CommLaw Monitor https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor News and analysis from Kelley Drye’s communications practice group Tue, 02 Jul 2024 13:03:23 -0400 60 hourly 1 C-Band Earth Stations: The FCC Made the List; It’s Worth Checking It Twice https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/c-band-earth-stations-the-fcc-made-the-list-its-worth-checking-it-twice https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/c-band-earth-stations-the-fcc-made-the-list-its-worth-checking-it-twice Tue, 07 Jul 2020 21:24:56 -0400 Incumbent earth stations operating in the 3700-4000 MHz range are entitled to have eligible space station operators provide a turnkey solution to transition them out of the band to the upper 200 megahertz of the 3.7-4.2 GHz Band. All of an earth station’s actual, reasonable, and necessary transition costs, for such transitions are reimbursable. As an alternative to having the space station operator conduct the transition, earth station operators may choose to accept a pre-determined per-earth station lump sum – still being worked on by the Federal Communications Commission’s (“FCC’s”) Wireless Telecommunications Bureau – for all their earth stations as sole compensation for moving out of the band themselves regardless of what solution is pursued after the transition, including moving to another band or off the radiofrequency spectrum altogether. (Previously, we covered the Commission’s schedule for the C-Band transition in detail.) The trick, however, is that, to qualify for reimbursement or the lump sum option, the earth stations must be “incumbent.” On Monday, July 6, 2020, the International Bureau (“Bureau”) issued a preliminary list of incumbent earth stations that would qualify for reimbursement or the lump sum. The Bureau, in the accompanying Public Notice, provided ten (10) days for interested persons to comment on the list, until Thursday, July 16.

The Bureau intends for the list to be complete. Earth station owners and operators will want to check that list closely to ensure their qualifying earth stations are listed, and all the details are accurate. Otherwise, they may miss compensation to which they are entitled. To reprise, incumbent earth stations must meet the following criteria:

  1. Be operational as of the Commission’s April 18, 2018, filing freeze and remain operational today.
  2. Be registered (receive-only) or licensed (transmit/receive) in the 3700-4200 MHz band (for those stations not registered or licensed prior to April 18, 2018, registration or license applications must have been filed by November 7, 2018).
  3. For those stations registered or licensed prior to April 18, 2018, the registrant or licensee must have done one of the following:

a. Certified the accuracy of the registration/license information in the International Bureau Filing System (“IBFS”) by May 28, 2019;

b. Filed a modification/update to the registration or license in IBFS during the April 19 to November 7, 2018 filing window; or

c. Filed a timely renewal application by May 28, 2019.

It is worth noting that the Bureau continues to process some earth station registration and license applications that were timely filed over two years ago before the earth station freeze. The Bureau’s list should include earth stations that are the subject of those pending applications, and those stations’ status as “incumbent” is conditioned upon an ultimate grant of the pending applications. Stations not meeting the criteria for incumbent status, according to the Bureau, are not listed, including earth stations whose dismissal is not yet final.

If earth station operators or owners review the list (which comes with instructions) and find errors or omissions, comments seeking to correct the list should be filed in GN Docket No. 20-205 (see the Public Notice for more guidance) reference the existing file number(s) in IBFS. If everything in the list for a given earth station is correct and complete, an earth station registrant or licensee need not file anything with the Commission at this time.

The Public Notice reminds interested parties that they may not submit new filings in IBFS in order to attempt to qualify an earth station for incumbent status. If the above criteria for incumbent earth stations are not already satisfied for a given station, that cannot be rectified now, unfortunately. Similarly, the FCC clarifies that current licensees and registrants cannot at this time make filings to add existing antennas to a registration or license or change an earth station location, although minor corrections (for example, fixing the site address and/or GPS coordinates of an existing earth station location) are permissible.

In parallel with reviewing the Bureau’s list, earth station operators and owners may want to review the eligible space station operators’ draft transition plans which were filed in the FCC’s GN Docket No. 20-173 on June 19, 2020. Comments on those plans from the public are being formally accepted by the Commission through July 13, 2020. The space station operators need to finalize those plans by August 14, 2020.

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Scheduling the Race to the “C-Band” Auction https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/scheduling-the-race-to-the-c-band-auction https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/scheduling-the-race-to-the-c-band-auction Thu, 26 Mar 2020 21:17:26 -0400 On March 3, 2020, the Federal Communications Commission (“FCC” or “Commission”) released its Report and Order and Order of Proposed Modification (FCC 20-22) (respectively, the “C-Band Order” and the “Proposed License Modification”) realigning the 3.7-4.2 GHz Band in the contiguous United States and proposing to modify most of the satellite, earth station, and fixed service licenses in the Band. If one sorts out the significant deadlines established by the C-Band Order leading up to the target date for the auction of the 3700-3980 MHz range, namely December 8, 2020, and the transition of incumbent space station and earth station operations and fixed service stations which must be completed in the auction’s wake, the heavy lifting required before the auction proceeds is plain. In the attached advisory, these deadlines are discussed in some detail. Here, they are presented in abridged fashion.

For more information, register here for our April 2 C-Band Update webinar.

Clearing Deadlines for Satellite Service and Fixed Operations

Non-TT&C Operations in the 3700-4000 MHz Range

  • Incumbent eligible space station operators have until December 5, 2025 to clear the 3700-4000 MHz band in the contiguous United States, unless they elect to receive Accelerated Relocation Payments.
  • If Intelsat and SES elect Accelerated Relocation Payments, they and other eligible space station operators that make a similar election,
    • will have until December 5, 2021, to clear 3700-3820 MHz in 46 of the top 50 Principal Economic Areas (“PEAs”) and provide the associated earth station operators now operating in that range with passband filters in order to receive the Phase I accelerated payments (contingent on also meeting the Phase II deadlines), and
    • will have until December 5, 2023, to clear the entire 3700-4000 MHz range and provide filters to receive the Phase II accelerated payments and keep any Phase I payments received.

TT&C Stations within the 3700-4000 MHz Range to Receive Extended Protection

  • Incumbent space station operators must identify four locations where TT&C functions in CONUS will be consolidated by June 12, 2020.
    • The consolidation must occur by December 5, 2021, with possible exceptions by waiver or agreement.
    • Until December 5, 2030, operation of TT&C functions at the four consolidated locations will be permitted and protected.
    • At other existing TT&C locations, operations (both TT&C functions and other earth station functions) on a secondary, unprotected basis will be permitted after December 5, 2021, for another nine years.)

Sunset Date for Incumbent Fixed Wireless Services in the Entire 3.7-4.2 GHz Band

  • Incumbent Fixed Service point-to-point licenses through the entire 3.7-4.2 GHz Band will sunset as of December 5, 2023, limited to CONUS. Incumbent point-to-point fixed service links that transition to other bands will be entitled to reimbursement for “comparable facilities” in such other band, provided they relocate by December 5, 2023.
Dates Triggered by the Federal Register Publication (which will not occur before March 30)

Reconsideration and Judicial Review Opportunities

  • Reconsideration of the C-Band Order will be due within thirty (30) days of its publication in the Federal Register.
  • Petitions for judicial review of the C-Band Order to a U.S. Court of Appeals will be due within sixty (60) days of the Federal Register publication.

Protest of Proposed C-Band License Modifications

  • Any protests of the FCC’s proposed modification of licenses and authorizations of all 3.7-4.2 GHz FSS licensees and market access holders; all affected transmit-receive earth station licenses, and all Fixed Service licenses in the band will be due thirty (30) days after the Federal Register publication of the proposed modifications in the C-band Order.

Relocation Payment Clearinghouse Selection Committee Formation and Action

  • The Relocation Payment Clearinghouse committee consisting of nine designated representatives of satellite operators, incumbent earth stations, and prospective flexible-use licensees, must convene within 60 days after publication of the C-Band Order in the Federal Register.
  • The committee must notify the FCC of the selection criteria it will by June 1, 2020.
  • By July 31, 2020, the committee must notify the Commission of a consensus choice for the Clearinghouse or it will be reformed and trimmed by the Commission, and the seven remaining members must choose a Clearinghouse by majority vote by August 14, 2020.

Effective Date of Rules

  • Generally, the C-Band Order provides that the Commission’s new rules for the 3.7-4.2 GHz Band will be effective 60 days after publication in the Federal Register. But the rules that require Office Management and Budget (“OMB”) review under the Paperwork Reduction Act (“PRA”) will be effective only after OMB approval and a subsequent notice is published in the Federal Register by the Commission.
    • On March 26, 2020, the FCC sought comment on several rules for purposes of OMB review, setting a comment deadline of Monday, April 27, 2020, hoping to keep some near-term deadlines on track.
Deadlines with Specific Dates

Comment on Competitive Bidding Procedures and Dates

  • Comments and reply comments in response to the March 3, 2020, Public Notice, are due May 1 and May 15, 2020.

Qualifying for Accelerated Relocation Payments

  • By May 12, 2020, the Wireless Telecommunications Bureau (“WTB”) is to prescribe the “precise form” of an Accelerated Relocation Election.
  • A satellite operator’s Accelerate Relocation Election, if it chooses to make one, will be public and irrevocable and is due by May 29, 2020.
  • By June 5, 2020, the WTB is to issue a Public Notice announcing whether sufficient elections have been made to trigger early relocation or not – i.e., did both Intelsat and SES elect to accelerate relocation.

Deadlines for All Space Station Operator Transition Plans and Comments

  • Each space station operator, whether electing early relocation payments or not, must file by June 12, 2020, a Transition Plan describing necessary steps and estimated transition costs to clear 3700-4000 MHz Band by the applicable deadlines.
  • Interested parties will have an opportunity to comment on the Transition Plans by July 13, 2020.

Relocation Coordinator Selection

  • The search committee for the Relocation Coordinator must notify the Commission of its choice by July 31, 2020, after which the WTB will issue a Public Notice seeking comment on whether the committee’s choice meets the criteria for the Coordinator set out in the C-Band Order.

Space Station Operator and Relocation Coordinator Status Reports

  • Beginning on December 31, 2020, and continuing until the transitions are complete, space station operators and the Relocation Coordinator must file quarterly reports on progress of the transition in a form to be established by the WTB.
Deadline Triggered by FCC Notices

Deadline for Earth Station Operators to Elect How They Will Be Reimbursed

  • Earth station operators can accept reimbursement for the actual documented reasonable relocation costs of each earth station that maintains satellite reception and is relocated to the 4000-4200 MHz range, or they can accept a reimbursement for all of their incumbent earth stations based on a per station amount (i.e., lump sum) to be established by the WTB for various classes of earth stations. They will have to make that election within 30 days after release of the Bureau’s announcements.
Tasks without Clear Deadlines

Multi-Stakeholder Technical Group Formation and Completion of Work

  • The Commission set no deadlines for the multi-stakeholder group consisting of incumbent earth station operators, incumbent space station operators, wireless network operators, network equipment manufacturers, and aeronautical radionavigation equipment manufacturers that will address coexistence issues in the 3.7-4.2 GHz Band and work towards technical solutions. The Office of Engineering and Technology is to inform the group as to time frames in which input would be helpful.

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FCC Seeks Further Information About Satellite Use of C-Band from FSS Space and Earth Station Operators https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/fcc-seeks-further-information-about-satellite-use-of-c-band-from-fss-space-and-earth-station-operators https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/fcc-seeks-further-information-about-satellite-use-of-c-band-from-fss-space-and-earth-station-operators Mon, 29 Apr 2019 17:23:40 -0400 The FCC is requiring fixed-satellite service (“FSS”) operators to provide the Commission with information about their current use of the 3.7-4.2 GHz band (“C-Band”) by May 28, 2019, according to a Public Notice released jointly earlier this month by the FCC’s International Bureau, Wireless Bureau, and Office of Engineering and Technology. The FCC will use the information to consider potential rules that allow new commercial terrestrial services in the Band while protecting incumbent satellite and earth station operators. The Band is currently allocated to FSS and the fixed service, but the Commission has proposed adding a mobile, except aeronautical mobile, allocation, which would allow commercial wireless providers to operate 5G services in the Band. The amount of spectrum to be reallocated or shared, the extent of protection for incumbents, and the means of protection for incumbents are all, as yet, undetermined, and they are topics of substantial debate among stakeholders.

Unless exempt, licensed and registered FSS earth station operators in the Band, including operators of temporary-fixed or transportable earth stations (those remaining at a location less than 6 months), must provide a signed certification, in a form prescribed in the Public Notice, of the accuracy of all information reflected on their licenses or registrations in the International Bureau Filing System (“IBFS”). Filers may seek confidential treatment. Earth station operators are exempt from this filing requirement if they filed for new or modified licenses or registrations between April 19 and October 31, 2018, using the processes set up by the FCC as an exception to the licensing freeze the FCC issued on April 19, 2018.

The Commission’s requirement that these pre-existing licenses or registered earth station operators will allow the FCC to update its information on those who did not license or register after the April 19, 2018, date. Approximately 15,000 took advantage of that earlier opportunity.

The foregoing exemption does not apply to temporary-fixed or transportable earth station operators.

Such operators that are licensed or registered must provide the FCC with the following information regardless of when they were licensed or registered:

  • Call sign (or IBFS file number if they filed a registration between April 19 and October 31, 2018, and the registration is pending);
  • Address where the equipment is typically stored;
  • Area within which the equipment is typically used;
  • How often the equipment is used and the duration of such use;
  • Number of transponders typically used in the 3.7-4.2 GHz band and extent of use on both the uplink and downlink; and
  • Licensee/registrant and POC information.
All earth station operators would benefit from being reminded that they must update their information in IBFS if there is a change in contact information or any of the station’s operational parameters.

The Commission also seeks information from satellite operators. Operators with existing FSS space station licenses or market entry grants that currently serve or are authorized to serve United States markets must provide the following information:

  • Satellite call sign, name, and orbital location;
  • Expected end-of-life for satellite;
  • Each C-band satellite planned for launch to serve the United States market, with the approximate date of the launch anda note on whether the satellite is a replacement, whether or not the there is a currently pending application in IBFS;
  • Center frequency and bandwidth of the Telemetry Tracking and Command (“TT&C”) beam(s); and
  • Call sign and geographic location (using NAD83 coordinates) of each TT&C receive site.
Additionally, for each transponder on each operational satellite serving United States customers using the C-Band, space station operators must provide the following:
  • The frequency range of the transponder and the transponder number for the most recent month;
  • The total capacity (megahertz) and in terms of the number of megahertz on each transponder that are currently under contract for the most recent month and for one month in 2016;
  • For each day in March 2019, the average percentage of each transponder’s capacity (megahertz) utilized and the maximum percentage of capacity utilized on that day (parties may supplement this required daily data with historical trend data over recent months up to three years to show utilization variances, but they must also provide the date range for which the data was collected); and
  • For all data reported regarding capacity under contract and capacity utilization, the percentage, if any, for customers outside of the United States for the most recent month.
The Commission originally adopted the information collection requirements in a July 2018 Order, but the effectiveness of the requirements were suspended pending approval from the Office of Management and Budget, which was granted on January 28, 2019.

As issues continue to play out in the FCC’s 3.7-4.2 GHz proceeding, how the Commission ultimately proposes to protect existing licensed and registered Earth stations and related satellites will be closely watched and lobbied intensely.

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FCC Plans Major Wireless Deployment and 911 Actions at September Meeting https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/fcc-plans-major-wireless-deployment-and-911-actions-at-september-meeting https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/fcc-plans-major-wireless-deployment-and-911-actions-at-september-meeting Sun, 09 Sep 2018 12:44:56 -0400 Continuing its focus on broadband infrastructure deployment for 5G technologies, the FCC announced that it plans to eliminate regulatory impediments that delay and increase the cost of wireless deployments at its next meeting, scheduled for September 26, 2018. The item would alter the balance of power between wireless broadband providers and state/local governments concerning control over rights of way and deployment fees. The FCC also anticipates initiating a rulemaking aimed at improving 911 dialing and location accuracy for multi-line telephone systems (“MLTS”), potentially imposing new compliance obligations on office building, hotel, and other large facility managers. Rounding out the major actions, the FCC released draft items that would: (1) permit toll free numbers to be auctioned and sold on the secondary market and (2) consolidate rules and expand the spectrum available for so-called Earth Stations in Motion (“ESIMs”) that provide high-speed broadband service to vehicles, aircraft, and vessels. The proposed items will generate input from all corners of the communications industry as well as real estate interests. You will find more details on the significant September FCC items after the jump:

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.

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Federal Register Thaw: Dates Set for Comments in the FCC’s 3.7-4.2 GHz Band Rulemaking https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/federal-register-thaw-dates-set-for-comments-in-the-fccs-3-7-4-2-ghz-band-rulemaking https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/federal-register-thaw-dates-set-for-comments-in-the-fccs-3-7-4-2-ghz-band-rulemaking Tue, 28 Aug 2018 17:41:01 -0400 After almost two months of anticipation, the Federal Register is expected to publish the Notice of Proposed Rulemaking (“NPRM”) concerning the future use of 3.7-4.2 GHz (the “4 GHz Band”) by the mobile, fixed, and satellite services released by the FCC on July 13, 2018. The August 29 publication in the Federal Register will establish the comment and reply comment dates as Monday, October 29, and Tuesday, November 27, 2018.

There will be plenty for interested parties to comment on, as we discussed in an earlier blog post providing an overview of the draft NPRM, which was largely retained in the document finally adopted. The FCC is considering myriad options to restructure that spectrum to introduce commercial flexible mobile use and fixed point-to-multipoint operations while protecting incumbent fixed satellite service uses and grandfathered point-to-point licenses. The 4 GHz Band is commonly recognized by the mobile industry, the FCC, and others, as a key mid-spectrum band for next-generation networks and applications, including 5G and the Internet of Things.

It’s worth keeping in mind several other related upcoming deadlines, one definite and the other not yet established. Operators of existing earth stations operating in the 4 GHz Band that are not yet licensed or registered – but which were constructed and operational by April 19, 2018 – have until October 17, 2018, to apply for the license or register. Already, it is reported that several thousand earth stations have taken advantage of the opportunity, but time will soon be running out for those earth station operators that have not taken advantage of the time-limited relief provided by the FCC from its temporary freeze on new registrations and license applications. (Applications for new space stations as well as new fixed point-to-point links are also temporarily frozen, but without exceptions.) For those operators of earth stations that are not yet registered or licensed that want to be considered for protection from interference under any new rules in the 4 GHz Band, this may well be your final opportunity to secure protection. The FCC has proposed making the freezes permanent. Remember that the FCC has waived the typical requirement for coordination reports with the registrations or license applications.

In addition, the date for complying with the certification and information collection requirements applicable to earth station and space station operators adopted in the Order accompanying the NPRM has not yet been set. Compliance with the information collection requirements may be critical to receiving whatever protections the FCC may afford existing fixed satellite service operations. On August 20, the Order was published in the Federal Register which requires: (1) certification by earth stations registered or licensed before April 19, 2018; (2) the submission of certain information by operators of temporary fixed and transportable earth stations; and (3) information applicable to licensed space stations. Earth stations licensed or renewed under the temporary filing window through October 17 will not be subject to the certification requirement. (In contrast with the draft NPRM, the final NPRM adopted by the FCC excluded the upfront collection requirements for operators of 4 GHz Band earth stations other than the temporary fixed or transportable variety, leaving potential collection requirements as something to be considered later in the rulemaking after a record of the need for such data is created and reviewed.) These information collection requirements are subject to the Paperwork Reduction Act and won’t become effective until approved by OMB and a subsequent notice is released setting the compliance date, a process which could take a couple of months or longer. For now, there is not a whole lot to do but wait for that process to play out, although it might be good idea to start gathering the information, particularly for entities that have a lot of earth stations subject to the requirements.

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Fluid and Frozen: FCC Ponders Best Path Forward for 4 GHz Band https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/fluid-and-frozen-fcc-ponders-best-path-forward-for-4-ghz-band https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/fluid-and-frozen-fcc-ponders-best-path-forward-for-4-ghz-band Mon, 02 Jul 2018 17:32:46 -0400 The Federal Communications Commission (“FCC”) recently took steps to preserve the status quo for existing users in the 3.7-4.2 GHz band (the “4 GHz Band”) while it considers myriad options to restructure that spectrum for commercial flexible mobile use and more intensive fixed use. The FCC appears set to move forward with deliberation while it considers modifications to the regulatory structure in the adjacent 3.5 GHz Band (3.55-3.70 GHz). Both bands are touted by the mobile industry, and the FCC itself, as key mid-spectrum bands for next generation networks and applications, including 5G and the Internet of Things.

Many other countries are moving forward with plans to make these and/or nearby frequencies available for 5G this year or shortly thereafter, underscoring the FCC’s drive to move forward expeditiously. However, given the variety of views regarding the 4 GHz Band generated in the 2017 Mid-Band Notice of Inquiry (“Mid-Band NOI”), as well as in response to the recent FCC public notice seeking comment to help prepare the report to Congress on the 4 GHz Band required by the recently-passed RAY BAUM’S Act, there is every reason to expect that the precise outcomes of this proceeding will remain uncertain for some time despite the general move toward making more spectrum available for flexible use applications.

The agency’s most significant recent action was to release a public draft of a Notice of Proposed Rulemaking and Order (“Draft NPRM”) that it plans to vote on at its upcoming July 12 Open Meeting. As a general matter, the Draft NPRM makes plain the FCC has before it three primary objectives which, in both the near- and long-term, may be in tension:

  • Add a primary mobile allocation to the band (except aeronautical mobile) and propose to clear at least part of the band for flexible mobile use “beginning at 3.7 GHz and moving higher up in the band as more spectrum is cleared.”
  • Consider rule changes that “promote more spectrum efficient and intensive fixed use of the band on a shared basis starting in the top segment of the band [i.e., near and below 4.2 GHz] and moving down the band,” namely point-to-multipoint (“P2MP”) services.
  • Protect incumbent operations – fixed point-to-point and fixed satellite service (“FSS”) – in the band.
The resolution of these tensions and weighing the current and potential future uses is the key task before the FCC. An exact mix of how the two types of services – flexible mobile and point-to-multipoint – will share access to the band (and protect incumbents) is not spelled out in the Draft NPRM. The resolution of these competing objectives promises for a fluid, if not contentious, proceeding as there are a host of differing positions put forth by the mobile industry (led by CTIA), the Broadband Access Coalition, members of the satellite industry, and others. Tellingly, the Draft NPRM reflects many options for licensing (auctions and non-auctions), service, and coordination rules.

As the FCC recognizes, key challenges will be “to protect existing earth station users while limiting uses that would hamper new intensive terrestrial use of the band” and what protection should be afforded existing fixed microwave links. The FCC will tackle the relative obligations and/or rights that each category of protected incumbents may have under each approach for more intense terrestrial use of the band and determine which, if any, categories of incumbents must new flexible use licensees relocate and under what standards, terms, or rules.

The challenge of protecting earth station users will require information the FCC does not yet have. The same day the FCC released the Draft NPRM, the International Bureau extended by 90 days the recently opened temporary filing window – from the original July 18 deadline to October 17, 2018 – for existing earth station operators to license or register earth stations in the 4 GHz Band that currently are not licensed or registered. When that window was open, the FCC froze all new FSS earth station and fixed microwave link applications and registrations, as applicable, in the 4 GHz Band. Further, the International Bureau, also on June 21, simultaneously issued a second public notice announcing a temporary freeze, effective immediately, on the filing of new space station license applications and new requests for U.S. market access through non-U.S.-licensed space stations to provide service in the 4 GHz Band.

The ostensible purpose of the earth station filing window afforded to operators is to allow the FCC to better understand the extent to which the band is used prior to making changes that could impact those uses. While almost 5,000 earth stations were licensed or registered as of the time of the freeze, many were not. Estimates are that there may be thousands of stations that are not in the database, but were constructed and operational, in use for a variety of non-governmental (e.g., video content) and governmental purposes (e.g., environmental and meteorological data and alerts).

The proof may be in the pudding, meaning the number of station operators that take advantage of the filing window. The Draft NPRM states the FCC’s tentative conclusion to not afford interference protection of any kind to earth station operators who do not both license or register existing operations by the October 17 deadline and also respond to an additional information request (and requirement for a certification of construction and operational status) that the Draft NPRM would direct the International Bureau, the Wireless Telecommunications Bureau, and the Office of Engineering and Technology to issue in a subsequent public notice. Indeed, the Draft NPRM seeks comment on making the freezes permanent (both for earth stations and space stations). The FCC appears to have concluded tentatively that limiting new earth stations in this manner would provide a stable spectral environment for more intensive terrestrial use, an issue to be resolved in the rulemaking based, in part, on the data collected. To complement the data collected as a result of filings made during the current limited window and in response to the forthcoming public notice contemplated by the Draft NPRM, the FCC intends to consult with the National Telecommunications and Information Administration and affected Federal agencies regarding the Federal entities, stations, and operations in the 4 GHz Band.

In addition to better understanding FSS use, the FCC concludes that co-channel sharing between incumbents and mobile services is not feasible, and seeks comment on different proposals to clear all or part of the band for flexible mobile use. Echoing some of the considerations that are in play in the contentious Ligado license modification proceedings, i.e., in the 1675-1680 MHz band where Ligado hopes to gain access to spectrum currently used for the downlinking of GOES-R weather data by transitioning satellite users to a terrestrial content delivery network, the Draft NPRM asks whether there are alternative technologies and means by which earth station operators can retrieve their information currently made available via 4 GHz Band FSS.

One last item of note: The Draft NPRM has its roots in the record developed in response to the FCC’s 2017 Mid-Band NOI, which sought to obtain information on existing and proposed uses of spectrum between 3.7 GHz and 24 GHz in the search for additional spectrum for flexible use. The Mid-Band NOI sought specific comment on the 4 GHz Band, as well as the “6 GHz Bands,” in particular 5.925- 6.425 GHz and 6.425-7.125 GHz. The Draft NPRM does not extend to the 6 GHz Bands, but foreshadows that the FCC “may address” these and other mid-band spectrum “in subsequent items.” Given the strong interest in the 6 GHz bands by advocates of unlicensed operations, and the FCC’s general goals of making unlicensed spectrum available along with licensed frequencies, those subsequent actions may be coming to an FCC Open Meeting soon.

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Regulatory Fees Order for FY 2014 Released; September 23 Payment Deadline Set https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/regulatory-fees-order-for-fy-2014-released-september-23-payment-deadline-set https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/regulatory-fees-order-for-fy-2014-released-september-23-payment-deadline-set Mon, 01 Sep 2014 19:22:31 -0400 As a result of the Federal Communications Commission 's Regulatory Fees Order released last Friday, submarine cable licensees will see a welcome decline in fees for fiscal year 2014 due to a reallocation among International Bureau regulatees, and Responsible Organizations (“RespOrgs”) will begin paying regulatory fees on toll free numbers in fiscal year 2015. However, among other decisions, the FCC declined to adopt its proposal to pool the revenues to be collected from payers of the Interstate Telecommunications Service Provider (“ITSP”) fee and Commercial Mobile Radio Service (“CMRS”) providers.

Because the Regulatory Fee Order for FY 2014 came out later than in years past, the FCC indicated the decision would become effective upon publication in the Federal Register, rather than thirty days thereafter. The FY 2014 regulatory fees are due September 23 (by 11:59 PM, Eastern Daylight Time), and Fee Filer, the Commission’s automated filing and payment system for FY 2014 regulatory fees, is now open. In the Commission’s June 13, 2014, notice of proposed rulemaking regarding FY 2014 (“NPRM”) regulatory fees, it had sought comment on approximately a dozen issues, including whether to reapportion the fee allocations between International Bureau regulatees, i.e., submarine cable landing (“SCL”) licensees and satellite and earth stations licensees/operators. In the Regulatory Fees Order, the FCC recognized that SCL licensees are subject to minimal regulation, enforcement, and oversight after the initial licensing of a submarine cable system, points underscored by comments from the submarine cable industry. In a decision which should make SCL licensees glad, the Commission amended the allocation percentage between Submarine Cable and Bearer Circuit issues and Satellite and Earth Station issues from 41 to 59 percent of International regulatory fees, respectively, to 35.72 and 64.28 percent, respectively. (Within the Satellite and Earth Station category, the Commission determined to raise fees for affected earth station regulatees by 7.5% compared to last year, collecting the remainder of the relative increase in the category from satellite regulatees.) This change contributed to a considerable drop in the fees submarine cable systems will be assessed this year. For example, the largest systems, with capacity of 20 Gbps or greater, will pay $163,900 this year compared to $217,675 in 2013 (for FY 2013), a drop of nearly 25%. Notably, the Commission explained that it would revisit the matter of allocations among these International Bureau licensees in future regulatory fee proceedings to ascertain whether additional adjustment is warranted.

In the NPRM, the Commission had also proposed to combine wireline and wireless voice services into one category. But, after examining the record, the Regulatory Fees Order concluded that combining the ITSP and CMRS categories would be complex and require a totally new methodology, something that could not be accomplished for FY 2014 in the time provided. Consequently, ITSP fee changes FY 2014 are relatively flat, declining approximately one percent from FY 2013 to $0.00343 per assessable interstate and international end user telecommunications revenues dollar. Nonetheless, the Commission indicated that the issue may be revisited in future years to determine if this particular combination of fee categories has merit and could be implemented.

The Regulatory Fees Order also added toll free numbers as a new regulatory fee category to help recover Wireline Competition Bureau FTEs. The new fees will be assessed on RespOrgs, beginning with FY 2015, for each toll free number accessible in the United States that RespOrgs manage. The Commission noted that it must first submit this change to Congress, under the applicable provision of the Communications Act of 1934, as amended, at least 90 days before it takes effect. As a result, the change will not create a liability for RespOrgs until next year. In a Second Further NPRM accompanying the Regulatory Fees Order, the Commission sought comment on what procedures it should use to enforce the RespOrgs’ obligations to pay fees beginning next fiscal year, including potentially reclamation of numbers or decertification. The Regulatory Fees Order reflects a number of other decisions as well, including:

  • A commitment to update the FTE (full-time equivalent number of employees performing regulatory activities) counts within the agency annually to reflect the changing work of Commission FTEs.
  • A commitment to revise allocations of FTEs among the agency’s constituent bureaus and offices every two years. (The Commission, which made a series of reallocations for FY 2013, declined to adopt any further FTE reallocations in the Regulatory Fees Order for FY 2014, but found that additional evaluation and information is required. In the NPRM, the FCC had sought comment on reallocating certain Enforcement Bureau, the Consumer & Governmental Affairs Bureau, and the Office of Engineering and Technology FTEs directly to certain other bureaus.)
  • A determination not to adopt a per unit cap on increases at 7.5 % (or higher) for any fee category resulting from FTE reallocations or reform measures.
  • Effective October 1, 2014, for FY 2015, an increase to the de minimis threshold for regulatory fee obligations to $500, the minimum amount a regulated entity must owe from the sum total of all of its liabilities for different fee categories for the fiscal year before it must contribute.
  • Elimination of 218-219 MHz licensees, broadcast auxiliaries, and satellite television construction permits from the regulatory fee schedule and a commitment to reevaluate in the future whether other categories considered in the rulemaking, but not eliminated at this time for lack of sufficient support, should be subject to elimination.
  • Removal of the exemption for broadcast licensees in the AM expanded band for FY 2014.
  • Declining to include regulatory fees paid by Direct Broadcast Satellite (“DBS”) providers in the cable television and IPTV category on a per subscriber basis, but seeking further comment in the Second Further NPRM whether to adopt a new DBS fee category.
  • A decision to no longer mail out initial assessment letters to CMRS providers beginning with FY 2014 but to post telephone numbers (subscriber counts) on the Fee Filer. The Regulatory Fees Order outlines the process by which CMRS carriers can seek to revise its subscriber counts.
Industry-specific guidance on who must pay, and how much, will be posted on the Commission website at http://www.fcc.gov/regfees. ITSP and CMRS regulatory fee data are available on the FCC site. Finally, payers should note that only electronic payment of regulatory fees will be accepted this year, and payers are responsible for making sure payments are timely and complete before the September 23, 2014, deadline.

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