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AICC Wireless Report
March 6, 2014
John Prendergast
GlobalStar Update: FCC Announces Comment Dates on Potential Interference Issue
On Nov. 1, the FCC issued a Notice of Proposed Rulemaking seeking comment on rule changes to facilitateGlobalStar’s proposed terrestrial broadband service. The GlobalStar system could have an impact on unlicensed operations that operate in the 2400-2500 MHz ISM band. The NPRM was finally placed on Federal Register Feb. 19. Comments on the proposal in IB Docket No. 13-213 (FCC 13-147) will be due May 5, 2014. Reply comments will be due June 4, 2014. If there are unlicensed alarm devices operating in the 2400-2500 MHz band that may be affected by GlobalStar’s signals, comments should be filed.
If approved, the FCC’s proposed new rules would allow GlobalStar to provide low-power Ancillary Terrestrial Component (ATC) service using its licensed spectrum at 2483.5-2495 MHz under certain limited technical criteria, and with the same equipment would be able to utilize unlicensed spectrum in the adjacent 2473-2483.5 MHz band pursuant to Part 15 technical rules for unlicensed operations in that band. In addition to its proposal for low-power ATC service, Globalstar’s November 2012 Petition for Rulemaking sought the ability to deploy a higher power LTE-based terrestrial service in portions of both the S band (2483.5-2495 MHz) and L band (1610-1617.775 MHz) over the longer term. The Commission said it plans to address this aspect of Globalstar’s proposal in a separate proceeding.
The Consumer Electronics Association, Wi-Fi Alliance, and Wireless Internet Service Providers Association have each raised concerns regarding Globalstar’s petition with respect to low-power operations in the 2473-2495 MHz band. Among other things, critics believe Globalstar’s proposal may require a change in filtering for Wi-Fi devices, increasing costs of devices and resulting in a potential loss in service due to loss of guard band between Globalstar’s licensed spectrum and the adjacent unlicensed band. We understand that several alarm companies have incorporated WiFi into some aspects of their operation. Critics also take aim at the loss of potential “commons” spectrum that would otherwise be available for future innovation to a single firm, and the inconsistency of the proposal with globally-harmonized rules.
LightSquared Update
In January, Dish backed out of its $2.2 billion offer to buy Lightsquared’s spectrum, and Lightsquared’s debt holders sued. A bankruptcy judge ruled that Dish properly withdrew its bid to buy $2.2B worth of wireless spectrum assets from LightSquared. Testimony before the bankruptcy court is ongoing as LightSquared accuses DISH principal Charlie Ergen of hurting fundraising efforts by secretly acquiring interests in LightSquared through a third party.
Despite backing off its bid, Dish and Lightsquared still may end up partnered up in some fashion, as a bankruptcy judge approved on Feb. 4 a $33 million loan from a group that includes Ergen, to keep LightSquared afloat as it tries to hash out a bankruptcy exit plan. At the end of February, a Bankruptcy judge approved the terms of a new reorganization plan that valued LightSquared at $7.7 billion and did not depend on regulatory approval for LightSquared’s airwaves. However, one such creditor, through which Charlie Ergon allegedly improperly bought LightSquared debt, voted “no.” LightSquared has asked the bankruptcy judge to discount this vote at the approval hearing, scheduled for March 17.
FCC Commissioner Pai Emphasizes Importance of NG911 to Improve Current Deficiencies
Speaking at the APCO meeting, FCC Commissioner Ajit Pai emphasized how important it is for next year’s 600 MHz auction to succeed, since this is the auction that will generate $7 billion for construction of the national broadband Public Safety network by FirstNet. Commissioner Pai also indicated how important he feels NG911 is to safety:
Speaking of NG911, few people realize just how tied the legacy 911 system is to copper wires, landline phones, and 1970s technology. For example, the use of legacy routing equipment can lead to long call setup times, which means precious seconds are lost during a fire or home invasion. Or if a natural disaster disconnects a call center or increases call volumes above what the call center can handle, it’s often hard to transfer the call and the caller’s information to another location. In short, the legacy architecture of the system means that all too many 911 calls are delayed, dropped, or lost altogether.
I am hopeful that NG911’s IP-based architecture will change all that. NG911 systems are built with redundancy in mind, and the use of IP means that calls can be rerouted seamlessly from one Public Safety Answering Point to the next without losing information about the call. And not only will NG911 be more resilient than traditional 911, it will also allow for more efficient public safety operations. Local authorities can redeploy those savings to hire more first responders and save more lives.So I am bullish on what the digital age and the IP Transition mean for 911.
The Commissioner’s remarks underscore the importance of staying in front of the FCC on AICC’s NG911 issues, including the fact that “more is not always better” when it comes to IP signaling – if it involves unscreened 911 messages automatically generated by devices.
Municipality to Provide Free Panic Alarms to Schools, “High Risk Individuals”
The McClatchy News Service reported on February 14, that Nassau County, N.Y., police will spend up to $3.2 million over three years to provide GPS and voice-enabled mobile panic alarms to schools, public officials and other "high-risk individuals" (such as domestic abuse victims). The county legislature's Rules Committee approved a contract with World Wide Security Group of Garden City for as many as 4,000 wireless push-button devices that, with a two-way microphone, can connect users quickly with the police 911 center and provide their location. Acting police Commissioner Thomas Krumpter, noting that he hopes about 80 percent of the contract's costs will be covered by state and federal grants. "As far as I know, this is really the first program of its kind in the country."
Ken Mara, World Wide Security president, said his "Life Button 24" devices -- which cost $127 each, with monthly cellular charges of $13.75 -- can save precious seconds needed to unlock and dial a mobile phone.Alarm companies may want to be even more proactive about pitching these services to state and local governments and/or school systems, especially if Federal or State grant money is available for such programs.
FCC Clarifies Processes for Public Safety Use of Industrial Pool Frequencies
In response to a request from the Enterprise Wireless Association (EWA), the FCC has clarified its internal processes for evaluating the licensing of public safety systems on Industrial/Business Pool Frequencies. At the same time, the FCC declined EWA’s request that its proposed standards for evaluating these types of applications conform to the FCC rules and policies with respect to public safety licensee access to Industrial/Business Pool frequencies.
EWA, which is one of the frequency advisory committees, requested that the FCC provide guidance for all frequency coordinator advisory committees to use when evaluating waiver requests from public safety licensees to use Industrial/Business Pool frequencies below 470 MHz. Additionally, EWA proposed standards for coordinators to follow that would have had the effect of (a) requiring conventional licensees to share a frequency with a licensee or licensees in the public safety pool or (b) would disqualify trunked public safety applicants from seeking an Industrial/Business Pool frequency unless the applicant demonstrated that all public safety channels had achieved exclusive use status.
The FCC concluded that its existing processes address the concerns raised by EWA since the FCC’s Rules require frequency coordinating advisory committees, such as EWA, to recommend “the most appropriate frequency” without regard to the spectrum pool that the application is eligible for. Thus, in a proper case, a frequency advisory committee could select an “appropriate frequency” in a spectrum pool other than the pool for which the applicant is eligible. And, because these sorts of requests would require a rule waiver, the FCC is able to address them on a case-by-case basis while deferring to the frequency advisory committee the determination that there is no suitable public spectrum available to meet the applicant’s needs and that the selected Industrial/Business Pool frequencies are the most appropriate. It is only when the applicant has satisfied the FCC’s rule waiver requirements that it will receive a grant of its request. As a result, the FCC concluded that no further guidance was required.
Cellular “Kill Switch” Developments
In the US Senate, four Democratic Senators have proposed Federal “kill-switch” legislation that would mandate a technology that allows consumers to remotely wipe personal data from their smartphones and render them inoperable when stolen. This measure is being proposed because smartphone robberies have surged to an all-time high. According to the FCC, in major cities like DC and New York, roughly 40% of all robberies now involve cell phones – endangering both the physical safety of victims and the security of the personal information on stolen devices.
A bill known as the Smartphone Theft Prevention Act was introduced in mid-February by Senator Amy Klobuchar (D-Minn) and co-sponsored by Senators Barbara Mikulski (D-MD), Richard Blumenthal (D-CT), and Mazie Hirono (D-HI). Text of the proposal obtained from the Washington Post indicates that it would amend the Communications Act to impose obligations on device manufacturers and mobile service providers to make kill-switch functionality available on all mobile data devices manufactured or imported into the United States after January 1, 2015.
The proposed Federal legislation would allow only a phone’s owner or someone authorized by a phone’s owner to activate the kill switch, and it would give the FCC authority to issue forfeitures against carriers and manufacturers who fail to make kill-switch technology available. The Senate kill-switch proposal comes on the heels of a California proposal that would require wireless device manufacturers to include the function on all devices or face fines of up to $2,500 for each device sold without kill switch functionality. A similar bill has been under discussion inMinnesota.
Prospects for this legislation being approved by both houses and signed into law are unclear, but we expect the debate about “kill-switch” technology will continue. CTIA and larger wireless carriers have rejected the idea of such a kill switch noting that once the switch is used, the device is “bricked” and cannot be reused. Opponents have also argued that a kill switch could be a target for hackers seeking to harm individuals or larger groups of users like the Defense Department, Homeland Security or law enforcement officials. CTIA has outlined alternative theft-prevention measures for the wireless industry, such as creating a nationwide database to keep stolen phones from being reactivated. A national stolen phone database went online in November of 2012, however critics have claimed that the database is ineffective because many stolen phones end up overseas, and unique device identifiers can be changed by organized theft rings.
Last summer, Apple implemented a "kill switch"-style update designed to make mobile devices less valuable to thieves. The Activation Lock feature included as part of its iOS 7 requires an Apple ID and password before the phone's "Find My iPhone" feature can be turned off or any data can be erased. Samsung has reportedly also been working on its own kill-switch technology for Android devices.
For the alarm industry, the potential significance of any Kill Switch legislation is two-fold:
1. To what extent do alarm companies rely on wireless phones in the possession of employees to maintain communications about emergencies or other situations, and could a hacker activating the kill switch jeopardize the central station’s ability to carry out its functions, creating a liability exposure?
2. Would any language in the ultimate Kill Switch legislation, if adopted, impose unnecessary or unduly burdensome requirements on cellular-based alarm devices? Right now, the draft Senate legislation defines a “mobile device” as “a personal electronic device on which commercial mobile service or commercial mobile data service is provided.” On its face, this would seem to exclude fixed alarm devices. At a minimum, the legislation will have to be monitored at both the Federal and state levels to make sure language is not used that could drag alarm devices into the restriction.
FirstNet General Manager Bill D’Agostino: We Need to Hear from You
On February 21, FirstNet General Manager Bill D’Agostino, reflecting on the two-year anniversary of Congress passing the legislation that created FirstNet, stated: “the FirstNet management team and board have been busy reaching out to our stakeholders—the public-safety community, state and local governments, tribal entities and federal users—by speaking at more than 90 conferences and other events across this country just in the last year. And our plan for the year ahead would make your head spin. We’re doing this, because it’s absolutely critical that we engage in an ongoing dialog with all of our stakeholders. We want and need to hear from you.” This invitation for stakeholder participation coalesces with AICC’s efforts to work with FirstNet toward an arrangement with the alarm industry for participation in the NPSBN as a quasi-safety stakeholder.
FCC “Guidance” Not Binding, Court Dismisses DISH Network TCPA Challenge
In late January, the U.S. Court of Appeals for the District of Columbia Circuit’s issued a decision dismissing a petition by DISH Network, LLC (DISH) that challenged the FCC’s “guidance” on the interpretation of agency law in the context of the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 (“TCPA”). In a May 9, 2013 Declaratory Ruling, the FCC held that a seller could be held vicariously liable for a telemarketer’s TCPA violations if the telemarketer acted as an agent of the seller under the federal common law of agency. The FCC also provided “guidance” to the courts, including hypothetical examples, regarding how the common law of agency might apply to such cases. DISH sought review solely of the “guidance,” arguing that the FCC exceeded its authority and acted arbitrarily and capriciously in stating how the common law of agency should apply in the telemarketing context.
The Court dismissed DISH’s petition, finding that the FCC’s “guidance” is not a final order ripe for judicial review. According to the Court, “[a]n agency action that merely expresses a legal view ‘that has force only to the extent the agency can persuade a court to the same conclusion’” is not a final order subject to review. The Court also stated that the FCC agreed in its brief and at oral argument, “that the ‘guidance’ in question has no binding effect on courts, that it is not entitled to deference under Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837 (1984), and that ‘its force is dependent entirely on its power to persuade.’ The court, therefore, concluded that it lacked jurisdiction to review the guidance.
As a result of the D.C. Circuit’s decision, questions of agency in the context of TCPA violations will be litigated in individual cases and courts should not afford the FCC’s guidance special deference. Bottom Line: When the dust settles, the ruling that a seller can be vicariously liable for the sins of its hired telemarketer is still good law.
FCC Issues Software Tool to Help Protect AM Stations from Interference by Other Towers
The Commission’s Rules to provide a single protective scheme for the construction and modification of antenna towers near AM tower arrays became effective as of February 20, 2014. Under these rules, which were originally adopted in August, 2013, the FCC has designated the “Moment Method” computer modeling as the principal means for determining whether a nearby tower will affect an AM radiation pattern. Our clients constructing antenna structures, or modifying existing structures, must make sure they are not inadvertently modifying an AM station radiation pattern by doing so.
In order to facilitate compliance with these rules, the FCC has developed an AM Tower Tool that will allow parties proposing the construction or modification of towers to input their proposed location into the tool. The AM Tower Tool will then determine if there are nearby operating AM stations that could be affected by the proposed construction or modification of the tower. In addition to advising the proponent, the AM Tower Tool will also notify the proponents of proposed AM stations within the coordination distances that are authorized, but not yet operating. The FCC’s AM Tower Tool can be found at