Federal Communications Commission (FCC)

INDIANAPOLIS -- Advocates of competing solutions for clearing up interference to public safety systems at 800 MHz jockeyed for support at the Assn. of Public Safety Communications Officials (APCO) show here this week. One official likened the atmosphere to that of a political convention, with backers of a Nextel-APCO plan and supporters of a CTIA-led proposal handing out leaflets on their positions. In an occasionally heated panel discussion, architects of different 800 MHz plans acknowledged the decision ultimately was up to the FCC, but reminded a packed audience they were the ones who would have to live with it.

Although adoption of the Nationwide Programmatic Agreement (NPA) to protect historic interest and streamline the review process for telecom facilities in historic areas is a laudable goal, the draft agreement contains flaws that must be corrected, parties said in comments to the FCC. They generally supported the draft NPA by the FCC, the Advisory Council on Historic Preservation and the National Conference of State Historic Preservation Offices. The agreement would streamline siting decisions under Sec. 106 of the National Historic Preservation Act (NHPA), which requires federal agencies to consider the impact of construction and modification of wireless facilities located near historic properties.

FCC Chmn. Powell and NTIA Dir. Nancy Victory outlined plans Thurs. for their agencies to follow up on decisions at the World Radio Conference (WRC) in Geneva that ended last month. Their agreement marks the first time both agencies have gotten together to set such a detailed schedule for implementation. They said they would take action by year-end on items such as unlicensed spectrum at 5 GHz, earth stations aboard vessels and a secondary allocation to allow aeronautical mobile satellite service.

The FCC’s Wireline Bureau told the Commission at its agenda meeting Wed. that broadband subscribership was growing in rural as well as urban areas, but Comrs. Copps and Adelstein questioned the timing of the report and the quality of the data. The bureau submitted a report showing the percent of occupied housing units with high-speed lines in service grew nationwide to 16% in Dec. 2002, from 2% in Dec. 1999. On a state-by-state basis, rural areas also were gaining more broadband subscribers, for example growing in S.D. to 6% of housing units in Dec. 2002 from less than 0.5% in Dec. 1999, in Ark. to 9% from 1%. Among more urban states, the N.Y. percent of high speed lines increased to 25% from 2% and Mass. to 24% from 4%. The bureau said the percentages were estimates. Other data it reported: (1) The number of high-speed lines connecting homes and businesses to the Internet at the end of 2002 was nearly 20 million, vs. 2.8 million at the end of 1999. (2) In Dec. 1999, 60% of the nation’s zip codes had at least one service provider with at least one subscriber to its high-speed service, 10% had at least 4 providers and only 1% had 7 providers. By the end of 2002, the comparable figures were 88%, 39% and 17%. The report defined high-speed lines as those that provided services at speeds exceeding 200 kbps in at least one direction. Copps said the report “seems like good news” because progress was being made in the number of people with high-speed access. However, he questioned the survey’s methodology in 2 areas: (1) The use of “skeletal zip code data” to measure use of high-speed services because “finding one high-speed subscriber in a zip code and counting it as service available throughout is not a credible way to proceed.” (2) “Basing our measurements and our objectives on a broadband revolution at 200 kilobits may be just a little passe.” He said it might be time to use “a more rigorous bandwidth standard.” Copps said the Commission wasn’t conducting the congressionally mandated Sec. 706 broadband surveys frequently enough: “When the Commission undertook its first Sec. 706 inquiry, it stated that the agency would inquire annually into the deployment of broadband. Yet it has been a full 2 years since the Commission released its last notice of inquiry.” Adelstein said the report was “a good effort but we must do more.” It has been 2 years since the Commission began its last inquiry and 19 months since it issued its last report, he said. A bureau spokesman said the Commission planned to release a notice of inquiry this fall. -- EH

The National Conference of State Historic Preservation Officers (NCSHPO) warned the FCC it had concerns about a proposed program agreement designed to streamline the review process for sites under the National Historic Preservation Act. Comments are due at the Commission Fri. on a draft nationwide agreement to streamline that process for communications facilities under Sec. 106 of the act. That provision requires federal agencies to consider the effects of an “undertaking,” including tower construction and expansion, on historic properties. A similar agreement reached in 2001 had focused on colocation on existing towers, while the draft covered new sites. The draft agreement spells out for state historic preservation officers and industry what is needed for compliance, included tower projects that meet certain criteria and would be excluded from routine review. The NCSHPO board in an ex parte filing last week told the FCC that it and the Advisory Council on Historic Preservation shouldn’t assume that NCSHPO would sign the draft agreement. The conference reiterated its concerns on issues not addressed in the draft: (1) The area of potential effect, which covers a mandatory radius for towers, especially those taller than 1,000 ft. That provision would stipulate a geographic visual range, setting restrictions on the visual effects on a proposed tower. For example, the draft proposes a range of 1/2 mile for towers under 200 ft. NCSHPO said for towers higher than 1,000 ft., the area of potential effect should be determined by the applicant along with the state historic preservation officer. (2) Lack of notice to state historic preservation officers in the process, although local govts. are notified when companies build in exclusion zones. (3) Lack of an opt-out provision for individual SHPOs to pinpoint areas “of known or predicted historic properties to be removed from an exclusion zone.” Separately, the United South and Eastern Tribes (USET) said in a filing that it was working with the FCC on a joint memorandum of understanding and a related best practices document on Commission consultation with USET tribes on cellphone tower construction issues. USET said it had concerns that the exclusions in Sec. 106 review requirements in the draft “could not lawfully be applied to Indian tribes under the National Historic Preservation Act.” USET said it also discussed an exception to exclusion provisions proposed by the Navajo Nation. The Navajo Nation had proposed that no tower sites be excluded from tribal review and provided for confidential treatment of tribal review. A representative of the Navajo Nation previously voiced concern that part of the National Historic Preservation Act that applied to tribes hadn’t been fully taken into account in drafting the agreement.

The Justice Dept. (DoJ) supported the Bipartisan Campaign Reform Act(BCRA) act, including its requirements for broadcasters, in an amicus brief to the U.S. Supreme Court. The DoJ filed the supporting brief in the case of McConnell v. Federal Election Commission (FEC), in which Sen. McConnell (R-Ky.) is challenging the campaign finance laws pushed by Sens. McCain (R-Ariz.) and Feingold (D-Wis.). Justice broadly defended the scope and limitations of the BCRA. “Limits on contributions are subject to relatively relaxed constitutional scrutiny,” the brief said. “In light of the national parties’ demonstrated ability to raise large sums of hard money, there is no meaningful danger that the soft-money ban will prevent effective advocacy.” The brief said all of the electioneering communications provisions in the BCRA were constitutional. “BCRA’s primary definition of ‘electioneering communications’ is not only clear and objective, but is supported by empirical evidence showing that advertisements that clearly identify federal candidates and are broadcast shortly before an election to the candidate’s own electorate are highly likely to influence electoral outcomes,” the brief said. “The objective factors identified by Congress in [BCRA] will pose little or no obstacle to entities that are interested in financing ‘genuine’ issue advertisements, but are carefully calibrated to capture so-called ’sham’ issue advertisements.” McConnell lacks standing to challenge the “lowest unit charged” provisions of the BCRA, the DoJ said. For one, his next election isn’t until 2008, but Justice said the provision is constitutional anyway. “The FCC has long required that the sponsor of every broadcast advertisement be identified in the advertisement itself,” the DoJ brief said: “BCRA simply provides for identification of the relevant sponsor in an especially clear and unmistakable manner.” It also said the BCRA could require stations to keep records of requests to purchase broadcast time for certain categories of political advertising.

An FCC decision to tighten the rules governing unsolicited fax transmissions has created consternation among nonprofit associations that say the rules will make it difficult for them to provide members with services they seek. At issue is a new rule that commercial faxes can’t be sent without prior consent, an apparent disagreement about what constitutes a commercial fax message and an FCC decision that having “an established business relationship” no longer is enough to justify sending unsolicited faxes. The Commission revised its rules on unsolicited faxes as part of its June 26 vote to establish a national do-not-call list to lessen unwanted telemarketing calls. The order takes effect Aug. 25.

Acknowledging that public broadcasters were faced with a “very difficult fight” to prevent steep cuts in federal funding for their programs, the Assn. for Public TV Stations (APTS) has begun a coordinated effort with stations to mobilize grass-roots support. “We have received some very adverse numbers in the House on almost all of our programs and we are in a very difficult fight to prevent our programs from being cut,” APTS Pres. John Lawson said. One of the challenges for public broadcasters is to link the growing concern among legislators for locally controlled media with the need to back funding for public TV, he said in an interview.

An FCC spokesman confirmed Wed. that the agency planned to investigate allegations that MCI had engaged in access charge fraud (CD July 29 p1). The spokesman wouldn’t elaborate other than to say the Commission would share the results of its Enforcement Bureau investigation with the House Commerce Committee. The Committee sent a letter to the FCC Wed. asking whether the agency planned to investigate the allegations “and enforce the FCC’s rules.”

DENVER -- Incumbent and competitive panelists at a NARUC workshop on the FCC Triennial Review order here Sun. urged state regulators to coordinate as much as possible their hearings, evidence discovery requests and protections for proprietary data in order to complete the very difficult job of competitive market analysis within the tight 9-month time frame prescribed by the FCC. With cooperation by all parties, speakers said, the task would be difficult but feasible..