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The FCC will take a number of significant actions in the final months of 2018 to facilitate the development of 5G, the fifth generation of wireless cellular technology. First, at its October meeting tomorrow, it will vote on making a portion of mid-band spectrum (2.5 to 4.2 GHz) available for 5G use.  Second, it will launch in November the first of two high-band 5G spectrum auctions scheduled for 2018.  Now is therefore a good time to take a look at what 5G is, and what impact it promises to have.

Looking back, the primary benefit of the transition from 3G to 4G was a significant speed boost, which allowed users to, among other things, stream YouTube and upload videos to social media platforms like Instagram without much waiting.  Once implemented, 5G is expected to deliver download speeds anywhere from 10-100 times faster than 4G, with speeds of up to 20 gigabits per second.  5G users will also experience significantly less latency, i.e., the time between when you click on a link and when the network responds.  While 4G latency is about 9 milliseconds, mature 5G systems will reduce latency to around 1 millisecond.

Mature 5G networks will use high-band spectrum (24 GHz and above), which is capable of transmitting significantly more data than 4G, but is limited to much shorter distances.  4G towers currently deliver service for up to 10 miles, while high-band 5G towers will only deliver service for up to 1,000 feet (about 3 football fields).

In addition, high-band 5G spectrum has a shorter wavelength than spectrum used for 4G, making it more difficult for these signals to penetrate solid objects such as walls and windows.  To overcome the distance and signal penetration challenges, 5G will require vast networks of small-cell sites located on a diverse array of real estate platforms, with the small-cells anchored by larger cell towers.  To streamline the deployment of small-cells, the FCC in March adopted new rules to reduce regulatory impediments to building out small-cell infrastructure, and in September adopted rules requiring state and local governments to approve or deny small-cell applications within prescribed time periods.  Not surprisingly, the new rules are unpopular with local governments, who object to any federal interference with their local site review processes.

There are numerous potential innovations and business models that can utilize 5G’s faster speeds, lower latency, and increased connection capacity.  Most agree that 5G will deliver seamless 4K video streaming and instant downloads of large files, but it could also dramatically change how users, including machines, access the Internet.  Currently, the primary option for residential and enterprise broadband customers is cable or fiber.  With speeds of up to 20 gigabits per second (and no need for wire infrastructure), 5G could disrupt the delivery of fixed Internet access as we know it.

5G will also allow the Internet of Things to flourish.  Specifically, it will allow vastly more “things” to connect to cell sites and remain connected to the Internet without the need to connect through smartphones or Wi-Fi.  4G can connect about 2,000 devices per square kilometer, while 5G will connect about one million over the same area.  For example, 5G could facilitate thousands of driverless cars in the same city talking to each other to coordinate efficient traffic flow without the need for passengers to open an app on their phone, or even to have a phone.

Another potentially transformative use of 5G is remote medicine.  For example, given the high speed and low latency of 5G, medical procedures could be performed using robot arms controlled by doctors in a different part of the country or world, harnessing almost instantaneous data transmission and lowering geographic barriers to treatment.  Similarly, augmented and virtual reality gaming, shopping, and other experiences should blossom under 5G.

Rollout of 5G will be gradual.  Following pilot programs in 2018 in select cities, wireless carriers are expected to launch the first iterations of widespread 5G networks in the United States in 2019.  5G-enabled smartphones are also expected to be released in 2019.  The first 5G networks will likely use low (600 to 900 MHz) and mid-band (2.5 to 4.2 GHz) spectrum already possessed by wireless carriers, rather than the high-band spectrum that will make up the majority of spectrum auctioned by the FCC for 5G use.  As a result, initial 5G networks will only scratch the surface of 5G’s potential, delivering speeds ranging from 10% faster than 4G to three times as fast.  Mature iterations of 5G networks that use high-band spectrum are expected to arrive in 2-4 years.

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Toll free calling began in 1967, with the introduction of the 800 toll free code. It remains a frequently used communications tool, even in the Internet age, as new toll-free applications are developed, including the capability to send text messages to certain toll-free numbers. Yesterday, the FCC released a Report and Order that made several innovative changes to the toll free number marketplace.

First, the FCC revised its rules to permit the use of auctions to assign toll free numbers. Since 1998, the FCC has used a “first-come, first-served” approach, but now asserts that the times have changed such that flexibility in the form of auctions is necessary to meet the statutory requirement that toll free numbers be allocated “on an equitable basis.”

Specifically, the FCC states that the first-come, first-served approach has “rewarded actors that have invested in systems to increase the chances that their choices of toll free numbers are received first.” It also states that assigning numbers at no cost “has allowed accumulation of numbers without ensuring those numbers are being put to their most efficient use.”

The FCC will not waste any time using its new auction authority. The 833 toll free code, which was opened in 2017, currently has 17,000 “mutually exclusive” numbers. Mutually exclusive numbers are those subject to multiple requests. The FCC has established the 833 Auction to sell the rights to these numbers.

The Report and Order also revises FCC rules to allow a secondary market for toll free numbers purchased in an auction. Currently, FCC rules prevent three types of conduct that make a secondary market infeasible: (1) “brokering,” which is the selling of a toll free number by a private entity for a fee; (2) “hoarding,” which is the “acquisition by a toll free subscriber . . . of more toll free numbers than the toll free subscriber intends to use for the provision of toll free service;” and (3) “warehousing,” where toll free numbers are reserved without having an actual toll free subscriber for whom the numbers are being reserved.

The FCC explained that a secondary market for toll free numbers assigned via auction is desirable because it “permit[s] subscribers to legally obtain numbers which they value.” It further explained that a secondary market promotes efficient operation of an auction by allowing the purchase or sale of numbers in response to the outcome of the auction, and “limits pre-auction costs associated with estimating which—and how many—numbers a bidder may win.” Also, with a nod to speculators, it explained that a secondary market “encourages value-creating entities to promote efficiency by procuring rights to numbers with an intent to sell those rights to other interested subscribers.”

The rule changes established in the Report and Order will go into effect 30 days after publication in the Federal Register.

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The first 911 call was made 50 years ago, long before wireless phones, texting, and Internet calling were used for everyday communications. Congress and the FCC regularly propose and adopt laws and regulations to keep pace with ever-changing technology. Those efforts continue today with the release by the FCC of a Notice of Proposed Rulemaking (“NPRM”) to implement two bills recently adopted by Congress to improve 911 emergency calling.

The first, Kari’s Law, requires multi-line telephone systems (“MLTS”) in the United States to allow users to dial 911 directly, without having to dial a “9” or any other prefix to reach an outside line. The law was enacted in February in honor of a Texas woman who was fatally stabbed in a hotel room by her estranged husband in 2013. The woman’s nine-year-old daughter was in the room at the time and repeatedly tried dialing 911, but did not know that an extra “9” was needed to reach an outside line.

Though the focus here was on hotel phone services, the application to MLTS makes the impact much broader. MLTS are telephone systems used in settings such as office buildings, campuses, and hotels. Kari’s Law also requires that such systems transmit a notification to an appropriate on-site or third-party contact, such as a front desk or security office, when a 911 call is made.

Under the proposed rules, the direct dialing requirement would be mandatory for “persons engaged in the business of manufacturing, importing, selling, or leasing MLTS, as well as persons engaged in the business of installing, managing, or operating MLTS.” The notification requirement would mandate that a “person engaged in the business of installing, managing, or operating MLTS shall, in installing, managing, or operating the system, configure it to provide a notification that a 911 call has been placed by a caller on the MLTS system.” The notification would be required to include, at a minimum, the following information: (1) that the 911 call has been made; (2) a valid callback number; and (3) the caller’s location. In addition, to ensure timely notifications, the FCC proposes that notifications be transmitted at the same time as the 911 call.

The statutorily mandated compliance date of Kari’s Law is February 16, 2020, and only applies to MLTS that are “manufactured, imported, offered for first sale or lease, first sold or leased, or installed” after that date. Other MLTS are grandfathered from compliance.

The NPRM also proposes rules to implement RAY BAUM’S Act, which was enacted in March and requires that the FCC conduct a proceeding that considers adopting rules that require “dispatchable location” be transmitted to 911 call centers, regardless of the technological platform used. Dispatchable location is defined in the NPRM as “the street address of the calling party, and additional information such as room number, floor number, or similar information necessary to adequately identify the location of the calling party.” Currently, when a 911 call is made in an MLTS environment such as a large campus or hotel, the location may be included in the information sent to the 911 call center, but that location may be the site’s main entrance or an administrative office and not the precise location of the caller.

Under the proposed rules, the transmission of a dispatchable location would be required for MLTS, fixed telephone service, interconnected Voice over Internet Protocol (“VoIP”) services, and Telecommunications Relay Service. The FCC seeks comment on the technical feasibility of the requirement, a comparison of the costs and benefits, and whether the requirement should be extended to any other 911-capable services, such as outbound-only VoIP. The proposed compliance date is February 16, 2020, to coincide with the compliance date of Kari’s Law.

Comment on the FCC’s proposals will be due 45 days after the NPRM’s publication in the Federal Register, with reply comments due 30 days after that date.

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CommLawCenter readers may recall that the FCC adopted a rule in 2013 requiring broadcasters to present aurally on a secondary audio stream (“SAS”) all emergency information provided visually during programming other than during regularly-scheduled newscasts and newscasts that interrupt regular programming.

This “Audible Crawl Rule” went into effect on May 26, 2015, with a few exceptions.  Following a request from the National Association of Broadcasters, the FCC (1) temporarily waived the requirement to aurally convey information regarding school closings via the SAS pending further consideration in a Second Further Notice of Proposed Rulemaking and (2) extended the deadline to begin aurally describing inherently visual graphics, like Doppler Radar maps.  Consideration of the school closings requirement continues, and the FCC has twice extended the compliance deadline for inherently visual graphics.

In today’s Order, the FCC acknowledged that its aspirational reach continues to exceed the grasp of current technology, granting a joint petition from the American Council of the Blind, the American Foundation for the Blind, and the NAB for a five-year extension of the current waiver until May 26, 2023.  To monitor progress on achieving the desired visual-to-aural capabilities, the FCC also required that the NAB file a report with the Commission by November 25, 2020, the midpoint of the five-year extension period.  The report must “detail the extent to which broadcasters have made progress in finding accessible solutions or alternatives to providing critical emergency details generally delivered in a graphic format, as well as the extent to which this waiver continues to be necessary.”

The Media Bureau first granted an 18-month waiver of this requirement in May 2015, in response to an NAB request for a six-month waiver of the compliance deadline.  In 2016, the same coalition of organizations seeking this latest extension requested an additional 18 months to implement an automated approach for compliance with this part of the rule.  That extension would have expired tomorrow, May 26, 2018.

The FCC enacted the Audible Crawl Rule pursuant to the Twenty-First Century Communications and Video Accessibility Act of 2010, which requires broadcasters to make emergency information available to blind or visually impaired individuals.  Originally adopted in April 2013, Section 79.2(b)(2)(ii) of the FCC’s Rules requires all visual emergency information presented outside of newscasts to be made available via SAS.  The rule applies to visual content that is textual (such as on-screen crawls) and non-textual (graphic displays).  According to the FCC, the aural description of visual but non-textual information must be intelligible and must “accurately and effectively convey the critical details regarding the emergency and how to respond to the emergency.”  Continue reading →

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As those that receive our Pillsbury Client Advisories know (you can sign up for those here), April 10th was the deadline for placing various quarterly reports in your station’s public inspection file.  With many radio stations having shifted to an online public file on March 1st, this was the first quarterly deadline falling after that conversion.  As a result, consider this a friendly reminder that if you dutifully prepared your Quarterly Issues/Programs List a few weeks ago and then unthinkingly dropped it into the file drawer like you’ve done a hundred times before, you’ve got a problem.  The Quarterly Issues/Programs List that was required to be uploaded by April 10th details programming aired from January 1, 2018 through March 31, 2018 designed to serve the needs and interests of your station’s community.

If you generated a paper copy of the List, but forgot that it now must be uploaded, be sure to make a note of that fact and upload it as soon as possible.  Broadcasters are asked in their license renewal applications to certify that all documents have been timely placed in the public inspection file.  With the FCC’s public file database now logging the precise time a document is submitted, failing to properly disclose any late-filed documents is not only easy for the FCC to spot, but creates added risk for stations that falsely certify in their license renewal applications that the public file was complete at all times.  With license renewals occurring only once every eight years, even a few “oops” moments each year can soon begin to look like a “pattern of noncompliance” to the FCC.

There is, however, a very select group of stations that received a bye on the April 10 uploads.  The FCC announced this week that it was granting a small number of waiver requests filed by various stations seeking more time to meet the online public file deadline.  While these stations had sought relief from the requirement for varying periods of time, the FCC’s response was not so specialized.  It instead granted each of the stations seeking more time until June 23, 2018 (60 days from release of the Order) to comply with the online public inspection file requirement.

The FCC also made clear in the Order that it will not be providing such generalized relief in the future.  Going forward, any station seeking more time must provide information that demonstrates (1) the economic hardship the station would incur in complying with the online public file requirement; (2) the station’s technical inability to do so; or (3) another reason for a waiver as described in the 2016 Expanded Online Public File Order.

So if you are one of the select few stations that received a little extra time to move to an online public file, it’s your Second Quarter Issues/Programs List that will be the test of whether you have successfully moved to an online public file mindset.  For all other stations, your time is already up.

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Today the FCC publicly released a Report and Order eliminating TV stations’ annual obligation to report whether they have provided feeable ancillary or supplementary services on their spectrum during the past year unless they have actually provided such services.  The order was originally slated for discussion and a vote at next week’s FCC Open Meeting, but the Commission wound up adopting this widely supported change early, unanimously voting for it on circulation.

Previously, all digital television stations had to report by December 1 of each year whether they had provided feeable ancillary or supplementary services in the past year, what those services were, and then submit payment to the government of 5% of the gross revenue derived from such services.  Ancillary and supplementary services are any services provided on a TV station’s digital spectrum that is not needed to provide the single free over-the-air program stream required by the FCC.  The reason the word “feeable” is important is that broadcast video streams (i.e., multicast streams) do not trigger payment of the 5% fee.  Examples previously provided by the FCC of feeable ancillary and supplementary services include computer software distribution and data transmissions.

Observers had expected this rule change for a while.  In the spring of 2017, FCC Chairman Ajit Pai spearheaded the “Modernization of Media Regulation Initiative,” which aimed to institute a massive review of potentially outdated or irrelevant regulations affecting broadcasters, cable system operators, and satellite providers.  At Commissioner Michael O’Rielly’s urging, the Commission originally proposed today’s changes in a Notice of Proposed Rulemaking (NPRM) in October 2017.  The following month, the Media Bureau spontaneously waived the December 1, 2017 filing deadline for TV stations that had not provided feeable services over the prior twelve-month reporting period, signaling that the proposed rule change was likely coming.

Indeed, the FCC received broad support from commenters for the change.  In last year’s NPRM, the FCC noted that of 1,384 full-power commercial TV stations, fewer than 15 reported revenues from ancillary or supplementary services, netting the Commission around $13,000 in fees.

As a result, today’s Order amends Section 73.624(g) of the FCC’s Rules to require that only TV stations actually providing feeable ancillary or supplementary services need file the report in the future.  The FCC could find no justification for the immense expense incurred in having broadcasters submit, and the FCC collect and process, forms merely indicating the station hadn’t provided such services.  It wasn’t so much the FCC concluding that the expense outweighed the public interest benefit; it was the FCC being unable to point to a public interest benefit.

Which just makes you wonder just how this rule stayed in place for nearly 20 years, and no prior FCC bothered to ask that fundamental question.

 

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Toll-free telephone numbers celebrated their 50th birthday this year (frankly, without much fanfare). These numbers allow callers to reach businesses without being charged for the call. When long distance calling was expensive, these numbers were enticing marketing tools used by businesses to encourage customer calls and provide a single number for nationwide customer service—for example, hotel, airline or car rental reservations.

Toll-free numbers are most valuable to businesses when they are easy to remember because they spell a word (1-877-DENTIST) or have a simple dialing pattern (1-855-222-2222). Like all telephone numbers, however, the FCC considers toll-free numbers to be a public resource, not owned by any single person, business or telephone company. Toll-free numbers are assigned on a first-come, first-served basis, primarily by telecommunications carriers known as Responsible Organizations. The FCC even has rules that prohibit hoarding (keeping more than you need) or selling toll-free numbers.

But the rules will change if the FCC adopts its recent proposal to assign toll-free numbers by auction as it prepares to open access to its new “833” toll-free numbers. The Notice of Proposed Rulemaking issued last week proposes to auction off approximately 17,000 toll-free numbers for which there have been competing requests. The proceeds of these auctions would then be used to reduce the costs of administering toll-free numbers.

The NPRM also contemplates revising the current rules to promote the development of a secondary market for toll-free numbers. This would allow subscribers to reassign toll-free numbers to other businesses for a fee (think 1-800-STUBHUB!). The FCC suggests this would promote economic efficiencies, as the number would presumably be better utilized by a business owner willing to pay for it than by the company that merely happened to claim it first.

The proposed rules are not without controversy. Some toll-free numbers are used to promote health, safety and other public interest goals (e.g., 1-800-SUICIDE). The NPRM seeks comments on whether toll-free numbers used by governmental or certain nonprofit organizations should be exempt from the auction process. There are also questions about whether the expected demand for the 17,000 new numbers will erode if claiming a number is no longer free.

Comments in this proceeding will be due 30 days after the NPRM is published in the Federal Register, with replies due 30 days after that. If you are interested in filing comments, you can reach us at 1-888-387-5714 Call: 1-888-387-5714.  After all, it’s a toll-free call.

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Imagine dialing 911 and hearing an automated voice tell you that what you have dialed is not a valid number; or reaching a 911 call center only to have emergency personnel dispatched to the wrong location. In response to such problems, the FCC recently released a Notice of Inquiry (NOI) asking a broad range of questions about the capability of enterprise-based communications systems (ECS)—internal phone systems used in places like office buildings, campuses and hotels—to provide access for 911 calls.

According to the FCC, certain of these systems may not support direct 911 dialing, may not have the capability to route calls to the appropriate 911 call center, or may not provide accurate information on the caller’s location. The NOI seeks public comment on consumer expectations regarding the ability to access 911 call centers when calling from an ECS, and seeks ways, including regulation if needed, to improve the capabilities of ECS to provide direct access for 911 calls.

Continue reading →

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The FCC voted unanimously yesterday to adopt a Notice of Inquiry (“NOI”) that may have a profound impact on the delivery of communications services in residential and commercial buildings, shopping malls and other multiple tenant environments (“MTEs”). This proceeding will revisit FCC rules and policies developed during the last 17 years, focusing on whether changes need to be made to enhance broadband deployment and consumer choice.  Building owners and managers, communications service providers, and tenants all have a stake in the outcome of this inquiry.

In a nutshell, current FCC policies favor competitive access by telecom and video service providers (with some exceptions), and prohibit exclusive contracts between service providers and building owners that would limit such access. These rules also cover access to in-building wiring and the conduits and rights-of-way within these properties that are owned or controlled by the service providers.   The rules apply to regulated service providers because the FCC generally lacks jurisdiction over building owners and managers.

The most recent FCC order, issued in 2010, approved the use of exclusive marketing and bulk billing arrangements between video providers and building owners. Exclusive marketing arrangements give video providers the exclusive right to market services to residents in a building.  Bulk billing arrangements permit the video provider to serve each resident of the building, usually at a significant discount from the retail rate.  The billing for services is often included within the rent, whether the resident uses the services or contracts with another service provider.

The FCC initiated this proceeding in response to allegations from fixed and mobile broadband service providers that they face challenges in expanding their service footprint because of MTEs with exclusive contracts. There are also arguments that state regulations intended to encourage competitive access actually hinder the ability to provide competitive services. In one pending proceeding, a group of service providers has asked the FCC to preempt an ordinance recently adopted by the City of San Francisco requiring building owners to give competing service providers access to existing wiring upon request from a resident, which the complaining service providers and many building owners contend will deter investment in the communications infrastructure of new buildings and is impractical because of space limitations in many older buildings.

Unlike the earlier proceedings which were focused on specific markets (telecommunications or video services) or types of buildings (resident or commercial), the NOI will cover all services and all types of MTEs. Indeed, for the purpose of this proceeding, MTEs include both commercial and residential premises such as apartment and condominium buildings, shopping malls, gated communities, mobile home parks, garden apartments and other centrally managed residential real estate developments, or any multi-unit premise occupied by two or more distinct units.  Most buildings are covered by this proceeding.

Some of the specific questions on which the FCC seeks comment include:

  1. Whether there are state and local regulations that may inhibit broadband deployment and competition within MTEs;
  2. Whether the FCC should revisit its decision approving exclusive marketing and bulk billing arrangements;
  3. Whether revenue sharing agreements, exclusive wiring arrangements or other types of contractual provisions are affecting broadband competition within MTEs;
  4. Whether there are statutory or jurisdictional considerations that should guide the FCC’s actions in this proceeding; and
  5. Whether the proposed reclassification of broadband internet access as an information service will impact the FCC’s legal authority to address broadband deployment within MTEs.

Comments in this proceeding will be due July 24, 2017 and reply comments will be due August 22, 2017.   The NOI process is a first step toward the development of new rules.  Once the NOI comment cycle is completed, the FCC may issue a Notice of Proposed Rulemaking proposing rule changes, requiring another round of comments before new rules could be adopted.

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Robocalls and telemarketing calls are reliably the top source of consumer complaints received by the FCC.  Despite the good intentions of the 1991 Telephone Consumer Protection Act (TCPA), FCC decisions implementing the TCPA, and the collective efforts of the telecom industry, there has been little relief from these unwanted calls—particularly at dinner time.  More problematic is that an increasing number of these calls use false (or spoofed) Caller ID to perpetrate scams designed to trick call recipients into believing the call is coming from the Internal Revenue Service, law enforcement, computer support, or a credit card company.

The FCC is now making another attempt to reduce unwanted and sometimes fraudulent telemarketing calls and robocalls.  In a draft Notice of Proposed Rulemaking and Notice of Inquiry circulated March 2nd and to be considered formally at the next FCC Open Meeting on March 23rd, the FCC is proposing to adopt rules that would allow voice service providers (including wireline, wireless and VoIP providers) to block spoofed calls in certain circumstances. Continue reading →