Federal Communications Commission (FCC)

With FCC deciding that cable service and cable modem service are mutually exclusive, only way to preserve and protect local authority is for Commission to recognize that cable modem service has no special privileges and is subject to local laws and regulations governing use of rights-of-way (ROW), coalition of local govts. and organizations said. In reply comments to agency’s cable modem inquiry, Alliance of Local Organizations Against Preemption (ALOAP) contended there was no basis in fact or law for rejection of local franchising authority over cable modem services. Local govts. had right and responsibility to protect public interest by imposing conditions and obtaining compensation for ROW use, coalition said, and localities also had right to regulate business service. To justify any attempt to preempt local authority Commission had to show preemption would advance federal policy goals, ALOAP said: “By the Commission’s own admission, deployment of cable modem service is well advanced.” So fundamental issue isn’t deployment, but demand for broadband, it said. Moreover, Communications Act offers no authority for preemption, ALOAP said, and actually affirms local authority over cable modem service. Coalition said 5th U.S. Appeals Court, New Orleans, had ruled while reviewing “closely analogous” case of FCC’s Open Video System (OVS) rules that agency couldn’t preclude local franchising of OVS operators. It said industry commentators hadn’t provided any “actual” evidence that franchise fees on cable modem service exceeded local govt. costs. “Local governments expend enormous sums on acquiring, improving and maintaining the public rights-of-way every year,” coalition said. As for question of repayment of past franchise fees, ALOAP said Commission should leave it to state and local law because Title I didn’t grant FCC authority over cable modem franchise fees.

FCC approved order that within 5 years will lift requirement that cellular carriers continue to provide analog service, as long as hearing aid devices are compatible with digital networks by then. FCC Comr. Copps dissented in part, citing concerns over issues such as current lack of hearing assistance technology that worked with digital networks. “The majority finds that the analog standard is no longer ‘necessary’ even though compatible services are not yet available,” he said of item, which was part of Commission biennial review proceeding. Comr. Martin voted for order, but voiced concern that it didn’t discuss meaning of term “necessary” as covered under FCC’s biennial review obligations. FCC said point of its order was to eliminate certain requirements for cellular carriers that no longer were necessary because they dated back to duopoly era of cellphone service when it started in 1980s. Other changes in order involve elimination of cellular channelization provisions, removal of manufacturing requirements on electronic serial numbers and rules on cellular antitrafficking.

Nextel, public safety groups and coalition of private wireless licensees submitted revised spectrum swap plan to FCC Wed. to alleviate public safety interference at 800 MHz. Revamped proposal came after Commission last month granted additional time for parties to craft solutions in reply comments on rulemaking adopted earlier this year. Unlike original White Paper that Nextel submitted to FCC in Nov. on interference solutions, compromise plan explicitly provides replacement spectrum for private wireless operators. Another difference is that original Nextel plan would have provided carrier with 10 MHz in mobile satellite service band at 2.1 GHz in exchange for spectrum it was giving up elsewhere to reconfigure 700, 800 and 900 MHz bands. Latest plan instead would take that replacement spectrum from 5 MHz of unlicensed PCS spectrum at 1.9 GHz and another 5 MHz of reserve MSS spectrum, Nextel Senior Vp-Chief Regulatory Officer Robert Foosaner said in conference call with investors Wed.

Sen. Burns (Mont.), ranking Republican on Senate Commerce Communications Subcommittee, asked FCC Chmn. Powell to provide information on ultra wideband (UWB) testing under way at Commission. Agency earlier this year approved UWB order that provided technical requirements allowing commercial technology to move forward, but indicated at time that it would conduct testing over next year to evaluate what if any changes should be made in restrictions on UWB. “The results of these Commission tests could form the basis for the review and possible relaxation of the rules adopted in the first report and order,” Burns said. Burns said he wanted FCC to provide information by Aug. 31 on these questions: (1) Will FCC “publish and invite public comment” on test plan it intends to pursue in evaluating UWB interference into other services. If so, Burns said he wanted to know whether that information would be provided before testing began. (2) “In developing and implementing its test plans, will the Commission consider worst-case scenarios, especially in reviewing potential UWB interference into safety of life frequency bands and services?” Burns said if FCC didn’t plan that, he would like outline of scenarios that Commission would consider and “how they account for the grave consequences interference to safety of life systems could have.” (3) Will FCC use range of UWB device and network prototypes in testing. (4) What group in FCC will undertake tests and analyze data. Burns asked specifically whether other federal agencies would be involved in developing test plans and whether FCC would seek public comment on test data before it considered further notice. (5) Will Commission use test data for purposes other than developing further notice, such as responding to pending petitions for reconsideration.

FCC denied petition by 2 groups of local telcos that sought additional regulation of Western Wireless service in Kan. State Independent Alliance and Independent Telecom Group asked FCC in Nov. 2000 for declaratory ruling that Western Wireless’ Basic Universal Service (BUS) wasn’t commercial mobile radio service (CMRS). Such ruling would have meant Kan. Corp. Commission (KCC) wasn’t precluded by federal law from applying wireline LEC regulations to BUS. FCC, with Comr. Martin dissenting, concluded BUS was CMRS offering, so KCC couldn’t regulate BUS entry or rates and couldn’t require it to provide equal access for telephone toll services. Mark Rubin, Western Wireless federal govt. affairs dir., said company was “grateful that the FCC saw the petition for what it was -- a bold end-around the Communications Act’s prohibition against state or local governments’ regulating the entry of or the rates charged by a CMRS provider.” Issue is part of continual debate in states over how to classify Western Wireless’ wireless local loop service. Martin said he found it “difficult to believe this… offering, which is designed specifically to qualify for universal service subsidies, should be deemed exempt from regulations and universal service fund requirements applicable to wireline local exchange carriers providing essentially the same service.”

FCC Chmn. Powell told Senate Commerce Committee that it needed to expand scope of Sec. 214 of Communications Act for Commission to ensure continuity of variety of telecom services. Powell made comments in committee hearing Tues. on financial turmoil in telecom industry that also featured high-level officers of Global Crossing, Qwest and WorldCom. Committee Chmn. Hollings (D-S.C.) agreed Congress should broaden scope of Act’s section that gave FCC power to prevent communications networks from cutting service as result of bankruptcy and said he would try to make legislative changes before Congress’s adjournment scheduled for first week of Oct. Hollings asked Powell to send recommendations to Committee. Powell wouldn’t elaborate on how broad Sec. 214 scope should be, although he did mention cable companies and Internet service providers. He said there often was conflict between bankruptcy law and Commission’s powers under Sec. 214. Although he said he could envision scenario where scope of Sec. 214 could hamper FCC efforts to prevent loss of service, there were no current bankruptcies where agency didn’t have power to act.

Bush Administration Tues. released long-awaited 3G viability assessment under which Defense Dept. agreed to clear most of 1710-1755 MHz but said freeing additional 15 MHz beyond that was untenable between now and 2008. Result is that report finds way to clear 90 MHz of spectrum for advanced wireless services at 1.7 GHz and in 45 MHz of 2110- 2170 MHz, which is occupied by nongovt. users. That’s less than 120 MHz that NTIA and other Executive Branch agencies had left on table last fall for 3G evaluation, after taking 1770-1850 MHz occupied by DoD out of consideration following Sept. 11 attacks (CD Oct 9 p3). While spectrum is less than originally sought by industry, private sector and govt. officials at Commerce Dept. briefing touted outcome as providing certainty that allocation decisions and auction could be held in 2004-2005 time frame. Also Tues., Commerce Dept. released draft bill to create spectrum relocation fund to pay incumbent govt. users for relocating and modernizing equipment. Commerce Secy. Donald Evans said 3G assessment strikes “a necessary balance between our country’s economic growth and national security, as well as public safety.”

WorldCom made largest Chapter 11 filing in U.S. history late Sun., leading FCC Chmn. Powell to issue statement providing reassurances that his agency didn’t believe action would “lead to an immediate disruption of service to consumers or threaten the operation of WorldCom’s Internet backbone facilities.” FCC Deputy Gen. Counsel John Rogovin filed appearance Mon. at U.S. Bankruptcy Court, N.Y., action characterized by spokeswoman as assuring that Commission was official party in proceeding. She said Rogovin’s role would be to make judge aware, during bankruptcy proceeding, of importance of continued service to customers, including federal govt., and need to protect universal service funding, wireless licenses and Internet. Justice Dept. (DoJ) also took action, filing motion requesting independent examiner be appointed to investigate company’s financial affairs.

State regulators Wed. reiterated their position that they be free to modify any FCC national list of unbundled network elements (UNEs) that incumbent telcos must offer to their competitors. In teleconference with reporters, several regulators also called for establishment of federal-state joint conference on UNEs to ensure FCC and states didn’t start working at cross purposes. Wed. was deadline for reply comments in FCC’s triennial UNE review. In comments filed late in day, consumer groups and CLECs also urged Commission not to reduce number of mandatory national UNEs or allow any new restrictions on UNE availability. ILECs on other hand, said it was clear that UNEs weren’t as vital as they once were.

Wash. state regulators refused to reconsider their July 1 decision to endorse Qwest’s Sec. 271 bid for interLATA long distance entry. Wash. Utilities & Transportation Commission denied petitions for reconsideration filed by AT&T and Covad Communications. Carriers wanted WUTC to reconsider its support in light of criminal investigation into Qwest business conduct by U.S. Attorney and 2nd probe by House Energy & Commerce Committee. They contended pending criminal probe, congressional investigation plus charges that Qwest made secret deals with its competitors to remove their opposition to its regulatory initiatives all were highly relevant to company’s compliance with Telecom Act. WUTC disagreed, saying federal investigations into Qwest corporate and financial practices weren’t relevant to central Telecom Act question whether Qwest’s local markets were fully and irreversibly open to competition. WUTC said it wasn’t persuaded that unfiled Qwest-CLEC agreements in Wash. affected openness of Qwest’s local markets. AT&T had planned similar reconsideration petitions in Mont., Utah and Wyo., whose votes last week to support Qwest prompted carrier to file its July 12 applications at FCC. But AT&T said it had changed its plans and would take its concerns directly to FCC.