Federal Communications Commission (FCC)

In next step toward carving out more 3G spectrum, FCC Thurs. approved spectrum allocation order and proposed service rules for 2 blocks of 45 MHz of contiguous spectrum. Allocation means 5 MHz of Multipoint Distribution Service (MDS) spectrum, which is itself connected to other proceedings, and incumbent point-to-point microwave licensees will have to relocate. FCC officials said order, which appeared to contain no surprises, didn’t make any decisions on potential relocation spectrum for MDS, but said it would be taken up in future proceeding.

After 2 previous failed attempts at instituting EEO rules for broadcasters, cable and satellite companies, FCC adopted new set of rules Thurs. that it believes will hold up in court this time. That’s because new rules are basically carbon copy of part of its previous rules that U.S. Appeals Court, D.C., found acceptable last time around. Commission left out part of its old rules that court overturned on constitutional grounds.

With Sen. McCain (R-Ariz.) poised to take reins of Senate Commerce Committee, industry observers are expecting deregulatory agenda. Leadership change also appears to give FCC Chmn. Powell powerful ally on Capitol Hill. Broadcasters may have biggest interest in McCain’s agenda, especially as some observers believe he will use position to push for free air time for political candidates, 2nd phase of his campaign finance reform agenda. Media ownership also will be prominent and digital TV issues probably will receive more attention, we're told.

Despite funding uncertainty for fiscal 2003, National Communications System (NCS) still plans to begin national rollout of initial operating capability of wireless priority service by year-end, Govt. Emergency Telephone Service (GETS) Dir. John Graves said Wed. He told Telecom Service Priority (TSP) Oversight Committee meeting at NCS hq in Arlington, Va., that 2003 capability for service designed to give priority to national security personnel and responders in emergencies still was on track because $208 million set aside to get program running was “any-year” money. Uncertainty involves $73 million sought by Bush Administration after Sept. 11 attacks that House and Senate conferees recently zeroed out of defense appropriations bill (CD Oct 15 p1). For initial capability, NCS is close to signing contract with T-Mobile USA and with Cingular Wireless, Graves said.

As clock ticks nearer to 180-day mark on proposed merger of AT&T Broadband and Comcast, coalition of consumer groups is challenging FCC’s standard in determining subscriber numbers. “Recent disclosures of questionable subscriber counts and even outright fraud by multichannel video programming distributors (MVPDs) demonstrates that the Commission cannot reasonably rely on ‘generally accepted industry data,'” said Consumer Federation of America (CFA), Consumers Union (CU), Center for Digital Democracy (CDD) and Media Access Project in filing last week at FCC. Groups were referring to revelations that Adelphia had fudged its subscriber counts, that Charter counted cable modem customers as subscribers of basic video service even if they didn’t actually get TV service, and that DirecTV had counted people who were interested in service but hadn’t actually signed contract. FCC spokeswoman declined comment. NCTA spokesman said group wouldn’t comment until it reviewed filing.

Report on testing that FCC has undertaken in wake of ultra-wideband (UWB) order adopted in Feb. is expected to be released shortly, Office of Engineering & Technology (OET) Chief Edmond Thomas told us in interview. Thomas said testing was examining areas such as ambient noise levels in different environments rather than actual UWB-based communications devices, which weren’t available in commercial quantities for such analysis. Lack of significant body of data about noise floor levels has been concern in UWB proceeding when opponents and advocates of technology disagreed on interference potential of UWB. “There’s a profound lack of data” on noise floor levels, Thomas said. “It’s profoundly difficult data collection, but it should be done as far as I'm concerned.”

LAS VEGAS -- FCC is moving forward on 3G spectrum allocation and should have it on meeting agenda by year-end, speakers said at CTIA Wireless IT & Internet 2002 conference here late Wed. Julius Knapp, deputy chief of Office of Engineering & Technology (OET), indicated Commission would have rulemaking lined up for agenda meeting by then on service rules for 90 MHz being made available for 3G and other advanced wireless services. Two items are expected to be lined up for Commission approval: (1) Allocation report and order. (2) Notice of proposed rulemaking covering service rules. Bush Administration had released report earlier this year that outlined way to clear total of 90 MHz for advanced wireless services, including 1710-1755 MHz used by military incumbents and 45 MHz of 2110-2170 MHz occupied by nongovt. users.

FCC order mandating that DTV tuners be installed in all TV receivers by July 2007 (CD Aug 9 p1) exceeds Commission’s “jurisdiction and statutory authority,” is in violation of Communications Act of 1934 and is “arbitrary, capricious” and “an abuse of discretion.” So argued CEA in petition filed Oct. 11 with U.S. Appeals Court, D.C., asking that FCC order be set aside.

Wireless carriers urged FCC to provide relief to NextWave re-auction winners, but some differed on details, including whether withdrawing winners should be penalized. FCC last month floated alternatives for allowing NextWave re- auction winners that faced potential payment obligations of $16 billion to opt out of their bid commitments, which were entangled in pending litigation. FCC returned licenses to NextWave after U.S. Appeals Court, D.C., reversed agency’s decision to cancel licenses for nonpayment. Nextel told FCC that applicants wanting to opt out of their commitments shouldn’t be able to re-bid on them in subsequent auctions or acquire them in secondary market for limited period. Alaska Native Wireless, on other hand, argued that winners shouldn’t be penalized for withdrawals and should have at least 180 days to make decision.

Cable modem service is cable service within meaning of Communications Act and FCC was wrong in concluding otherwise in its March declaratory ruling, coalition of local govt. organizations said Thurs. in their opening brief filed in 9th U.S. Appeals Court, San Francisco. Alliance of Local Govt. Officials Against Preemption (ALOAP) brief challenges FCC’s classification of cable modem service as interstate information service, taking it outside the scope of Title VI of the Act. Cities said that at stake in appeal was estimated $300 million per year in cable franchise fees, a figure that was likely to increase in the years ahead. Local govts. couldn’t afford that in light of current economy and increasing costs being incurred for homeland security, ALOAP said.