Patton Boggs TechComm Industry Update - May 30, 2012

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    Comments Sought on Privacy and Security of Information Stored on Mobile Devices

    The FCC is soliciting comment regarding the privacy and data-security practices of mobile wireless service providers with respect to customer information stored on mobile communications devices, and the application of existing privacy and security requirements to that information. The Commission last solicited public input on this question five years ago. Technologies and business practices have evolved dramatically since then. Some wireless providers collect information about particular customers’ use of the network. Some of this collection may be done without customer notice or consent. Collection and use of this information may be a legitimate and effective way to improve the quality of wireless services, but the collection, transmission, and storage of this customer information may raise new privacy and security concerns. Comments are due 30 days after publication in the federal register and reply comments are due 45 days after publication.


    NTIA Seeks Input on State and Local Implementation Grants

    The National Institute for Standards and Technology (NTIA) recently issued a Request for Information (RFI) seeking public comment on various issues relating to the development of the State and Local Implementation grant program. NTIA must establish this program to assist state and local governments in planning for a single, nationwide interoperable public safety broadband network. Up to $135 million will be available for the State and Local Implementation grant program. Among NTIA’s questions were the following: how to assign priority to local users, what training needs local users will have, what steps states should take to prepare to consult with FirstNet, whether states have a preferred methodology for distribution of grant funds, and whether NTIA should consider allocating grant funds based on population or another targeted allocation method. Comments are due June 15.


    FCC Seeks Comment on Interoperability Board Recommendations

    On May 23, the FCC published the minimal technical requirements for the public safety broadband network developed by the Technical Advisory Board for First Responder Interoperability and sought comments on the Interoperability Board’s recommendations. The Interoperability Board worked in consultation with NTIA and the Office of Emergency Communications of the Department of Homeland Security. The Board’s sought broad input to aid it in developing a complete set of recommended minimum technical requirements within the scope of the Act. These requirements not only seek nationwide interoperability but set a minimal baseline that, if adhered to, can further an interoperable, multi-vendor network for first responders. Notably, the Interoperability Board’s report states that interoperability cannot not be achieved without “extensive and on-going cooperation among States and communities.” Comments are due by May 31 and may not exceed five pages in length.


    NTIA Tells FCC to Dismiss 700 MHz Waiver Applications

    On May 18, NTIA told the FCC it believes that the Middle Class Tax Relief and Job Creation Act requires the Commission to dismiss any pending 700 MHz public safety waiver applications and to end existing leases in the public safety spectrum. The filing follows NTIA’s notice to seven FCC waiver recipients that received, collectively, $380 million in BTOP (Broadband Technology Opportunities Program) grants for public safety broadband projects that their projects are being partially suspended to ensure that funds are not wasted ahead of a regime established by FirstNet.

    At a meeting in Washington, D.C. recently NTIA Administration head Larry Strickling said “I certainly acknowledge that proceeding with one or more of these projects could yield valuable information for FirstNet. However, proceeding when FirstNet has not even met, much less made any decision about the national design, puts at risk the millions of taxpayer dollars that are funding these projects.”


    Nominations Under Consideration for the FirstNet Board of Directors

    NTIA is now considering nominations for the board of directors of the First Responder Network Authority (FirstNet). FirstNet will establish and oversee a single nationwide, interoperable public safety broadband network. The 15-member board of directors will be responsible for making strategic decisions regarding FirstNet’s governance, development, and operations. Each board member must have expertise in at least one of the following areas: public safety, technology, networking, and finance. In addition, three board members must represent collective interests of states, localities, tribes, and territories; three must have served as public safety professionals; and the board as a whole should reflect geographic and regional diversity. NTIA must appoint the FirstNet Board by August.


    Senate Commerce Committee Holds FCC Oversight Hearing

    Since our last update, the Senate Committee on Commerce, Science and Transportation convened an oversight hearing on the FCC. The hearing took place only two days after new Commissioners Jessica Rosenworcel and Ajit Pai were sworn in to the FCC, and was marked by robust Committee member attendance. Most members focused inquiries on issues related to federal spectrum management policy, implementation of the FCC’s recent Universal Service Reform (USF) order, and enforcement of the Commission’s Open Internet order.

    Several senators, including Senators John Thune (R-SD), Mark Begich (D-AK) and Amy Klobuchar (D-MN), asked members of the Commission to address specific matters stemming from the USF order, including support levels for rural telecommunications carriers and the devastating impact of the reforms on carriers in remote locations such as Alaska.

    Senator Jim DeMint (R-SC), who chairs the Subcommittee on Communications, Technology and the Internet, asked Chairman Genachowski to provide the Committee with an update on ongoing enforcement proceedings related to the Open Internet Order. While the Chairman did not believe any enforcement actions are ongoing, he committed to provide the Committee with a full report for the record.

    Other members of the Committee, including Senator Marco Rubio (R-FL), asked the Commission to address issues pertaining to the upcoming World Conference on International Telecommunications (WCIT-12) in December. Senator Rubio’s question evidences growing concern in Congress regarding the potential scope of the WCIT-12 agenda.


    Medical Body Area Networks

    On May 24, the FCC met and, among other items, considered and adopted rules to promote the greater use of radio spectrum for Medical Body Area Networks (MBAN). FCC Chairman Genachowski, speaking at George Washington University Hospital, previewed the rules. The U.S. is the first country in the world to allocate spectrum for MBAN devices. MBAN technology consists of small, low-powered sensors on the body that capture clinical information, such as temperature and respiratory function, freeing patients from the set of wires that would otherwise anchor them to their bed. MBAN devices can be deployed both in the hospital and the home, allowing for ubiquitous and reliable monitoring and giving health care providers the chance to identify life-threatening problems or events before they occur.


    TV Broadcasters Challenge Barry Diller’s Aereo

    Broadcasters continue their fight against Aereo, the Barry Diller-backed service that transmits broadcasters’ over-the-air signals to customers using miniature antennas and Internet connections for a fee. After filing a copyright lawsuit against Aereo in March, challenging Aereo’s right to avail itself of the copyright compulsory cable license, multiple broadcasters filed declarations with the U.S. District Court for the Southern District of New York arguing that a preliminary injunction against the upstart service is warranted and necessary to prevent irreparable harm to the television industry’s economic model. Broadcasters claim that if Aereo is permitted to utilize its mini-antenna system under the compulsory license, the system of must-carry / retransmission consent would be undercut, leading broadcasters to invest less in content and encourage increased “cord cutting” among viewers. The court’s decision on whether to grant broadcasters’ request for a preliminary injunction is expected soon.


    gTLD Process for New Top Level Domain Names Moves Forward

    On May 17, ICANN announced the re-opening of the gTLD application system (TAS). The TAS system will be open to finalize applications until May 30. We expect “Reveal Day” to occur around June 15. On Reveal Day, the names of gTLD applicants and their desired “strings” or Top Level Domain Names will be made public. Reveal Day also begins the 7-month period for trademark owners and other third parties to file Legal Rights Objections to proposed gTLDs on trademark infringement or other legal rights grounds.


    FTC to Provide Guidance Regarding Online and Mobile Advertising and Privacy Disclosures

    On May 30, the FTC will hold a workshop in order to provide guidance on online and mobile advertising and privacy disclosures required under FTC law. Advertisers and service providers continue to grapple with how to fit the required disclosures into small screen spaces. The FTC’s prior guidance regarding online disclosures was issued in 2000. The Commission is considering revising its guidance to address the new technologies and marketing developments since that time.


    NAB Urges the Federal Spectrum Working Group to Conduct a Spectrum Inventory

    The National Association of Broadcasters (NAB) sent a letter to Representatives Brett Guthrie (R-KY) and Doris Matsui (D-CA), Co-chairs of the recently formed Federal Spectrum Working Group, urging them to conduct an inventory of how spectrum is being used. NAB’s request is particularly focused on the use of spectrum by the private sector. According to NAB, “without a fulsome inventory and complete accounting of how spectrum is being deployed, how can we be certain that claims of a spectrum ‘crisis’ are valid?” NAB further urged Congress to “be vigilant in safeguarding the rights of our local TV viewers during the process.” The wireless industry responded sharply, referring to NAB as “flat-earthers” that deny “the existence of a spectrum crunch that experts across the developed world recognize as the most serious challenge facing the mobile industry.”


    FCC Requests Information About Verizon’s Sale of Lower 700 MHz A and B Block Licenses

    The FCC sent a letter to Verizon Wireless seeking more information about its proposal to sell all of its 700 MHz A and B spectrum licenses. The agency questioned why Verizon Wireless has yet to deploy service in this spectrum band even though it faces a build out deadline next year. The FCC also asked Verizon Wireless to explain its decision to make the sale of its 700 MHz A and B licenses contingent on the closing of Verizon Wireless’ pending deals with SpectrumCo, Cox, and Leap Wireless. Verizon Wireless responded by stating that it has taken steps to construct the markets by completing Rf design, assessing and contracting for backhaul service, preparing construction sites, developing deployment budgets, and holding discussions with equipment vendors for procuring devices and network equipment. Verizon Wireless also explained that the proposed sale of its 700 MHz A and B licenses is consistent with its practices of using secondary markets transactions to “rationalize its spectrum holdings.”


    Commission Seeks Additional Comments on Technical Issues for Next Generation Air-to-Ground Mobile Service

    The FCC seeks comment on certain technical information provided by Qualcomm in support of its 2011 petition to authorize a new terrestrial-based, secondary status air-to-ground mobile service in the 14.0-14.5 GHz Band, which is authorized on a primary basis to the Fixed Satellite Service. The agency accepted comments and reply comments last summer. Since then, Qualcomm filed several responses to technical information requested by the FCC’s International Bureau. In particular, the FCC invited comment by satellite system operators and others who currently use the spectrum as to whether the information provided by Qualcomm sufficiently responds to interference concerns. Comments and reply comments are due on July 16 and July 31, respectively.


    FCC Seeks Input on DACA Technologies for Natural Disasters

    The FCC on May 24 sought public input on issues related to how rapidly deployable aerial communications architecture (DACA) technologies - such as unmanned aerial vehicle, balloon-supported platforms, and aircraft - could be used to enable emergency communications when terrestrial services are disrupted after a natural disaster or catastrophic event. In a notice of inquiry (NOI), the FCC is seeking to explore issues relating to this concept, including which frequencies might be involved, who would provide the DACA services, and whether terrestrial operators would have a role in those decisions. Comments on the NOI will be due 40 days after its publication in the “Federal Register,” which has not yet occurred. Replies will be due 20 days after that.


    FCC Wireless Collocations Workshop

    The FCC’s Wireless Telecommunications Bureau and the National Association of Telecommunications Officers and Advisors (NATOA) hosted a workshop that focused on collocations in the wake of the newly enacted Middle Class Tax Relief and Job Creation Act of 2012 (Act). The Act provides that a state or local government may not deny collocation applications if they are within the scope of the law. The FCC is looking to state and local governments to work with the communications industry to streamline the collocation approval process. The FCC does not intend to promulgate new rules to implement the collocation provision in the Act.

    Local governments want to work with wireless carriers and tower companies to make collocation easier, Anthony Perez, NATOA president-elect said during the workshop. “We in local government ... want more robust broadband coverage and more active competition,” Perez said. “We are fully vested in ensuring the rapid and efficient deployment of broadband wireless infrastructure. We understand that we’re big users of wireless services for public safety and an array of applications that make government services more economical, more efficient and allow us to serve our constituents in new, economic ways.” Associate Wireless Bureau Chief Jane Jackson said collocation is critical to addressing America’s need for wireless broadband, noting that “The demands on our nation’s wireless infrastructure are soaring.” “In order to meet this challenge,” argued Jackson, “We must deploy the mobile broadband infrastructure that can take fullest advantage of the spectrum that’s available today. One way to do this is by leveraging the existing physical assets out there, by collocating wireless broadband towers on antennas and other available structures.”


    FCC Enforcement Bureau Calling Card Advisory

    The FCC issued an Enforcement Advisory warning purchasers of prepaid calling card advertisements. In the last 9 months the FCC has taken aggressive action against some prepaid calling card companies, proposing $25 million in monetary forfeitures for deceptive advertising. FCC investigations found that due to undisclosed fees and “fine print” consumers would get only a fraction of the advertised minutes and that some carriers were continuing those practices. The FCC plans to diligently pursue violators. The Chief of the Enforcement Bureau encouraged victims to contact the FCC by telephone, the Internet or mail with their complaints.


    New Environmental Notification Procedures for Registering Antenna Structures

    As we previously reported, the FCC revised its tower registration rules and procedures in response to a court remand and to comply with federal environmental laws. New tower registrations and certain modifications of registered towers that may have a significant environmental effect are now required to engage in an environmental notification process. A preliminary tower registration form submitted online will be posted for a 30-day public comment period. Applicants must provide local notice of the proposed tower registration by publication in a local newspaper or by other means. Members of the public will have an opportunity to request further environmental review. The FCC will review any comments submitted, advise the application if any further environmental review is needed, and then direct the applicant to complete their tower registration.


    Amendments Sought to the Over-the-Air Reception Devices (OTARD) Rule

    The FCC seeks comment on a Petition for Rulemaking that asks the Agency to amend its over-the-air reception devices rule to make it clear that state and local governments may not adopt restrictions that impair the installation, maintenance, or use of an antenna (including certain satellite dishes) on private property even if the antenna is not located on property within the exclusive use or control of the user. Typically such antennas or dishes would be located on a customer window or balcony. These installations are clearly protected by the OTARD rules. The Petition was filed by the Satellite Broadcasting & Communications Association, DIRECTV, and DISH Network. They claim that at least one locality has interpreted the current rule to allow state or local government to regulate antennas located in non-exclusive areas – such as common areas in Multiple Dwelling Units. Comments and reply comments are due on June 7 and June 22, respectfully.


    U.S. District Court Upholds Denial of Special Use Permit and Variance

    In SBA Towers II LLC v. Village of Huntley, the U.S. District Court for the Northern District of Illinois upheld a decision to deny SBA’s application for a special use permit and variance to build a cell tower. The Court rejected arguments by SBA that the locality’s decision violated federal law requiring such decisions to be in writing and supported by substantial evidence. The Court held that the minutes of the local board’s meeting provided adequate explanation for the denial, and that the “substantial evidence” standard was met because a “reasonable mind might accept” that the proposed 10 feet setback was inadequate given the facts in the record.


    MASN v. Time Warner FCC Decision Upheld

    The U.S. Court of Appeals for the Fourth Circuit upheld the FCC’s Mid-Atlantic Sports Network (MASN) v. Time Warner decision, in which the FCC determined that Time Warner’s decision not to carry MASN was based on “legitimate and non-discriminatory reasons.” The Court concluded that “the FCC acted within its discretion” and the FCC’s reasoning in its order was not arbitrary or capricious.


    FCC Stays Tennis Channel v. Comcast Initial Decision

    The FCC adopted an order staying an Administrative Law Judge’s Initial Decision in the Tennis Channel v. Time Warner program carriage complaint proceeding. The FCC explained that the Initial Decision, for the first time, required a cable company to carry a programmer’s programming and it imposes remedies which are in dispute. Since the FCC may reverse or modify some of the rulings in the Initial Decision, it issued a stay in order to preserve the status quo.


    Game Show Networks v. Cablevision – FCC Adopts Hearing Designation Order

    The FCC designated for hearing the Game Show Network’s carriage complaint against Cablevision. The Network alleges that, for carriage purposes, Cablevision treated unaffiliated programming differently than Cablevision-affiliated programming. The FCC concluded that the Network provided sufficient evidence to make a prima facie showing of a program carriage discrimination claim. The parties have the option of pursuing third-party mediation before moving forward with a hearing.


    If you have questions regarding any of the items discussed above, or if you are interested in filing comments or receiving copies of filed comments in any of the FCC proceedings mentioned, please contact the Patton Boggs TechComm practice group.