As the DOD completes its efforts to enable sharing with non-federal terrestrial communications systems, the FCC will consider an Order to adopt its proposal to remove the secondary, non-federal radiolocation and amateur service allocations from 3300-3550 GHz as a first step toward making additional spectrum available for commercial wireless communications and federal/non-federal sharing. The draft Order would allow incumbent licensees to continue in-band operations on a time-limited basis while the FCC finalizes plans to reallocate 3450-3550 MHz. In general, the FCC seeks to maximize the entire 3100-3550 MHz band for potential flexible use operations in the future. Accordingly, non-federal radiolocation licensees in the 3300-3550 MHz range would be transitioned to the 2900-3000 MHz radiolocation band on a secondary basis, and amateur licensees currently in 3300-3500 MHz would have to move to other existing amateur radio allocations they choose. Moving existing radiolocation operations below 3000 MHz is characterized as a measure to retain the potential for future flexible use licensing of the 3100-3300 MHz band, in addition to 3300-3550 MHz. The draft Order would also permit continued experimental radiolocation operations under Part 5 – something that Lockheed Martin and Boeing pushed for ­­– under the same limitations as they are allowed in other flexible use bands requiring operations on a non-interference basis.

The FNPRM would seek comment on proposed subsequent steps: allocation changes to enable future commercial flexible use (except aeronautical mobile) where possible on an exclusive, not shared basis; coordination frameworks between flexible users and federal incumbents; relocation logistics for non-federal secondary users (amateur radio operators and non-federal radiolocation); and technical, licensing, and operating rules for new flexible use licensees including possible protections to flexible use licensees in the 3450-3550 MHz band from federal operations in adjacent bands, i.e., below 3450 MHz and above 3550 MHz. The FNPRM proposes licenses issued by auctions in 20 megahertz blocks on an exclusive geographic basis. The proposed sharing mechanism, on which the FCC would seek comment, would prohibit incumbent federal systems operating in the 3450-3550 MHz band from causing harmful interference to co-band non-federal operations in the band, except that non-federal systems would not be entitled to protection from federal operations and may be subject to other restrictions (1) in to-be-established limited Cooperative Planning Areas, such as military training facilities, test sites, Navy home ports, and shipyards; (2) in Periodic Use Areas where DoD will need episodic access to all or a portion of the band; and (3) during times of National Emergency.

The FCC hopes that federal agencies will file transition plans for the 3450-3550 MHz band by April 2021 and that licensed flexible use operations will commence as soon as early 2022.

Meanwhile, this is not necessarily the final chapter of opening up spectrum for flexible use in the 3 GHz Band. NTIA’s July 2020 report suggested that some federal/non-federal spectrum sharing below 3450 MHz might be possible, but would require additional analysis. The report identified four principal areas for further exploration of additional sharing in 3100-3450 MHz: (1) a more in-depth assessment of the extent each of the federal systems is used; (2) the development of a reliable mechanism for commercial operations to coordinate when federal systems are operating; (3) assessment of the potential for relocating federal systems, including nationwide airborne systems; and (4) consideration of improved out-of-band emission limits for commercial operations. As noted above, the FCC’s proposals in the draft Order and FNPRM anticipate prospects for making even more 3 GHz flexible use spectrum available in the future.

Part 15 of the FCC’s rules allow unlicensed white space devices to operate at locations on frequencies not in use by licensed services. Twelve years ago, the FCC authorized unlicensed white space device operations for the first time on television channels not being used locally by broadcasters and associated service licensees. The devices are required to obtain a list of available channels and power levels for use at their particular location from FCC-approved entities that maintain accessible databases. Fixed devices must also incorporate geo-location capability. Portable devices must include geo-location and database access capabilities or, alternatively, acquire a list of available channels via another device with geo-location ability and access to a database. While several orders in the intervening years have been designed to increase flexibility and promote additional opportunities for deployment of such devices, such as relaxed technical accommodations for devices in rural and underserved areas, their use has fallen somewhat below initial aspirations.

Last May, Microsoft Corporation filed a petition for rulemaking requesting that the FCC provide yet additional flexibility for white space device operations. Many commenters filed in support, but the National Association of Broadcasters (“NAB”) raised concerns, as did stakeholders with interests in Wireless Medical Telemetry Service (“WMTS”) operations on Channel 37 and proponents of wireless microphones using spectrum not being used by other licensed services.

Proposed New Power and Height Limits for White Space Devices in “Less Congested” Areas

Now, after the NAB and Microsoft have worked together to resolve most of their differences, the FCC proposes to permit fixed white space devices in spectrally “less congested” areas over larger distances through using higher transmit powers (16 v. 10 W EIRP) and deploying antennas at greater heights above average terrain (up to 500 meters from a maximum of 250 meters) – while maintaining the existing one-watt transmitter conducted power limit for fixed devices and proposing certain adjustments when higher gain antennas are used. This flexibility would come with the need to maintain greater separation distances from authorized services, although the FCC also invites comment about even greater flexibility in powers used and antenna heights and whether coordination or notification procedures should be adopted in combination with the proposed relaxed requirements.

Given the foregoing proposals, the FCC, in the NPRM, additionally inquires whether it should relax the limit on antenna height above ground level, including potentially in all areas within the United States. But current power and height limits would remain in Channel 36, which the FCC believes would be adequate to protect WMTS and Radio Astronomy operations in Channel 37.

As an overarching matter, the FCC also inquires whether it should change the definition of “less congested” areas which now are those areas where, within the band of intended operation, at least half of the TV channels that will continue to be allocated and assigned only for broadcast service are unused for broadcast and other protected services, and are thus available for white space device use. For example, the FCC asks whether “less congested” areas should be defined, in part, based on population density.

In conjunction with these proposals, the FCC will consider making additional changes to the protection criteria for operations in the TV bands other than broadcasting, such as TV translator receive sites, Low Power TV (including Class A) receive sites, Multichannel Video Programming Distributor (“MVPD”) receive sites, fixed Broadcast Auxiliary Service (“BAS”) links, the private land mobile radio and commercial mobile radio services (“PLMRS” and “CMRS”), and licensed wireless microphones.

Potential Operation of White Space Devices on Mobile Platforms in Geo-Fenced Locations

Additionally, the NPRM proposes to permit higher-power operation of white space devices on TV Channels 2-35 on mobile platforms inside “geo-fenced” areas (within “less congested” areas) enforced by incorporated geo-location capabilities, e.g., GPS coupled with a database, and new operational requirements, such as prohibiting operation on board aircraft or satellites to limit the potential for interference. The FCC seeks comment on a wide variety of other questions related to permitting wider deployment of white space devices on mobile platforms, including limitations on the size of the area over which a higher-power mobile device could operate, changes to the databases used for white space devices, and other possible safeguards.

Prospective Changes That Might Propose Use of White Space Devices for IoT

The FCC also hopes to facilitate innovative narrowband IoT services by considering certain changes to the power spectral density (“PSD”) limits applicable to white space devices in the TV bands. Matters raised by the NPRM include a revised definition of “narrowband” white space devices and spectrum utilization limits, while the FCC leans toward permitting manufacturers and standards groups to develop their own protocols to prevent multiple devices from transmitting simultaneously and interfering with each other without a regulatory mandate. As with all of the other areas under consideration in the proceeding, the FCC asks whether there are other rule modifications needed to promote narrowband operations while ensuring protection of authorized services that operate in the TV bands from harmful interference potentially caused by narrowband white space devices.

Possible Flexibility for White Space Devices to Operate Adjacent to Occupied TV Channels

Further, the FCC seeks comment about higher-power white space device operation within the service contour of an adjacent-channel TV station. Generally, white space device operations above 40 milliwatts EIRP must generally operate outside the protected contours of adjacent-channel TV stations, although fixed white space devices may operate within the protected contour of adjacent-channel TV stations with a power level of 100 milliwatts EIRP when the white space device operates in a six-megahertz band centered on the boundary of two contiguous vacant channels, which requires three contiguous vacant channels available for use. Microsoft noted that these conditions are not always present and the FCC should therefore consider other ways to permit higher-power operation of white space devices when adjacent TV channels are occupied, such as more sophisticated location-determining computer models (e.g., Longley-Rice) and consideration of improved selectivity in next-generation TV receivers. NAB opposes any consideration of this matter – the primary area where Microsoft and the broadcasters could not reconcile their differences over Microsoft’s proposals.

Interest in Microsoft’s proposals has already been considerable, with almost two dozen parties commenting. There is every reason to expect that a similar level of participation will emerge during the rulemaking. Manufacturers of white space devices, developers of agricultural, mining, construction, and other IoT applications, and potential users of these devices should be especially interested, as well as broadcasters and those operating in the authorized services in the TV bands.

The CAF provides support to broadband service providers to deploy networks in rural and other high-cost service areas. In addition to meeting their deployment obligations, CAF recipients must show that they provide broadband services meeting certain performance requirements that vary by CAF program. Last year, the FCC established uniform testing procedures for CAF recipients to demonstrate that they meet the relevant performance requirements. The testing requires CAF recipients to measure the speed and latency of their broadband services to see if they meet the applicable program benchmarks. Service providers unable to meet their performance requirements lose funding on a sliding scale based on how far they miss the benchmarks. The FCC initially established a July 1, 2020 deadline for CAF recipients to report their broadband performance testing results. However, many service providers raised concerns regarding both the timing and procedures for testing. In particular, these stakeholders noted that the July 1, 2020 reporting deadline would come before many CAF recipients are required to deploy most of their networks. These service providers also took issue with the current cost and availability of testing equipment and requested more time to become familiar with the CAF broadband performance testing process.

The Order attempts to address CAF recipients’ concerns in two ways. First, the FCC will delay the start of testing reporting for many CAF recipients to better align with the deployment deadlines for the different CAF programs. For example, the FCC is in the process of authorizing funding for winning bidders at the CAF Phase II auction that closed last year. These newly-authorized service providers would have at least until 2022 to deploy 40% of their broadband networks. As a result, the FCC will delay the start of testing reporting for CAF Phase II auction winners until January 1, 2023, to ensure a sufficient sample size. Second, the FCC will create mandatory pre-testing periods for CAF recipients to see how their networks and testing equipment perform without risk of losing support for missing the applicable speed and latency program benchmarks. The pre-testing period also will provide time for the cost of testing equipment to decrease and the availability of such equipment to increase. Note that the FCC will not delay the July 1, 2020 broadband performance testing start date for recipients of CAF Phase II model-based support. CAF Phase II model-based support recipients generally are large price-cap carriers that must deploy 80% of their networks by the end of 2020 and that have prior broadband testing experience. A summary of the new pre-testing and testing start dates for the major CAF programs is below:

CAF Program	Pre-Testing Start Date	Testing Start Date
CAF Phase II (model-based)	January 1, 2020	July 1, 2020
Rural Broadband Experiments	January 1, 2021	January 1, 2022
Alternative Cost-Model I	January 1, 2021	January 1, 2022
Alternative Cost-Model II	January 1, 2022	January 1, 2023
CAF Phase II (auction)	January 1, 2022	January 1, 2023

The Order also provides more flexibility in CAF broadband performance testing by, among other things, expanding the number and types of locations that can be used as testing endpoints, clarifying that the same location can be used for both speed and latency testing, and making the speed and latency testing timeframes less rigid. These changes should help lower the compliance burdens on smaller providers.

You will find more details on the significant May meeting items after the break:

China Mobile Authorization Denial: The draft Order would reject China Mobile USA’s application for authority to provide telecommunications services between the United States and foreign points. The FCC would find that, while foreign government control of a carrier is not (by itself) grounds for denial, the Chinese government’s ultimate control of China Mobile USA could result in covert monitoring and disruption of U.S. communications networks. The FCC also would note prior challenges with prosecuting Chinese-owned companies for violations, even when such entities are incorporated under U.S. law. Unlike prior grants of authority involving foreign-owned carriers, the FCC would conclude that the pervasiveness of Chinese government control over China Mobile USA undermines any potential mitigation measures the company could implement to address its national security concerns.

Shared Use of the 1675-1680 MHz Band: The draft Notice of Proposed Rulemaking (“NPRM”) would request input on permitting fixed/mobile wireless services (except aeronautical mobile services) to share the 1675-1680 MHz band on a co-primary basis with incumbent federal weather monitoring operations. The item appears to be a response to language in President Trump’s proposed 2020 budget that would effectively require the Commission to act on a petition filed by Ligado Networks by requiring the FCC to auction this spectrum for wireless broadband use subject to sharing arrangements with Federal weather satellites. Satellite and weather data stakeholders have previously opposed Ligado’s use of the 1675-1680 MHz band because of concerns that its use would result in harmful interference to meteorological satellites that provide real-time weather and related environmental information. Non-federal operators would be required to comply with power limits and other restrictions designed to protect federal users in the band from harmful interference. The FCC would propose licensing the spectrum in unpaired five-megahertz blocks on a partial economic area basis through competitive bidding. The spectrum auction likely would take place in 2020.

Toll Free Number Auction: The draft Public Notice would set the stage for the auction of over 17,000 numbers in the recently-opened 833 toll free code. While the FCC traditionally assigned toll free numbers on a first-come, first served basis, it adopted rules last year to allow for auctions to improve efficiency and fairness in the toll free number assignment process. The Public Notice would request comment on the application, bidding, assignment, and payment procedures for the auction. Under the FCC’s plan, government entities and non-profit health/safety organizations could petition the agency to set aside specific 833 toll free numbers for their use. The auction would consist of a single round overseen by Somos, Inc., the Toll Free Numbering Administrator. Winning bidders would be able to sell the rights to their toll free numbers through secondary market transactions following the auction. The FCC has not indicated when it expects the auction to occur.

VRS Reform: The draft Order and Further NPRM would facilitate direct video calling between VRS users and customer support call centers by allowing such centers to list their videophones in the VRS numbering directory. To address potential program fraud, the item would require per-call validation of VRS user registrations and force VRS providers to register enterprise and publicly-available videophones. In addition, the FCC would prohibit VRS providers from offering non-VRS-related inducements to encourage customers to sign up for their services. The draft item also would request input on whether the FCC should make permanent a pilot program allowing VRS calls to be handled by at-home interpreters. The item would further ask whether the FCC should allow VRS providers to offer service to new users pending identity verification and require users to “log-in” before using enterprise and publicly-available videophones.

2019 Regulatory Fee Assessment: The draft NPRM would seek comment on the FCC’s proposed collection of $339,000,000 in regulatory fees for fiscal year 2019. The fees would be due in September 2019 and generally would follow the methodology used in past collections. Nearly all service categories would see at least a slight increase to their regulatory fees in order to cover the $16 million projected increase to the agency’s budget and operators should review the NPRM’s proposed fee schedule for the expected impact to their services.

Rounding out the major actions that will be voted on later this month at the Open Meeting, the FCC released a draft item that would offer regulatory relief to rate-of-return carriers providing Business Data Services (“BDS”). The proposed items are sure to impact every sector of the communications industry, from the largest wireless carriers to the smallest broadband providers and device manufacturers to business, industrial, and public safety radio users, while potentially transforming large-scale data transport services.

Enabling Unlicensed Use of the 6 GHz Band: The FCC has long been pressed to expand unlicensed use of the 6 GHz Band. It now seems poised to commence a rulemaking to consider just that, while ensuring incumbent licensees are protected. The draft proposed rulemaking would allow unlicensed devices to operate in the 6 GHz Band, subject to certain restrictions that vary depending on the specific frequencies used. The FCC proposes that devices using the 5.925-6.425 GHz and 6.525-6.875 GHz sub-bands would only be allowed to transmit if an automated frequency control (“AFC”) system determines that such use will not cause harmful interference. The FCC noted that these sub-bands currently are occupied by licensees operating point-to-point microwave links and some satellite systems. Meanwhile, devices using the 6.425-6.525 GHz and 6.875-7.125 GHz sub-bands would only be allowed to operate indoors and at lower power levels, but use of these frequencies would not depend on an AFC system. The FCC asserted that these sub-bands are used for mobile and satellite services whose itinerant operations make the use of an AFC system impracticable, while the proposed operating restrictions would seem to offer sufficient protection to incumbents.

Reforming the 3.5 GHz Band Rules: Major wireless carriers have peppered the FCC for almost two years with proposed changes to the geographic license areas for PALs, favoring auctions over larger geographic areas, with longer license periods and expectations of renewal. Smaller providers have supported retaining the smaller census tract licenses adopted in the original PAL framework several years ago. The FCC draft order contains a compromise approach that would issue PALs across the country at the county level. The FCC also would increase the license term for PALs from three years to ten years and make PALs renewable in order to foster long-term investment. Moreover, the FCC would seek to promote greater spectrum utilization through the enhancement of secondary markets in PALs by permitting partitioning and disaggregation of the licenses.

Expanding PLMR Operations in the 800 MHz Band: The FCC has worked for years to increase the efficiency of PLMR operations in the 800 MHz Band. A draft order would, among other things, add 318 new “interstitial” PLMR channels in the 800 MHz Band and terminate a freeze put in place in 1995 that prevented PLMR licensees from gaining access to other license category pool frequencies the 800 MHz Band without a waiver. The FCC also would extend conditional licensing authority above 470 MHz to PLMR stations that operate in the 800 MHz Band and the 700 MHz narrowband, allowing entities to operate for up to 180 days while their applications remain pending. In addition, other changes included in the draft include making new channels available in the 450-470 MHz band for industrial/business radio use in gaps located between PLMR spectrum and other services.

Restructuring Rate-of-Return BDS: The FCC took action in 2017 to deregulate most BDS, which provide dedicated point-to-point transmissions at guaranteed speeds over high-capacity data connections for major businesses, governments, and other large institutions. Under the draft order and proposed rulemaking, certain small rural carriers would be allowed to move from longstanding rate-of-return regulation to “incentive” price cap regulation for some of their BDS offerings. Critically, the FCC would not require these carriers to comply with tariffing, cost assignment, and jurisdictional separations requirements. The draft item would also seek comment on the appropriate regulatory treatment for these carriers’ other transport services, including the need for price controls.

Wireless Infrastructure Deployment: The FCC issued a draft Declaratory Ruling and Order finding that state/local fees for accessing rights of way and other charges associated with deployments may prohibit the provision of wireless service in violation of the Communications Act. The FCC therefore plans to allow such fees and charges only to the extent they are nondiscriminatory and represent a “reasonable” approximation of the state/local governments’ costs related to the deployment. The draft item would further clarify that state/local consideration of aesthetic concerns with deployments are not necessarily unlawful, so long as any aesthetic requirements are: (1) reasonable; (2) no more burdensome than those applied to other deployments; and (3) published in advance. In addition, the FCC will establish two new shot clocks for small wireless facility deployments (60 days for collocation on preexisting structures and 90 days for new constructions) and codify existing shot clocks for larger wireless facility deployments.

911 Dialing and Location Accuracy: A draft Notice of Proposed Rulemaking seeks comment on requiring MLTS to enable users to dial 911 directly, without having to dial a prefix to reach an outside line (e.g., requiring callers to first dial 9). The FCC proposes requiring MLTS to provide a notification that a 911 call has been made to a front desk, security office, or other centralized location. The proposed rulemaking asks whether MLTS, VoIP, and other telecommunications service providers should be responsible for ensuring that “dispatchable location” information is transmitted with 911 calls, such as the calling party’s street address as well as room number, floor number, or similar data necessary to help first responders reach the called party quickly.

Auctioning Toll Free Numbers: The FCC plans to adopt a draft Report and Order that would enable it to auction off toll free numbers. Generally, the FCC has allocated toll free numbers on a first-come, first-served basis at no cost. The FCC claims this process leads to stockpiling and other inefficient uses of toll free numbers, while rewarding parties that “game” the system through computer-assisted number reservation tools. The FCC proposes that its first auction will cover 17,000 numbers recently made available in the 833 toll free code. Importantly, the FCC intends to eliminate the prohibition on secondary market sales of toll free numbers to allow successful auction participants to sell numbers to others, potentially creating a “gold rush” for prime toll free numbers.

ESIM Expansion: Under a draft Report and Order and Further Notice of Proposed Rulemaking, the FCC would consolidate the rules that apply to earth stations on aircraft, vessels, and vehicles, eliminating duplicative regulations and streamlining the application process. It would also expand the frequencies available for ESIMs to include conventional Ka-band spectrum. Operation of ESIMs is currently confined to the conventional C-band spectrum and parts of the Ku-band spectrum. The FCC argues that any potential interference issues involving incumbent satellite operators in the Ka-band can be resolved through prior coordination and industry best practices. The FCC seeks comment on whether ESIMs should be allowed to operate in additional spectrum bands, on both a protected and unprotected basis, to provide even more flexibility.

Spectrum Frontiers Auctions: The FCC issued a draft Public Notice in its ongoing Spectrum Frontiers proceeding establishing application and bidding procedures to auction 850 MHz of spectrum in the 28 GHz band and 700 MHz of spectrum in the 24 GHz band. The spectrum would be made available for flexible wireless use to support 5G technologies. The FCC plans to start the 28 GHz band auction by mid-November 2018, with the 24 GHz band auction following soon afterward. The agency would apply its standard auction rules to each proceeding to facilitate participation in both auctions. In addition, the FCC released a draft proposed rulemaking seeking comment on service rule changes for the 39 GHz band, which along with the upper 37 GHz band, represents the largest amount of contiguous spectrum available for flexible use in the millimeter wave bands. The FCC anticipates freeing up this spectrum through an incentive auction tentatively planned for 2019. Comments will be due September 17, 2018 and replies on October 8, 2018.

One-Touch Make-Ready: A draft Order and Declaratory Ruling would allow the “vast majority” of pole attachments to follow a one-touch make-ready process, in which new attachers may elect to perform all of the work to prepare a pole to hold new facilities without relying on the pole owner. The FCC also plans to codify its existing precedent regarding the “overlashing” of new facilities to current attachments, while eliminating disparities between the pole attachment rates paid by incumbent telecommunications carriers versus cable and other telecommunications attachers. In addition, the draft would clarify that state and local moratoria on telecommunications services and facilities deployments are preempted under federal law.

$100 Million Connected Care Pilot Program: The FCC plans to adopt a Notice of Inquiry (“NOI”) seeking input on a proposed $100 million “Connected Care Pilot Program” to support telehealth services delivered to low-income Americans. The proposed program would draw money from the Universal Service Fund, potentially lowering the funds available to other programs (it notes the reduced spending on the Lifeline Program), and the FCC is looking for comments on the appropriate application procedures, supported services and equipment, support amounts, eligibility criteria, and duration for the pilot program. The NOI asks a lot of open questions, but also seeks comment on restricting the pilot program to projects that would involve new or upgraded deployments or upgrades to existing facilities and whether to only partner with facilities-based eligible telecommunications carriers (“ETCs”), which would be consistent with the agency’s proposal in late 2017 to limit the Lifeline Program to facilities-based ETCs. Comments will be due 30 days after the NOI is released and reply comments are due 60 days after release.

Kelley Drye Client Advisory - FCC Releases Order Extending Discontinuance of Service
Requirements to Providers of Interconnected VoIP Service

VoIP

The FCC announced that it plans to “consider a Report and Order concerning the requirements of interconnected VoIP providers when discontinuing service.” This is sort of a stealth item on the agenda, as there has been virtually no discussion in the docket on this issue in the most recent months.

We hear that the FCC is likely to impose notice requirements similar to those that apply for traditional telecommunications carriers. This will continue a trend for interconnected VoIP where the FCC has imposed, one-by-one, obligations traditionally held by telecommunications carriers while steadfastly refusing to classify interconnected VoIP services. In today’s state of affairs, interconnected VoIP has nearly all of the burdens of regulation but few of the benefits. The most significant outstanding issue continues to be the application of access charges to interconnected VoIP. This topic has been a subject of litigation for some time.

Number Porting

The FCC will address porting intervals and related standards for the transfer of telephone numbers between carriers when a customer switches service providers. Cable providers in particular are pushing for a maximum interval of one-day for simple wireline to wireline and intermodal porting requests. The Order could also further address the information that carriers may require in order to implement a porting request, response intervals for customer service requests (CSRs) and other concerns raised regarding fair competition among providers.