Federal Communications Commission (FCC)

The FCC should dismiss petitions from EchoStar and SES Americom concerning the proposed transaction between Intelsat and Loral, and instead grant the assignment applications, said Loral and Intelsat. SES didn’t ask the Commission to deny the application, but to condition it so Intelsat won’t be able to offer bundled services to include international and domestic capacity (CD Sept 16 p9). EchoStar said the lack of an Intelsat IPO raises issues that should result in the denial of the application (CD Sept 19 p8). In separate filings, Intelsat and Loral said neither petition provided any evidence of their claims. SES’s proposals “would serve SES’s self-interest in protecting its ‘preeminent’ position in the provision of service to the Federal [Govt.] by hamstringing a potential new, stronger competitor -- they would not serve the public interest… SES mischaracterizes market realities, misrepresents the availability of international market access opportunities, and underestimates the ability of the Federal [Govt.] to procure services on competitive terms and conditions,” Intelsat said. The company said SES mischaracterizes certain routes as dominated by Intelsat, when in reality, those are “routes where SES and other competitors have made a commercial decision not to provide service.” Loral said EchoStar wants the application denied so its potential bid for the assets can be considered by the Commission, but the Commission is expressly restricted from doing that: “To consider the assignment at issue, not on its own merits, but in comparison with an alternative, hypothetical transaction that is not before the Commission for approval would be contrary to the [Communications] Act and to the Commission’s precedent.” As far as EchoStar’s concerns about Intelsat’s IPO, the latter said those concerns should be a part of a different proceeding: “Moreover, contrary to EchoStar’s claims, Intelsat is in full compliance with the ORBIT Act.”

Media watchdog Commercial Alert filed complaints this week with the FCC and FTC, arguing that broadcasters were violating federal law by failing to prominently identify product placement techniques as advertising. “Advertisers can puff and tout and use all the many tricks of their trade, but they must not pretend that their ads are something else,” Gary Ruskin, exec. dir of Commercial Alert, wrote in the complaint to the FCC. Commercial Alert said networks, by failing to prominently identify product placements as advertising, “broadly and systematically” violate the Communications Act.

The biggest early questions facing the recently created FCC Advisory Commission on Diversity in the Digital Age seem to make real change on a $10,000 budget, and how to do it without raising crippling legal challenges, participants said.

Federal statutory and administrative rules aren’t so limited that they permit the FCC to intervene in pole attachment rate cases only after negotiations between the parties have broken down, the 11th U.S. Appeals Court, Atlanta, ruled. The court was denying a petition by Georgia Power for review of an FCC order reducing its $53.35 annual pole rental rate for Teleport Communications to $6.56-$8.24. Among other things, Georgia Power had argued that the plain language of the Telecom Act required parties to negotiate pole rents before filing a complaint with the Commission. Because there had been no “real negotiation” between it and Teleport, the parties hadn’t “failed to resolve the dispute” and the FCC intervened prematurely by ruling on the Teleport complaint, it said. The court said: “When negotiations fail, the FCC rates will govern, but the statute is not written to limit the jurisdiction of the FCC to cases in which extensive rate negotiations have failed.” Even if Georgia Power were correct that the FCC could intervene only after negotiations had failed, its argument that the FCC intervened too quickly still failed, the court held. The FCC had concluded that Georgia Power and Teleport’s limited discussions had not resolved their pole attachment rate dispute and further negotiations would be fruitless, it said. In Oct. 2000, Georgia Power notified Teleport that it was imposing an annual pole attachment rate of $53.35, and after limited negotiations the latter filed a complaint with the FCC Cable Bureau.

The FCC is likely to have a DTV broadcast flag item on its Oct. meeting agenda and “there’s a good deal of unanimity on the Commission on this issue,” said the former chief of staff of Chmn. Powell. Speaking at the Computer & Communications Industry Assn. (CCIA), Marsha MacBride said that despite outside concerns about the FCC’s acting, there was a narrow window if any flag standard could be incorporated in the next production cycle of DTV sets, following the plug-&-play agreement: “If we do it in 3 months we might as well do it in a year.” CCIA would be fine with a year’s wait, as it opposes the flag and believes it won’t work. MacBride said “there’s no sense in adopting a regulation that’s not going to work,” but said the FCC had its own experts studying the issue. She said the agency also had to examine “if it’s not going to do everything, are there still benefits [in imposing a flag] that outweigh the harms?” Some in Congress have questioned whether the FCC has the authority to impose a flag. “We're taking it very seriously the jurisdiction issue, and if we weren’t, we are now after yesterday” when the do-not-call list was thrown out by U.S. Dist. Court, Oklahoma City. She said if the FCC didn’t promote a flag, Congress must do so because otherwise some broadcasters won’t put out top content. Sen. Brownback (R- Kan.) repeated his criticism of possible FCC plans to mandate a DTV broadcast flag. Last week, he introduced S-1621 that would ban federal technology mandates. Brownback said a more appropriate way to handle protecting DTV signals would be the industry-crafted plug-&-play agreement between the cable and CE industries and ratified by the FCC. He was less enamored of a possible FCC rulemaking on a broadcast flag: “I don’t think this is the way to go.”

DirecTV CEO Eddy Hartenstein said Tues. that his company and News Corp. were committed to providing local programming in all 210 DMAs by 2008: “The goal is to get there by ‘06 but there are a lot of hurdles to get there -- technology, spectrum and all of that.” His comments came at a presentation and news briefing during the Satellite Bcstg. & Communications Assn.’s (SBCA’s) first Retailer Rally. The event attracted 289 registrants including retailers and corporate members.

The full FCC will rule soon on wireless local number portability (LNP) implementation issues, including Wireless Bureau guidance on which 5 carriers have sought Commission review, Wireless Bureau Chief John Muleta told reporters Tues. He stressed that the FCC was holding to a Nov. 24 LNP deadline, noting that Verizon and Verizon Wireless reached an LNP pact this week. “If there’s a will, there’s a way,” he said. “So that’s going to be the motto for LNP because carriers that are interested in doing it find ways of being able to do it.”

T-Mobile USA told the FCC this week it supported a suggestion by Sprint that the Dept. of Justice provide an opinion on the scope of a wireless carrier’s legal obligation to protect the privacy of customers in emergency situations. T-Mobile filed reply comments on a petition by public safety groups, including the Assn. of Public Safety Communications Officials, that argued for broader disclosure of customer situation in emergency situations. T-Mobile said it sympathized with the frustration public safety operators have in this area, but agreed with CTIA the FCC lacks authority to change such disclosure requirements because they're based on statutory mandates. These concerns “are better directed to Congress,” T-Mobile said. But T-Mobile said it backed DoJ providing an opinion on the legal obligations of carriers. T-Mobile said it also would support the FCC hosting a “legal summit” or information exchange to clarify the scope of the law and a carrier’s obligation to protect customer privacy. T-Mobile outlined its written emergency disclosure procedures. Its policy is to “positively identify” an emergency caller and obtain a written demand for disclosure on “official letterhead” prior to release of customer information. “When T-Mobile has a reasonable belief that an emergency exists where there’s immediate danger of death or serious physical injury to any person, whether that person is a T-Mobile subscriber, T-Mobile may disclose any subscriber information in its possession to emergency personnel, including the location of a particular phone or past billing records,” it said. While public safety petitioners had raised the question of whether property loss constitutes such an emergency, T-Mobile said it doesn’t place property loss in a category requiring the disclosure of certain customer information and will only release a customer’s name, address and phone number in response to a burglary or building fire report. The law doesn’t consider property loss to be an emergency requiring the release of more information, T-Mobile said. Public safety petitioners had also asked the FCC to rule that carriers must release caller location information to emergency dispatchers even if the customer proprietary network information requested was associated with a customer who was not the caller to 911. AT&T Wireless also cited concerns over the limited statutory scope for such disclosures. “Given that there is little ambiguity in either the statutory language or the congressional intent evidenced in the legislative history, it would not be appropriate for the Commission to grant petitioners’ request to expand the scope of the statutes,” AT&T Wireless said. Verizon Wireless said it backed DoJ providing guidance because the public safety petition seeks interpretation of the Electronic Communications Privacy Act (ECPA), which is a federal criminal statute. A DoJ pronouncement could take into account homeland security legislative changes that have altered the ECPA, Verizon Wireless said. “Unless and until the DoJ passes on these important legal questions, the FCC has no support for the position supported by public safety and should deny the petition,” Verizon Wireless said.

Mich. officials plan to conduct a $200,000 study with the U.S. Fish & Wildlife Service (FWS) on the impact of communications towers on migratory birds. The FCC Wireless Bureau outlined plans for the study Wed. as part of an agreement between the state and the Commission’s Enforcement Bureau. The “avian collision study plan” involves 350-500 ft. towers Mich. is building as part of one of the first statewide 800 MHz public safety systems. The study will cover factors in risks that towers pose to birds, including lighting, tower height and guy wires. The voluntary memorandum of understanding (MOU) involves Mich.’s 800 MHz public safety licenses and ensures that when the state builds its Mich. Public Safety Communications System (MPSCS) it will meet FCC rules on the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). The MPSCS includes 180 towers. In 2001, an FWS regional office wrote to the FCC and Motorola, asking that construction on 6 towers in Mich. cease because of their impact on migratory birds (CD May 6 p13). The Mich. National Wildlife Federation and others petitioned for a halt in construction, citing the Migratory Bird Treat Act and NEPA. The FCC said the study would help understand the effects of communications towers on birds protected by the ESA and migratory birds. The Commission last month opened an inquiry on the impact of towers on migratory birds, seeking information on a topic it said hadn’t been studied sufficiently to date to provide adequate data. The Wireless Bureau said the study would “systematically research the effect of lighting, height and guy wires on avian collisions at selected towers in the 350- 500-ft. height range in the MPSCS.” The range of types and heights of towers in the study will help provide a systematic measure of the effects of those factors. Environmentalists have said as many as 4-5 million birds are killed annually from tower collisions, but industry groups have said those figures are far too high. The study, funded by the state of Mich. and its Departments. of State Police and Information Technology, was developed along with scientist Paul Kerlinger of Curry & Kerlinger, who represented Mich., and Albert Manville of FWS, who chairs the Communication Tower Working Group. A pilot study to examine design aspects of the main study will be conducted this fall. The main study is to begin in the spring, according to documents released Mon. Besides determining the importance of factors such as tower height, the study will examine bird fatality rates at each tower under review. “Future tower construction and permitting should hopefully result in the reduction of fatalities,” a summary of the study plans said. “In addition, some towers may be retrofitted to reduce fatalities and a prioritization of towers that need retrofitting can also be determined.” The study will help earmark towers that pose problems. The MOU said that 90 days after the study was completed, the Mich. State Police and the FWS would review findings on tower lighting to “develop reasonable and prudent measures to address the lighting configuration for the MPSCS.” Those measures must meet FCC and FAA requirements for aviation safety, the MOU said. Also within 90 days, the agencies said they would examine non-lighting-related changes. If funding beyond the $200,000 committed by Mich. is available, the MOU said additional towers might be added and weather radar might be used to verify bird migration and numbers.

Power management and restoration practices for telecom networks are under review following the massive Aug. 14 blackout in the Northeast, wireline and wireless industry officials told the Network Reliability & Interoperability Council (NRIC) Mon. Of particular NRIC interest was the impact of the sustained outage on wireless networks, which suffered from both spikes in call volume and, in some cases, from backup generation that ran out (CD Aug 18 p1). FCC Chmn. Powell said such demand spikes were likely to be something the industry would have to factor in for future emergencies.