to which thegovernment can and should regulate data collection on the Internet to protect consumer privacy rights. Sens.Kelly Ayotte (R-NH) and John Thune (R-SD) expressed concern that any legislation by Congress would stifleinnovation in the Internet industry. Sen. Amy Klobuchar (D-MN) expressed a belief in her opening statementthat industry actions are moving in a positive way without government regulation, but that consumers need alarger voice in what happens to their data online. Committee Chairman Jay Rockefeller (D-WV) was skepticalthat the industry would self-regulate and saw a need for government legislation to protect consumer privacy.Comment Deadline Set for Requests for an Exemption from FCC Closed Captioning RulesAs we previously reported, the FCC concluded that it did not provide a reasoned decision for previouslygranted requests for exemption from its closed captioning rules. The FCC invited parties to file new requestsfor exemption and terminated previously granted requests. The FCC now seeks comment on the first set ofrequests for exemption of its closed captioning rules. Comments and oppositions are due by August 6, 2012.FCC Video Description Rules Now EffectiveThe FCC’s video description rules are now effective for the top four broadcast affiliates (NBC, ABC, CBS andFox) in the top 25 markets and for multichannel video programming distributor (MVPD) systems with morethan 50,000 subscribers. The rules require audio-narrated descriptions of a television program’s key visualelements inserted into natural pauses in a program’s audio soundtrack. The top four broadcast affiliates in thetop 25 markets are now required to provide 50 hours per calendar quarter of video-described prime timeand/or children’s programming. MVPD systems with more than 50,000 subscribers that carry any of the topfive non-broadcast networks (the Disney Channel, Nickelodeon, TBS, TNT and USA) must also provide 50hours per calendar of video-described prime time and/or children’s programming. In most circumstances,covered broadcasters and MVPD systems are required to pass through video descriptions and include videodescriptions in any reruns of such programming.FCC Seeks Comment on Public Safety Answering Point (PSAP) Do-Not-Call RegistryThe FCC adopted a Notice of Proposed Rulemaking to establish rules for a PSAP Do-Not-Call Registry asrequired by the Middle Class Tax Relief and Job Creation Act of 2012. The agency seeks comment on anumber of issues related to the creation and maintenance of a PSAP Do-Not-Call Registry. In particular, theFCC is concerned about the unauthorized disclosure and distribution of PSAP telephone numbers on theRegistry. Comments and reply comments are due by July 23, 2012 and August 6, 2012, respectfully.FCC Allocates Additional Spectrum for Vehicular Radar Systems Page 5 of 8
6. Patton Boggs LLP TechComm Industry UpdateThe FCC released an order modifying the FCC’s rules to enable enhanced vehicular radar technologies in the76-77GHz band for improved collision avoidance and driver safety. Vehicular radars can determine the exactdistance and relative speed of objects in front of, beside, or behind a car to improve the driver’s ability toperceive objects under bad visibility conditions or objects in blind spots. In the order, the FCC comments onthe increasing use of automobile radar systems and the likelihood that such systems will become relativelycommonplace in the next few years. The additional spectrum will allow the automobile industry to continuedeveloping new and improved vehicular radar systems without causing a measurable increase in potentialinterference to licensed services.Equipment Certification Changes and OrderThe FCC approved changes to Part 2 of its rules in order to increase the supply of FCC-issued grantee codesfor radiofrequency (RF) devices. The FCC issues a unique code to each such device as part of its equipmentauthorization program. By removing the restriction that the grantee codes must consist of only threecharacters, the FCC greatly increased the supply of such codes so as to have new ones to assign to partiesthat wish to certify new equipment.FCC Extends Cramming FNPRM Reply Comment DeadlineThe FCC extended the deadline for filing comments on its Further Notice of Proposed Rulemaking (FNPRM)that proposed additional rules to help consumers prevent and detect unauthorized charges on their telephonebills, also known as “cramming.” Reply comments are now due by July 20, 2012.IP Relay Procedures Modified to Prevent Fraud and AbuseTo prevent misuse of the Internet Protocol Relay Service (IP Relay), the FCC adopted revised proceduresprohibiting IP Relay providers from processing non-emergency IP Relay calls from new users without firstverifying the new user’s registration information. The revised procedures eliminate the ability of new users tomake IP Reply calls as guest users prior to the completion of the registration process. The revised procedureswere adopted to minimize IP Relay fraud and abuse.VOIP Outage ReportingEarlier this year, the FCC mandated that interconnected VOIP providers report systems outages to the FCC inaccordance with the FCC’s existing outage reporting rules. VOIP providers are required to report outagesusing the FCC’s Network Outage Reporting System (NORS). The FCC’s voluntary Disaster InformationReporting System (DIRS) is now equipped to accept outage reports from interconnected VOIP providers.During emergencies or times of crisis, the FCC may waive NORS filing requirements for providers that arefiling more detailed DIRS reports.Microwave Bands Study – Comments SoughtThe FCC is seeking comments on microwave coordination rejection rates for common carrier microwavesystems in the 11 GHz, 18 GHz and 23 GHz bands. The definition of “rejection rate” includes applicationsmade to the FCC and requests made to third-party coordinators for spectrum. Comments are due by July 20,2012. The report is being prepared at the direction of the Middle Class Tax Relief and Job Act.Sunset of FCC Viewability Rule Page 6 of 8
7. Patton Boggs LLP TechComm Industry UpdateThe FCC’s viewability rule requires cable operators with hybrid systems to carry digital must-carry signals inan analog format so the channels are available to analog-only subscribers. The FCC recently reviewed itsviewability rule and determined that with the increased availability of no-cost and low-cost digital set-up boxes,its viewability rule is no longer necessary. A six month sunset period was adopted ending on December 12,2012. For small cable system operators, the FCC extended for three additional years its high definition (HD)carriage exemption, which allows such operators to carry HD signals in standard definition (SD) digital and/oranalog format. ****If you have questions regarding any of the items discussed above, or if you are interested in filing commentsor receiving copies of filed comments in any of the FCC proceedings mentioned, please contact the PattonBoggs TechComm practice group. More information about our team can be foundat www.pattonboggstechcomm.com. Page 7 of 8
8. Patton Boggs LLP TechComm Industry UpdateIf you have any questions about the foregoing or if you require additional information, please contact:PATTON BOGGS TECHCOMM PROFESSIONALS - http://www.pattonboggstechcomm.com/professional/Jennifer Richter Jennifer A. Cetta202-457-5666 firstname.lastname@example.org email@example.comPaul C. Besozzi Mark C. Ellison202-457-5292 firstname.lastname@example.org email@example.comRyan W. King Gregory M. Louer202-457-5312 firstname.lastname@example.org email@example.comJanet Moran Maria C. Wolvin202-457-5668 firstname.lastname@example.org email@example.comMonica Desai Carly T. Didden202-457-7535 firstname.lastname@example.org email@example.comCynthia Schultz202firstname.lastname@example.org Page 8 of 8