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Telecom Business Alert -- Vol. IX Issue 51

Date: Dec 17, 2012

Small Cells in 3.5 GHz Band

Last week, the FCC issued a Notice of Proposed Rulemaking (NPRM) proposing to open up 100 megahertz of shared spectrum in the 3.5 GHz Band (3550-3650 MHz) using small cell and database technologies. The proposal follows up on a recommendation in a spectrum sharing report released by the President's Council of Advisors on Science and Technology (PCAST) last summer. The NPRM proposes a three tiered approach for user access in the 3.5 GHz band, with the first tier, Incumbent Access, reserved for Incumbent fixed satellite licensees and existing federal users. Of special note: electric utilities, oil and natural gas companies, public safety and other Critical Infrastructure entities would be given second tier, or Priority Access, for mission critical communications operations and "quality-assured access" to the spectrum in certain designated locations, ahead of third tier, General Access, for authorized users in the general public. The NPRM also considers expanding the 3.5 GHz band licensing framework into the 3.65 GHz band, which is currently used by utilities and CII throughout the country. Comments are due by February 20, 2013, and reply comments by March 22, 2013. 

The End is In Sight for Narrowbanding

We're almost there! Only two weeks remain for Industrial/Business and Public Safety Radio Pool licensees in the VHF/UHF (150-174 MHz/421-512 MHz) bands to meet the narrowbanding deadline. By January 1, 2013, these Licensees must operate on 12.5 kHz or narrower channels or employ a technology that achieves the narrowband equivalent of one channel per 12.5 kHz of channel bandwidth (voice) or 4800 bits per second per 6.25 kHz (data). The FCC's records, however, identify multiple public safety and private land mobile licenses in the VHF and UHF bands that still require narrowbanding. Licensees failing to meet the January 1, 2013 deadline or obtain an extension will likely be subject to enforcement action by the FCC, including monetary forfeitures and/or license cancellation. FCC staff confirmed that Licensees that have transitioned to narrowband operations and have applications filed with certified frequency coordinators by December 31, 2012, will be presumed compliant with the deadline. For assistance in filing narrowband applications or an appropriate extension request, please contact Wes Wright (202.434.4296; wright@khlaw.com).

Motorola Solutions' Equipment Waiver

The FCC issued a Public Notice seeking comment on Motorola Solutions' request for waiver of FCC's rules to allow the continued manufacture, import and sale of 25 kHz capable equipment to entities that have received waivers of the FCC's January 1, 2013, narrowbanding deadline. Motorola Solutions anticipates it will need to manufacture new 25 kHz capable equipment after January 1, 2013, to ensure waiver recipients can maintain their existing systems until the migration to narrowband technology is complete. The Commission seeks comment on whether to address this issue by a blanket waiver or grant relief to individual licensees on a case-by-case basis. Additionally, the Commission asks whether grant of the waiver would prolong the transition to narrowband. 

Dish Network Receives Approval for Terrestrial Wireless Broadband Network

Last week, the FCC unanimously approved Dish Network's request to provide terrestrial wireless broadband service on 40 MHz of spectrum in the 2 GHz band (2000-2020 MHz / 2180-2200 MHz). At the same time, the Commission approved plans to move forward with a Notice of Proposed Rulemaking for an auction of the 10 MHz H Block, which sits adjacent to Dish Network's 2 GHz spectrum. The specific technical details of the FCC's Order have not yet been released but are expected to include a guard band to protect operations in the H Block. The FCC's approval is viewed as a positive sign for GlobalStar, which filed a similar petition seeking FCC approval to use mobile satellite service (MSS) spectrum for wireless broadband, though the Commission has yet to bring the petition to a vote. For more information, please contact Greg Kunkle (202.434.4178; kunkle@khlaw.com).

Corporate Counsel Corner: CA Court to Review Wage Action by Cell Tower Technicians

Last week, a California appeals court revived a wage-and-hour class action brought by cellphone tower technicians against Network International LLC alleging the company's policies concerning work scheduling and pay violated California law. The decision overturned the court's prior 2009 ruling rejecting the technician's class certification. The California Supreme Court granted a request to hold the case until the Court issues a decision in a similar employees' rights case. Keller and Heckman LLP Partners Manesh Rath and David Sarvadi regularly counsel clients in employment law matters, including wage/hour law, labor and OSHA law, wage and hour and class action litigation, as well as performing internal wage and hour audits for companies around the country. For more information on the impact of this California litigation or related employment law questions, please contact Manesh (rath@khlaw.com; 202.434.4182) or David (sarvadi@khlaw.com; 202.434.4249).

K&H Webinar Assesses Pole Attachment Appeal

The FCC's April 2011 Order created a host of new regulations governing attachments to poles owned by electric utilities. Core decisions by the FCC have been challenged by utilities at the Commission and in the Court of Appeals for the Washington, D.C. Circuit, and Oral Argument has been scheduled for January 23, 2013. Keller and Heckman LLP represents the "Coalition of Concerned Utilities," a group of ten utilities that requested reconsideration at the FCC and has intervened in the court case. On Thursday, January 17 from 2:00-3:00 Eastern Time, Partner Tom Magee will assess the issues on reconsideration and appeal and discuss what utilities might expect during a one-hour webinar for utility personnel. The cost is $100 per telephone line. Registration for the webinar is available here. For questions, please feel free to contact Tom (202.434.4128; magee@khlaw.com).

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In an attempt to address in our weekly Telecom Business Alert the issues of most importance to the clients and friends of Keller and Heckman LLP, we invite you to submit suggestions on topics of interest to you. To make suggestions, please send an e-mail to TelecomAlert@khlaw.com.

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