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The FCC’s Monthly Meeting scheduled for 26 February 2015 is both widely-anticipated and one in series of continuing events.  The FCC will likely adopt its net neutrality order and order preempting certain state restrictions on municipal broadband by 3-2 votes.  Both decisions will be appealed.

The immediate questions are whether the net neutrality rules will

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At the CES Conference earlier this month, Chairman Wheeler signaled the FCC would adopt net neutrality rules, including a ban on paid prioritization, consistent with President Obama’s blog post from November. These remarks were noteworthy because the Chairman stated he would circulate a draft net neutrality order for adoption at the February Commission Meeting that would rely on Title II of the Communications Act as authority for the anti-blocking and anti-discrimination rules that the D.C. Court of Appeals struck down last January in Verizon v. FCC.
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Few FCC issues have elicited the sustained attention of the general public, public interest groups of all persuasions, the media, and the cable, telco and wireless industries as Net Neutrality. It is one of those rare issues that can drive a united front among the major Internet services providers.
In parallel, the Commission, guided by the Chairman and with the Office of Strategic Planning & Policy Analysis doing the heavy lifting, is in the midst of significant, though less widely reported, efforts to address a far more pressing issue for many of the country’s rural communities: For all intents and purposes, these communities do not have broadband services and find themselves on the wrong side of the “Digital Divide.”
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A confluence of factors confirms the FCC’s 2013 Wireless Signal Booster Report and Order is best viewed as a “first-step” in addressing wireless in-building reception challenges.

Significant “gaps” in wireless reception within multi-story buildings and large complexes are likely to persist as long as wireless carriers can decide whether and on what terms to allow property owners to install “industrial signal boosters”–operated in connection with in-building distributed antenna systems (DAS) or not–even though wireless carrier discretion and control are central themes of the Report and Order.

Several trends strongly suggest carrier discretion could prove problematic for persons living or working within multi-story buildings.

• The growing number of individuals under 35 years of age that rely exclusively on wireless for voice communications is unprecedented, as noted in the Sixteenth Mobile Wireless Competition Report: “Approximately half of all adults aged 18-24 and aged 30-34 lived in wireless-only households in the first half of 2012, while nearly 60 percent of adults aged 25-29 did so.”

• For the foreseeable future, new home construction and new household formation will occur predominantly in the multi-family, MDU sector, as opposed to single family construction and homes, particularly among millennials.

• In many multi-story buildings (residential and commercial), access to the outside of the buildings is not feasible; terraces are not commonplace in “high rise” developments. Thus, consumer signal boosters will not be a solution because their antennas are intended to be mounted on the outside of buildings.

• The commitment of property developers to Leadership in Energy and Environmental Design (“LEED”) materials and practices, including Low-E windows that are both extremely energy efficient and extremely effective in blocking wireless signals.

A “carrier-driven” solution that could overcome these challenges is small cell technology. While internal cabling is still required, the costs and time to deploy small cells reportedly compare very favorably to DAS deployments. One drawback to small cell technology, which also may be WiFi-enabled, is that this technology likely will be deployed on a carrier-specific basis. Thus, the so-called “neutral host” DAS may prove preferable for many in-building environments because all carriers can be accommodated by these systems. This is particularly critical in MDUs and multi-tenant commercial buildings.

Even though the carriers hold many “of the cards” for addressing in-building wireless reception challenges, developers and property owners will have to “ante up,” as well. These challenges will require their engagement and dollars to deliver viable solutions to their residents and tenants. The “wild cards” include near-by construction and development that can impair wireless reception at a given property and other changes in the macro wireless environment, requiring flexibility and resources from both carriers and property owners.

For the preferred multi-carrier, in-building solutions, the costs typically run well into six figures or more per property; the design and planning of the solution, securing approval from each wireless carrier, and implementing the solution can take upwards of one year. Unfortunately, not all carriers agree to participate in every project. While carrier agreements with property owners and enterprises are terribly one-sided, a threshold concern is that the carriers typically demand these agreements be limited to five-year terms and that they have the unilateral right to renew or not, thereby putting at risk the property owner’s infrastructure investments.

These property-specific negotiations also have broader implications. FCC proposals to promote the efficacy of wireless handset indoor location accuracy for 9 1 1 calls (text or voice) in multi-story buildings will prove to be an academic exercise if wireless signals cannot be transmitted from these locations, even if slightly distorted by in-building wireless reception solutions.

The 2013 Report and Order is a positive first step. Its utility and success are open questions at this time. If it falls short, the Commission may be compelled to limit carrier discretion in regard to industrial signal boosters and impose an affirmative obligation on wireless carriers to support in-building wireless reception solutions.
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The real surprise of the D.C. Circuit’s opinion in Verizon v. FCC was not that the anti-discrimination and anti-blocking rules of the Open Internet Order were vacated, but that the court found the FCC has jurisdiction to regulate Internet access services providers under Section 706 of the Act. Chairman Wheeler has made clear the FCC will exercise this authority as required, though the manner for so doing remains an open question. Legislation has been introduced to resuscitate the largely vacated order, but the odds for enactment are slim.
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As widely reported and commented upon, in Verizon v. FCC decided on January 14, 2014, the U.S. Court of Appeals for the District of Columbia vacated the anti-blocking and anti-discrimination rules adopted in the FCC’s Open Internet Order, but declined to vacate the network disclosure rules (pertaining to Internet access services providers’ network management practices).
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CTIA Offers to Unlock Devices; Will FCC Accept the Proposal?
As widely reported, CTIA responded positively in most respects to FCC Chairman Tom Wheeler’s November 14 letter requesting CTIA revise its Code of Conduct to incorporate five principles for unlocking wireless handsets, including the 3rd principle that calls for the wireless carriers to “affirmatively notify customers when their devices are eligible for unlocking and/or automatically unlock devices when eligible, without an additional fee.”
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As the Federal Government shutdown concludes and Congress takes the necessary steps to avoid a default on the Federal Government’s debts, the Senate is expected to confirm Thomas Wheeler as FCC Chairman and Michael O’Rielly as the Republican replacing former Commissioner Robert McDowell.

With substantial experience in Washington policy and legislative circles, it is anticipated