Federal Communications Commission (FCC)

The FCC released a notice of proposed rulemaking on sharing between satellite services -- including nongeostationary satellite orbit (NGSO) and geostationary satellite orbit (GSO) fixed satellite service (FSS) operations -- and 3 other services -- fixed services (FS), broadcast auxiliary services (BAS) and cable TV relay services (CARS). The final rules would apply in the 7 GHz, 10 GHz and 13 GHz bands, the Commission said: “We undertake this proceeding to facilitate the introduction of new satellite and terrestrial services while promoting interference protection among the various users in these bands.” The Commission proposed the following: (1) NGSO FSS downlink operations sharing with FS operations in the 10 GHz band based on a Growth Zone Proposal by SkyBridge/Fixed Wireless Communications Coalition (FWCC). It suggested identifying FS growth zones based on geographic areas where “FS use is high and growth is most likely to occur.” The Commission’s proposal would qualify counties as growth zones “where at least 30 FS frequencies are licensed to transmit in the 10.7-11.7 GHz band.” Zone determinations would be made individually, rather than every 6 months, as NGSO FSS earth station applications were submitted to provide a “near real- time” element to the process, the FCC said. Coordination also would adopt proposals determining where the earth stations should be located, who would be protected from interference and how coordination would be determined. (2) Coordination between NGSO and GSO FSS earth stations and mobile BAS and CARS operations in the 6875-7075 MHz and 12750-13250 MHz bands. The Commission said it would apply existing coordination rules from Parts 25 and 101 of its rules to the bands and consider additions or modifications. It said it also would determine whether additional rules needed to be applied separately to FSS coordination with mobile or fixed BAS/CARS operations. Comments are due 30 days from publication in the Federal Register, replies 45 days from publication.

The National Wildlife Federation (NWF) and other environmental groups asked the FCC to order its Wireless Bureau to conduct environmental analyses under the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA) before approving tower projects. NWF, the Mich. Audubon Society, Copper Country Audubon Club and Upper Peninsula Environmental Coalition filed an application for review at the FCC last week. Last year, NWF told the Bureau insufficient environmental analyses were done before tower construction and as a result the FCC was violating the ESA and NEPA. The group asked that the agency immediately conduct environmental assessments on 3 towers and evaluate the cumulative impacts of the tower permitting system on migratory birds and endangered species. The Bureau turned down those claims last month, saying the Mich. State Police and U.S. Fish & Wildlife Service (FWS) were conducting an avian collision study. (The FCC over the last few years has authorized the Mich. State Police to construct 181 towers across the state.) NWF told the FCC in its latest filing that the Bureau incorrectly had held that performing environmental assessments before the avian study was complete would be premature. “Postponing these analyses creates unacceptable risks to the endangered Kirtland’s warbler and other migratory species and violates the ESA and NEPA,” NWF said. It asked the FCC to “order the Bureau” to perform environmental analyses under ESA and NEPA and to consult with FWS. The group asked for a review of: (1) Whether the Commission violated the ESA by approving towers in and around the habitats of listed species “without conducting an assessment of impacts on the species and without consulting with the U.S. Fish & Wildlife Service regarding those impacts.” (2) Whether the FCC violated NEPA by approving towers in and around the habitats of migratory birds without first conducting an assessment of impacts on the birds. NWF took aim at an unpublished letter last month in which the Bureau concluded it didn’t have to analyze the environmental effects of Mich. State Police communications towers and ESA and NEPA until after the 2-year avian study was performed. The Bureau said its tower authorizations were categorically excluded from NEPA. NWF said its members lived near the towers, bird-watched in areas near certain towers and “are concerned about the economic impacts on ecotourism that would directly impact their economic livelihood.” The application for review said the “FCC’s failure to assess the impacts of the towers on the Kirtland’s warbler and other migratory birds has harmed these members’ esthetic, recreational and economic interests.” The groups told the FCC that if reviews under NEPA and ESA were to show that a particular tower harmed the birds, the Commission had the authority to order that the tower be removed or that the harm be mitigated. The groups contended the FCC was made aware in advance of the towers’ construction of the potentially harmful effect on nonlisted migratory birds as well as 4 ESA-listed species, but didn’t conduct reviews before licensing them.

Cable operators generally were pleased with the conditions the FCC placed on News Corp.’s acquisition of Hughes Electronics and DirecTV, having feared the newly combined company would use its leverage to shut cable operators out of some programming. In a joint statement, Advance/Newhouse, Cable One, Cox and Insight said the arbitration mechanisms imposed by the FCC had “greatly reduced the danger that the transaction itself will do harm to consumer prices.” The 4 companies had joined forces in filing comments on the deal, and together they still worried that News Corp. would remain a “formidable presence.” EchoStar congratulated News Corp. on its purchase but said consumers can “count on” its own Dish Network to offer an alternative to “goliaths such as Time Warner, Comcast, and now News Corp.”

The FCC approved applications related to WorldCom’s reorganization out of bankruptcy as the newly formed MCI, including assignment or transfer of Sec. 214 authorization, Sec. 310 licenses and submarine cable landing licenses. The Commission said its approval was required for WorldCom’s debtor-in-possession reorganization and emergence from bankruptcy to move forward. Since petitioning for bankruptcy, MCI “has aggressively rid itself of the individuals who allegedly committed acts of corporate fraud and has substantially reformed the corporate structures and policies that enabled such alleged fraud to occur,” the agency said. “In the aftermath of public revelations concerning WorldCom’s accounting problems,” the Commission said it had reviewed the qualifications of WorldCom and MCI in the context of the license and authorization transfers to the newly formed MCI. “The Commission has an obligation to undertake its own independent assessment of whether an applicant has the basic qualifications to be a Commission licensee, but we see no reason here to second-guess the extensive corporate governance reforms made under the careful review and special expertise of expert agencies including the SEC and the federal courts that have been involved in proceedings related to WorldCom’s proposed reorganization.” On matters of corporate governance in the case, the FCC said it gave “due attention” to the extensive review of several other expert federal agencies and courts. “Although final decisions on liability for the acts committed under the prebankruptcy WorldCom continue to proceed in other fora, the applicants have established that granting their applications is in the public interest,” it said. As a threshold matter, the Commission said it had to determine whether the applicant was qualified to hold and transfer control of licenses under Sec. 310(d) of the Communications Act. It said the underlying public interest concerns in the broadcast arena, such as indecency regulation, didn’t apply with equal force to common carrier facilities, “where content is divorced from conduit.”

Touting benefits for homeland security, the FCC adopted rules Wed. for systems that provide a short-range, wireless link for Intelligent Transportation Systems (ITS). The service and licensing rules cover Dedicated Short-Range Communications (DSRC) at 5.9 GHz, including collision avoidance at intersections and electronic toll collection. The Transportation Dept. said the move would let research started in the mid-1990s continue, in part by freeing dedicated spectrum. Meanwhile, the FCC deferred a decision on a coordination issue involving the fixed satellite service until negotiations between govt. and industry conclude.

A group of academics urged the FCC Tues. to produce a clear national regulatory structure soon to ensure voice- over-Internet protocol (VoIP) growth. Speaking via teleconference, authors of a report by the New Millennium Research Council (NMRC) called for the Commission to: (1) Subject VoIP applications that functioned like telephone services to certain telephony rules. (2) Regulate all VoIP service providers equally. (3) Ensure that statutory social responsibilities were met. All 6 authors said they hadn’t been compensated by any involved parties for submitting their papers to the NMRC.

NARUC announced a 6-member task force to explore the potential for broadband over power lines (BPL) and the role of state regulators in advancing that technology. The work of the task force would complement the BPL investigations of the FCC and the Federal Energy Regulatory Commission (FERC), NARUC Pres. Stan Wise said. Mich. PSC Comr. Laura Chappelle, who will head the task force, told us the commissioners would be looking at a broad range of issues that would help regulators understand “what role, if any, legislators should play in the emergent technology.” To begin with, regulators wanted a better understanding of the current status of the technology, its potential uses, potential timetable for its rollout and how widespread it would be, she said. Only then would the task force get into the policy considerations such as the potential for improper cross-subsidization, universal service, the role of regulators when utilities use their physical assets and BPL’s real advantages to the underserved communities. Chappelle said that although several companies had begun pilot BPL programs, they weren’t widespread and results weren’t “apparent.” That probably was because companies were keeping quiet for competitive reasons, she said, or it was just that the technology was only now emerging: “I think they are at the real infancy stage.” Unlike voice-over-Internet protocol (VoIP), which was “booming a lot faster,” things with electricity move a little slowly, she said. And unlike BPL, there weren’t any known security concerns with VoIP, she said, although there were a lot of policy concerns. The Federal Emergency Management Agency (FEMA) had expressed concerns about interference to govt. communications from unlicensed BPL systems, she said, but it was just a concern: “I think it’s just ensuring that the high-frequency radio, especially in the context that FEMA uses, would be protected.” That’s something that state regulators would want to ensure and in order to do that “we would have to ask a lot of questions and do a lot of research to find out if there is a potential for interference and, if so, what does that involve and is there something that can be readily fixed through industry’s putting protective measures in place.” Although the task force wasn’t operating under a time frame, Chappelle said it would give NARUC some initial feedback so as to involve more regulators and govt. agencies in the deliberations.

With scientific data inadequate to support federal Fish & Wildlife Service (FWS) voluntary guidelines on communications tower siting, PCIA said, some states already were using them “as a precedent.” A PCIA spokesman said that while the guidelines were “not official… some states have taken them as being a gospel, and we don’t like that.”

The FCC’s Network Reliability & Interoperability Council (NRIC) voted Fri. to adopt more than 300 best practices aimed at enhancing reliability and security of the U.S. telecom networks in times of emergency. Although the vote marked the last meeting of a 2-year initiative, members have until Dec. 12 to submit their written comments. “The set of homeland security best practices adopted by the Council will guide the industry in fulfilling its commitments with its customers and with one another -- to engineer and operate the most reliable, robust communications service network in the world,” FCC Chmn. Powell said.

Under new broadcast license renewal procedures, licensees must certify that they have complied with federal requirements, such as children’s programming mandates or maintaining public files. NAB Thurs. urged broadcasters that thought they might have broken a rule to resist any temptation to lie, and confess the violation.