VoiceStream filed motion with U.S. Appeals Court, D.C., last week asking to intervene in lawsuit filed by Verizon Wireless against FCC on bid obligations and refunds from NextWave re-auction. In March, Verizon Wireless challenged in D.C. Circuit FCC order that returned 85% of NextWave re- auction deposit and covered agency’s refusal to release carrier from its obligation to pay “on 10 days’ notice” $8.4 billion for licenses won in NextWave re-auction if Commission prevailed in litigation now pending before U.S. Supreme Court. Last year, D.C. Circuit reversed FCC decision to cancel NextWave’s licenses for missed payment, leading to return of that spectrum to bankrupt C-block bidder. Ruling had result of overturning re-auction of NextWave licenses, which generated nearly $16 billion from bidders such as Verizon Wireless, Cingular Wireless, Salmon PCS. VoiceStream said in filing that Commission had rejected Verizon argument that it should be allowed to avoid its obligation to pay full amount of its winning bids for licenses of NextWave and Urban-Comm, “regardless of the outcome of the pending litigation.” VoiceStream said it was high bidder for spectrum formerly licensed to NextWave and Urban-Comm and had joined Verizon Wireless and other re-auction winners at FCC in requesting refund of their down payments. “As such, VoiceStream will be adversely affected if the court does not modify or set aside the FCC’s order,” carrier said. In pending Supreme Court case, VoiceStream filed intervening brief on side of FCC along with Arctic Slope Regional Corp. and Council Tree Communications. Those carriers argued in brief last week that D.C. Circuit “erroneously” had allowed U.S. Bankruptcy Code to trump FCC’s “regulatory mission” in NextWave case.
FCC’s “remedies” for providing nondiscriminatory EchoStar carriage of local TV signals (CD April 5 p5) aren’t sufficient to solve problem, APTS, Univision and Paxson said in petitions to Commission. EchoStar also asked agency to review bureau-level decision, saying it was already complying with Satellite Home Viewer Improvement Act (SHVIA) and imposing additional conditions “cannot be sustained as a matter of fair administrative procedure and due process of law.”
FCC will look at Telecom Act’s separate affiliate requirements for Bell companies’ long distance units in notice of proposed rulemaking (NPRM) on agenda for agency’s May 16 open meeting. Telecom Act’s Sec. 272 specifies that separate affiliate rule will sunset on per-state basis 3 years after Bell companies get Sec. 271 approval for each of those states unless Commission takes steps to extend requirement. FCC will consider opening NPRM that will ask whether it should sunset or extend requirement. First Bell eligible for sunset is Verizon’s N.Y. unit in Dec. Next one would be SBC’s Tex. unit in mid-2003. Also for consideration on agenda issued late Thurs.: (1) Report and order on service rules for 27 MHz of spectrum transferred from federal govt. Spectrum includes 216-220 MHz, 1390-1395 MHz, 1427-1429 MHz, 1429-1432 MHz, 1432-1435 MHz, 1670-1675 MHz and 2385-2390 MHz. Spectrum includes several small blocks transferred under Omnibus Budget Reconciliation Act of 1993 and Balanced Budget Act of 1997. New allocations were designed to permit innovative wireless technologies. (2) Second report and order on regulations for spread spectrum devices. FCC approved proposal last year with changes that would reduce amount of spectrum that must be used for frequency-hopping spread spectrum systems at 2.4 GHz. (3) Order on extension of Oct. 5 deadline for DTV construction by some network affiliates in top-30 markets. (4) Rulemaking on remedial steps for those that have failed to comply with DTV construction deadline. (5) In separate item, Commission will consider order to allow private cable operators to use frequencies in 12 GHz band of cable TV relay service (CARS).
FCC and Cingular Wireless entered consent decree that ends Commission probe into whether carrier violated Enhanced 911 Phase 2 rules. Under agreement, Cingular will pay $100,000 to U.S. Treasury and agreed to make automatic payment of $300,000 if it missed first benchmark in consent decree, and up to $1.2 million starting at 3rd missed benchmark. In Oct., FCC approved E911 Phase 2 waiver requests for Nextel, Sprint PCS, Verizon Wireless and GSM network portions of AT&T’s and Cingular’s plans. But at that time, agency said Cingular and AT&T had submitted compliance plans for existing TDMA portions of their networks too late for Commission to act on them and issue was referred to Enforcement Bureau. FCC hasn’t released order on pending AT&T Wireless issues. Under Cingular consent decree, carrier agreed to deploy technology that complied with Phase 2 at minimum of: (1) 1,000 cell sites by Nov. 15. (2) 2,000 cell sites with provision of Phase 2 service at all these sites by Dec. 31. (3) 4,000 cell sites with provision of Phase 2 service at all these sites by June 30, 2003. (4) 6,000 cell sites by Dec. 31, 2003, “if necessary to meet a PSAP [public safety answering point] request pending more than 6 months as of that date.” (5) 8,000 sites by June 30, 2004, if needed to meet PSAP request pending more than 6 months at that time. Cingular agreed “its classification of a PSAP request as invalid will not insulate it from enforcement action if the Commission determines that the request was valid.” Starting Aug. 1, Cingular agreed that when it submitted quarterly E911 progress reports to FCC it would outline how it would prioritize PSAP requests for E911 service and deploy Phase 2 compliant service in TDMA, AMPS (Advanced Mobile Phone Service Networks) and TDMA/AMPS markets. “It is critically important that all the participants in our quest for full Phase 2 E911 compliance do their part to move forward in protecting American consumers,” FCC Chmn. Powell and Comrs. Abernathy, Copps and Martin said in joint statement. “For carriers, this means meeting the benchmarks and deadlines set by the Commission. For public safety answering points, this means equipping facilities so that they are prepared to receive Phase 2 information as quickly as possible. For the Commission, this means enforcing our mandates.” In July 2001, Cingular filed waiver request at FCC for E911 Phase 2 rules in which it proposed to use switch-based location technology for TDMA network. In July, Cingular withdrew part of waiver request that applied to TDMA network, resubmitting that portion in Aug., as well as compliance plan for its TDMA network. Carriers, before waiver requests, had faced Oct. 1, 2001, deadline for deploying E911 network-based technologies. Consent decree between Cingular and FCC also entails deadlines by which Cingular must provide E911 Phase 2 service to PSAPs that submit requests. For example, for valid PSAP requests received after Sept. 30, Cingular must provide Phase 2 compliant service to 50% of coverage area of those PSAPS within 6 months of receiving request and to 100% of those coverage areas within 15 months.
Alaska Sen. Stevens, ranking GOP member of Senate Appropriations Committee, introduced bill that would compel FCC to hold 700 MHz auctions as planned June 19. Bill, filed late Wed., complicates legislative picture on auctions and comes as FCC is in midst of deciding whether to grant CTIA request to delay bidding date. Stevens’s bill counters one sponsored by House Commerce Committee Chmn. Tauzin (R-La.) that passed House under suspension of rules late Tues. (CD May 8 p1) and would delay auctions indefinitely. Besides requiring FCC to keep auction date, Stevens bill would spell out that Commission alone -- not Congress -- should determine future auction deadlines. Industry attention now turns to how FCC will interpret conflicting signals from Capitol Hill and whether legislative compromise could be reached on 700 MHz deadline.
AOL Time Warner promoted Michael Lynton to pres.- International and exec. vp of parent company… Julia Johnson, NetCommunications pres. and ex-Fla. PSC chmn., named board adviser, View Systems… Chris McGowan named dir.-sales & mktg., ICM Telecommunications… Zenia Mucha promoted to senior vp-corporate communications, Disney… Lori Holy, ex- NAB govt. relations staff, joins FCC Office of Legislative & Intergovernmental Affairs at end of month as attorney- adviser… Rebecca O'Sullivan promoted to vp-gen. mgr., Fox Sports Net Arizona, replacing Cathy Weeden, appointed vp-gen. mgr., Sunshine Network in Orlando.
U.S. Supreme Court is expected to act as soon as Mon. on TELRIC (Total Element Long-Run Incremental Cost) case it heard Oct. 10. Case, involving how much ILECs can charge competitors for use of their network elements, is only one argued in Oct. that hasn’t yet been decided. Court, which returns Mon. after 2-week recess, soon will close down for summer so many decisions generally are issued this time of year. Case challenges pricing standard set by FCC that requires ILECs to base their charges to competitors on “forward-looking” costs rather than actual “historical” costs of building their networks. Eighth U.S. Appeals Court, St. Louis, vacated TELRIC standard in 2000. It upheld forward- looking concept but rejected “hypothetical” nature of TELRIC. FCC sought Supreme Court review of lower court’s decision on TELRIC while ILECs sought review of 8th Circuit’s support for forward-looking costs. In another part of case that didn’t get much discussion during oral argument, lower court also ruled that Telecom Act prohibited regulators from requiring ILECs to combine previously uncombined network elements for CLECs. Legg Mason analysts speculated in report Thurs. that most likely Supreme Court action would be to uphold FCC’s forward-looking approach but remand TELRIC to FCC for modifications. “While the long-term effect depends on the details of the court’s instructions, in the short term the decision would be negative for the CLECs and IXCs and good for the Bells,” said Legg Mason’s Rebecca Arbogast and Michael Balhoff. In first place, “we believe that this FCC would develop pricing rules that would be more Bell friendly,” they said. In addition, any remand would cause more uncertainty, “damaging the operating plans and the access to capital of the CLECs and the IXCs,” report said. Remand also could cause enough additional work for FCC that other proceedings such as UNE review and broadband regulation could be delayed, analysts said.
Highlighting increased focus on technology at NCTA convention in New Orleans, roundtable of FCC legal advisers and bureau chiefs said Commission faced dilemma over how to classify new services, such as broadband and cable telephony. Kyle Dixon, aide to Chmn. Powell said: “We've been doing things in sort of piecemeal fashion, in many respects, without regard to the statutory language in direct application to the ‘96 [Telecommunications] Act. We sort of tried to marry what the previous Commission did before to the language of the Act.” Matthew Brill, aide to Comr. Abernathy, said: “I think this all began as a legal exercise because I will say, to be honest, the statute is not perfectly clear. Given the ambiguity, certainly from a policy standpoint, information service classification [for services such as broadband] is more flexible and allows the Commission to target its regulations.” However, continuing evolution of technology also muddies waters, panelists said. Because many policies are based on anticipated behaviors, Barbara Esbin, assoc. chief, Media Bureau, said “the FCC doesn’t have enough information” in many cases to make informed decisions, “because technology hasn’t evolved enough yet,” to indicate what behaviors it would engender.
Most common consumer complaints to FCC in first quarter 2002 involved telecom billing and rates, FCC Consumer & Governmental Affairs Bureau said in report. Of total 10,619 complaints received in quarter, 5,200 involved telecom billing and rates and such things as line item and recurring charges, wireless air time charges, wide variety of wireline rate issues. Another big category, generating 1,273 complaints, was about telemarketing and other wireline areas covered by Telephone Consumer Protection Act. Those complaints involved calls to residences using prerecorded messages, junk faxes, telemarketing calls before 8 a.m. or after 9 p.m., do-not-call lists not honored. Most-common broadcasting complaints -- 242 of total 270 complaints -- dealt with indecency or obscenity, many of which were forwarded to Enforcement Bureau. Only 167 cable-related complaints were received, half of them about billing and rates. FCC said number of mass media complaints was small compared with telecom because consumers generally directed those complaints to cable companies, local franchising authorities or broadcast stations since Commission had limited authority over cable service and broadcast programming.
Among large volume of comments to FCC this week on how to alleviate interference to public safety operators at 800 MHz, United Telecom Council (UTC) said it didn’t back plan that would entail mandatory relocation. Comments were due Mon. on FCC’s notice of proposed rulemaking that sought feedback on plans to mitigate interference for public safety at 800 MHz, including Nextel proposal that would reconfigure parts of 700 MHz, 800 MHz, 900 MHz and 2.1 GHz. UTC said it opposed Nextel position “but cannot support any other proposal that includes mandatory relocation and re-division of this spectrum into discrete user pools.” Re-banding proposals don’t solve interference, “making this a highly questionable solution,” UTC said. Group also opposed FCC suggestion of re-arming 800 MHz into narrowband channels. It urged FCC to provide “strict” technical rules that required interference resolution “at the cost of the party causing it.” UTC backed PCIA proposal to consolidate business and industrial/land transportation frequency pools, saying that would “also encourage migration to digital technology and shared systems among user groups, a trend already under way which should not be hindered.” If FCC opts for some version of re-banding, UTC said it backed proposal that would migrate lower channel specialized mobile radio (SMR) licensees to public safety frequencies and would move public safety systems to vacated lower 80 channels or to existing public safety slot at 700 MHz. Group said such migration should be voluntary. Citing “long history” and heavy use of 800 MHz and recent allocations in other bands, UTC said it recommended FCC not allocate more spectrum at 800 MHz to public safety. American Mobile Telecommunications Assn. (AMTA) said that while Commission ultimately might determine that 800 MHz rebanding was needed to cure interference, “the record today is far from conclusive in that regard.” AMTA said there were no data to support concept of separating public safety from commercial users as way to relieve interference. It stressed need for FCC and industry to develop funding plan for whatever changes were needed to mitigate interference. “To the extent that it is in the overall public interest to correct this problem, which it surely is, it may be appropriate to secure congressional support for a funding mechanism that looks to the general public to support this vital effort,” said AMTA, which counts Nextel among its members. “The responsibility cannot rest entirely on those who operate in the 800 MHz band, and most certainly not on those who do so without causing interference to public safety communications.”