CommLaw Monitor

When Public Safety Isn’t Enough: FCC Considering Expanded Use of the 4.9 GHz Band

Chip Yorkgitis — Mon, 09 Apr 2018 16:58:19 -0400

At its March Open Meeting, the FCC adopted a long-awaited Sixth Further Notice of Proposed Rulemaking (“FNPRM”) to consider promoting additional investment and activity in the 4.9 GHz band while preserving the core public safety purpose of the band. Finding the band underutilized by public safety users, the FNPRM invites comment on ways that the band might be more heavily utilized by public safety while entertaining several options by which others might gain access to the band on a shared basis, including those supporting Critical Infrastructure Industries (“CII”), Unmanned Aircraft Systems (“UAS”), and 5G networks. To implement any sharing scheme, the Commission proposes to draw upon previous experience in other bands, such as TV white spaces.

Background

In 2002, the Commission designated 50 megahertz of spectrum (4940-4990 MHz) in for use by public safety services. The current band plan divides the band into ten one-megahertz channels (Channels 1-5 and 14-18) and eight five megahertz channels (Channels 6-13), while limiting channel aggregation bandwidth to 20 megahertz.

Although nearly 90,000 public safety entities are eligible for licenses in this band, the FCC’s licensing database reveals that fewer than 3,200 licenses have been granted. Given that only 3.5% of the eligible organizations making use of the spectrum, the Commission is concerned that the band has “fallen short of its full potential.” Accordingly, the Commission seeks comment on alternative ways to foster increased usage of the 4.9 GHz band. The options integrated in the FNPRM draw on an extensive record as well as the National Public Safety Telecommunications Council (“NPSTC”) Plan generated in 2013 and the Association of Public Safety Communications Officials (“APCO”) Report submitted into the record in 2015.

Band Aggregation Proposals

At the outset, the FNPRM proposes to grandfather all incumbent users of the 4.9 GHz band as of the date final rules become effective. Beyond this proposal, the FNPRM focuses on possible expansion of public safety use of the band by relaxing in-band aggregation limits. The Commission seeks to retain the band’s existing channelization plan, but to increase the channel aggregation bandwidth limit 100% from 20 to 40 megahertz. The Commission also proposes to aggregate Channels 1-5 (1 MHz each) to form a five-megahertz bandwidth channel designated for aeronautical mobile and robotic use. The agency proposes to limit aeronautical mobile use to manned aircraft video payload operations (not allowing command and control), but also seeks comment on the potential for the 4.9 GHz band to support various UAS payload operations in the future. In addition, the FCC set forth a possible plan to accord primary status for public safety narrowband fixed point-to-point and point-to-multipoint links on Channels 14-18 (each is a 1 MHz channel). Currently, such narrowband links remain secondary to other public safety operations in the band.

Coordination Process Reforms and Spectrum Sharing

Per the FNPRM, the FCC solicits comment on requiring applicants for new stations and current licensees seeking modifications to submit to frequency coordination administered by FCC-certified frequency coordinators. The Commission proposes to use the Universal Licensing System (“ULS”) as the frequency coordination database for the 4.9 GHz band, and intends to use existing form schedules to capture point-to-point, point-to-multipoint, fixed receiver, base station, and mobile station data to populate the database. Under the FCC’s proposal, grandfathered incumbent 4.9 GHz licensees will not have to submit to frequency coordination for their existing operations in the band. However, incumbent licensees with point-to-point, point-to-multipoint, base, and mobile stations will still be required to file certain technical information in ULS to ensure their operations are protected during future coordination.

In the event the Commission expands eligibility to other classes of users, the FCC invites comment on the prospects of utilizing a two-tiered spectrum sharing framework. Under such a plan, the Commission proposes that public safety users would enjoy priority access and other users would gain access on a secondary or non-interfering basis. The Commission seeks comment on implementing such a structure by either utilizing the ULS database in a manner akin to the TV white spaces database or developing an automated database with potentially more robust capabilities to assure real-time protection of mission-critical public safety operations. The FNPRM does not explicitly propose using Spectrum Access Systems (“SAS”) or Environmental Sensing Capabilities (“ESC”), but asks questions which might implicate these or similar solutions.

Band Eligibility and Alternative Uses

In the FNPRM, the FCC solicits comment on a variety of ways to expand license eligibility in the 4.9 GHz band beyond public safety. Currently, only entities providing public safety services are eligible for licenses in the band. The FCC seeks comment on expanding eligibility by allowing entities from Critical Infrastructure Industries (“CII”) to operate in the band on a co-primary basis with public safety services (under the FCC’s rules, CII means “State, local government and nongovernment entities, including utilities, railroads, metropolitan transit systems, pipelines, private ambulances, volunteer fire departments, and not-for-profit organizations that offer emergency road services, providing private internal radio services provided these private internal radio services are used to protect safety of life, health, or property; and are not made commercially available to the public.”).

Alternatively, the Commission seeks comment on whether it should redesignate the 4.9 GHz band, in whole or in part, for commercial wireless use (including potentially relocating incumbent public safety users to other frequency bands). In conjunction with possible expansion of eligibility, the Commission also seeks comment on ways to liberalize the terms on which public safety entities may lease 4.9 GHz spectrum to other parties eligible to operate in the band.

Impact

While the FNPRM largely focuses on channel aggregation and coordination process reforms to facilitate expanded public safety investment and use on a protected basis, this proceeding presents CII enterprises and various commercial wireless stakeholders with an opportunity to potentially gain access to valuable mid-band spectrum. Public utilities, non-public safety government organizations responsible for critical infrastructure, mobile carriers, and others are likely to be interested, as this is the only range of mid-band spectrum in the 4 GHz band currently under active consideration by the Commission in a rulemaking, although the agency is examining the 3.7-4.2 GHz band in the Mid-Band Spectrum Notice of Inquiry. However, the Inquiry proceeding cannot proceed directly to rules, and will itself require a rulemaking proceeding to be initiated before rules can be adopted.

Comments on the FNPRM will be due 60 days and reply comments will be due 90 days after publication of the FNPRM in the Federal Register. Publication has not yet occurred.

Kelley Drye Webinar: Preparing for the FCC E-Rate Reform Proceeding

Chip Yorkgitis — Fri, 26 Jul 2013 11:09:13 -0400

Last week, the FCC opened a rulemaking to consider reforms to the Schools and Libraries program of its Universal Service Fund (better known as the "E-rate" program). The FCC pledged a comprehensive review and modernization of the E-rate program that will mark the most significant reexamination of E-rate policies in the program's 16 year history. Much will be at stake for E-rate service providers, from the types of services supported, the amount reimbursed from the program, competitive bidding rules and reforms to streamline funding requests.

Please join Kelley Drye on August 6th for an informative discussion of the issues to be addressed in the proceeding and what to expect from the FCC in the next couple months.

Kelley Drye Speakers: John Heitmann, Partner, Telecommunications Steve Augustino, Partner, Telecommunications Tom Cohen, Partner, Telecommunications

Registration is free but space is limited. Please click here to register and reserve your space today!

A recording of the webinar will be available to registrants.

Register Today for Kelley Drye's FCC and USAC Enforcement Actions Webinar

Thu, 06 Jun 2013 09:32:13 -0400

In the past few years, the FCC has been increasingly active in enforcement matters, imposing large fines for violations of consumer protection rules and for non-compliance with various FCC program rules. The FCC and USAC employ multiple tools to enforce these rules. Each of these enforcement tools involves different processes, obligations and risks that can be as perplexing as they are critical to a successful outcome. As a result, an entity’s response to an FCC or USAC proceeding must be undertaken carefully and tailored to the specific circumstances.

On June 11th, please join Kelley Drye for an free webinar presentation that will take you through the critical elements of enforcement and investigations, based on our extensive experience counseling clients through the processes. The webinar will feature a discussion of:

primary types of investigations and inquiries to which a regulated entity may be subject;
what to expect when faced with one of the investigations or inquiries;
trends in investigations and inquiries; and
best practices when responding to these inquiries and investigations.

Speakers:

Steve Augustino, Co-chair, Telecommunications Practice

John Heitmann. Co-chair, Telecommunications Practice

Barbara Miller, Telecommunications Practice

Additional Information:

This webinar is free of charge. Please click here to reserve your space today!

Register Today for Kelley Drye's 4th Annual USF Update Webinar

Wed, 13 Mar 2013 09:52:40 -0400

Big changes continue to be made in the Universal Service Fund. With substantial reform of the High Cost Fund, the Lifeline program and a new rural healthcare connect fund, USF occupied a major place in the FCC agenda in 2012. Moreover, comprehensive contributions reform is under consideration and the FCC is clearing out a backlog of USF appeals affecting resold services, MPLS and more.

In this annual webinar, Kelley Drye will walk you through the USF changes you need to know, with an eye toward what to expect in 2013. We also will discuss the audit and appeal process in detail, including the differences between USAC and Inspector General audits. Our speakers will offer analysis and practical advice based on frontline experience in audits and appeals, and years of providing compliance and enforcement advice in this area.

The following topics will be addressed:

Major Changes in the High Cost (CAF), Low-Income (Lifeline), and Rural Healthcare Funds
Prospects for Contributions Reform in 2013
Changes in the 499-A Form and Instructions
Developments in the USF Audit and FCC Appeal Processes

Kelley Drye Speakers:

Steve Augustino, Partner

John Heitmann, Partner

Date:

March 19, 2013
12:00 PM - 1:00 PM EDT

Location:
Webinar

Additional Information:

Registration is free of charge. Please click here to register.

Watch Kelley Drye's "2013 Communications Law Outlook" Webinar On Demand

Fri, 07 Dec 2012 10:00:00 -0500

On December 4th, Kelley Drye held a timely discussion of the key insights regarding the Communications legal and regulatory landscape for 2013 in Washington, D.C.

Our seasoned team brought the audience up to speed on post-election activity and personnel changes at the FCC and on Capitol Hill, focusing on the committees that matter and the initiatives likely gain traction in the new Congress. Also, we projected the expected activity at NTIA (FirstNet, privacy and spectrum), the White House (cybersecurity), DOJ (antitrust) and the FTC (privacy and marketing) that could impact your business. We narrowed down which FCC priorities may impact your business, including broadband, IP interconnection, network access rights, USF reform, spectrum auctions and program access.

Click here to download the slides from the webinar and click here to watch the recording.

Kelley Drye's "The Smart Phone Revolution" Webinar Recording and Presentation

Tue, 20 Nov 2012 15:46:15 -0500

Mobile marketing, sweepstakes and services, including location-based services, are governed by an alphabet soup of statutes and regulations: TCPA, COPPA, CAN-SPAM, CPNI, etc. To complicate compliance even further, numerous class action lawsuits in state and federal courts have addressed issues and nuances that the Federal Communications Commission, Federal Trade Commission, and state regulatory agencies or legislatures have not. On November 16th, Kelley Drye held a webinar which discussed the new rules of the road for mobile communications, marketing, and sweepstakes, and offer suggestions for reaching consumers while mitigating the legal risks. Click the links below to listen to a recording and download a PDF of the slide presentation.

Click here to download the slides from the webinar and click here to listen to a recording.

If you have any questions, please feel free to contact the Kelley Drye Webinar Speakers listed below.

Steven A. Augustino, Partner
[email protected]

John J. Heitmann, Partner
[email protected]

Gonzalo E. Mon, Partner
[email protected]

Register Today for the Kelley Drye Webinar "The Smartphone Revolution"

Fri, 19 Oct 2012 15:17:38 -0400

Mobile marketing, sweepstakes and services, including location-based services, are governed by an alphabet soup of statutes and regulations: TCPA, COPPA, CAN-SPAM, CPNI, etc. To complicate compliance even further, numerous class action lawsuits in state and federal courts have addressed issues and nuances that the Federal Communications Commission, Federal Trade Commission, and state regulatory agencies or legislatures have not. This Kelley Drye webinar will discuss the new rules of the road for mobile communications, marketing, and sweepstakes, and offer suggestions for reaching consumers while mitigating the legal risks.

Kelley Drye Speakers:
Steven A. Augustino, Partner

John J. Heitmann, Partner

Gonzalo E. Mon, Partner

Date:
October 30, 2012
12:00 PM - 1:00 PM EDT

Location:
Webinar

Additional Information:

Registration is free of charge. Please click here to register.

Please Join Us for Kelley Drye's 3rd Annual USF Update Webinar

Tue, 28 Feb 2012 17:37:08 -0500

With the Universal Service Fund continuing to grow and the USF contribution factor skyrocketing to nearly 18%, the federal Universal Service Fund remains a critical area for all telecommunications providers. Customers increasingly are focusing on the USF surcharge in negotiations, and the competitive consequences of over- or under- reporting USF directly affect the company’s bottom line.

In this annual webinar, Kelley Drye will walk you through the USF changes you need to know, with an eye toward what to expect in 2012. We also will discuss the audit and appeal process in detail, including the differences between USAC and Inspector General audits. Our speakers will offer analysis and practical advice based on front line experience in audits and appeals, and years of providing compliance and enforcement advice in this area.

The following topics will be addressed:

The 2012 USF Reform Agenda -- High Cost (CAF) and Low-Income (Lifeline)
Changes to the 2012 Form 499A and instructions
Significant USF Appeals in 2011
Developments in the USF Audit and FCC Appeal Process

When: March 13, 2012, 12:00PM - 1:00 PM

Where: Webinar

RSVP: This webinar is free of charge. Presentation slides and a recording of the webinar will be available to registrants. Email [email protected] or contact Cassidy Russell at 202.342.8400.

Insights from Kelley Drye's 4th Annual Privacy Seminar

Thu, 23 Feb 2012 10:01:08 -0500

On February 16, 2012, Kelley Drye & Warren LLP hosted the seminar and audiocast, “Privacy in 2012: What to Watch Regarding COPPA, Mobile Apps, and Evolving Law Enforcement and Public Policy Trends.” The seminar highlighted regulatory and legislative developments in privacy and information security during the past year, with an emphasis on children's online privacy and mobile applications.

Peter Swire, a professor at The Ohio State University Michael E. Moritz College of Law and a Senior Fellow with the Center for American Progress, opened the seminar with a keynote address that gave historical context to the most recent regulatory efforts addressing consumer privacy. Professor Swire’s remarks were followed by two panel sessions that included six experts representing key industry representatives and the federal agencies integral to recent privacy initiatives. The first panel discussed children's online privacy and the Federal Trade Commission’s proposed revisions to the Children's Online Privacy Protection Rule. The second panel discussed various consumer privacy enforcement and regulatory initiatives relating to mobile apps.

For more on the seminar, including a synopsis of key takeaways, see the Kelley Drye client advisory. An audio recording of the full program is also available.

Join us Feb. 16 for "Privacy in 2012" Seminar and Teleconference

Wed, 25 Jan 2012 13:20:25 -0500

Changes to privacy regulations, such as proposed revisions to the Children's Online Privacy Protection Act (COPPA), and continuously evolving technologies, including mobile apps with location-based services, can make it difficult for businesses to ensure their privacy practices are up to par.

On February 16, Kelley Drye will gather government leaders from the FTC and FCC, and thought leaders in the industry, for a discussion about new regulations, enforcement trends, and best practices to avoid consumer privacy risks. Please join us for "Privacy in 2012: What to Watch Regarding COPPA, Mobile Apps, and Evolving Law Enforcement and Public Policy Trends."

Email [email protected] to register for the live seminar or teleconference.

KEYNOTE SPEAKER

Peter Swire, Professor of Law, Ohio State University; former Clinton Administration Chief Counselor for Privacy, U.S. Office of Management and Budget

PANEL 1: COPING WITH COPPA: CHILDREN'S PRIVACY AND PROPOSED REVISIONS TO THE COPPA RULE

Ellen Blackler, Vice President - Global Public Policy, The Walt Disney Company

Mamie Kresses, Senior Attorney, Division of Advertising Practices, Federal Trade Commission

Saira Nayak, Director of Policy, TRUSTe

Moderated by partners Dana Rosenfeld and Alysa Hutnik of Kelley Drye & Warren LLP

PANEL 2: MOBILE APPS: A PRIVACY AND CONSUMER PROTECTION HOT SPOT

Michael Altschul, Senior Vice President and General Counsel, CTIA

Jessica Rich, Associate Director, Division of Financial Practices, Federal Trade Commission

Jennifer Tatel, Associate General Counsel, Federal Communications Commission (invited)

Moderated by partners John Heitmann and Gonzalo Mon of Kelley Drye & Warren LLP

When:
February 16, 2012, 2:30 PM - 5:30 PM EST

Location:
Kelley Drye & Warren LLP
3050 K Street, NW, Suite 400
Washington, DC 20007-5108

And via audio webcast

RSVP:
Email [email protected] or contact Cassidy Russell at 202.342.8400.

This seminar is free of charge, but space is limited. Reserve your place today.

CLE and CPE credit may be available in certain jurisdictions.

Happy Holidays

Mon, 19 Dec 2011 13:12:42 -0500

Join Us on May 16 for the Webinar, "Mobile Applications: Privacy and Data Security Considerations"

Fri, 06 May 2011 15:35:45 -0400

Do you know what kind of data your smartphone apps are collecting?

Understanding the flow of data, how it is shared, and whether your apps collect sensitive information such as mobile payments or location-based data is critical to avoiding regulatory scrutiny and litigation risks.

Join Kelley Drye on May 16 from 12 noon – 1:00pm EST for a webinar exploring this uncharted legal territory, “Mobile Applications: Privacy and Data Security Considerations.” Topics of discussion will include:

The mobile ecosystem, including data flows and parties involved.
Privacy and security considerations, including unintended data uses.
Current issues in the legal landscape, including media coverage; inquiries and actions from Congress, the FTC, and FCC; litigation risks; and industry activity.
Emerging “rules for the road” for developing and marketing mobile apps.

Our speakers will address the privacy and information security questions that are top of mind for anyone involved in developing, marketing, selling, or serving mobile apps.

Kelley Drye Speakers:

John J. Heitmann
Partner, Telecommunications and Privacy & Information Security Practices

Dana B. Rosenfeld
Chair, Privacy & Information Security Practice and Partner, Advertising & Marketing Practice

Alysa Z. Hutnik
Partner, Privacy & Information Security and Advertising & Marketing Practices

This webinar is free of charge, but space is limited. To reserve your place today, please e-mail [email protected] or contact Alexandra Meaza at 202.945.6674.

Join Kelley Drye's May 10th Webinar Discussing Implications of FCC's Recent Pole Attachment Order

Wed, 04 May 2011 17:25:37 -0400

Access to and rates for pole attachments under Section 224 of the Communications Act have been issues of both importance and contention for facilities-based broadband providers of all types, more traditional providers of telecommunications, and electric utilities. On April 7, 2011, the Federal Communications Commission issued the most significant order regarding pole attachments in many years affecting a wide variety of matters.

The Commission's intent was to clarify many rights and obligations regarding the relationship between pole owners and attachers and to put various providers of broadband communications on a more equal footing. The recent order creates new regulatory frameworks for pole owners and attachers to navigate, including the potential for a new wave of complaint and enforcement proceedings.

Join Kelley Drye on May 10 from 12 noon – 1:00pm EST for a webinar to discuss the new FCC order, "Practical Impacts of the FCC's Pole Attachment Rules." Our speakers will offer an analysis of the new rules focusing on practical advice based on extensive experience in negotiating pole agreements, prosecuting complaints regarding pole access and rates, and providing compliance and enforcement advice in this area. Topics of discussion will include:

Successful Navigation of the FCC's New Pole Attachment Application Timelines
When Attachers May Use Independent Contractors to Complete Survey and Make Ready Work
New Rules Governing Penalties for Unauthorized Attachments
How Much Parity Is There under the New Attachment Rate Formula for Telecommunications Carriers?
Improved Opportunities for Wireless Providers
How Much Have Things Changed for Incumbent Local Exchange Carriers?
Limits of the New Rules and the Impact on Enforcement
Prospects for Appeal of the Pole Attachment Order

Kelley Drye Speakers:

Chip Yorkgitis
Partner, Telecommunications

Randall W. Sifers
Senior Associate, Telecommunications

Please visit our website for more information. This webinar is free of charge, but space is limited. To reserve your place today, please e-mail [email protected] or contact Alexandra Meaza at 202.945.6674.

Kelley Drye Adds LA Office, Entertainment and Media Capabilities

Thu, 07 Apr 2011 08:16:18 -0400

We are pleased to announce that Kelley Drye is expanding its national presence by merging with White O'Connor Fink & Brenner LLP, a highly respected Los Angeles litigation firm best known for its success in complex business and entertainment industry litigation.

This merger returns Kelley Drye to California and adds a significant new expertise in the entertainment and media industry. White O’Connor’s attorneys strengthen Kelley Drye’s capabilities in several other key practice areas and bring a well-established record of trial victories. They have defended and prosecuted a wide range of cases, including entertainment, First Amendment, insurance recovery, media-related torts, real estate, copyright, trademark, antitrust, class actions and other complicated commercial disputes.

To learn more, see our press release and review the practice group description on our website.

Join Us on March 2 for the Kelley Drye Annual USF Update Webinar

Fri, 11 Feb 2011 17:13:30 -0500

Administration and reform of the federal Universal Service Fund remains center stage in Washington. In February, the FCC launched a rulemaking proceeding to reform intercarrier compensation and migrate high-cost support to the Connect America Fund. Meanwhile, as the USF contribution factor reached a new high of 15.5%, comprehensive reform of the USF contribution mechanism appears stalled even as USAC audits and contributor appeals continue to fill the Wireline Competition Bureau’s agenda.

Join Kelley Drye for a discussion of the most recent USF developments that affect your company’s bottom line today. Our speakers will offer analysis and practical advice based on front line experience in ongoing audits and appeals, and years of providing compliance and enforcement advice in this area.

The following topics will be addressed:

Intercarrier Compensation/USF Reform

Inside the FCC’s February 8 ICC/USF NPRM
What’s in store for the Connect America Fund for broadband deployment
Prospects for USF contribution reform

Changes to the 2011 Form 499A and Instructions

What you need to know to complete your April 1 annual filing

USAC Contributor Audits

Trends and issues in current appeals
Changes in USAC’s audit procedures
Key strategies for a successful defense

WHEN: Wednesday, March 2, 2011, 12:00PM – 1:00PM EST

This event is free of charge.

Email [email protected] to register.

Happy Holidays from The Telecom Law Monitor

Chip Yorkgitis — Wed, 22 Dec 2010 08:00:00 -0500

The Telecom Law Monitor wishes you warm greetings for the holidays and a Happy New Year. We will return in January.

Attention Subscribers: Need to Re-Subscribe

Thu, 04 Nov 2010 13:42:27 -0400

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Don’t miss out – the Telecom Law Monitor is your guide to enforcement-related news, events and trends within the telecommunications field. From the FCC to the FTC, to State PUCs and AGs, to private litigation, we cover USF enforcement, truth-in-billing rules, Do-Not-Call developments, CPNI actions, access charge litigation, prepaid card enforcement actions and other related developments. Visit our Resource Center that provides two-click access to enforcement websites and relevant statutes and rules.

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Bill Hunt Joins Kelley Drye Telecom Group

Tue, 14 Sep 2010 13:58:41 -0400

We are pleased to welcome Bill Hunt to our Telecom Practice Group. Bill, who most recently worked as Vice President at Level 3, joins us in our Chicago office. You may read our press release here.

Privacy a Growing Concern for Broadband Service Providers

Mon, 13 Sep 2010 08:06:36 -0400

Online privacy concerns have been a hot topic in Washington recently. The FCC, which is charged with spurring broadband deployment, adoption and innovation, recently concluded that privacy concerns are creating an impediment to these goals. Our Telecom Practice Group partner, John Heitmann, published an article in The Metropolitan Corporate Counsel discussing the FCC's broadband privacy agenda and related jurisdictional issues, including shared jurisdiction with the FTC. The article also highlights initiatives by the Department of Commerce's Internet Task Force and the FTC regarding online privacy.

The article is available here.