Federal Communications Commission (FCC)

ATLANTA -- Top FCC officials at the CTIA Wireless 2004 show here Mon. held up the agency’s relatively hands-off wireless regulatory regime as an example that could be followed in the VoIP arena. Citing the benefits of a “light regulatory touch” on VoIP, Chmn. Powell also told a standing- room-only opening session: “This industry has to wake up to the fact that it [VoIP] can be an incredible innovation to the wireless side.” He noted that by some estimates there’s more VoIP running over wireless networks than on wireline.

FCC Chmn. Powell told Rep. Fossella (R-N.Y.) whether Nextel benefits from contiguous spectrum at the upper end of 800 MHz “depends on a number of variables.” Fossella joined 22 other House members who wrote to Powell recently urging him not to give Nextel spectrum outside the 800 MHz band without an auction under Sec. 309(j) of the Communications Act (CD March 5 p1). Since then, a staff draft item has begun circulating on the 8th floor proposing a plan that would reconfigure spectrum at 800 MHz and give Nextel 10 MHz at 1.9 GHz, but at a price (CD March 11 p1). The point of the plan is to mitigate interference public safety users encounter at 800 MHz. Fossella’s letter had posed questions to Powell about how to mitigate public safety interference, raising concerns about Nextel getting spectrum outside an auction. Powell’s response, sent this week, said Nextel’s iDEN technology “would not benefit by operating in contiguous spectrum: it is a system designed specifically to operate in noncontiguous spectrum.” Powell said that “were Nextel to elect to abandon this technology and change to a technology that requires contiguous spectrum, we would need to assess the cost of the conversion against the benefit gained thereby.” On fitting an auction into a plan to fix interference at 800 MHz, Powell told Fossella that the obligation to auction spectrum comes up in the context of mutually exclusive applications: “The Commission, when the public interest so dictates, may employ ‘engineering solutions, negotiation, threshold qualifications, service regulations and other means to avoid mutual exclusivity.'” The FCC will weigh this and “issue a decision within the bounds of its statutory authority,” he said. Because of public safety implications, the FCC plans to “resolve this matter as expeditiously as possible,” he said. Meanwhile, wireless companies and the United Telecom Council (UTC) ratcheted up pressure on Capitol Hill Wed., voicing concerns at a briefing about the item under consideration on the 8th floor. Fossella said he stood “shoulder-to-shoulder with public safety in my support of rebanding the 800 MHz spectrum and enhancing the communications systems of law enforcement, fire departments and others.” While he said he supported that part of the consensus plan, he shared concerns with some states that the plan has “major flaws.” Fossella said his big concern was that the plan backed by Nextel, the Assn. of Public Safety Communications Officials and others, didn’t provide enough money for public safety retuning at 800 MHz. In an FCC filing this week CTIA criticized parts of recent Nextel presentations before the FCC, charging the numbers don’t “add up.” Nextel has said that under the consensus plan it would receive spectrum at 1.9 GHz worth $3.33 billion, but that it would make $5.4 billion in spectrum and cash contributions to make the plan work. CTIA argued, “Nextel’s encumbered, non-contiguous non-nationwide spectrum (on a per MHz-pop basis) is worth over 60% more” than “relatively unencumbered spectrum” at 1.9 GHz. At the briefing, Cingular Vp-Federal Relations Brian Fontes cited language in a 1990 waiver the FCC granted to Nextel’s predecessor company that made the company responsible for any interference experienced by public safety systems. The FCC has an obligation to resolve such interference cases, he said: “In large part, where has the FCC been? I think quite frankly they have failed to remedy the problem early on.” Among concerns raised at the briefing by Fontes and others was how the value of spectrum that would be part of a rebanding plan could be determined outside an auction. Meanwhile, UTC, CTIA, the American Gas Assn., the National Rural Electric Cooperative Assn. and 3 other groups wrote President Bush Wed. raising concerns about the consensus plan. They told Bush the plan would allow Nextel “to ’swap’ its patchwork set of channels, enabling it to gain clear and contiguous spectrum nationwide in the 800 MHz band plus 10 MHz of bonus spectrum at 1.9 GHz.” They asked Bush to back an alternative to the consensus plan that “will better serve our nation’s interests.”

Sen. Appropriations Chmn. Stevens (R-Alaska) appears supportive of the FCC’s current model for competitive entry into the telecom marketplace, as he and a few other influential senators are urging the Justice Dept. to appeal the U.S. Appeals Court, D.C., ruling that vacated parts of the FCC’s Triennial Review Order. Meanwhile, nearly 130 House members are writing directly to the President urging the Administration not to appeal the decision (CD March 16 p9). And sources said other letters may be coming in an effort by members and industry to influence the decision of Solicitor Gen. Theodore Olson, who has about 2 months to request a stay of the order and 3 months to decide whether to appeal.

Several telecom carriers urged the FCC to reduce the current discount matrix available to schools and libraries participating in the E-rate subsidy program. In comments to the Commission, they said the current discounts of 20-90% for services should be adjusted. They said participating schools and libraries would still get enough support, and the program would become more economical and effective.

The FCC could still include an item on a national programmatic agreement (NPA) for tower siting on its agenda for the Thurs. open meeting, though it wasn’t on the sunshine notice (CD March 5 p7). Several sources said Comr. Abernathy had sought additional time for discussion of the proposed tower siting pact. Once an item is in the public notice for an agenda meeting, ex parte communications with the FCC initiated by outside parties must stop. This way, more time is allowed for communication on outstanding issues, sources said. Several industry sources said they viewed the opening as a positive development after thorny NPA issues prompted a flurry of ex parte filings last week. The pending NPA aims to streamline tower siting reviews under Sec. 106 of the National Historic Preservation Act. Sec. 106 requires federal agencies to consider the effects of an “undertaking,” including tower construction, on historic properties. Last month, wireless carriers and historic preservation officials failed to bridge an impasse on several issues connected to the proposed agreement (CD Feb 20 p3). The Commission had given stakeholders until Feb. 19 to work out remaining differences, delaying a vote on the item from Feb. to the March agenda meeting. The agreement has been expected to be teed up for FCC approval as a report and order. The agreement was designed to become a pact signed by the FCC, Advisory Council for Historic Preservation and the National Conference of State Historic Preservation Officers. Meanwhile, Kris Monteith, deputy chief of the FCC’s Consumer & Governmental Affairs Bureau (CGB), told industry stakeholders the agency had made changes to a draft best practices document in response to concerns raised in discussions last week. The FCC has been working with the United South & Eastern Tribes (USET) on voluntary best practices for tower siting that could affect sites of cultural and religious significance on tribal land. Among concerns raised by industry over the earlier draft was the extent to which a non-response by a tribe on a tower siting request would lead to the potentially time-consuming step of FCC intergovernmental consultation with tribes (CD March 5 p9). “We will be making some changes to the draft document that we believe will be viewed positively from industry standpoint,” Monteith said, noting the changes stemmed from a discussion the Wireless Bureau and CGB had last week with USET officials. The agency also said it would release the draft best practices document in full to solicit industry feedback. Earlier in the week, the agency had circulated a summary, which Monteith said in the e-mail had created uncertainty in industry about what the rest of the document looked like. She said the full document was similar to the extensive summary released earlier. The FCC asked for industry feedback by the end of the day Thurs. “This is a good thing,” said one industry source of the additional time the FCC gave before the NPA is placed on an agenda for an open meeting. Meanwhile, a coalition of wireless companies told the FCC that negotiations in the last few weeks with the ACHP and others on the NPA had advanced in some areas. They cited progress on the issue of properties whose eligibility for the National Register of Historic Places is eligible but not yet determined. The coalition, which includes Cingular, Verizon Wireless, PCIA and T-Mobile, said compromise had been reached on the issue of potentially eligible properties. The agreement was that a requirement could be removed from the NPA concerning identification surveys for potentially eligible properties for visual effects. Other areas of agreement were that the NPA not mandate the use of qualified professionals for identification of eligible properties readily ascertainable from the office of a state historic preservation officer. In a separate filing last week, CTIA said U.S. Cellular has stressed the importance of the practical implications of the NPA as it relates to mid-size carriers and their quests for status as eligible telecom carriers. CTIA raised concerns that the NPA not dramatically increase costs and create more delays for the review process.

RALEIGH, N.C. -- Frustrated by unfavorable court rulings, FCC Chmn. Powell renewed his call for a complete rewrite of the 1996 Telecom Act, in a talk with N.C. business leaders here Fri. The 2nd day of a technology tour of Wilmington and Raleigh, Powell said the Telecom Act, while “wonderful as a paradigm shift,” is now “stuck in infinite churn as a legal document.” He noted that 8 years after the passage of the act, designed principally to spur local phone competition, the FCC still doesn’t have “validated rules” for making that happen. Powell’s comments came 3 days after the U.S. Appeals Court, D.C., threw out most of the Commission’s Triennial Review Order, including its controversial decision to delegate UNE review rulings to state commissions (CD March 3 p1).

There was no agreement on whether the FCC should grant Level 3 petition seeking relief from access charges on “voice-embedded IP communications,” in comments filed with the Commission. Level 3 had asked the agency to forbear on rules that might be interpreted as permitting LECs to impose access charges on IP traffic originating or terminating on the public switched telephone network (PSTN), while the agency completes its reform of intercarrier compensation. The FCC last month ruled that Pulver.com’s computer-to- computer Free World Dialup service was an unregulated information service, marking the first “easy” step in addressing IP-based services (CD Feb 13 p1). However, many agreed Level 3 petition dealing with VoIP that touches the PSTN, raised more complicated issues, which should be addressed in the forthcoming VoIP rulemaking proceeding.

The U.S. Appeals Court, D.C., Tues. vacated much of the FCC’s Triennial Review Order, including the FCC’s decision to delegate UNE review decisions to state commissions. The court cut a broad swath through the portion of the FCC’s order dealing with the elements that make up the UNE platform, and left the other half, the broadband deregulation portion, unscathed. Shortly after release of the court decision, the FCC said it planned to seek a stay of the court’s order and an appeal to the U.S. Supreme Court. The announcement came from Comrs. Copps, Martin and Adelstein, who made up the majority in the split decision last year. NARUC said it “expects to seek review” as well.

Comcast finds itself in the unusual position of fighting for the little guy on phone issues. Comcast Phone, a division of cable giant Comcast that provides traditional circuit-switched telephony, complained about some ILEC practices in a recent FCC filing. The letter was filed in response to BellSouth’s request for a declaratory ruling that state commissions not be allowed to require BellSouth to provide wholesale or retail broadband services to consumers who get voice services from CLECs when those accounts use unbundled network elements (UNEs).

FCC Chmn. Powell expressed optimism Mon. technology could address the challenges of providing Enhanced 911 services on broadband networks offering VoIP applications. “We do have that rare opportunity to join hands and develop the solutions early, before our citizens and our consumers are using these services in overwhelming numbers,” he told a National Emergency Number Assn. (NENA) forum in Washington.