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Telecom Business Alert -- Vol. X Issue 3

Date: Jan 14, 2013

Unlicensed Part 15 Band at Risk – Opposition to Progeny Proposal Needed

Last week, more than 60 associations and companies, including the American Petroleum Institute (API), the American Gas Association (AGA), the National Rural Electric Cooperative Association (NRECA), the Energy Telecommunications and Electrical Association (ENTELEC), the Edison Electric Institute (EEI), the Utilities Telecom Council (UTC), the Association of American Railroads (AAR), the General Electric Company (GE), Motorola Solutions, Inc., Itron, Inc., Anadarko Petroleum Corporation, Black Hills Energy, Exelon Corp., FirstEnergy Corp., Kinder Morgan, Inc. Mid-Kansas Electric Company, LLC, Northeast Utilities, Pepco Holdings, Inc., Sunflower Electric Power Corporation, Southern Star Central Gas Pipeline and many others, united to submit a broad-based industry letter (available here) opposing Progeny LMS, LLC's proposal seeking FCC approval to operate high-power 30 watt transmitters in the unlicensed, low-powered 902-928 MHz band as part of its location monitoring system. The Letter urged the Commission to reject Progeny's proposal stating the operations of millions of unlicensed devices there were manufactured, purchased, installed and used in reliance on the FCC's existing rules will be placed at risk. Field tests showed that Progeny's system will cause unacceptably high levels of interference to millions of lower-powered unlicensed industrial and consumer devices used every day throughout the country, including electric utility smart grids, SCADA systems that monitor and control oil and natural gas pipelines and production fields, RFID devices that track assets and supply chains, fixed broadband in rural areas, and countless consumer products such as hearing aids, home alarm systems, cordless phones and wireless headsets. For more information, please contact Greg Kunkle (kunkle@khlaw.com; 202.434.4178).

KH Webinar Assesses Pole Attachment Appeal

On Thursday, January 17, from 2:00 to 3:00 Eastern Time, Partner Tom Magee will host a webinar to assess the issues raised by the FCC's April 2011 Order, which 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. The discussion will provide additional insight into the issues on reconsideration and appeal and highlight what utilities might expect. The cost is $100 per telephone line. Registration is still open for the webinar by clicking here. For questions or more information, please feel free to contact Tom (202.434.4128; magee@khlaw.com).

FCC Issues Report on Outages from June 2012 Derecho

Last week, the Public Safety and Homeland Security Bureau released a Report outlining the communications network and service disruptions resulting from the Derecho storm hitting portions of the Midwest and Mid-Atlantic regions in June 2012. The report noted severe disruptions in 9-1-1 related communications, affecting than 3.6 million people over six states, due to service provider network problems. The Bureau determined these disruptions were largely the result of "avoidable planning and system failures, including the lack of functional backup power, notably in central offices." Specific suggestions for addressing network concerns included maintaining adequate central office backup power, conducting periodic audits of 9-1-1 links, notifying 9-1-1 call centers of issues, and implementing reliable network monitoring systems. Following the report's recommendation, FCC Chairman Genachowski announced plans for a rulemaking to consider action to ensure the reliability, resiliency, and availability of 9-1-1 communications networks. For more information, please contact Greg Kunkle (kunkle@khlaw.com; 202.434.4178).

Corporate Counsel Corner: EPA Enters Into Settlement for Violations at Cellular Tower Sites

The Environmental Protection Agency (EPA) announced an administrative settlement with a major wireless telecommunications carrier (available here), resolving alleged violations associated with back-up energy supply systems (batteries and diesel generators) at several hundred tower sites, switching stations, and warehouses. Under the terms of the settlement, the company must pay a civil penalty of $750,000 and spend an additional $625,000 on supplemental environmental projects. The presence of lead acid batteries, diesel fuel, or diesel-fired generators, which provide back-up power at the sites, triggered the underlying compliance obligations under the federal Emergency Planning and Community Right-to-Know Act (EPCRA), Clean Water Act (CWA), and Clean Air Act (CAA). Critical Infrastructure Industry (CCI) licensees deploying back-up energy resources at tower sites are subject to the same environmental compliance obligations as wireless and wireline telecommunications carriers. If concerns arise regarding possible non-compliance with these requirements, CCI entities should promptly familiarize themselves with the EPA's Audit Policy which provides up to 100% mitigation of civil penalties. Importantly, such violations must be discovered and disclosed to EPA prior to the Agency discovering the problems and before the Agency even announces its intent to inspect a site. For more information on EPCRA, CWA, and CAA compliance obligations or EPA's Audit Policy to manage potential liability, please contact Keller and Heckman LLP Partner Trent Doyle (doyle@khlaw.com; 202.434.4161).

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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.

Keller and Heckman LLP's Telecom Business Alert is a complimentary weekly electronic update created by the Telecommunications and the Business Counseling and Transactional practice groups of Keller and Heckman LLP.

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