FCC to Consider Above-95 GHz, Section 7, MF-II Items on Feb. 22
Thursday, February 1, 2018

FCC to Consider Above-95 GHz, Section 7, MF-II Items on Feb. 22

FCC Chairman Ajit Pai today announced a six-item tentative agenda for the agency’s Feb. 22 meeting, including draft notices of proposed rulemaking proposing rules for spectrum above 95 gigahertz and procedures to implement section 7 of the Communications Act and a draft order addressing petitions for reconsideration of last year’s Mobility Fund Phase II order.

Also on the tentative agenda are a draft order to eliminate call auditing and reporting associated with payphone call compensation, a draft order eliminating a requirement for certain broadcast licensees and cable TV operators to keep paper copies of FCC rules on hand, and a draft NPRM to decrease the frequency of equal employment opportunity reporting by broadcasters.

Regarding the draft above-95 GHz band NPRM and order in ET docket 18-21, WT docket 15-245, and Rulemakings 11713 and 11795, FCC Chairman Ajit Pai noted in a blog posting today that “[t]raditionally, these airwaves haven’t been viewed as well-suited for communications services. But recent advancements in propagation technology have changed the equation and expanded the boundary of usable spectrum. As a result, these very high-band frequencies are today’s spectrum horizons.”

He noted that in its spectrum frontiers proceeding, the FCC in 2016 (TR Daily, July 14, 2016) “sought public comment on new possible uses for spectrum above 95 GHz. American innovators responded with a wide array of suggestions, ranging from fixed wireless service to backhaul for 5G systems to Wi-Fi-like unlicensed applications to next-generation satellite services.

“The time has come to let go of the reins with respect to these very high bands and start empowering U.S. innovators to test their ideas,” he added. “That’s why I’ve circulated my Spectrum Horizons proposal to open up this spectrum and create a new testbed for technological progress. Specifically, I’m seeking input on whether to make available up to 102 gigahertz of spectrum for licensed use, two-thirds of which would be shared with satellite services. … I’m also asking whether we should allocate 15.2 gigahertz of spectrum for unlicensed use in four different bands. Finally, in the spirit of ‘you don’t know until you try,’ I’m proposing to add a new type of experimental license that would permit experimental use in any frequency from 95 GHz to 3 THz and would provide more flexibility for license holders.”

Mr. Pai added that he recognizes “that most of this spectrum is currently shared between federal government agencies and non-federal users, so this plan would continue close coordination with the executive branch. If this Notice of Proposed Rulemaking is approved at our February meeting, I hope to get good public feedback on these ideas and then act quickly. If we broaden our nation’s spectrum horizons, we’ll keep the United States in the lead when it comes to technological innovation.”

A fact sheet on the draft NPRM notes that it would solicit “comment on adopting rules for fixed point-to-point use of up to 102.2 gigahertz of spectrum in various bands.” It would “[p]ropose to base these rules on our existing 70/80/90 GHz rules under which licensees obtain a nationwide non-exclusive license and register each link with a database manager.” And it would “[s]eek general comment on the deployment of point-to-multipoint systems and mobile services in this spectrum.”

The draft NPRM would propose to base the rules for making up to 15.2 GHz available for unlicensed use “on the existing rules for unlicensed use of the 57-71 GHz band,” the fact sheet notes.

As for the proposed new category of experimental licenses for spectrum between 95 GHz and 3 terahertz, the fact sheet notes that the item proposes “that in light of the uncharted nature of the bands, these licenses would offer more benefits than are available under conventional experimental licenses, such as longer license terms, license transferability, and the sale of equipment during market trials.”

The draft item notes that several parties have filed petitions or waiver requests seeking access to spectrum above 95 GHz, including under section 7, and that the Commission has not acted on them.

A companion draft order would address several petitions for rulemaking and waiver requests.

It would deny the waiver requests filed by ZenFi Networks, Inc., McKay Brothers LLC, and SMG Holdings LLC and grant in part petitions filed by Battelle Memorial Institute, Inc., and James Edwin Whedbee. The item says that a petition for declaratory ruling filed by IEEE-USA will be addressed “as part of a separate proceeding.”

Regarding the draft section 7 NPRM in GN docket 18-22, Mr. Pai noted that “early in my Chairmanship, I declared that the Commission would adhere to Section 7 of the Communications Act. Section 7 instructs the Commission to respond to petitions or applications proposing new technologies and services within one year. The provision was established by Congress in 1983, but it’s long been ignored — in fact, the FCC has not established any guidelines or rules in 35 years and has never embraced the statutory mandate of section 7! At our February meeting, we’ll vote on a Notice of Proposed Rulemaking that ultimately aims to codify Section 7’s commitment to prompt action in the Commission’s rules. Establishing clear guidelines and procedures for Section 7 implementation would ensure that new technologies and services are identified early in the process, and that the FCC takes timely action where approval of these new technologies or services would serve the public interest. Bottom line: government shouldn’t be a bottleneck for entrepreneurs looking to design a better mousetrap.”

A fact sheet on the item notes that it would (1) “[p]ropose specific filing requirements for requests seeking consideration under section 7, as well as the particular factors to be used to evaluate whether the request qualifies for section 7 consideration”; (2) “[p]ropose that the Office of Engineering and Technology (OET), working with representatives from the relevant Bureaus or Offices, evaluate the request and determine within 90 days whether the proposed technology or service qualifies for section 7 treatment”; (3) “[p]ropose that to the extent that the request qualifies for section 7 treatment, the Commission will commit to taking swift action to evaluate the technology or service”; (4) “[e]xplain that although section 7 requires timely action, it does not create a presumption in favor of granting any particular petition or application” and that the FCC “retains plenary authority to dispose of the petition or application and the proposed technology and service as it sees fit, including by initiating its own proceeding to explore matters further”; and (5) “[p]ropose that if the Commission initiates its own proceeding for a new technology or service, it should identify the action(s) it plans to complete within one year of initiating that proceeding and then complete such action(s) within that timeframe.”

Mike Marcus, a consultant and former FCC official who has long advocated for the FCC to use section 7 to free up high-band spectrum, told TRDaily today he was pleased with the draft section 7 and above-95 GHz NPRMs released today.

He said of the section 7 item that he’s grateful that after the provision has been “ignored by both parties for over 30 years, that the Commission is finally acting on it.” He said that Congress could have written section 7 more clearly, and he said he hopes the Commission seeks improvements, such as permitting the agency additional time to act on very complex issues. He also said it’s not exactly clear under the law what the agency has to do within one year pursuant to the statute.

Mr. Marcus also complained that petitions seeking access to spectrum above 95 GHz, including by IEEE-USA, have “gathered dust” without FCC action.

Commenting on the draft above-95 GHz “spectrum horizons” item, Michael Calabrese, director of the Wireless Future Project at the New America Foundation’s Open Technology Institute, said, “The draft NPRM seems to violate basic principles about why the government would regulate spectrum where there is no known problem of scarcity or interference. For example, in proposing to license 36 gigahertz for a very specific point-to-point purpose, this draft NPRM is claiming to be clairvoyant about what highest and best use lays over the technology horizon. One great benefit of an unlicensed allocation, or relying on experimental licenses, is that it creates innovation bands that do not preclude licensing for a particular purpose down the road, after technologies and business models develop.”

Also on the tentative agenda, a draft second order on reconsideration in WC docket 10-90 and WT docket 10-208 would address remaining petitions for reconsideration of its 2017 Mobility Fund Phase II order, helping to clear the way for a planned reverse auction of more than $4 billion in support for high-speed wireless service in high-cost areas. The agency would still need to set auction rules.

The Commission originally created the Mobility Fund in 2011 in a comprehensive Universal Service Fund/intercarrier compensation order (TR Daily, Oct. 27, 2011), but it has taken years to follow up with a promised Phase II. Former FCC Chairman Tom Wheeler had circulated a Mobility Fund II item for the agency’s Nov. 17, 2016 meeting, but it was taken off the agenda with most other scheduled items (TR Daily, Nov. 16, 2016).

A year ago, the FCC unanimously adopted a Mobility Fund II report and order and further notice of proposed rulemaking to provide up to $4.53 billion in support over the next decade to extend 4G LTE service in areas where service can’t be sustained or extended without government support (TR Daily, Feb. 23, 2017).

Last summer, the FCC addressed other petitions for reconsideration in the proceeding — among other things, it affirmed the agency’s previous decision to use 5 megabits per second as the download-speed benchmark for MF-II eligibility. It also set parameters for the testing used to determine service speed and adopted in part an industry consensus proposal to undertake a new one-time data collection to determine current 4G LTE deployment, as opposed to relying on data regularly submitted by providers on FCC Form 477 (TR Daily, Aug. 3, 2017).

In his blog post today, Chairman Pai said, “In three weeks, the Commission will vote on an item to resolve those aspects of the petitions that haven’t yet been addressed. Resolving these questions would move us closer to the start of the Mobility Fund II reverse auction, and eventually the end of dead spots in rural America where wireless coverage simply isn’t available.”

Specifically, the draft order would “[g]rant requests for clarification that the collocation requirement for MF-II applies to all newly constructed towers.”

The order adopted last year had imposed the requirement on “all towers” owned or managed by a MF-II funding recipient; the draft order would bring the language into conformity with the Mobility Fund Phase I requirement, which applies to “all towers that the MF-II recipient owns or manages that it ‘newly constructed’ to satisfy MF-II performance obligations in the areas for which it receives support.”

The draft MF-II order would also “[g]rant in part and deny in part requests regarding MF-II recipients’ obligation to obtain and maintain a letter of credit (LOC) by modifying LOC requirements to be consistent with those for recipients of subsidies from Connect America Fund Phase II (the fixed broadband counterpart to this mobile broadband program).”

In an order adopted at its meeting earlier this week, the FCC changed the requirement for the letter of credit that CAF recipients must maintain (TR Daily, Jan. 30), by “permitting Phase II auction recipients to reduce the value of their letter of credit to 60 percent of the total support already disbursed plus the amount of support that will be disbursed in the coming year once it has been verified that the Phase II auction recipient has met the 80 percent service milestone.” However, it declined to make further reductions in the value of the letter of credit.

In addition, the draft MF-II order would “[d]eny requests to modify the MF-II budget and disbursement schedule; [d]eny requests to modify performance metrics, bidding credits, and the treatment of equipment exclusivity agreements”; and “[d]eny requested changes seeking to limit the Universal Service Administrative [Company’s] role in testing recipients’ compliance with MF-II performance metrics, public interest obligations, or other program requirements,” a fact sheet notes.

Also on the tentative agenda is a draft report and order in WC dockets 17-141 and 16-132 and CC docket 96-128 that would eliminate all requirements for carriers to audit their tracking system for toll-free and “dial-around” access calls from payphones and associated reporting, which are aimed at ensuring pay phone providers are fairly compensated for all completed calls from their phones, as required by the 1996 Telecommunications Act.

“As fewer and fewer people use payphones, compliance with these rules now costs carriers a large fraction of, if not more than, the total compensation the audits are meant to verify (you read that correctly). This Order would also eliminate interim and intermediate per-payphone compensation rules that no longer apply to any entity,” Chairman Pai said in his blog post.

The draft payphone order would also revise the FCC’s rules “to permit a company official other than the chief financial officer (CFO) to certify that a Completing Carrier’s quarterly compensation payments to PSPs are accurate and complete.” And it would “eliminate expired interim and intermediate per-payphone compensation rules that no longer apply to any entity.”

The tentative agenda also includes two items in Chairman Pai’s initiative to modernize media regulations.

The first is a draft order in MB dockets 17-105 and 17-231 that would eliminate a requirement for certain broadcast licensees and cable TV operators to keep paper copies of FCC rules on hand. It would cover low power TV licensees, TV and FM translator licensees, TV and FM booster stations, cable television relay station (CARS) licensees, and certain cable operators.

The FCC proposed the change in a September 2017 NPRM (TR Daily, Sept. 26, 2017). “The Commission received unanimous support for this proposal because it is now easy to access the Commission’s rules over the Internet,” the FCC noted in a fact sheet on the item released today.

The “paper copy” draft order would retain requirements for the covered entities “to be familiar with the rules governing their operations.”

The second media regulation reform item is a draft NPRM that would eliminate the “mid-term” broadcaster reporting requirement on employment practices, which the agency uses to facilitate the employment practice review it is required by section 334(b) of the Communications Act to undertake around the middle of broadcasters’ eight-year license terms.

“[A] number of parties have asked the Commission to consider eliminating the obligation to file Form 397 because it is unnecessary and unduly burdensome, and most of the information it contains is otherwise available to the Commission. The Notice of Proposed Rulemaking (Notice) proposes to eliminate this filing requirement to reduce unnecessary regulatory burdens, while maintaining the mid-term review,” according to a fact sheet.

The draft NPRM would also “seek comment on how the Commission should identify which stations are subject to a mid-term review” in the absence of the mid-term filing. —Paul Kirby, paul.kirby@wolterskluwer.com; Lynn Stanton, lynn.stanton@wolterskluwer.com


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