Top Ten Spectrum Issues for Utilities

1. Top Ten Spectrum Issues for Utilities October 3, 2012 Wesley K. Wright Attorney Keller and Heckman LLP 1001 G Street NW Suite 500 West Washington, DC 20001 +1 202.434.4296 wright@khlaw.com

2. Top Ten Spectrum Issues for Utilities

3. TEN

4. Number 10: 700 MHz Band • Middle Class Tax Relief and Job Creation Act of 2012 (passed Feb. 2012) • Established First Responder Network Authority (“FirstNet”) • Allocated 10 MHz of Spectrum to FirstNet • Public Safety Spectrum (763-768 MHz / 793-798 MHz) • D Block (758-763 MHz / 788-793 MHz) • Provided $7 billion to assist Public Safety Network Buildout

5. Number 10: 700 MHz Band • FirstNet governed by 15-person Board of Directors • Secretary of Homeland Security, Attorney General and Director of Office of Management and Budget • 12 remaining appointees named in August • Samuel Ginn, Chairman • Tim Bryan, CEO of National Rural Telecommunications Cooperative • NRTC members include rural power cooperatives and telecommunications operators.

6. Number 10: 700 MHz Band • Next Steps: • FirstNet issues Request for Proposals • Timetable for construction (factoring in rural buildout), coverage areas, service levels and performance criteria • Provide Governor of each State • Planned buildout natiowide and in the State • Funding level for the State • Within 90 days, State can • Participate in the Plan and accept funding, or • Opt out and conduct its own FCC-approved deployment

7. Number 10: 700 MHz Band • Utilities Wishing to Access 700 MHz Spectrum on shared basis with Public Safety • Network planning, deployment and operation largely handled on local/State level • Reach out to point(s) of contact within State

8. Nine

9. Number 9: Microwave Audit • The Act required FCC and GAO to determine whether 11 GHz, 18 GHz and 23 GHz bands are being used efficiently • Determine number of applications submitted by common carriers for frequency assignments that were not successfully coordinated and filed with FCC • Used by critical infrastructure entities for point-to-point microwave systems

10. Number 9: Microwave Audit • FCC Public Notice June 20 • Comments: • AT&T and Sprint: No problems; never required to modify an initial request for a link due to spectrum unavailability • Comsearch: Rejection rate is very small. They are able to accommodate most applicants (private and common carrier) and the bands are efficiently used. • GAO expected to issue report assessing whether Gov’t receives maximum revenue

11. Eight

12. Number 8: T-Band Licensing Freeze • The Act calls for the public safety T-Band spectrum (470-512 MHz) to be reclaimed and auctioned by the FCC in the next nine years • Licensed to Public Safety and Critical Infrastructure entities in major metro areas • April 2012 • T-Band Licensing Freeze

13. Number 8: T-Band Licensing Freeze • Affected Applications are those that would Increase the degree to which the band is currently licensed • Applications for new licenses • Applications seeking to add or change frequencies • Applications expand existing footprint • Not Impacted • Renewal applications • Deleting frequencies • Changing number of mobile units

14. Number 8: T-Band Licensing Freeze • If T-Band licensee seeks to modify existing system, seek waiver • Extremely high bar to preserve spectral landscape knowing auction on horizon

15. Seven

16. Number 7: T-Band Narrowbanding • T-Band licensees not required to narrowband • FCC has not determined how or when licenses will be reclaimed and auctioned

17. Six

18. Number 6: Narrowbanding • Affected Licensees • Public Safety and Industrial/Business licensees in the 150-174 MHz (VHF) and 421-470 MHz (UHF) bands • By January 1, 2013 • Voice Systems: migrate from 25 kHz (wideband) channel to 12.5 kHz (narrowband) channel bandwidth • Data Systems: employ technology achieving 4800 bps per 6.25 kHz used

19. Number 6: Narrowbanding • Data Equivalency Standard: 4800 bps per 6.25 kHz used • Ex. Emission Designator 16k (16 kHz-wide channel). • Standard applies to channel used • Equipment must be capable of transmitting approximately 12,300 bps (12.3 kbps)

20. Number 6: Narrowbanding • FCC Will Not Extend Narrowbanding Deadline • 1995: original rules adopted • 1997: narrowbanding equipment available • 2004: January 2013 deadline announced • No Filing Fees or Frequency Coordination required for wideband to narrowband modifications

21. Number 6: Narrowbanding • Importance of Narrowbanding • Interference • After January 1, 2013, non-compliant wideband systems will not be protected • May interfere with narrowbanded systems • Reliability • Coordinators might ignore noncompliant systems in first quarter of 2013 • FCC Enforcement • Potentially thousands of dollars per day

22. Number 6: Narrowbanding • FCC Requested Waivers be filed by Dec. 2011, will be strictly reviewed • If necessary, waiver should address: • Steps taken to plan for, initiate and complete narrowbanding • System Size • Whether system equipment is narrowband capable • Funding sources • Whether schedule is impacted by other systems b/c interoperability • Plans to minimize impact to co- and adjacent-channel licensees • If licensee plans to migrate to non-VHF/UHF spectrum (ex. 800 MHz), will it relinquish VHF/UHF spectrum • Proposed timetable for completion

23. Number 6: Narrowbanding • The narrowbanding rules provide for the eventual migration from 12.5 kHz to 6.25 kHz bandwidth • FCC has not set deadline for 6.25 kHz transition • No deadline is expected for several years

24. Five

25. Number 5: 4.9 GHz Rulemaking • June 2012: Report and Order and NPRM • To determine if critical infrastructure entities should hold primary licenses in 4.9 GHz band • Band currently allocated to public safety licensees • Critical infrastructure entities may access under sharing arrangements for operations in support of public safety • FCC proposes to remove these restrictions

26. Number 5: 4.9 GHz Rulemaking • Complement 700 MHz Sharing • FCC asks whether fixed, backhaul and mobile uses in the 4.9 GHz band could complement 700 MHz public safety broadband spectrum • Authorizing Operations • FCC sought comment on a number of options, including coordination, database registration and regional planning

27. Number 5: 4.9 GHz Rulemaking • Comments • Primary Access: Several groups filed in support of primary access to 4.9 GHz band for CII entities • 700 MHz Sharing: Promoted FirstNet access to 4.9 GHz band to deploy 700 MHz public safety broadband network • Authorizing: Urged fixed links and database registration or frequency coordination

28. Four

29. Number 4: Migratory Birds • 2/19/08 - D.C. Circuit Court requires FCC to: • Address Bird Conservancy request for EIS on towers • Provide notice of pending tower applications (not just approvals) • 4/14/09 - Bird Conservancy files Petition for RM • Require additional environmental protections • 4/30/09 - FCC requests comment (May 29) and replies (June 15)

30. Number 4: Migratory Birds • March 25, 2011 - FCC PN seeks comment on draft rules and interim procedures • Local notice prior to obtaining an ASR • FCC publish notice of ASR requests on website for 30 days and receive comment • EAs required for each proposed tower more than 450 ft for affect on migratory birds (on interim basis)

31. Number 4: Migratory Birds • March 2012 –Programmatic Environmental Assessment • Evaluated three options • No change to ASR program • Change to FAA lighting scheme • Steady-burning red lights bad • Require EAs for towers • All new towers and most mods • All towers near eagle nests or certain bird habitats • All towers over 450 feet

32. Number 4: Migratory Birds • 5 million bird deaths from towers annually • But only .2 percent of bird deaths from towers • Found “No Significant Impact” at national level under all three options • But some significant local impacts may not be mitigated by first two options and option 3c • Rulemaking Proceeding Expected

33. Number 4: Migratory Birds • Interim Rules Effective June 18 • New Procedure: • Towers taller than 450 feet • Environmental Assessment Required • Towers Requiring ASR, under 450 feet • Secure FAA Determination of No Hazard and Marking/Lighting Recommendation • Publish Notice in Local Newspaper • National Notice via FCC website for 30 days • After 40 days, receive ASR Number

34. Three

35. Number 3: Signal Boosters • April 2011 NPRM proposed rules to allow use of fixed and mobile signal boosters for use in conjunction with commercial cellular systems. • Proposed allowing customers and building operators to install and operate boosters to extend wireless coverage.

36. Number 3: Signal Boosters • Verizon and T-Mobile • Permit boosters if • Designed and certified to meet one of two technical safe harbors • Registered with the carrier prior to operation • AT&T proposal • Permit boosters that are licensed and approved by carriers prior to operation • Similar to blanket licensing for mobile handsets

37. Two

38. Number 2: TV White Spaces • Channels 2-51 (except 3, 4, 37) • Space between authorized TV stations • Part 15 Unlicensed • Geolocation/database access • September 23, 2010 Order • Removes sensing requirement

39. Number 2: TV White Spaces • November 2010 – Database managers selected: • Comsearch, Frequency Finder Inc., Google Inc., KB Enterprises LLC and LS Telcom, Key Bridge Global LLC, Neustar Inc., Spectrum Bridge Inc., Telcordia Technologies, and WSdb LLC • Microsoft added 2011

40. Number 2: TV White Spaces • December 2011 – FCC begins to certify database administrators • Spectrum Bridge, Telcordia certified • Limited Operations authorized • Wilmington, NC • Apr 5, 2012 – FCC releases Order raising fixed station HAAT to 250 meters • Made minor changes to emission mask

41. Number 2: TV White Spaces • Impacted by Incentive Auctions/Repacking • Incentive Auctions would permit broadcasters to turn in portions of spectrum and share in proceeds of auction • FCC considering incentive auction rules • Interest Groups advocating for the preservation of white spaces

42. One

43. Number 1: FCC Enforcement • Operation of an Expired License • Corporate Mergers and Acquisitions

44. Number 1: FCC Enforcement • Licensees must file renewal applications prior to the expiration of the FCC radio license. • The Wireless Bureau may refer any late filings to the Enforcement Bureau for investigation and potential penalties.

45. Number 1: FCC Enforcement • A utility in Minnesota held four FCC radio licenses and operated for 26 months after they expired. • Result: The Bureau issued a $20,800 Notice of Apparent Liability. Utility eventually paid $16,000 to settle the case.

46. Number 1: FCC Enforcement • The Enforcement Bureau recently expressed increased concern regarding mergers and acquisitions of entities holding FCC authorizations. • Section 310(d) of the Communications Act prohibits an FCC station license from being assigned or transferred as part of a corporate merger or acquisition without the prior consent of the FCC.

47. Number 1: FCC Enforcement • Licensee held 168 Multiple Address Service and two Microwave Industrial/Business Pool licenses. • Licensee’s assets were acquired by a third party. • The acquisition resulted in a transfer of control of licensee for which the licensee did not secure the FCC’s prior consent.

48. Number 1: FCC Enforcement • The licensee entered into a consent decree with the Commission, agreeing to “voluntarily contribute” $35,000 to the U.S. Treasury and follow a compliance plan for apparent violations of Section 310(d) of the Communications Act

49. Thank you!! Wesley K Wright Attorney Keller and Heckman LLP 1001 G Street NW Suite 500 West Washington, DC 20001 +1 202.434.4296 wright@khlaw.com