Member Regulatory Teleconferences Critical Advocacy Initiatives

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1 appended to the Council s advocacy document. All members supporting the minority statement must be identified in the minority statement. The minority statement must represent full consensus of the members identified in the statement, and may not itself contain alternative or divergent opinions or positions. [Article VIII] Member Regulatory Teleconferences EWA has hosted nineteen (19) Member Regulatory Teleconferences in 2014, during which Liz Sachs and Mark Crosby present and interpret regulatory and spectrum matters of importance to members. The next call will be held on Tuesday, October 14, All members are encouraged to attend and participate. Private v. Common Carrier Status 2014 Critical Advocacy Initiatives For several years now, EWA has pursued FCC confirmation that non-interconnected wireless systems are not providing common carrier service and, pursuant to the Communications Act, cannot be regulated as common carriers nor telecommunications carriers. Earlier this year, WTB staff advised EWA that the Bureau intends to continue classifying SMR licensees as common carriers, even if their systems are not interconnected with the public switched network. EWA has requested the precedent on which the Bureau has based that decision (which seems to EWA to be directly contrary to the Communications Act itself), as well as confirmation that the classification applies only to licensees labeled SMRs, that is commercial licensees in the 800/900 MHz band, and not to commercial service providers in the bands below 800 MHz. Public Safety Use of B/ILT Spectrum In early 2014, the PSHSB and WTB jointly replied to an EWA request seeking FCC clarification of the analysis non-ps coordinators should conduct when evaluating PS waiver requests to use B/ILT frequencies. The Bureaus declined to apply Section to such requests, acknowledging that PS applicants might not be required to share frequencies, if doing so would cause an unacceptable degradation of service to incumbent or prospective users. The letter did not distinguish between the rights of B/ILT and PS entities in its analysis and arguably stands for the proposition that B/ILT applicants can seek waivers to use PS frequencies with an appropriate showing. At the request of AAR s elected representative, in May the LMCC Board of Directors resolved to organize a Task Force that would review current inter-service concurrence protocols and potentially develop revised processes by which PS eligibles may secure access to B/ILT spectrum for acceptance by the membership. The first meeting of the LMCC Task Force convened in July, where it was recognized that the fundamental issue is how PS coordinators determine whether PS frequencies are available. The PS coordinators agreed to consider to what extent they are willing to share their protocols for making that determination with the B/ILT coordinators. Shortly afterwards, the Public Safety Communications Council ( PSCC ) responded, stating that there are no defined procedures, as 3

2 each situation is different. In response to this non-answer, the B/ILT coordinators questioned how they could validate claims of PS frequency unavailability, given this essentially ad hoc determination that can rely on factors such as whether use of a PS frequency would require the acquisition of combining equipment and not necessarily on the rules governing channel exclusivity below 800 MHz. The B/ILT FACs asked a number of questions, perhaps the most critical of which is how PS FACs determine that the assignment of a frequency would cause interference to an incumbent without a contour or other standard for defining permissible cochannel operations. Following another non-definitive PSCC response, in September, the B/ILT coordinators advised the PSCC that there was not agreement regarding the standards applicable to waiver requests from PS applicants to access B/ILT frequencies, based on a claim of PS frequency unavailability. They stated that they would require such applications to identify the basis on which the PS FAC reached that conclusion, information needed for a B/ILT committee to determine whether a B/ILT frequency was the most appropriate and for the FCC to determine whether waiver relief was warranted. PSCC was also advised that the B/ILT FACs will be implementing a waiver application review period similar to that used by PS coordinators. One B/ILT coordinator will be responsible for circulating the request to the others and for forwarding relevant comments to the B/ILT coordinator that received the waiver request. EWA has volunteered to assume that responsibility without compensation. During the course of the year, two PS applications that drew EWA s attention were resolved. First, the FCC granted and denied in part EWA s opposition to Weld County, Colorado s waiver request to use 800 MHz I/B channels, even though Sprint-vacated frequencies were available. The County was granted the right to use two B/ILT channels primarily due to economics; the Sprint-vacated channels in the area remain available only to public safety entities; and APCO received a slap on the wrist for its handling of the application. Without fanfare and without notice to EWA, Flathead County, Montana withdrew its waiver request to use B/ILT frequencies. Ineligible 900 MHz SMR Applications It started simply with the submittal of EWA informal oppositions to applications filed by multiple clients of Smartcomm (processed by Radi osoft and certified by AAA) that had requested 900 MHz I/B frequencies. The applicants identified themselves as eligible by listing I/B radio service codes, but stated that the systems would be used to provide wireless service to Part 90 eligibles (a/k/a SMR service). The applications identified the regulatory status as non-common carrier rather than private internal use. In its opposition filing, EWA reminded the FCC that these frequencies are expressly not available initially for SMR applicants. Subsequently, EWA exchanged pleadings with the licensee of an essentially identical application that was granted by the FCC. In its Reply to the Licensee s Opposition, EWA identified a number of errors in the Opposition, among them a claim that private carriers are eligible to be coordinated for I/B frequencies if they promise to serve only other eligible entities and an argument that, even if an SMR, the frequencies would be available under inter-category sharing since no SMR frequencies are assignable. 4

3 In early April, EWA filed its second Informal Opposition and request to dismiss ninety-nine (99) pending applications and associated waiver requests filed by Spectrum Network Group, LLC ( SNG ), a Smartcomm-affiliated entity, that were certified by AAA. The waiver requests, like similar requests over the years, sought to secure this spectrum for speculative, commercial purposes without first satisfying the private internal use requirement in FCC Rule Section (c). EWA also independently determined that six (6) of the applications did not satisfy short-spacing requirements pursuant to FCC Rule Section (b) and conflicted with incumbent systems operated by General Motors Research, Puget Sound Energy, Washington Gas Light and Lower Colorado River Authority. On April 11 EWA requested AAA to withdraw these applications which, eventually after several reminders, they did. In late April, EWA learned that SNG had teamed with M2M Spectrum Networks (M2M), yet another Smartcomm-affiliated entity, and jointly filed a Reply to EWA s Opposition stating that M2M will be offering business customers a game-changing network, optimized solely for M2M applications, with innovations in provisioning, monitoring, pricing and other dimensions not yet seen in the marketplace. M2M also claimed that it is in the process of constructing a sophisticated, dedicated machine-to-machine network for facilitating the Internet of Things including applications in security and alarm monitoring; electric power, water, gas and waste utilities, including Smart Grid systems; fleet vehicle dispatch; location and route optimization; vending and other machine monitoring systems; gas, oil and mining operations, including pipelines and tankers; connected car and smart road solutions; and numerous other potential and emerging machine-to-machine applications. EWA opted not to respond to those fabulous declarations. Still another Smartcomm affiliated entity was introduced when National Frequency Coordination LLC ( NFC ) requested to be certified as a FAC. That request was opposed by EWA, LMCC, APCO, FIT, AASHTO, IMSA/IAFC/FCCA, and MRA. No supporting Comments were received. The opposing parties challenged the request on the basis of NFC s failure to meet the fundamental criteria for securing FAC certification: demonstrating that it represents PLMR applicants and has the ability to perform coordination satisfactorily. Several parties also noted the relationship between NFC and the other Smartcomm-related entities. Reply Comments opposing the request were filed by NPSTC and UTC raising the same issues about NFC s qualifications and representational status. NFC subsequently withdrew its certification request without prejudice, stating that should it refile it will submit a new application that fully addresses the issues and concerns raised in the comments... To date, no such request has been filed. In late May, EWA attended an M2M meeting with WTB staff, during which M2M stated its desire to secure EWA s support for, or at least non-opposition to, M2M s waiver request to use unassigned 900 MHz B/ILT frequencies for what it claimed would be a commercial, nationwide, data system, providing machine-to-machine capability for I/B eligibles. EWA expressed its concerns about the proposal, and the parties were advised that the FCC intended to place the waiver request on Public Notice for comment. Prior to the Public Notice, SNG and M2M supplemented the record and, among other matters, proposed the following conditions it would accept on a waiver: (i) limit use of the channels to Part 90 eligibles internal use; (ii) meet loading requirements over a 5-year period; (iii) limit the number of channels it could acquire in a market; and (iv) reconfigure the network at its own expense if the band plan changes in the future. 5

4 On July 9, the WTB released its Public Notice requesting comments on SNG s waiver request. EWA filed Comments noting that it had already submitted its opposition to the proposal and confirming that its position had not changed. EWA reminded the FCC that SNG was affiliated with Smartcomm, a company engaged in selling FCC applications based on what EWA considered misleading information about the potential of the spectrum. The Alliance urged the FCC to require specific information from SNG regarding the equipment it intended to use, since that would affect SNG s claimed ability to begin deployment as early as July With regard to the conditions proposed by SNG, EWA noted that they did not go far enough to protect this spectrum from speculative use and suggested additional requirements that should be added if the FCC were to grant the waiver request. UTC and Motorola expressed similar concerns. Companies supplying equipment or services to SNG filed Comments supporting the waiver request, although some of their statements are inconsistent with the relief sought. In early August, EWA filed Reply Comments again noting that SNG had not made any showing that its system could not be accommodated in other bands. The Alliance also indicated that SNG appeared to need a waiver to provide fixed service on this spectrum on a primary basis, since these frequencies are allocated for mobile operations. It urged the FCC to address the issues raised in the Comments filed by UTC and Motorola, in particular the technical concerns identified by Motorola. Finally, EWA stated that certain Comments filed by SNG vendors that supported the request suggested that they expected the network to serve the general public, contrary to SNG s express representation that it would be used only for I/B service. UTC and API also filed Reply Comments opposing the Waiver Request. SNG filed in support of its request. No further filings have been made, and the FCC will need to make a decision at some point. 800 MHz Expansion/Guard Band Availability Certain FACs have executed a Memorandum of Agreement ( MOA ) that establishes coordination and communication procedures to avoid instances of mutually exclusive applications for Sprintvacated spectrum, which is available only for PS applicants during a three-year period after its release and for PS and CII for the next two years. Recognizing the need to prepare a similar agreement to accommodate Expansion Band ( MHz ) and Guard Band ( MHz ) ( EB/GB ) spectrum, which is available for all classifications of private land mobile licensees upon its release, EWA convened a meeting of all FACs in August During those discussions and recognizing that Smartcomm its affiliates and investors, as well as parties related to Janus Spectrum, had filed hundreds of SMR applications for EB/GB spectrum released in NPSPAC regions such as ND, SD, and AK, EWA suggested that the protocols should prevent this spectrum from being consumed by applicants without communications experience and with unrealistic expectations about their ability to sell whatever spectrum they acquired. At a meeting on February 19, staff from WTB and PSHSB discussed with LMCC issues involved with the coordination of applications for this spectrum as rebanding is completed and it is made available in increasingly populated NPSPAC regions. The LMCC attendees advised that they would seek membership approval to file a Petition for Rulemaking proposing to limit eligibility to 800 MHz incumbents already operating in the market for some period of time, after which remaining channels would be available to all categories of 800 MHz eligible applicants. That 6

5 Petition was drafted by EWA and filed on March 27. It requested that the FCC limit eligibility for 800 MHz EB/GB channels to incumbents already operating in the market for the first six (6) months of availability, after which all channels would be available to all categories of 800 MHz eligible applicants. On April 24, the FCC issued a Public Notice seeking comment on the Petition, including asking: whether six (6) months was an appropriate waiting period; whether any spectrum should be reserved for new applicants; and whether the FCC should defer declaring rebanding complete in additional NPSPAC regions, thereby making this spectrum available for licensing, pending action on the Petition. EWA filed Comments agreeing that six (6) months was a reasonable period for the limitation to apply. It argued that the public interest did not support reserving spectrum for new applicants and strongly encouraged the FCC to defer declaring rebanding complete in additional NPSPAC regions until it had acted on the Petition. The proposal was supported by TIA, MRFAC, and UTC, while an orchestrated set of opposing Comments were submitted by entities and individuals affiliated with SNG et al. On June 11, the LMCC filed Reply Comments, prepared by EWA, in response to an orchestrated set of Comments. The LMCC noted that the commenters had selected from a Chinese menu list of arguments presumably prepared by Smartcomm and, conveniently, filed by one of the parties along with his Comments. The LMCC Reply corrected various misstatements in those filings, including highlighting the fact that the great majority of incumbent 800 MHz licensees that would benefit from this limited access to expansion capacity operate private, internal systems, not commercial operations. The LMCC subsequently corrected the record to note that the Comments had been orchestrated and the Chinese menu of arguments prepared by Janus, not SNG. On August 14, the LMCC submitted an ex parte letter noting that the 800 MHz TA had notified the FCC that rebanding had been completed in NPSPAC Regions 12 (ID), 16 (KS), 24 (MO) and 25 (MT). It reminded the FCC that it should not make this spectrum available, as the responsible FACs had not adopted an MOA establishing procedures to avoid mutual exclusivity for those frequencies pending the outcome of the LMCC Petition. There has been no response to the ex parte letter from the FCC or from opposing commenters, nor any further news regarding the status of the LMCC Petition. 900 MHz Private Enterprise Broadband In February 2014, EWA s Board of Directors adopted an Advocacy Position by a 38-1 margin that has enabled the Alliance to pursue the development of a 900 MHz Private Enterprise Broadband ( PEBB ). Critical elements of the advocacy recommendation were: EWA will collaborate with the American Petroleum Institute ( API ), Utilities Telecom Council ( UTC ), Sprint Corporation and others towards the initiative that will include, among other elements, an inclusive management structure/licensee entity for the undertaking. A broader Working Group of interested organizations and licensees will develop spectrum plans for both a 2/2 MHz 900 MHz block that will continue to support the Private Enterprise voice and data communication systems that are in use today, and a 3/3 MHz contiguous block of spectrum on which this PEBB network may be deployed to 7

6 serve the unique needs of Private Enterprise and CII entities. (Since February, investment capital raised by Pacific DataVision, Inc. ( PDV ) enabled its acquisition in September of the majority of Sprint s 900 MHz SMR licenses on both commercial SMR and B/ILT frequencies. Additionally, the Association of American Railroads ( AAR ) is participating as a potential advocate.) A request for a light application freeze will be requested with the view that additional time will be necessary to conclude organizational plans and develop optimum regulatory approaches in concert with the Commission and stakeholders. During this critical development phase, it is necessary to maintain, to the maximum extent possible, the current spectrum environment so that private internal communications may continue to be supported while the PEBB plan evolves. The freeze would prohibit applications from entities that do not already hold a 900 MHz license, and incumbent licensees would be permitted to expand geographic coverage or channel capacity generally within their current coverage areas to serve ongoing business requirements. Consistent with prior instances in which new technologies have been introduced into an existing band, it will be proposed that the PEBB licensee entity (expected to be PDV in most MTAs) will fund, as necessary, the costs to migrate licensees to the 2/2 MHz portion of the band reserved for narrowband communication uses. On February 28, in a joint letter signed by EWA, API, and UTC, the organizations asked the FCC to initiate actions that would enable the PLM industry to reorganize its current 900 MHz allocation into a 3X3 broadband and 2X2 narrowband segment. The letter emphasized the critical need of private land mobile users to be able to access broadband spectrum dedicated to their unique requirements. On March 19, representatives of EWA, API, and UTC, along with Morgan O Brien representing PDV, met with the WTB staff to discuss the 900 MHz PEBB effort. As described in the earlier letter, the representatives emphasized the critical need of private land mobile users for broadband spectrum dedicated to their unique requirements. While the FCC indicated in a follow-up conversation with EWA that it was not prepared to impose any freeze while the spectrum realignment plan was being developed, it would monitor carefully applications for 900 MHz B/ILT channels, and expressed the FCC s desire to work with the organizations as the plan developed. On July 22, EWA met with representatives of AAR, API, UTC, and PDV to discuss the structure of 900 MHz band realignment to create a 3X3 Private Enterprise Broadband allocation with priority access for CII entities, while retaining a 2X2 allocation for licensees that wish to continue use of narrowband facilities. Following this meeting, EWA committed to prepare the draft Petition for Rulemaking consistent with the parties discussions and optimistically targeted September 15 as the filing date. On August 14, a presentation was made to API s Telecommunications Committee and, an additional presentation was made to AAR representatives on August 21. On September 15, EWA forwarded the draft Petition for Rulemaking to API, AAR, UTC and PDV 8

7 for their review, edits and eventual approval. To date, we have received suggested edits from PDV and API. Version 3 of the Petition will be found in Tab 2 of the meeting documentation that was distributed to the Board of Director s attention this past Friday. We are unsure how long the approval process will take within AAR and UTC, but they have been advised that that the Petition should be filed as soon as possible, preferably no later than October 15. EWA and PDV have maintained a series of briefings with these organizations staffs and member telecommunication committees to promote content awareness and to respond to specific concerns that have been raised. General Regulatory Activities In addition to the above activities, since the Spring Board of Directors meeting, EWA has reviewed and/or engaged in a number of other matters and proceedings of relevance to its members. A summary of these monthly activities are provided below. May Conditional Licensing. The LMCC files a Petition for Rulemaking asking that conditional licensing be extended to T-Band and 800/900 MHz applications. The Petition also notes that the current waiver for applications above 470 MHz expires on June 30, 2014, and urges the FCC to extend it until the Commission acts on the Petition. AAR Coordination Certification Request. In the same Public Notice in which the FCC invited comment on the NFC FAC coordination request, the Commission asks for comments on AAR s request to expand its FAC coordination authority to include the 800/900 MHz bands. EWA opts not to comment on AAR s request. 450 MHz Guardband. EWA learns that the FCC intends, on its own motion, to initiate a Notice of Proposed Rulemaking to make available for Part 90 use the unassigned guard band spectrum immediately above and below the Part 90 allocation. In the meantime, the FCC has granted additional waivers to use this spectrum. June 4.9 GHz. A NPSTC ex parte filing suggests that the RPCs may be expected to play a larger role in the spectrum assignment and frequency coordination process. Wireless Spectrum Screen. On June 2, the FCC releases a Report and Order updating its spectrum screen used to evaluate proposed secondary market transactions in which commercial service providers seek to buy/sell FCC licenses and defines the amount of spectrum a carrier may acquire in the upcoming incentive auction. A number of bands were added to those the FCC considers in determining whether a proposed transaction might lead to excessive concentration of suitable and available mobile telephony/mobile broadband service spectrum in the hands of a single carrier. Conversely, the FCC reduced the 800 MHz SMR spectrum subject to the screen from the original 26.5 MHz to the 14 MHz in which Sprint is permitted to operate cellularized systems post-rebanding and dropped the 5 MHz of 900 MHz SMR spectrum from the screen. 9

8 450 MHz Guardband. On June 27, the FCC grants waivers filed by several Part 90 applicants seeking use of unassigned guard band spectrum between Part 90 and the adjacent Broadcast Auxiliary Services (BAS) allocation. The FCC agrees that 451/ , 451/6.0125, and 451/ MHz can be assigned pursuant to waivers in spectrum-constrained markets without creating any interference potential to other licensees. The FCC denies the request to use 451/ MHz on the basis that there was a spectrum overlap with the and MHz bands. MCLM. On June 17, an FCC Administrative Law Judge denies a Joint Request for Summary Judgment from MCLM and the Enforcement Bureau in which the parties requested summary judgment on the only remaining issue in this proceeding. The ALJ stated that contrary to the joint request, the operational status of a [AMTS] station is determined with respect to the licensed site and not the operation of fill-in sites that may exist within the licensed spectrum. The Judge also expresses concern that MCLM s cancellation of certain licenses pursuant to a Joint Stipulation between it and the Enforcement Bureau, thereby obviating the need to address their operational status, may have violated MCLM s Plan that has been filed with and approved by the Bankruptcy Court. Conditional Licensing. On June 23, the FCC issues a Public Notice requesting comments on the LMCC Petition for Rulemaking to extend conditional licensing authority to T-Band and 800/900 MHz. In the same PN, the FCC denies the LMCC request that the FCC extend the waiver that allowed conditional licensed for WTB systems in these bands until the Commission acts on the rulemaking request. Thus, WTB applications above 470 MHz that were filed on or before June 30 qualify for conditional licensing authority, while those filed after that date do not. July 4.9 GHz. On July 9, EWA files an ex parte letter in response to the NPSTC filing stating, EWA assumes, but wishes to confirm, that all regional plans, with the possible exception of those applicable to RPC8 and King County/Seattle, will be required to include the shared, co-primary use of two 5 MHz channels by PS agencies and CII entities. Any deviation from that fundamental element of the NPSTC Report would require the Alliance and presumably other CII entities to revisit their support for the national plan described in that document. AAR Signal Booster Waiver Request. On June 27, the FCC issues a Public Notice inviting comment on AAR s request to use higher power signal boosters on certain UHF railroad frequencies in areas where terrain features prevent reliable communications on long trains. EWA opts not to participate. August Conditional Licensing. EWA, APCO, MRFAC and the Blooston law firm files supporting Comments in favor of extending conditional licensing to bands above 470 MHz. Mobile Relay Associates Comments did not object to extension of conditional licensing authority to bands above 470 MHz, but recommended certain additional conditions for all bands in light of the FCC s failure to take appropriate enforcement action against licensees that abuse their conditional 10

9 licensed authorizations. Supporting Reply Comments are filed by Motorola and UTC. It is anticipated that the FCC will now adopt a Notice of Proposed Rulemaking to modify its rules consistent with the record GHz. EWA files Reply Comments in response to the FCC s proposal to adopt a five-year period for grandfathering into the new Citizens Broadband Radio Service at MHz, the adjacent MHz band that is used extensively by CII and other Part 90 licensees. The Alliance supports entities such as API, UTC, Southern and Sprint that have objected to the FCC s proposal, both with regard to the abbreviated grandfathering period and to the very complicated and untested post-grandfathered licensing approach under which they would operate. The timing of further FCC action in this proceeding is unknown, but because it creates the possibility of additional broadband spectrum for consumer use, it will receive attention at the FCC. September 700 MHz PS Narrowband Deadline. EWA learns that there is an item on circulation that is expected to extend until 2024 or eliminate entirely the current requirement that 700 MHz PS licenses migrate to 6.25 khz technology by the end of PS FAC Certification Request. On September 8, the PSHSB issues a Public Notice requesting comment on a request from ACD Telecom, LLC to be certified to coordinate Part 90 PS frequencies. The request asserts that ACD meets all FCC criteria for certification and also notes that PS coordinators such as APCO are engaged in a variety of consulting services. MCLM. On September 11, the FCC takes another step in the long-running hearing involving MCLM and its qualifications to hold any FCC licenses. The FCC denies MCLM s request to transfer AMTS licenses to Choctaw Holding, LLC pursuant to a plan approved by the court in MCLM s bankruptcy proceeding. It denies this Second Thursday relief because of a concern that MCLM principals would reap an economic benefit from the sale, which is not permitted when allowing the sale of licenses by a company whose qualifications are under investigation by the FCC. The only exemption is the sale of spectrum to the Southern CA Regional Rail Authority to be used for Positive Train Control purposes. Narrowbanding. Although the March 4 Public Notice regarding post-nb license renewal procedures recommended filing complaints through the fcc.gov/complaints website (or the always helpful FCC help desk), the drop-down menu for the site includes no option for anything remotely close to reporting a license that continues to be authorized for wideband emissions only. The WTB and EB are sorting out whether the FCC is prepared to take any action when such licenses block the licensing of an FB8 channel in the absence of an interference problem or actual knowledge that the system continues to operate in wideband mode. Signal Boosters. On September 23, the FCC adopts an Order on Reconsideration and Further Notice of Proposed Rulemaking in this proceeding. The Order grants requests to streamline the testing procedures for Wideband Consumer Signal Boosters. The Further Notice questions whether it is necessary to retain the personal use only restriction for Provider-Specific Consumer Signal Boosters since the limitation means that individuals who install such a device, for example in an office, with the carrier s consent cannot allow other employees who also are 11

10 subscribers of the same carrier to use the device for their personal business or allow others to use it for business communications. EWA plans to file Comments supporting elimination of that restriction. October 800 MHz Interstitial Channels. On October 2, EWA and two other LMCC representatives attend a teleconference with PSHSB staff members to answer certain technical questions regarding the frequency coordination procedures recommended by the LMCC for this spectrum almost five years ago. Clarifications of the two points below were needed because a Notice of Proposed Rulemaking finally is being drafted: What does the LMCC Task Force mean when it refers in the table to 40/38 (50/50) or 40/23 (50/50) contours? Is the Task Force proposing to use F(50,50) curves for predicting both coverage and interference contours? The answer was yes, that was the LMCC s intention. What is the meaning in the table of the term (reciprocal)? The answer was that the contour analysis should be bi-directional; the proposed interference contour cannot overlap the incumbent s service contour and the incumbent s interference contour cannot overlap the proposed service contour. 12