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| 04/10/06: Attending IWCE? Come visit Michael and Delaney at the Sierra Technology booth, or check out the sessions Michael is moderating. |
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News from Higgs Law Group The following current events involving telecommunications operations and regulation are just some of the practice areas in which we offer professional legal services. 800 MHz Order Has Arrived!!! Freeze Extended on UHF Offset Channels Qwest Fined $9 Million for Interconnection Violations The PLMRS Narrowbanding Alarm Clock Has Rung Site Hunting? -Meet Uncle Sam and Smokey the Bear 800 MHz Order Has Arrived!!! The Federal Communications Commission has released a 256 page Order designed to eliminate interference issues plaguing the 800 MHz band, freeing up additional spectrum for the Public Safety Community, and handing Nextel the spectrum it needs to roll out high-speed Internet services. With the decision on the matter issued in early July, the speed with which an Order was released was quite unexpected. The total price tag on the deal is $4.86 billion. First let that sink in for a moment. Then realize that Verizon might sue to block the Order because it thinks Nextel is getting a sweetheart deal. While Verizon initially placed a value of approximately $4.8 billion on the spectrum Nextel is receiving, Verizon has recently changed its tune to claim that it would purchase the spectrum for well over $5 billion were it to be put up for auction. The cost breakdown is as follows: Nextel must pay $2.8 billion to relocate public safety licensees, itself, and certain other wireless carriers. Assuming the relocation costs hit the estimate, Nextel would then owe the U.S. Treasury an additional $1.07 billion to offset the value placed on Nextel's new spectrum versus Nextel's costs of relocation. The Commission has placed a value of $1.61 billion on the spectrum Nextel is returning to the government. We predict that Nextel, the Public Safety Community, and the majority of the industrial trade organizations will accept the terms of the Order without a fight. It remains to be seen whether Verizon will follow thru on its previous threats to appeal such a decision to the U.S. Court of Appeals for DC. Whether or not Verizon decides to throw its considerable legal and lobbying muscle into the courtroom, we do know of one wild-eyed muckraker who will no doubt try to ride in on a white horse and tilt at some windmills. If you have any questions about the Order or its effect on you, your business and your radio system, please pick up the phone and give us a call. Stay tuned for more updates on this breaking story. Full text of the Order available here Freeze Extended on UHF Offset Channels April 9, 2004 The FCC has extended the freeze on filing applications for high power use on the offset channels between 450-470 MHz. The freeze will last at least another 60 days until a plan is finalized to transition medical telemetry off of the channels to allow for PLMR high power use. FCC PROPOSES RECORD FINE OF $ 9 MILLION AGAINST QWEST FOR FAILURE TO FILE INTERCONNECTION AGREEMENTS Washington, D.C. - On March 12, 2004, the FCC issued a Notice of Apparent Liability proposing a forfeiture of $9 million against Qwest Corporation for its failure to file 46 interconnection agreements with the Minnesota Public Utilities Commission and the Arizona Corporation Commission as required by the Communications Act. Section 252(a)(1) of the Communications Act requires carriers to file their interconnection agreements for approval by state public service commissions. This requirement is intended to ensure that incumbent local exchange carriers, like Qwest, cannot enter into discriminatory arrangements unknown to their competitors. The Commission found that Qwest apparently withheld 46 agreements from state commissions in Minnesota and Arizona, an apparent violation of section 252(a)(1). Specifically, the Commission determined that confidential "Settlement Agreements" between carriers resolving past interconnection violations were indeed part and parcel of the overall Interconnection Agreement governing the parties' relationship going forward. Offering settlement terms to one carrier and not making those same terms available to another violates a LEC's Title II obligations as a common carrier. The Commission's proposed forfeiture complements state enforcement proceedings in Minnesota and Arizona relating to the same behavior by Qwest. The PLMRS Narrowbanding Alarm Clock Has Rung In case it escaped your notice, 25kHz is "bandwidth non grata" at the Federal Communication Commission (FCC) these days. The FCC adopted a long-term schedule earlier this year for the migration of VHF and UHF Private Land Mobile Radio systems (PLMRS) to 12.5kHz narrowband technology. Some of the provisions of that migration went into effect on September 15. Additionally, the FCC has just completed the Comment and Reply period on a Second Further Notice of Proposed Rule Making that explores whether PLMRS could or should be further narrowbanded to 6.25kHz spacing in the future. The latter proceeding may require many months for the FCC to compile the comprehensive record it wants on available technology and certification. Nevertheless, the use of 25kHz for PLMRS frequencies in the 150-174MHz and 421-512MHz bands is already prohibited for new systems. It will become extinct, service-wide, within a decade. The FCC intends its rules amendments to promote efficient usage of PLMRS spectrum. Already in force, there can be no more filings of applications for new operations using 25kHz channels. Similarly, there can be no more modification applications to expand the authorized contour of an existing station if the transmission bandwidth specified in the application is greater than 12.5kHz. Certification will cease for equipment limited to one voice path per 25kHz of spectrum, or equipment that includes a 25kHz mode, beginning Jan. 1, 2005. The manufacture and importation of any 150-174MHz or 421-512MHz band equipment that can operate on a 25kHz bandwidth will be prohibited starting Jan. 1, 2008. Service-wide, the deadlines for migration to 12.5kHz technology for all PLMRS systems operating in the 150-174MHz and 421-512MHz bands are Jan. 1, 2013, for non-public safety systems and Jan. 1, 2018, for public safety systems. No specific fines, penalties or enforcement procedures were set out along with the schedule in the Commission's Second Report and Order. Therefore, it is presumed that infractions will be treated as technical rules violations. -HLG- Site Hunting?-Meet Uncle Sam and Smokey the Bear Real estate for telecom base station and cellular sites often seems to be a sellers' market. Nevertheless, service providers often overlook the biggest landlord of them all: the federal government. Nearly one-fifth of the continental United States is public land. Those who have already located on federal land should also stay aware of new rules and fee changes affecting their leases. Federal landlords are mandated to support commercial and private radio buildouts nationwide. The 1976 Federal Land Policy and Management Act authorized the use of national lands for telecommunications uses. (This includes not only physical facilities but also rights-of-way.) The 1996 Telecommunications Act requires federal agencies to facilitate telecom siting on buildings and land they manage when it does not conflict with the agencies' missions or their uses of the properties. In urban areas, this makes the General Services Administration the landlord (federal buildings, post offices and the like). However, for rural and remote areas there are two major players: The U.S. Forest Service (USFS) and the Bureau of Land Management (BLM). How do they do it? -Volume! These two agencies manage the largest chunks of real estate in the country. The USFS controls about 192 million acres (think: larger than Texas). The BLM controls 264 acres (think: California, Oregon, Washington and Idaho combined). Of course, these acreages are disaggregated all over the country and are predominantly located in the West. The USFS, obviously, has mostly forested land. The BLM's control extends over grasslands, scrubland, wilderness and mining areas. The low population density of these areas makes many of them economically less attractive for commercial wireless. Nevertheless, they have several things going for them:
Keeping abreast of changes-including free land One important change in the last two years is that sectarian (generally, religious) broadcasters have been added to the class of users for which rental fees are waived. Non-profit, non-commercial educational TV and radio broadcasters were already exempt from federal land rental fees, as well as state and local governments. Public land siting fees are a given, but there are many rules and regulations requiring legal guidance on contracts and site management issues. Site construction in "natural" areas requires attention to environmental, safety, aesthetic and archeological concerns. Revised USFS rules went into force in mid-August 2003. The prior rules have been reorganized and consolidated as a new Communications Site Management Chapter 90 in the Forest Service Handbook. These new rules require FCC documentation for the aforementioned non-profit broadcaster fee waivers. Another new rules change voids the waiver for any state or local government entity that engages in commercial operations. It must pay if it uses its site to generate a profit (subleasing space to commercial carriers, for example). Federal land management agencies are tasked with comprehensive site plan and environmental review processes. Besides the usual operational and technical checks, a site plan must meet "scenic integrity" and other aesthetic tests before it is authorized. Hot environmental topics, such the effects of tower placements on migratory bird flightpaths, are receiving much scrutiny. Lack of proper documentation and representation for a site plan can stretch a review process into months or years. Additionally, federal landlords must conduct periodic facilities inspections independent from any Federal Communications Commission (FCC) requirements. Consequently, all authorizations, maintenance certifications, license information, site postings, inventories and other paperwork must be kept up to date. Playing for the times-and space Despite the burgeoning of aesthetic, environmental and archeological hurdles to public land siting, the current U.S. political climate may make these concerns secondary. Priorities change. There is a need to build out telecommunications infrastructure. The FCC's internal policy to promote rural buildouts (cable and wireless), along with Congressional pressure to do the same, will be one factor. The linkage of Homeland Security issues to having ubiquitous wireless systems is another. Together, these mandates will make federal land managers less reticent about fulfilling the directive in the 1996 Telecommunications Act. With professional counsel, broadcasters, private radio and commercial services providers can find advantages in this situation well within the definition of the public interest. -HLG- |