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On 6 March 2019, Democrats in the House and Senate introduced the “Save the Internet Act of 2019.” The three-page bill (1) repeals the FCC’s Restoring Internet Freedom Order released in early 2018, as adopted by the Republican-led FCC under Chairman Ajit Pai; (2) prohibits the FCC from reissuing the RIF Order or adopting rules substantively similar to those adopted in the RIF Order; and (3) restores the Open Internet Order released in 2015, as adopted by the Democratic-led FCC under Chairman Tom Wheeler.

Major Impacts:

  • Broadband Internet Access Service (BIAS) is reclassified as a “telecommunications service,” potentially subject to all provisions in Title II of the Communications Act.
  • The three bright line rules of the Open Internet Order are restored: (1) no blocking of access to lawful content, (2) no throttling of Internet speeds, exclusive of reasonable network management practices, and (3) no paid prioritization.
  • Reinstates FCC oversight of Internet exchange traffic (transit and peering), the General Conduct Rule that authorizes the FCC to address anti-competitive practices of broadband providers, and the FCC’s primary enforcement authority over the Open Internet Order’s rules and policies.
  • Per the Open Internet Order, BIAS and all highspeed Internet access services remain subject to the FCC’s exclusive jurisdiction and the revenues derived from these services remain exempt from USF contribution obligations.
  • The prescriptive service disclosure and marketing rules of the Open Internet Order, subject to the small service provider exemption, would apply in lieu of the Transparency Rule adopted in the RIF Order.

FCC Chairman Pai promptly issued a statement strongly defending the merits and benefits of the RIF Order.

KH Assessment

  • From a political perspective, Save the Internet Act of 2019 garners support from many individuals and major edge providers committed to net neutrality principles but faces challenges in the Republican-controlled Senate.
  • In comments filed in the proceeding culminating in the RIF Order, the major wireline and wireless broadband providers supported a legislative solution that codified the no blocking and no throttling principles but not the no-paid prioritization prohibition or classifying BIAS as a telecommunications service.

It is highly unlikely that the legislation will be enacted as introduced. Though still unlikely, there is a better chance that a legislative compromise may be reached.

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Tomorrow, March 1, 2019, telecommunications carriers and interconnected VOIP providers (“Filers”) will have filed their annual certification confirming they complied with the FCC’s Customer Proprietary Network Information (“CPNI”) rules.

The FCC’s CPNI rules require Filers to establish and maintain systems designed to ensure they adequately protect their subscribers’ CPNI.   Consumer data protected by the CPNI rules includes account information, call detail information (including what numbers are called and when), and other sensitive information.

In addition to safeguarding this information, the FCC’s rules also require Filers to submit an annual certification – due March 1st of each year – documenting their compliance with the rules and detailing any complaints they received against data brokers.  A template of the CPNI filing is available on the FCC’s website (here).

The CPNI deadline filing kicks off the FCC’s “Spring Filing Season.”  On March 8th, facilities-based broadband providers must file data with the Commission on its Form 477 identifying where they offer Internet access service at speeds exceeding 200 kbps in at least one direction, as of December 31, 2018.  The filing deadline typically is March 1st, but this was recently extended for an additional week by the Commission.

The Form 477 requires fixed broadband providers to identify the census blocks in which “a provider does, or could, without an extraordinary commitment of resources, provide service.”  Mobile broadband providers file maps of their coverage areas for each broadband technology.  The Form 477 reporting portal is available here.

On April 1st, the FCC requires service providers and equipment manufacturers that are subject to the Commission’s rules implementing the 21st Century Communications and Video Accessibility Act (“CVAA”) to file annual recordkeeping certifications.  This certification confirms that the filer has taken steps to ensure its services and products are accessible by people with disabilities and that it maintains records detailing these accessibility considerations.  The Commission’s CVAA filing portal is available here.

Also on April 1st, telecommunications providers and many VoIP providers must file their annual FCC Forms 499-A with USAC, summarizing their 2018 revenues and USF contributions and making adjustments to their 2018 contributions based on the estimates in their 2018 quarterly filings.  Some states have established funds for universal service which  require contributions based on revenues from certain services and impose reporting obligations.

It can be challenging to track these deadlines and determine which obligations apply to your company or the specific services it offers.  Please contact us with questions about these – and other – ongoing compliance requirements.

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Last week, the government shutdown ended.  Shuttered government agencies re-opened on Monday morning.  The FCC announced yesterday that it has further extended the deadlines for filings that were due during the shutdown.  This new announcement supersedes all of the FCC’s previous extension announcements.

Accordingly, the FCC has established the following general deadline extensions for filings other than NORS and DIRS filings and filings related to spectrum auction activities:

  • All filings that were due between January 3 and January 7, are due today, January 30, 2019.
  • All filings that were due between January 8 and February 7 are due on February 8, 2019.

ULS Deadlines

The FCC’s Public Notice stated that all Universal Licensing System (ULS) applications and notifications that were originally due on January 3 through and including February 8 are now due on February 8, 2019.

All applications that were filed in ULS during the shutdown will be entered into ULS over the next few weeks with a January 29 receipt date.

Responsive Pleadings

Any reply or responsive pleadings that were due during the shutdown have also been extended and are now due on February 8, 2019.

Special Temporary Authority

Any Special Temporary Authority (STA) licenses that were scheduled to expire from January 3 through January 29 have been extended to February 8, 2019 (with the exception of STA’s related to post-incentive auction transitions).

Fee Payments

The Commission has extended all fee payments originally due between January 3 and February 7 to February 8, 2019.  However, this extension only applies to fee payments that can only be made through the FCC’s Fee Filer System.

Tower Construction Notification System

The Commission’s Tower Construction Notification System (TCNS) became operational this afternoon.  Because the system had been offline while the FCC suspended operations, deadlines and Tribal review timelines for filings in the TCNS system have been tolled between January 3 and January 30.  Therefore, the TCNS review clock for any Form 620 submissions filed prior to the shutdown were stopped on January 3 and resumed on January 30.

Additional Items

In addition to the extensions discussed above, Commission staff will consider requests for further extensions in individual matters on a case-by-case basis.

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For more information, please contact Tim Doughty (doughty@khlaw.com; 202.434.4271).

Photo of Michael Fitch

The International Telecommunication Union (ITU) is a specialized organization of the United Nations which addresses international communications and information technology, regulatory, and policy issues.  Its origins date back to the formation of its predecessor in 1865, the International Telegraph Union. It plays a crucial role in promoting efficient sharing of spectrum and compatibility of communications technologies for all types of uses.

The ITU is headed by five full-time elected officials: Secretary General, Deputy Secretary General, and Directors of the Telecommunication Development (D), Radiocommunication (R), and Telecommunication Standardization (S) Bureaus.  These officials are elected roughly every four years at Plenipotentiary Conferences by the nearly 200 member countries of the ITU.  These positions are important to countries as a reflection of their technological expertise and for the opportunity to influence the priorities and work of the ITU.

From 1950 on, U.S. nationals often filled one of the full-time elected positions, with special emphasis on the Radiocommunications activities of the ITU.  U.S. nationals served as the ITU Secretary General from 1960-1965 and as the head of the R sector from 1966-1994.  However, in 1994, a new U.S. candidate to head the R sector was defeated.  From that election loss until 2018, the U.S. did not run a candidate for any of the full-time elected positions at the ITU.

Happily, this extended absence of any U.S. national as a full-time elected official at the ITU has come to an end.  At the Plenipotentiary Conference in November 2018, U.S. national Doreen Bogdan-Martin was elected Director of the Telecommunication Development Sector of the ITU beginning effective January 1 of this year.  She is the first woman ever elected to a full-time elected position at the ITU.

The Telecommunication Development function at the ITU fosters international cooperation in training, technical assistance, and the development and improvement of telecommunication equipment and networks in developing countries.  Its work facilitates understanding of competitive market principles in the sector and promotes confidence in developing countries to select and deploy new communications technologies and equipment.

Doreen Bogdan-Martin is eminently qualified for this position.  She worked from 1989-1994 at NTIA in the Department of Commerce on telecommunications development issues.  From 1994-2018, she worked at the ITU in the D bureau and other offices culminating in ten years as the first woman to head of the Strategic Planning and Membership department, which is the highest-ranking staff position at the ITU.

Congratulations to Doreen Bogdan-Martin and to the U.S. government for her election and an overdue renewal of U.S. participation on the elected leadership team of the ITU!

For more information, please contact Mike Fitch (fitch@khlaw.com; 202.434.4264).

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This Update is intended for enterprise IT, telecom, procurement staffs, and in-house counsel responsible for telecommunications management and procurements, focusing on strategies to maximize savings and optimize services to meet projected enterprise requirements.

Industry Consolidation

XO Communications is now part of Verizon, CenturyLink has acquired Level 3, and, among the cable operators, Charter has acquired Time Warner Cable.  The environment is more favorable for multinationals that can look to Orange, BT, Tata, or Telefonica to compete for their international and rest-of-world services.  Whether DoJ and the FCC, respectively, approve the T-Mobile and Sprint merger will remain an open question for several months.

Best Practices

Unlike the markets for cars and publicly traded stocks, there are no publicly available resources on pricing trends or terms and conditions for telecommunications service agreements.  The rack rates in carrier service guides do not reflect the best available pricing for any given expenditure level or mix of services.  Timely, well-planned procurements with assistance of experienced consultants remain the baseline for a successful procurement.  Additional background is available on our blog: Telecommunications Services Agreements—The Underlying Business Deal.

Importance of RFPs

Requests for proposals are the starting point for negotiations.  In addition to the essential description of a customer’s current network, desired services, and projected growth in usage, bandwidth and locations, the enterprise’s proposed terms and conditions (both business and legal) should be set out in the RFP.  Even if the carrier declines to accept certain provisions, compromise positions can be negotiated.  If preferred provisions or customer interests are not set out in the RFP, negotiations are more challenging.

Transitioning to New Services

Wireline carriers deploy new services to achieve efficiencies, remain competitive, and deliver innovative offerings and savings to customers. Many enterprises have just concluded or are working through the transition to IP voice services, principally to SIP trunking.  A newer offering is SD-WAN. It enables network flexibility, redundancy, and cost savings as compared to exclusive reliance on MPLS for corporate data communications.  Enterprises should assess the value (or accept the reality) of these services and structure their RFPs accordingly.

Limits of RFPs

In terms of enterprise telecommunications priorities, network security is now on equal footing with service reliability and availability.  The relative efficacy of carriers’ internal network security practices cannot reasonably be reduced to comparisons of responses to RFP questions.  A qualitative assessment, possibly based upon independent third-party investigations or reviews, is required.   RFPs may be structured to compare the elements and pricing of carriers’ network cybersecurity offerings, but in 2019 the relative efficacy of competing carriers’ offerings likely requires independent assessments, as well.

Negotiating Tips

Assuming the incumbent carrier submits the most compelling bid, don’t look to negotiate a new master agreement.  Focus on minimum commitment levels, lowest rates as opposed to incentive pricing schemes, migration strategies to newer, preferred services, customer support, mid-term benchmarking, service levels, and the transition period at contract expiration.  The more recent carrier master agreement templates are progressively more one-sided.  If the incumbent carrier insists on a new master agreement (or a more onerous set of general online terms and conditions), core terms and conditions in the RFP and previously negotiated provisions provide the customer’s baseline for negotiations.

If migrating to a successor carrier, be prepared for the successor’s master services agreement with a compilation of preferred clauses (which should track those included in the RFP) and propose a scope of work for the network transition, striving to limit the period during which services from the incumbent and successor carriers overlap while recognizing the carriers are loathe to negotiate a detailed transition plan as part of contract negotiations. (This intransigence makes little sense as the successful bidder typically acquires a detailed picture of a company’s existing network and locations in the customer’s RFP that, in turn, is central to the service provider’s RFP responses.) 

Dark Fiber.  Bandwidth requirements have a persistent, upward trajectory.  The questions are how fast and to what extent.  For local or regional requirements (such as connectivity to disaster recovery sites or among large, geographically concentrated facilities), an optimum solution may be a dark fiber lease or indefeasible right of use.  Additional background on dark fiber leases and IRUs is available on our blog: Enterprise Customers and Dark Fiber: An Important Connection, Part 2.

The virtue of dark fiber is that over time the enterprise can upgrade the electronics to derive more bandwidth from a given quantity of dark fibers. The challenges are that dark fiber is not ubiquitously available and the major wireline carriers and cable operators do not routinely offer or even negotiate dark fiber arrangements.  Even in markets where dark fiber is available, new construction likely will be required to establish connectivity between or among the enterprise’s locations.

Telecommunications Surcharges and State Taxes

The cost impact of telecommunications regulatory surcharges and taxes on enterprise services varies significantly based on the services being provided and is underappreciated by many enterprise customers.

The aggregate surcharge and tax burden for an interstate private line or a special access circuit can exceed 30% of the monthly charge.  Conversely, no surcharges or taxes are imposed on the charges for high speed Internet access service, but up to 65.8% of the revenues from VoIP (SIP) services are “USF-assessable.”

This disparity is driven by three considerations.  First, state and local jurisdictions need revenue and have targeted telecommunications services (wireline and wireless) as a prime revenue source.  Second, the Internet Tax Freedom Act prohibits the imposition of state taxes on charges for Internet access services.  Third, the FCC’s Universal Service Fund rules require USF contributions from service provider’s revenues from interstate and international telecommunications services and VoIP services, but excludes revenues from information services such as Internet access service.  The FCC allows services providers to recover their USF contributions via pass-throughs to customers.

The USF contribution factor (% of assessable revenues) is adjusted quarterly.  For the first quarter of 2019, the contribution factor is 20%.  Local state and sales taxes range from 3.5% to 6.0% of telecommunications services and VoIP (SIP) revenues. The major carriers also recover property taxes, gross receipts taxes, and costs of regulatory compliance, as set out in their service guides.  Adding insult to injury, these tax and cost recovery charges are added to the carrier’s USF-assessable revenues.

Questions/Follow-Up Discussion.  Keller and Heckman is pleased to offer a no-fee ½ hour follow-up conversation to discuss these topics in greater detail or respond to questions on telecom procurements.  To schedule a conversation, please contact Doug Jarrett: jarrett@khlaw.com; 202.434.4180.

Photo of Kathleen Slattery

Funding for a portion of the federal government expired on December 21, 2018, beginning a partial federal government shutdown.  The agencies affected by the lapse in funding include the FCC.  While the FCC managed to hang on longer than some of the other agencies affected, the Commission suspended operations starting mid-day on January 3, 2019.

During the suspension, some of the FCC’s filing databases remain available, but FCC staff is not working and will not be processing applications during the shutdown.  According to an FCC Public Notice regarding Commission operations during the shutdown, no support will be provided for the Commission’s website, including the databases that remain available.

The relevant FCC databases and services that remain available are:

  • Electronic Comment Filing System (ECFS)
  • Universal Licensing System (ULS)
  • Electronic Document Management System (EDOCS)
  • Auctions Public Reporting System (PRS)
  • Auction Application System, the Auction Bidding System
  • Daily Digest
  • Commission Online Registration System (CORES).

The relevant databases that will be unavailable are:

  • Electronic Tariff Filing System (ETFS)
  • Experimental Licensing System (ELS)
  • International Bureau Filing System (IBFS/MyIBFS)
  • FCC Form 477 Online Filing System
  • Tower Construction Notification System (TCNS)
  • Antenna Structure Registration System (ASR)
  • Electronic Section-106 System (E-106)
  • Fee Filer
  • 911 Reliability Certification System.

All spectrum auction activities authorized by Section 309(j) will continue and spectrum auction filing deadlines remain the same.  Other filing deadlines will be extended so that any submission due on January 3, during the suspension, or on the first day of normal operations will be due on the second day of normal operations.  Deadlines for Responsive Pleadings are extended in the same way.  Responsive Pleadings filed on January 2 will be treated as if filed on the date normal operations resume.

Any Special Temporary Authorizations (STAs) that would expire during the suspension are extended to the day after operations resume.  Emergency STA requests will be processed through the FCC Operations Center during the suspension.

The FCC’s Fee Filer System will not be available during the suspension.  Deadlines for payments are not extended, except for those that can only be paid through Fee Filer.  Those deadlines are extended in the same way as the filing deadlines.  The Wireless Telecommunications Bureau’s Fee Filing Guide states that “the application must remit payment within 10 calendar days of submitting the application, or the application will be dismissed [emphasis added].”  The status of applications filed during the shutdown is listed as “submitted.”  Because of this, applicants may need to mail in the Remittance Form with a check for the filing fee.

Prior to the suspension, the Commission was already facing an application processing backlog of a few months.  As the suspension continues, application processing times will extend further.  When operations resume, FCC staff will face an even more significant backlog.  Because applications will be processed in the order in which they are received, we recommend applicants continue to file applications as early as possible during the suspension.

There is no clear end in sight for the partial federal government shutdown.  The House of Representatives plans to consider four smaller spending bills to reopen parts of the government.  Funding for the FCC and FTC is included in the Financial Services appropriation bill, which is likely to be the first considered.  While these bills will likely pass the House and Senate Republicans are growing impatient with the shutdown, it is unlikely they will gain the support of President Trump.  Until the shutdown ends or the FCC is funded, the Commission must continue to operate in a very limited capacity.

For more information, please contact Kathleen Slattery (slattery@khlaw.com; 202.434.4244).

Photo of Wesley Wright

The year of 2018 at the FCC could be considered the year of déjà vu.  Sure, the Commission broke new ground in some areas, but many of the headline-grabbing items rehashed old proceedings.  For instance:

Net Neutrality

The ink was barely dry on the FCC’s net neutrality rules when, in January, the agency released a Declaratory Ruling that largely revoked those rules (see, Vol. XV, Issue 2).  The January Order – which took effect on June 11th – effectively terminated the bright line rules that were central to the FCC’s 2015 rules: no blocking lawful content, no throttling lawful content, and no paid prioritization.

To say this was a hotly-contested proceeding is an understatement: the issue caused a 3,000% spike in the FCC’s web traffic and the agency received about 22 million comments.  In August 2018, the FCC’s Inspector General concluded that the bulk of this was caused by a segment on John Oliver’s TV show.

Citizens Broadband Radio Service

The agency also revisited its rules for the Citizens Broadband Radio Service (CBRS) band (3.55-3.70 GHz).  The proposed rules essentially reopened the CBRS proceeding to make the spectrum allocation more palatable to large wireless carriers (see, Vol. XV, Issue 33).  The Public Notice seeking comment on proposed rule revisions was issued in August 2018 and the agency finalized its revised (again) rules in October 2018 (see, Vol. XV, Issue 44).  This most recent revision clears the way for CBRS networks to begin operating in 2019.  We expect the General Access tier to be available for use in the first four months of 2019 and the auction for the Priority Access tier of licenses likely will be held in late 2019 or early 2020.

FCC Enforcement

The FCC’s Enforcement Bureau made an example of a private land mobile licensee in August of 2018.  Marriott entered into a Consent Decree with the agency – agreeing to pay more than $500,000 and implement a Compliance Plan – for failing to secure the agency’s prior consent to acquire Starwood Hotels and Resorts Worldwide (and Starwood’s 65 wireless FCC licenses) (see, Vol. XV, Issue 36).

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But 2018 wasn’t all the same old, same old at the FCC.  The agency broke new ground in a few areas, including:

5G Deployment and Pole Attachments

The Commission’s top priority in 2018 was promoting 5G wireless deployments.  In that spirit, the FCC focused on infrastructure and spectrum to support 5G networks.  The agency took a number of steps to streamline the process by which: (i) new communications towers can be built (see, Vol. XV, Issue 19); and (ii) carriers can install new small cells to expand network coverage (see, Vol. XV, Issue 43).  These changes benefit the large national carriers, but many of the rule revisions – including onerous changes to Pole Attachment regulations and the Small Cell rules – were aggressively opposed by utilities and municipalities alike (see, Vol. XV, Issue 30).

On the spectrum front, the FCC also took steps to make additional mid-band spectrum available by proposing rules to rework the 2.5 GHz band, starting the process of cleaning up the 4 GHz band by requiring users to certify the accuracy of their operational information, and proposing to allow unlicensed devices to operate in the 6 GHz band (see, Vol. XV, Issue 41).

Connect America Fund Auction

The FCC also completed its Connect America Fund Phase II Auction, allocating nearly $1.5 Billion in federal funding over the next decade to support broadband deployments in unserved areas of 45 different states (see, Vol. XV, Issue 36).

For more information, please contact Wes Wright (wright@khlaw.com; 202.434.4239).

Photo of Douglas Jarrett

In late September, MissionCritical Communications posted several online articles about network-based and wireless handset-based emergency location technologies that will provide local public-safety answering points (PSAPs) the physical location of wireless callers dialing 9-1-1. These articles coincided with the FCC’s implementation of Kari’s Law, which Congress enacted this year.

Kari’s Law was enacted in response to an unfortunate incident where a young girl in a hotel room repeatedly dialed 9-1-1 but failed to reach the PSAP because the hotel’s phone system required a “9” be dialed as a prefix to secure an outside line. The legislation targets wireline voice technology, which increasingly, is limited to relatively large commercial locations. Operators of small businesses and individuals, including persons who lease their residences in multifamily dwelling units, are abandoning use of landline service.

In early October, MissionCritical Communications highlighted the public-safety community’s concerns over wireless carriers promoting Z-axis location accuracy of 5 meters or more as the dispatchable location standard. It was noted that this tech­nology could report a caller’s location either one floor below or above the calling party’s actual location, across the street or in a different building. Also noted was that substantially more accurate standards of 3 to about 1.8 meters are achievable.

Unfortunately, even assuming network-based or handset-based technologies will perform flawlessly, wireless emergency calling from in-building locations remains problematic. The efficacy of in-building wireless communications requires that RF signals be transmitted from and received by wireless callers within the buildings. Energy-efficient building materials impede RF signals, and persons above the 20th floor often do not receive a reliable signal from wireless carriers’ networks, particularly in dense urban areas or other high-density cluster environments.

Distributed Antenna Systems

The principal solution is an in-building distributed antenna system (DAS) built using off-the-shelf technologies and leveraging proven RF engineering practices. DAS enables in-building connectivity for multiple wireless technologies — Wi-Fi, public safety and commercial mobile radio service (CMRS). Whether a home, hotel or venue, a property’s owner or operator largely determines Wi-Fi connectivity. A public-safety DAS is often required by statute.

With the rollout of the First Responder Network Authority (First-Net), AT&T’s participation in DAS arrangements should increase. Whether in-building voice and broadband CMRS is available requires a wireless carrier’s participation and financial commitments from building owners. DAS supporting CMRS may be carrier specific or capable of supporting multiple service providers, referred to as a neutral-host DAS.

In-building DAS configurations require wireless carriers to extend their networks to a venue or building, typically installing baseband and RF equipment in a basement vault or equipment room. The wireless carrier operates this equipment. The RF signal is transmitted via in-building wiring — increasingly, fiber-optic cable — to antennas on one or more locations on each floor or every other floor to maximize coverage through an in-building distribution network. In a neutral-host DAS, multiple wireless carriers’ terminal equipment first connects to the owner’s neutral-host equipment, which in turn connects to the in-building distribution network.

The ecosystem of consultants, equipment, technologies and firms providing turnkey in-building DAS solutions is reasonably mature. Fiber-optic cable is the preferred wiring because of its extended useful life and substantial capacity. Major tower management companies that operate outdoor DAS networks are among the leading DAS providers in major venues. These entities may lease access to their in-building networks to the wireless carriers.

Business Models

Whether a DAS is deployed in a given building or venue turns on a series of business decisions. For­most, a wireless carrier determines whether its network would benefit from an in-building DAS by offloading or minimizing traffic on a carrier’s macrocell/outdoor network or if competitive pressures dictate that its service be available within the venue or building. Whether to extend its network into a major sports and entertainment venue is an easy decision for a wireless carrier.

Beyond these venues, wireless carrier participation is inconsistent, at best. In countless wireless infrastructure forums and conferences, wireless carriers emphasize their resources are limited and acknowledge they cannot extend their networks into every building requiring in-building coverage. Because of wishful thinking or a lack of due diligence by a systems integrator or property developer or owner, more than a handful of well-designed, fully constructed in-building distribution networks are not active because wireless carriers did not commit to extend service to the buildings.

The decision to make the investment for an in-building distribution system belongs to a property developer or owner. Wireless carriers rarely provide financial support for in-building distribution systems. Even if a property owner is willing to make this investment, the question remains whether the wireless carriers will extend their networks into the building and install their equipment to provide service. Many buildings don’t make the cut.

A Combination Solution

A combination equipment and financing solution that may improve carrier engagement in supporting in-building wireless communications exists. Cheytec Telecommunications established a relationship with the principal wireless equipment vendors to acquire the same baseband and RF equipment deployed by the carriers in their networks. Cheytec “takes the investment” in, retains title to and assumes the maintenance for the in-building wireless network equipment, charging the property owner a monthly licensing fee. Further, wireless carriers are authorized to operate and control this installed equipment as part of their networks.

The solution lowers a wireless carrier’s cost of extending its network into a building but still obligates the owner to fund the in-building distribution system and pay the monthly equipment-licensing fee.

Whether an owner takes this step depends on the owner’s economic analysis of providing wireless connectivity for its tenants or residents. Some property owners now view indoor wireless as an essential utility for their tenants. These decisions are made on a case-by-case basis. Wireless carriers could better support property owners by entering into DAS agreements with terms beyond five years, allowing the property owner to recover the cost of the in-building distribution system over a longer period.

Conclusions

Without question, dispatchable location standards must fully support public-safety emergency response activities. Equally important, policy-makers and legislators must recognize that wireless carriers largely determine the underlying availability and reliability of their services within many high-rise residential and commercial properties.

There are no easy solutions because substantial financial commitments are involved, but the challenges associated with in-building wireless communications should be acknowledged by the wireless carriers and recognized by regulators. Without open dialogue, an underlying issue in emergency wireless communications will persist indefinitely.

For more information, please contact Doug Jarrett (jarrett@khlaw.com; 202.434.4180).

This article originally appeared in the November/December 2018 issue of Mission Critical Magazine, and is reproduced with their permission. Visit MissionCritical Communications here. 

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On October 23, 2018, the FCC adopted a Report and Order in its 3550-3700 MHz Citizens Broadband Radio Service (CBRS) proceeding.  The Report and Order makes several modifications to rules governing the band, including extending license terms to 10 years, adding license renewability, and increasing the size of Priority Access License (PAL) areas from census tracts to counties.  Most notably, these items are the last substantial rule tweaks the Commission needed to resolve to move forward with its plans for CBRS deployment.

CBRS is somewhat of an experiment in spectrum management by the FCC.  It will entail third party Spectrum Access System (SAS) managers that will coordinate three tiers of users – General (unlicensed), Priority (auctioned licensees), and Incumbent (largely earth stations and federal users).   The goal is for each SAS to provide advanced, highly automated frequency management that will assign spectrum in nearly real time.  If it works, it will provide more intensive use of the band than manual coordination, while mitigating interference between the three tiers of users.

Way back on December 21, 2016, the FCC conditionally certified seven entities seeking to provide SAS services.  That conditional certification allowed further testing and pilot programs to commence, but did not authorize full commercial SAS deployment.  Full SAS certification is expected in early 2019, at which point users will be able to begin operating under the General Access tier.  Auction of the Priority Access tier licenses has not been announced, but likely will not occur until at least late-2019, given the Commission’s typical auction timelines.

The question now has become whether the Commission has taken so much time that additional relief is required.  This process started in 2015 when the FCC first adopted its initial CBRS rules.  At that time, the FCC gave incumbent users in the 3.65-3.7 GHz band a deadline to move out of the band or transition to CBRS service.  That deadline expires for many licensees as early as April 17, 2020.  That means some current users must transition their systems in the next 18-months even though the CBRS service is not even commercially authorized, yet.

Two entities representing wireless ISPs and utilities have filed a request asking the FCC to extend the transition period for 3.65-3.7 GHz band users until January 8, 2023.  This would allow time for SAS providers to become fully certified, the CBRS service to fully commence, and 3.65-3.7 GHz band users the time necessary to transition their service in a considered manner.  There seems to be little, if any, downside to granting the request.  The 3.65-3.7 GHz portion of the band has been successfully used for more than 10 years to provide applications such as rural wireless Internet access and critical infrastructure data communications.  There’s an argument it was not necessary for the FCC to require users in this portion of the band to migrate from their legacy systems at all.  An unnecessarily condensed migration timeframe will not allow users to evaluate the CBRS and may encourage users to move to other bands, such as 5 GHz.  This isn’t good for the viability of CBRS.  In light of the length of time it has taken to bring the CBRS to reality, it certainly seems like a good decision not to rush the final remaining steps.

The FCC currently is seeking comment on the extension.  Comments are due December 12, 2018 and Reply Comments are due December 24, 2018.

For more information, please contact Greg Kunkle (kunkle@khlaw.com; 202.434.4178).

Photo of Kathleen Slattery

As the new Majority Party in the House of Representatives, Democrats will take the gavels as Chairmen of House Committees and Subcommittees as the 116th Congress convenes in January.  The House Energy and Commerce Committee and its Subcommittee on Communications and Technology have jurisdiction over the FCC and telecommunications issues, including broadband.  The current Ranking Member, Representative Frank Pallone (D-NJ), is expected to become the Committee Chair. Based on recent statements, the House Energy and Commerce Committee is expected to take a more active role in FCC oversight under the new Chairman.

The current Chairman of the House Subcommittee on Communications and Technology, Representative Marsha Blackburn (R-TN), was elected to the Senate, replacing retiring Senator Bob Corker (R-TN).  As Chairman, Representative Blackburn was a strong supporter of recent FCC decisions, including the Restoring Internet Freedom Order (Vol. XV, Issue 24), the recent 3.5 GHz Order (Vol. XV, Issue 44), and other policies promoting 5G.  By contrast, the Ranking Member on the Subcommittee, Representative Mike Doyle (D-PA) who ran unopposed in the Pennsylvania’s new District 18 (Pittsburgh and surrounding areas), introduced a Joint Resolution under the Congressional Review Act to overturn the FCC’s Restoring Internet Freedom Order.  In order to bring the resolution to the House floor for a vote, the discharge petition must have 218 signatures; the discharge petition for this item currently has 177.  If the discharge petition does not receive the required signatures by the end of the year, then this item will fail.  In the next Congress, Democrats may attempt to reverse the policies in the Restoring Internet Freedom Order through regular order since the CRA will no longer be an option.

While we expect the House to increase oversight over the FCC, the Senate will continue to support the Republican-led FCC’s agenda.  The Republicans have maintained their majority in the Senate, the size of which depends on a few close races still being counted. One item of unfinished business is a Senate vote on the President’s nominee for the second Democratic Commissioner Geoffrey Starks.  Reportedly, the Senators from Alaska have placed a “hold” on his nomination in order to secure FCC action on telemedicine issues impacting their state.  A Senate vote on the nomination is expected before year-end.