Continuing its focus on broadband infrastructure deployment for 5G technologies, the FCC announced that it plans to eliminate regulatory impediments that delay and increase the cost of wireless deployments at its next meeting, scheduled for September 26, 2018. The item would alter the balance of power between wireless broadband providers and state/local governments concerning control over rights of way and deployment fees. The FCC also anticipates initiating a rulemaking aimed at improving 911 dialing and location accuracy for multi-line telephone systems (“MLTS”), potentially imposing new compliance obligations on office building, hotel, and other large facility managers. Rounding out the major actions, the FCC released draft items that would:  (1) permit toll free numbers to be auctioned and sold on the secondary market and (2) consolidate rules and expand the spectrum available for so-called Earth Stations in Motion (“ESIMs”) that provide high-speed broadband service to vehicles, aircraft, and vessels. The proposed items will generate input from all corners of the communications industry as well as real estate interests. You will find more details on the significant September FCC items after the jump:

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At its March Open Meeting, the FCC adopted a long-awaited Sixth Further Notice of Proposed Rulemaking (“FNPRM”) to consider promoting additional investment and activity in the 4.9 GHz band while preserving the core public safety purpose of the band.  Finding the band underutilized by public safety users, the FNPRM invites comment on ways that the band might be more heavily utilized by public safety while entertaining several options by which others might gain access to the band on a shared basis, including those supporting Critical Infrastructure Industries (“CII”), Unmanned Aircraft Systems (“UAS”), and 5G networks.  To implement any sharing scheme, the Commission proposes to draw upon previous experience in other bands, such as TV white spaces.
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On February 22, as part of its effort to accelerate the deployment of new and innovative technologies, the FCC adopted a Notice of Proposed Rulemaking (“NPRM”) to develop procedures for implementing section 7 of the Communications Act of 1934 (which was added by a 1983 amendment).  Section 7 states that the Commission “shall determine whether any new technology or service proposed in a petition or application is in the public interest within one year after such petition or application is filed.”  This proceeding presents a valuable opportunity for parties to potentially expedite FCC approval of their services, including petitions or applications that are already pending or are filed before the new rules are adopted.
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At its Open Meeting on October 24, the FCC took a major step in recrafting the licensing and other rules for the Citizens Broadband Radio Service (“CBRS”) in the 3550-3700 MHz band (the “3.5 GHz band”) and promote 5G rollouts.  Early in his tenure as FCC Chair which began in January of this year, Ajit Pai tasked Commissioner Michael O’Reilly with reexamining the regulatory framework in the band adopted in 2015, particularly as it applied to Priority Access Licenses (“PALs”).  Within months, CTIA and T-Mobile filed petitions for rulemaking to make the licensing rules, from commercial wireless’s perspective more investment friendly.  Now the Commission has moved ultra-rapidly to act on those petitions and issue a Notice of Proposed Rulemaking (“NPRM”) to consider making rule changes largely consistent with those sought by those proponents.  The Commission hopes to bolster commercial investment and deployment in the band convinced that, for large scale 5G deployments, providers need greater certainty than the Wheeler-era rules afford.
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At the Federal Communication Commission’s (Commission’s) monthly meeting on October 24, 2017, the Commissioners approved a Report and Order and Order on Reconsideration (Order) updating Commission rules regarding hearing aid compatibility (HAC).  Specifically, the Order adopts a new wireline HAC volume control standard, applies the wireline HAC standards to handsets used for advanced communications services (ACS) like interconnected and non-interconnected VoIP, and adopts a volume control requirement for wireless handsets.  The wireless device volume control requirement is the most controversial and drew dissents from both of the Chairman’s fellow Republicans, despite the three year runway for compliance.
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The Federal Communications Commission (“Commission”) voted unanimously at its Open Meeting on September 27, 2017 to approve a Notice of Proposed Rulemaking (“NPRM”) that proposes exempting certain types of wireless providers from the hearing aid compatibility (“HAC”) reporting requirements.  The NPRM outlines possible revisions to the wireless HAC rules that would “reduce unnecessary regulatory burdens, particularly for non-nationwide service providers.”  The reporting requirements currently apply to facilities-based and reseller wireless service providers of all sizes and this rulemaking represents a prime opportunity for smaller wireless carriers to remove some burdensome reporting obligations, which have led to enforcement actions in the past. Comments will be due 30 days after publication of the NPRM in the Federal Register and reply comments will be due 45 days after publication.

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At its August Open Meeting, the Federal Communications Commission (“Commission” or “FCC”) unanimously initiated a major inquiry proceeding into what it labels “mid-band spectrum,” namely the frequencies between 3.7 GHz and 24 GHz.   The proceeding has major potential spectrum management ramifications for the coming years as the record developed could serve as a catalyst for future allocation and rule proceedings in a number of bands.  Recall that in late 2014, the Commission launched its Spectrum Frontiers inquiry proceeding into spectrum above 24 GHz, which led to an order adopting rules for flexible licensed and unlicensed use of almost eleven (11) gigahertz of spectrum in July 2016, and a further notice which may lead to as much as another eighteen (18) gigahertz becoming available in the near future.

In adopting its Notice of Inquiry (“NOI”), the Commission cited the need to meet “future demand” and the desire to “evaluate spectrum bands in all ranges.”  According to the Commission, in extremely general terms given the more than six-fold increase in wavelength between the bottom and top of the so-called “mid-band” range and the many pre-existing allocations throughout the range, these bands have better propagation characteristics (at least in some regards) than higher frequencies and hold out the promise for greater channel bandwidths than lower frequencies.
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Below is Kelley Drye’s preview of the items under consideration at the Federal Communication Commission’s (FCC’s or Commission’s) upcoming monthly Open Meeting, to be held on August 3, 2017. Consistent with the trend since he took over the Commission, Chairman Ajit Pai continues to schedule a large number of items.  Indeed, for the seventh month in a row, the Commission has six or more items on its agenda.  This month, the agenda consists of eight items and has several items taking concrete steps to resolve proceedings or important questions presented to the Commission.  The areas covered skew heavily toward broadband deployment, with a CAF Phase II item, a Mobility Fund item and several spectrum items.  In addition, the Commission again has enforcement items on the agenda:  one (unidentified) item on the regular agenda and a one-item consent agenda involving an additional (unidentified) enforcement action.

The most significant agenda items are summarized below. Note: these brief summaries are based on draft items, which may differ from the final items released following the Open Meeting.  Please check with Kelley Drye after the meeting for more information on the items below.


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On July 13, 2017, the Federal Communications Commission (“FCC” or the “Commission”) revisited the regulatory framework applicable to wireless microphones in several important ways.  The Order on Reconsideration addressed petitions for reconsideration pertaining to licensed and unlicensed wireless microphone operations under the 2015 Wireless Microphones Order and TV Bands Part 15 Order.  The 2015 Wireless Microphones Order sought to provide licensed wireless microphones users with access to different spectrum bands such as VHF channels, the 600 MHz duplex gap, and the 1435-1525 MHz aeronautical mobile telemetry (“AMT”) band to address the needs of various types of wireless microphone users, particularly in wake of the broadcast incentive auction.  In the TV Bands Part 15 Order, the Commission established rules on a broad range of issues pertaining to unlicensed operations in the television bands, the 600 MHz guard bands and duplex gap, the 600 MHz service band, and Channel 37.  The results of the Wireless Microphones Order on Reconsideration will be welcomed in some circles by manufacturers and bemoaned in others. 
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In its July Open Meeting, the Federal Communications Commission (“FCC” or “Commission”) adopted new rules in a Report and Order (“R&O”) to allow a more flexible, streamlined approach for certain radar operations in the 76-81 GHz band. The R&O modifies the applicable rules to increase access for enhanced safety vehicular, fixed, and mobile radar applications to all of the contiguous spectrum in the 76-81 GHz band.

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