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About a year ago, the FCC adopted a Notice of Proposed Rulemaking (NPRM) proposing to subdivide the 900 MHz band into a broadband segment and two narrowband segments. The broadband segment would be 3 MHz x 3 MHz from 897.5-900.5 MHz/936.5-939.5 MHZ. The two narrowband segments would consist of 1 ½ MHz x 1 ½ MHz segments (896-897.5/935-936.5 MHZ) below the broadband segment and ½ x ½ MHz segments (900.5-901/939.5-940 MHz) above the broadband segment.

This would differ significantly from the current composition of the band, which includes 159 site-based channel 12 ½ kHz pairs and twenty 10-channel pair systems for a total of 359 pairs.

The predecessor to Anterix – pDv – filed a petition for rulemaking in 2014 outlining its proposal to establish the 3 MHz x 3 MHz broadband allocation. Under the proposal, site-based 900 MHz licensees in this portion of the band would have to be relocated to comparable frequencies in the narrowband segment. At roughly the same time, pDv acquired many 900 MHz SMR licenses in several large metropolitan areas. These 10 MHz channels were previously held by Sprint. The company also is working on agreements with narrowband licensees around the country to acquire their 900 MHz licenses consistent with the FCC’s rules governing the assignment of 900 MHz licensees.

The ultimate objective is to establish the 3 x 3 MHz broadband channel to provide service directly to critical infrastructure firms or lease this swath of spectrum. But before a 3 MHz x 3 MHz broadband allocation can become a reality, it is necessary to accommodate incumbents in the 900 MHz band.

The degree to which the 900 MHz band is licensed and is in use around the country varies dramatically. Several large “NFL cities” have modest use of the 900 MHz band and many rural areas have little to no operations in the band. However, several major metropolitan areas rely extensively on the 900 MHz narrowband channels. Relocating incumbents to the narrowband portion of the rebanded 900 MHz band – or finding similar dedicated spectrum to meet the needs of all incumbents – could prove incredibly challenging, if not impossible, in some of these areas. These saturated markets with several incumbents may prove to be the biggest hurdle to Anterix securing its requested rule changes from the FCC.

Projecting outcomes of FCC proceedings is always risky. But one helpful way to consider and project likely outcomes of this proceeding may be through brief summaries of the various positions that have been espoused by different parties throughout this proceeding.

Critical Infrastructure Supporters of the NPRM. Many investor owned utilities expressed interest in having access to the 3 MHz x 3 MHz channel for a range of data applications.

Critical Infrastructure 900 MHz Licensees. By contrast, some utilities that operate multi-site 900 MHz systems have argued that relocating 900 MHz incumbents would be extremely challenging. Some of these licensees are adamant that the FCC should not adopt Anterix’s proposed rule changes, while others are indifferent to the proposal if comparable facilities can be obtained by Anterix on behalf of existing 900 MHz licensees.

Another major sticking point for the parties is how the FCC would require incumbent relocation. Several parties have suggested the Commission permit voluntary relocation and arms-length negotiations between Anterix and existing licensees. The Commission is also considering adopting mandatory relocation procedures to ensure the 3 MHz x 3 MHz broadband allocation comes to fruition even if commercial negotiations fail.

Either way, an FCC decision is expected soon.

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Covid-19 is driving an unplanned, hopefully temporary, shift in enterprise telecommunications management. Plans to install Gig Ethernet access and MPLS ports at major locations can wait. The pressing matters are establishing and maintaining connectivity and network security for hundreds or thousands of new full-time teleworkers. Basically, it’s time to play defense rather than offense. Telecom/IT staffs are more important today than ever. The ability to communicate and interact with others during the Covid-19 pandemic is an “essential service.”

The escalating demand for audio and video conferencing services raises a range of issues:

  1. How many participants can join an audio conference?
  2. Can the number of participants be increased? If so, how soon?
  3. Can additional conferencing services be secured and deployed?
  4. What about online conferencing platforms such as Zoom, Skype, WebEx, and Teams?
  5. Should use of Zoom be restricted in some instances?
  6. How long will it take to expand IP addresses for the corporate VPN?
  7. Are the Internet’s core networks holding up? Based on peering point exchange data, the answer is “Yes.”

In light of the demand for online conferencing, the FCC has issued a temporary waiver of its so-called “access arbitrage rules” so as not to penalize the underlying service provider that carries the burgeoning conferencing traffic for Zoom and WebEx. Similar waivers may be in the offing.

What about call centers? Are call centers considered “essential services” in some states or in all states? What about in other countries such as India?

The emptying of offices and closure of public transport and nonessential businesses are also driving the demand for wireless services. The FCC has granted “Special Temporary Authority” to wireless carriers so they can access additional frequencies to support the surging demand for their services and to wireless internet services providers (WISPs) to access to spectrum at 5.9 GHz (currently reserved for Dedicated Short Range Communications (DSRC)) to meet the increased demand for broadband access in their service areas.

What About Enterprise Cost Containment Goals? As Enterprise Telecom/IT staffs focus on the connectivity needs of quintupling remote workforces, this may not be the optimum time to initiate a wireline or wireless services RFP. However, cost containment may now be critical for many organizations. To address this emerging concern, we recommend Telecom/IT staffs review their wireline and wireless service agreements, focusing on three considerations:

  1. Review bills or billing reports to determine if the enterprise is trending toward a potential shortfall in its minimum commitment level or in achieving a discount threshold. If this review indicates a shortfall may be on the horizon, we recommend (a) reviewing the business downturn provision in your agreement, focusing on the triggering conditions and agreed upon resolutions or outcomes; and (b) reviewing the force majeure clause to determine whether a pandemic qualifies as a force majeure event and whether this clause excuses a customer’s payment obligations, however unlikely. In today’s environment, this concern likely will arise in connection with wireline services agreements.
  2. If a wireline or wireless services agreement is expiring or the agreement is in its final renewal term or transition period, enterprise staff have two options. First, request a one-year extension or exercise the right for an additional one-year renewal term. Enterprises should avoid obtaining service on a month-to-month basis or face a 60%+ increase in rates at contract expiration. Second, if the agreement has six months to a year remaining in the term and cost savings are paramount, initiate efforts to issue a timely RFP to secure a new agreement.
  3. Conduct or propose/agree to a short extension of time to conduct the scheduled competitive pricing review. The carriers should not be looking for windfalls during the pandemic. Presumably, they want to keep your business as the pandemic passes.

Keller and Heckman represents enterprises in negotiating telecommunications services agreements. Please contact the author to discuss these or related procurement considerations.

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On February 7, 2020, the Federal Communications Commission (FCC) released a Report and Order which established the Rural Digital Opportunity Fund (RDOF) under which up to $20.4 billion will be made available at auction to help bring high-speed broadband to the Nation’s unserved rural areas. $16 billion will be made available through the Phase I reverse auction (also referred to as Auction 904) that is scheduled to begin on October 22, 2020. At least $4.4 billion, plus the remaining funds from the Phase I auction and, possibly, other funds will be available under the Phase II auction, which has yet to be scheduled.

Despite adopting a telework policy earlier this month, the FCC is taking the necessary steps to meet its October 22, 2020 Auction 904 start date. On March 2, 2020, the FCC released its Procedures Public Notice requesting comments on proposed bidding procedures and related program requirements for Auction 904. The most significant issue raised in this Public Notice is whether the FCC should establish census tracts as the minimum bidding areas, or the census block groups used in the Connect America Fund Phase II (CAF II) auction (also referred to as Auction 903).

On March 17, 2020, the FCC released the preliminary list of census blocks and a map of areas initially eligible for Auction 904 (Preliminary List.) The areas identified in the Preliminary List are subject to limited challenges. First, existing providers may identify any census blocks as ineligible that have become served with voice and 25/3 Mbps or better broadband service since their June 2019 Forms 477 were filed. Second, FCC staff will determine whether areas identified on the Preliminary List are obtaining 25/3 Mbps or better service by providers supported by state broadband programs or other Federal programs, such as the Rural Utilities Service ReConnect Loan and Grant Program, Auction 903, and the Rural Broadband Experiments. These areas will not be eligible for Auction 904.

Report and Order

The FCC adopted four performance tiers for the Phase I auction, adding a new “baseline” tier of 50/5 Mbps. It also increased the weight for high latency services, adversely impacting satellite-based services.

Performance Tiers, Latency, and Weights

Performance Tier                  Speed                                      Usage                              Weight                      


Minimum ≥ 25/3 Mbps ≥ 250 GB or U.S. average, whichever is higher 50
Baseline ≥ 50/5 Mbps ≥ 250 GB or U.S. average, whichever is higher 35
Above Baseline ≥ 100/20 Mbps ≥ 2 TB 20
Gigabit ≥ 1 Gbps/500 Mbps ≥   2 TB 0


      Latency                             Requirement                           Weight
Low ≤ 100 ms 0
High ≤ 750 ms &
MOS ≥ 4

As outlined above, areas eligible for Phase I support are those wholly lacking broadband services at 25/3 Mbps and wireline voice services from a terrestrial provider. The FCC is relying on data from providers’ Form 477 reports to determine whether a census block will be eligible. These reports have been criticized because a census block is considered “served” if only one location obtains fixed voice and 25/3 Mbps broadband services, but the Form 477 data do allow the agency to identify wholly-unserved areas. The Commission believes that the new reporting rules and mapping procedures adopted in its ongoing Digital Opportunity Data Collection proceeding will make more granular data available. It predicts that unserved locations in many areas nominally classified as “served” will be identified and included in the Phase II auction.

Apart from the substantial $16 billion 10-year budget (up to $1.6 billion per year), the Phase I auction is expected to provide more money per bid than Auction 903 for three main reasons: (1) new bid assignment procedures, (2) the reduced high cost threshold and increased cap in maximum support per location, and (3) the opportunity for substantially lower Letter of Credit (LOC) carrying costs as compared to the LOC carrying costs imposed on CAF II auction winners.

  1. Bid Assignment Procedures

The most significant difference between the bidding procedures for Auction 904 and Auction 903 is the change in bid assignment rules. While the lowest price point bid in the clearing round will still be awarded support, when two bids are each placed at the base clock percentage or at any other price point in the clearing round, the bid will be assigned to the bed having the lowest weight performance and latency combination (“T&L combination”). Under Auction 903, when two bids having different T&L combinations were placed at the same price point, the bids were carried forward to the next round. Under the revised bidding assignment rules, more bids are expected to be assigned during the clearing round of Auction 904.

  1. High Cost Thresholds and Caps

To include more unserved areas than the CAF II auction, the FCC lowered the high-cost threshold from $52.50 to $40 per location. For Tribal areas and those entirely lacking 10/1 Mbps connectivity, the threshold is $30 per location. The $52.50 high-cost threshold is the price the FCC believes end-users should be obligated to pay based on what urban area customers pay. This threshold was reduced because the FCC determined there are several million customers in totally unserved areas where the estimated cost of service is less than $52.00, but 25/3 Mbps and fixed voice services are not available.

Additionally, the high-cost support cap per location is increased $212.50, up from $146.10, with the cap for Tribal areas and areas without any broadband service set at $222.50. The effect of reducing the high cost threshold and increasing the high cost cap is that far more locations will be eligible for Auction 904, as compared to those eligible for the CAF II auction. This makes sense as up to eight times more money is being made available in Auction 904 ($16.0 billion) as compared to Auction 903 ($1.98 billion).

  1. Letter of Credit Obligation

The FCC adopted a noticeable reduction in the carrying costs for the required Letter of Credit (LOC). In the CAF II auction, the amount of the LOC increased annually until the buildout was complete. That is, if a buildout is completed in six years, the LOC, during the last year, would equal six times the winning bidder’s annual support amount. In Auction 904, the Commission retained the LOC requirement, but the Commission provided RDOF winning bidders an incentive to limit the amount of the LOC; as an award recipient satisfies its buildout milestone (as verified by USAC), the LOC is reduced to an amount equal to only one year of support payments.

Recognizing that the initial buildout milestone is 40% at the end of year three, the FCC established an optional 20% buildout milestone. This means that once a winning bidder meets the 20% buildout threshold, the LOC will be reduced to an amount equal to one year’s support.


The Phase I auction is an important opportunity for existing and prospective rural broadband providers. The $16 billion Phase I budget will likely exceed any other Federal or state broadband funding program for at least 10 years, so service providers that have sought federal or state funding opportunities in the past should strongly consider Auction 904, particularly in light of the auction process refinements that have been adopted by the Commission.

For further information, please contact the authors: Doug Jarrett (; 202.434.4180) or Timothy Doughty (; 202.434.4271).

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In December 2019, the FCC finally took action in its open docket on radiofrequency (RF) exposure (RFE), adopting a Resolution of Notice of Inquiry, Second Report and Order, Notice of Proposed Rulemaking, and Memorandum Opinion and Order. Therein, the FCC addressed many issues which had been pending since 2013 when the FCC issued a First Report and Order, Further Notice of Proposed Rulemaking, and Notice of Inquiry, each addressing various issues related to RFE. (See blog entries dated February 8, February 22, and March 1, 2018, for information regarding the 2013 FCC actions.)

Radiofrequency Exposure Limits Unchanged

In the matter of greatest interest to the public, the FCC determined in its Resolution of Notice of Inquiry that no changes should be made to its existing RF exposure limits, which have been in place since their adoption by the FCC in 1996. The FCC stated, “we believe they reflect the best available information concerning safe levels of RF exposure for workers and members of the general public…” In so deciding, the FCC relied heavily on input from other federal agencies charged with regulating safety and health and “the lack of data in the record to support modifying our existing exposure limits.”

The current FCC limits differentiate between general public and occupational/controlled exposure limits. The latter apply to personnel with expertise and training regarding RF exposure safety, and their exposure levels are higher than for the general public.

In other actions related to the 2013 Notice of Inquiry, the FCC declined to revisit its RF exposure evaluation procedures for consumer portable devices, especially phones; declined to revisit its RF exposure policy as it pertains to children; and said it will continue to ensure that relevant information is made available to the public.

Changes to Application of the Limits

The FCC resolved the 2013 Further Notice of Proposed Rulemaking issues in its Second Report and Order, which has three main parts:

     A. Identifying broad criteria that apply to single and multiple RF sources                        based on power, distance, and frequency, irrespective of service                                    classifications

    B.  Clarifying the calculation or measurement methodologies to be used                         in cases where no exemptions apply to determine potential RF                                     exposure levels

    C. Addressing post-evaluation mitigation procedures like access, signage,                      and training to ensure that both the general public and trained                                    personnel are not exposed to RF emissions in excess of FCC limits

Under A, the FCC adopts three broad classes of exemptions:

  1. For extremely low-power devices that transmit at no more than 1 mW
  2. For somewhat higher-power devices with transmitting antennas that operate within 40 cm of the body, a formula based primarily on the localized specific absorption rate (SAR) limits derived from the frequency, power, and separation distance of an RF source
  3. For all other transmitters based on a set of formulas for the maximum permissible exposure (MPE) limits in five frequency bands

For each of those three classes, the FCC provides for both the single-transmitter and multiple transmitter cases. The multiple transmitter methodologies involve some complex formulas, which do not lend themselves to summarization here, but about which we are available to provide additional information.

Under B, the FCC states that for fixed RF sources that do not qualify for an exemption, a “determination of compliance” must be performed to ensure that RF exposure limits are not exceeded in places that are accessible to people. The FCC removes from its rules specific acceptable approaches for evaluating an RF environment and “will instead allow any valid computational method to be used in demonstrating compliance with [its] RF exposure limits.” The FCC adds that to ensure validity, computational modeling must “be supported by adequate documentation showing that the numerical method as implemented in the computational software has been fully validated.”

Under C, The FCC states that “the purpose of mitigation is to take the appropriate steps to keep persons out of [space where the RF exposure limits are exceeded].” and that mitigation measures include “labels, signs, markings, barriers, positive access controls, and occupational training.”


The new FCC rules will require licensees and operators of fixed RF sources to use signs when a single or multiple RF sources in an area create locations where exposure is above the limit for the general public; however, “indicators” such as chains, railing, paint, and diagrams may alternatively be used, “particularly in situations where positive access controls are in place to effectively restrict access only to persons who are trained…”

The FCC adopted four categories of signage:

  1. “INFORMATION” where RF exposure is less than the General Population limit
  2. “NOTICE” where RF exposure is above the General Population limit but below the Occupational limit
  3. “CAUTION” where RF exposure is between one and ten times the Occupational limit
  4. “WARNING” where the RF exposure is greater than ten times the Occupational limit.

Regardless of category, “DANGER” signs are required anywhere immediate and serious injury would occur on contact. Note that Category 1 signs are optional and voluntary.

Signs for all four categories must include an RF energy advisory symbol, a description of the RF source, a statement of the behavior necessary to avoid over-exposure, and up-to-date contact information for someone with authority and capability to provide a prompt response.

Category 2 areas not only require the NOTICE signs, but also require positive access controls. Category 3 areas require the CAUTION signs, positive access controls, and controls or indicators such as chains, railings, contrasting paint, or diagrams surrounding the area. Category 4 requires the same protections as Category 3 with this important FCC proviso: the only apparently adequate mitigation measure within the Category 4 area is power reduction that will bring exposure within the occupational limits. The FCC adds that accurate placement of signs is critical and should make clear both where limits are and are not exceeded. For “readability” requirements for signs, the FCC relies on the Occupational Safety and Health Administration (OSHA) requirements for accident prevention signage.


For application of the occupational/controlled limits, the FCC states that training is critical to ensure that exposed persons are aware of the potential for exposure and can exercise control over it. The FCC acknowledges, however, that it is difficult to prescribe clearly what constitutes appropriate training. Therefore, the FCC’s Office of Engineering and Technology (OET) is directed to coordinate with OSHA and provide guidance thereon as soon as practicable in a revised OET Bulletin 65.

Responding to concerns about licensee responsibility for mitigation at sites not completely under a licensee’s control, the FCC declined to establish a safe harbor from actions or events beyond the licensee’s control. Instead, the FCC decided that a licensee’s due diligence in ensuring compliance with the RF exposure requirements considering the totality of measures taken will be the test for a safe harbor. The FCC states that “responsibility for maintenance of the conditions that permit a siting within our rules can be an enforceable condition of a [site] lease.”

Where there are multiple licensees at a site, all licensees are responsible for compliance with the FCC RF exposure limits. However, if a licensee can demonstrate that its facility was compliant and did not cause non-compliance, it will not be liable in an enforcement proceeding.

To ease the transition to the new rules, the FCC establishes a two-year transition period from the effective date of the new rules to allow licensees and manufacturers the opportunity to determine whether they meet the criteria for exemption. The FCC also provides that equipment authorized prior to the effective date of the Second R&O can continue to be marketed and used under their existing authorization so long as parties deploying such equipment ensure that equipment is installed consistently with the information in the installation manual or user instructions.

Notice of Proposed Rulemaking (NPRM)

The FCC initiated a new NPRM to address the challenges of evolving technology. It proposes to expand the range of frequencies for which the RF exposure limits apply (currently 100kHz to 100 GHz) to a new upper limit of 3000 GHz; to reduce the spatial averaging area of the human body from the current 20 cm² to 1 cm² for higher frequencies; to establish a new “device-based time-averaging” and seeks comments on whether and how to apply it to ensure compliance with the RF exposure rules; to address wireless power transfer devices, which can operate at very high power; and how to regulate to ensure that RF energy therefrom does not exceed FCC exposure limits or create harmful interference to other services.

Memorandum Opinion and Order (MO&O)

In the MO&O part of this decision, the FCC disposed of issues resolved in its 2013 decisions that were the subject of petitions for reconsideration. No changes were made to those decisions on reconsideration.

This area of FCC regulation is important and complex. Radiofrequency exposure limits and mitigation requirements are an area of special expertise at Keller and Heckman LLP. With our wide-ranging and extensive experience in the areas of telecommunications and health and safety, we stand ready to assist you with any questions or concerns about these regulatory requirements. Please feel free to contact the author at

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Roughly every four years, representatives of most of the 190+ member countries of the International Telecommunication Union (ITU) meet for four weeks at a World Radiocommunication Conference (WRC) to consider changes to the allocations and regulations governing the international use of spectrum. The ITU is the United Nations (UN) specialized agency for information and communications technologies. WRCs are international treaty-writing conferences at which new or modified spectrum allocations and regulations are adopted and are critically important to the United States and other nations driving wireless telecommunications technology and development. WRC-19 was held from Oct. 28-Nov. 22, 2019 in Sharm el-Sheikh, Egypt.

The ITU summarized the major accomplishments at WRC-19 in an understandably positive light:

  • International Mobile Telecommunications [5G mobile] – Additional spectrum was identified in the 24.25-27.5 GHz, 37-43.5 GHz, 45.5-47 GHz, 47.2-48.2 and 66-71 GHz bands, facilitating the development of Fifth Generation (5G) mobile networks.
  • Earth exploration-satellite (EESS) service – Protection was accorded to EESS with the possibility of providing worldwide primary allocation in the frequency band 22.55-23.15 GHz in order to allow its use for satellite tracking, telemetry, and control.
  • Non-Geostationary SatellitesRegulatory procedures were established for non-geostationary satellite constellations in the fixed-satellite service, opening the skies to next-generation communication capabilities. Mega-constellations consisting of hundreds to thousands of satellites in low-Earth orbit are becoming a popular solution for global telecommunications, as well as remote sensing, space, and upper atmosphere research, meteorology, astronomy, technology demonstration, and education.
  • High-altitude platform stations (HAPS) – Additional frequency bands were identified for High Altitude Platform Systems (radios on aerial platforms in the stratosphere) to facilitate telecommunications within a wide coverage area below for affordable broadband access in rural and remote areas.
  • WiFi Networks – Regulatory provisions were revised to accommodate both indoor and outdoor usage and the growth in demand for wireless access systems, including RLANs for end-user radio connections to public or private core networks while limiting their interference into existing satellite networks.
  • Railway radiocommunication systems between train and trackside (RSTT) – A Resolution was approved on railway radiocommunication systems to facilitate the deployment of railway train and trackside systems to meet the needs of a high-speed railway environment, particularly for applications supporting improved railway traffic control, passenger safety, and security for train operations.
  • Intelligent Transport Systems (ITS) – A Recommendation was approved to integrate Information and Communication Technologies in evolving ITS to connect vehicles, improve traffic management, and facilitate safer driving.
  • Broadcasting-satellite service (BSS) – Protection of frequency assignments providing a priority mechanism for developing countries to regain access to spectrum orbit resources.
  • Global Maritime Distress and Safety System (GMDSS) – GMDSS coverage was expanded.
  • Earth stations in motion (ESIM) – A decision on ESIMs will support and facilitate communications between planes, ships, and trains and satellites.
  • Regulatory changes were introduced to facilitate rational, efficient and economical use of radio frequencies and associated orbits, including the geostationary-satellite orbit.

The U.S. Department of State statement on the results of WRC-19 focused on actions tied to domestic wireless policy priorities:

Agreements reached at WRC-19 will help pave the way for the global harmonization of 5G, and the development of an ecosystem of applications and services that will fuel the growth of the digital economy for years to come. WRC-19 successfully identified over 15 GHz of globally harmonized millimeter wave spectrum for 5G, plus additional spectrum for 5G on a regional or country basis.

These decisions reinforce U.S. leadership in 5G, with successful outcomes in the 26 GHz, 40 GHz, and 47 GHz bands all aligning with actions already taken by the United States in its own aggressive 5G spectrum rollout. With this groundwork set, the world can now benefit from global roaming and economies of scale while permitting flexibility in 5G deployment.

WRC-19 also advanced a forward-looking framework for 5G and satellite services, including critical passive weather systems, to coexist without limiting the opportunities and benefits of 5G and incumbent services. The Conference reached consensus on additional agenda items covering a range of new technologies and services, from enabling our commercial space sector through growth of next-generation non-geosynchronous orbit satellite constellations to innovative infrastructure platforms that keep us connected in the air and at sea.

Commissioner O’Reilly’s Take on WRC-19. On December 5, 2019, FCC Commissioner Michael O’Rielly testified before the Subcommittee on Communications and Technology of the House of Representatives Committee on Energy and Commerce. Commissioner O’Rielly offered an appraisal that WRC-19 “achieved some of [the U.S.] objectives in various, muddled forms.” He raised “some fundamental concerns that ultimately call into question the continued value of future conferences.” These included his view that some national delegations—Russia for one—opposed the interests of the U.S. and other forward-thinking nations for what appeared to be “larger geo-political purposes and to protect domestic industries from competition from U.S.-based companies.” He also cited China and France as “unreasonably obstinate” and going “far beyond normal negotiation strategy…”

In his testimony, Commissioner O’Reilly raised alternatives to the ITU WRC process if needed to protect U.S. interests, including the U.S. and Japan (the two largest funders of the ITU). These included forcing change, or even cutting off their funding, or exploration of a “G7-like” organization or a “loose coalition of leading wireless nations as an alternative to the ITU.” Any of those actions would be a drastic change to the current structure and process, but there are institutional reasons for the difficulties and frustration cited by Commissioner O’Reilly.

A threshold challenge for the U.S. is the process for developing positions on many issues for each WRC. Government agencies and the private sector undertake extensive discussions to develop the U.S. positions; the process consumes a good part of the four-year interval between the WRCs. Once U.S. national positions are developed, they are then coordinated with other nations to achieve broader support consistent with U.S. interests prior to the WRC.

WRC Institutional Challenges. Like most UN organizations, the ITU makes decisions on spectrum, regulatory rules, and standards using a one nation one vote system unless there is consensus. Each ITU member country can select the level of dues it pays to support the ITU. Even though the U.S. and Japan pay the highest dues of ITU member countries, their votes have the same weight as other member countries which contribute a much lower percentage of the funds needed to support the ITU.

Another institutional issue is divergent priorities and interests among various member countries. When cutting edge technology matters are at issue, many ITU member countries view implementation as too far removed from their present-day realities of wireless communications and have less stake in how future technology-related matters are resolved. The ITU works hard to ensure that developing countries receive benefits from the international system to make them stakeholders in technological progress. Otherwise, they could stay out of the decision-making process or even hold the process hostage.

In addition to this divergence of interests, the U.S. faces some significant disadvantages in successfully building alliances under the governance structure of the ITU.

For purposes of radiocommunications, the ITU divides the world into three regions:

  • Region 1: Europe, Africa, the former Soviet Union, Mongolia, and some of the Middle East
  • Region 2: the Americas including Greenland, and some Pacific Islands
  • Region 3: most of Asia and Oceania

The United States is in Region 2, which has far fewer ITU member countries than Regions 1 or 3.

The ITU also divides the world into five Administrative Regions:

  • A: the Americas (35 ITU member countries)
  • B: Western Europe (33 ITU member countries)
  • C: Eastern Europe and Northern Asia (21 ITU member countries)
  • D: Africa (56 ITU member countries)
  • E: Asia and Australia (50 ITU member countries)

The number of countries in each of the regions is the basis for the distribution of important positions in the governance of the ITU such as the ITU Council and the International Radio Regulations Board.

Administrative Region A, which includes the U.S. has far fewer ITU member countries than Regions D and E. Europe includes parts of both Regions B and C, so it has a numerical advantage demonstrated by the fact that European positions for WRCs are usually prepared in the European Conference of Postal and Telecommunications Administrations (CEPT) process and there are 48 member nations of CEPT.

Thus, on a purely numerical basis, the U.S. is challenged to put together large coalitions to support its positions as compared to the number of voting members in other regional coalitions. The U.S. government understands this challenge and has done a much better job of achieving support in the Americas and beyond in recent years, but challenges persist when WRC participants have substantially different interests and priorities.

While a G7-type of body for spectrum issues sounds appealing for the U.S. in light of these institutional challenges, such change would require the U.S. and other leading nations in telecommunications to cast off over a century of reliance on the ITU and its radio conference process. There would be an inevitable political backlash from the other nations of the world, which would object to marginalization in this important decision-making process. Whatever the merits of a smaller decision-making body of more commonly interested nations, it does not seem a likely or realistic prospect, particularly when the WRC-19 results did not leave the U.S. or other major nations feeling that their interests were largely ignored or disregarded.

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Earlier this week, the FCC Fined CenturyLink $400,000 and West Safety Communications $175,000 for a multi-state 911 outage that occurred in August 2018. To resolve the dispute, both companies also entered into a Compliance Plan.

The outage stemmed from an inadvertent switch configuration change, which disrupted the delivery of 911 calls in nine states. The FCC calculated that the ensuing 65-minute outage resulted in more than 460,000 calls to 911 not being delivered.

The Order notes that the outage impacted only one of West Safety’s two routing facilities. Carriers that load-balanced their traffic between the two facilities were able to complete 911 calls during the outage. Carriers that did not load-balance their traffic were impacted.

Both companies are required to (i) develop operating procedures to ensure compliance with the 911 service rules; (ii) conduct employee training; and (iii) develop a compliance manual. In addition, the FCC requires both parties to file annual compliance reports, appoint a Compliance Officer to oversee the program, and report instances of material noncompliance uncovered in the next 3 years.

A previous blog post here describes some additional common components of a Compliance Plan.

The FCC fined the parties for the outage and for failing to deliver 911 calls to a PSAP. The Commission alleged this violates a rule that requires common carriers to transmit all 911 calls to a PSAP. Similar outages in the past have also resulted in fines for not complying with the FCC’s network outage reporting (NORS) rules, but the companies appear to have complied with the NORS rules – and resolved the outage within 65 minutes – so no NORS violation occurred.

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At its Open Meeting last week, the FCC approved a Declaratory Ruling that prevents state, local, and Tribal 911 entities from collecting higher 911 fees from VoIP subscribers than what these groups collect from subscribers of traditional telecommunications services. The FCC is promoting fee parity among services that provide end-users with the same 911 calling capability.

The final Ruling is not yet available, but it is not expected to differ much from the draft (available here) that was circulated by the FCC earlier this month.

Background. The FCC’s Ruling stems from a referral from the U.S. District Court for the Northern District of Alabama. The Ruling clarifies section 6(f)(1) of the New and Emerging Technologies 911 Improvement Act of 2008 (NET 911 Act). The NET 911 Act was passed to promote the transition of legacy 911 infrastructure to an IP-enabled emergency network. The Act also extends 911-related rights, protections, and obligations to VoIP providers. Section 6(f)(1) of the Act prohibits charging 911 fees to VoIP service subscribers in excess of fees paid by telecommunication service customers.

Alabama Litigation. Several years ago, four 911 Districts in Alabama sued BellSouth for allegedly underbilling certain 911 charges. The Districts alleged that BellSouth failed to bill and collect all required 911 charges. BellSouth argued that Alabama law conflicts with the NET 911 Act because it effectively resulted in higher 911 charges for VoIP services. The District Court granted BellSouth’s motion for a primary jurisdiction referral to the FCC, and the FCC subsequently issued a Declaratory Ruling on the matter.

Declaratory Ruling. In its ruling, the FCC confirmed that section 6(f)(1) prohibits non-federal governmental entities from imposing 911 fees or charges on VoIP services in any manner that would result in a subscriber to such VoIP services paying a higher total amount of 911 fees or charges than is imposed on a subscriber to traditional telecommunications services with the same 911 calling capacity. The Commission rejected an interpretation of section 6(f)(1) that would prohibit a fee discrepancy in the nominal fee itself, instead deciding that parity in the total amount of the fee is more appropriate considering the Act’s purpose. The Declaratory Ruling does not preempt any state law or regulation but provides guidance to courts on future 911 fee issues.

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The FCC’s CBRS band at 3.55-3.70 GHz took a big leap forward this month.

PAL Auction Date Proposed

On September 5, 2019, FCC Chairman Ajit Pai released a draft Public Notice that, once adopted, will seek comment on proposed procedures for Auction 105, the auction of 70 MHz of Priority Access Licenses (PALs) in the 3.5 GHz band.

Proposed to start June 25, 2020, Auction 105 will make available 22,631 PALs nationwide. The draft Public Notice proposes several procedural rules for the auction, including current bidding eligibility requirements, upfront payment amounts, and minimum opening bid amounts. The draft Public Notice also proposes to conduct Auction 105 as an ascending clock auction and to implement bidding caps. The Commission will likely finalize these procedures in late 2019 or early 2020.

GAA Goes Live

However, the bigger news came on September 16, 2019, when the FCC released a Public Notice stating that Google, Federated Wireless, CommScope, Amdocs, and Sony had passed testing on their Spectrum Access Systems (SASs) and were approved to commence initial commercial deployments (ICD). The approval (and SAS provider compliance with ministerial filing requirements) means that the General Authorized Access (GAA) tier of CBRS service is now available on a limited basis. The ICD period will last a minimum of 30 days, during which the FCC will evaluate SAS operations. Assuming no concerns, the FCC may approve full commercial nationwide GAA operations by the end of this year.

Evolution of the 3.5 GHz Band

This is a big step forward for the 3.5 GHz band. Prior to 2015, the 3.55-3.65 GHz portion of the band was mainly allocated for use by Department of Defense radar systems. However, the FCC realized that the band’s physical characteristics make it especially well-suited for mobile broadband that uses small cell technology (e.g., 5G) and adopted rules aimed at opening it for non-federal use by establishing the Citizens Broadcast Radio Service (CBRS), as well as a three-tiered access and authorization framework.

The CBRS is a relatively novel spectrum management concept. Under its framework, third-party Spectrum Access System (SAS) managers will coordinate three tiers of users by automatically managing and assigning spectrum in near real-time. The goal is to provide more intensive use of the band than is available with manual coordination, while also mitigating interference between the tiers of users. There will be a high level of interest in seeing how well it works. If successful, the model may repeat itself across other bands as the FCC tries to squeeze as much capacity as possible from existing spectrum resources.

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Earlier this month, the FCC released a Report and Order that implements the direct dialing and notification requirements of Kari’s Law and adopted rules requiring a dispatchable location to be conveyed with 911 calls from certain Multi-Line Telephone Systems (MLTS), pursuant to RAY BAUM’s Act.

These rules will take effect over the next few years and will apply to MLTS systems owned and operated by a wide range of industries, from large industrial companies to hotels, Fortune 100 companies to small startups. The Commission interpreted the definition of “MLTS” as broadly as possible to include IP-based telephone systems, VoIP, and outbound-only calling systems, among others.

Kari’s Law

Kari’s Law applies to manufacturers, sellers, and operators of MLTS equipment, and consists of two main provisions: direct dialing and notification.

The direct dialing provision requires all MLTS systems manufactured, imported, offered for first sale or lease, first sold or leased, or installed after February 16, 2020 to be pre-configured so that a user may directly dial 911 without having to dial a prefix (e.g. the number “9”) to reach an outside line.

The notification provision mandates that all such MLTS systems must be configured to provide a notification to a central location, such as a front desk or security office, when a 911 call is made, as long as it can be done without an improvement to the hardware or software of the system. This notification can be provided to a location at the facility where the system is installed, or to another person or organization offsite.


RAY BAUM’s Act generally requires MLTS and other 911-capable services to convey a dispatchable location to Public Safety Answering Points (PSAP) when 911 calls are placed. A “dispatchable location” is the street address of the calling party, and any additional information necessary to adequately identify the location of the calling party (e.g. office number, suite number, room number, etc.). These obligations apply to the same entities subject to the direct dialing and notification requirements of Kari’s Law, excluding legacy services because they are forward-looking.

In line with the Commission’s goal of providing first responders with the dispatchable location of an emergency caller regardless of how the caller reaches 911, the adopted rules apply to several different technologies. These technologies include fixed and non-fixed MLTS devices, fixed telephony systems, and Voice over Internet Protocol (VoIP) systems.

Providers of fixed devices and services must automatically deliver a dispatchable location with any 911 calls originating from their equipment, while providers of non-fixed devices and services must do so when it is technically feasible. Providers of non-fixed VoIP and outbound-only VoIP systems have the additional option of providing alternative location information when delivering a dispatchable location is not feasible.

For more information, please contact Wes Wright, Keller and Heckman LLP, 1001 G Street NW, Washington, DC 20001; 202-434-4239; e-mail:

Photo of Michael T.N. Fitch

Here is the final entry of a three-part series of articles outlining the key provisions of new state legislation regarding the deployment of wireless small cell equipment in public right-of-way (ROW). Each of the three-part series addresses newly enacted legislation. The first two articles in the series featured Nebraska and Wisconsin. Today’s article features Maine and Connecticut.


Over the last few years, the wireless industry has actively pursued state legislation enacted to constrain the broad authority of local governments over the deployment of wireless small cell equipment in public ROW. Connecticut, Maine, Nebraska and Wisconsin have now joined Arizona, Arkansas, Colorado, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, New Mexico, North Carolina, Ohio, Oklahoma, Rhode Island, Tennessee, Texas, Utah, Virginia, and West Virginia to bring the list of states which have enacted legislation to facilitate the deployment of wireless small cells to 28.

These state laws typically limit the authority of local governments to decide where wireless small cell equipment can be installed in the ROW; limit the time for action on applications to install small cell equipment; and limit the amounts that can be charged for applications and use of the ROW.

Today’s blog post will focus on Maine and Connecticut, which took a very different approach from those of Nebraska and Wisconsin.


This brief new law provides:

With regard to small wireless facilities:

  • Notwithstanding any zoning or land use ordinance to the contrary, a the facility must be a permitted use within the public right-of-way, subject to permitting requirements and duly adopted, nondiscriminatory conditions otherwise applicable to permitted uses within the municipality and consistent with state and federal law, including, without limitation, any permitting requirements in Title 35-A, Chapter 25.
  • The rights and responsibilities of a cable television company under franchise agreement executed pursuant to Section 3008, Subsection 5 are not affected or altered.


 This law establishes a Council on 5G Technology and tasks it with:

  • Reviewing wireless carriers’ requests to place personal wireless service facilities and small wireless facilities, as defined in federal law, on state-owned real property.
  • Determining which state-owned properties may be made available to the wireless carriers for these facilities.

The law requires the Council to:

  • Adopt guidelines for safely placing personal wireless service facilities and protecting open space land.
  • Perform due diligence and review comments from any entities that own property within a 500-foot radius of any state-owned real property under the council’s review.

The law requires the state Office of Policy and Management to:

  • Jointly develop, with certain other state agencies, licensing agreements, forms, and fee structures for placing the wireless facilities on state owned property, noting that the law does not supersede existing rules and requirements regarding the review and approval of permits for proposed personal wireless service facilities under the Public Utilities Regulatory Authority’s (PURA) and the Connecticut Siting Council’s jurisdiction.
  • In consultation with PURA and the Siting Council, to work with municipalities to establish a process for siting small wireless facilities on municipal property and, when using utility or light poles is insufficient, private property with the property owner’s permission.

Many of the state laws that have been enacted have provisions that are similar to, draw from, or incorporate by reference FCC actions regarding wireless small cell facilities. However, each state law is unique and must be read fully and carefully to determine its detailed provisions and impacts.

For more information about any of these state laws, please contact Michael Fitch, Keller and Heckman Senior Counsel, (; 202-434-4264)