Kramer Telecom Law Firm, P.C.

What does ??? mean? Good question. Until the actual order is clarified by the Commission (or the courts), we won't know whether they've addressed a key question: Does the clock run from when the application is filed, or does it run from when the application is determined by the state or local government agency to be complete. And while we're on the subject, what is the impact on state law processes (such as CEQA and Coastal Commission in California)? Does the application action period during the time periods outside the control of local permitting agencies?

While not reaching a decision may open the doors to state and federal courts, the Commission acknowledges that their shot clock is rebuttable in court. Of course, to get the the rebutting stage, the local government will bear the costs of litigation, without knowing whether their legal costs will be their own, or if the court will order the application/plaintiff to reimburse the local government is the presumption is, in fact, rebutted.

The Commission also declared that the existence of one carrier's service in an area does not permit a state or local to deny a subsequent application (some might call this the 'one is enough' rule). This portion of the FCC's order will have no impact in the 9th Circuit, since the 'one is enough' rule was overruled in this Circuit years ago in the MetroPCS v. San Francisco case.

The Commission's Declaratory Ruling will become effective upon the release of the decision.

If you would like to listen to the FCC's hearing (32 minutes, 9 seconds in length), you can CLICK HERE.

Click Here to download the FCC's Declaratory Ruling (PDF format).
To read the CTIA's original petition, click here (PDF format)

December 3, 2007: FCC issues the 2007 edition of the Emergency Alert System Handbook for cable TV systems. Read the press release by clicking here, then download the manual by clicking here.

November 30, 2007: The FCC has issued proposed new rules regarding cable TV picture quality. Quoting from the introduction in the Report and Order in CS Socket No. 98-120,

"In this Third Report and Order and Third Further Notice of Proposed Rulemaking ('Third Report and Order” and “Third Further Notice,” respectively), we adopt rules to ensure that cable subscribers will continue to be able to view broadcast stations after the transition, and that they will be able to view those broadcast signals at the same level of quality in which they are delivered to the cable system. We announce these rules now to ensure that cable operators and broadcasters have sufficient time to prepare to comply with them. We also seek comment on several issues related to implementation of these rules. We are mindful that the mandatory carriage rules serve their purpose only when such stations are viewable by all cable subscribers, including those who will only have analog sets after the transition. Furthermore, we act with the knowledge that Congress intended that the benefits of the digital transition should accrue to all consumers."

James T. Kirk: "Scotty, I need more power!"

Updated April 2008:

The CTIA has sued the FCC to block the implementation of 47 C.F.R. § 12.2. You can read their suit, filed on November 23, 2007, by clicking here. Then, you can click here to read the initial schedule for the pre-trial activities, which the court produced on November 26, 2007.

The FCC's March 2008 brief for oral arguments before the Court of Appeals for the DC Circuit (scheduled for May 8, 2008) may be read via this link.

Working backwards, the FCC had delayed the effective date of its new rules requiring back-up power of telecommunications facilities. 47 C.F.R. § 12.2, originally scheduled to go into effect on August 10, 2007, had been postponed until October 9, 2007. The delay was due to a request by the CTIA to administratively stay the orders pending further hearings. To frame CTIA's concerns regarding the rules, and the likely basis of the claims it will assert in the lawsuit, read CTIA's 64-page petition to the Commission by clicking here.

Local governments should be keenly interested in this rule, and be equally interested in the effect on new and existing cell sites that this rule may cause.

If you have not seen the rule, here it is as it was originally proposed by the Commission, and published in the Federal Register (72 Fed. Reg. 37,655):

§ 12.2 Backup power.
Local exchange carriers (LECs), including incumbent LECS (ILECs) and competitive LECs (CLECs), and co22mmercial mobile radio service (CMRS) providers must have an emergency backup power source for all assets that are normally powered from local AC commercial power, including those inside central offices, cell sites, remote switches and digital loop carrier system remote terminals. LECs and CMRS providers should maintain emergency back-up power for a minimum of 24 hours for assets inside central offices and eight hours for cell sites, remote switches and digital loop carrier system remote terminals that are normally powered from local AC commercial power. LECs that meet the definition of a Class B company as set forth in § 32.11(b)(2) of the Commission’s rules and non-nationwide CMRS providers with no more than 500,000 subscribers are exempt from this rule.

Then, on Reconsideration, the FCC published the final rule in the Federal Register on October 11, 2007 (72 Fed. Reg. 57,879)

Birds v. Towers: New FCC Rules? November, 2006: The Commission is considering new rules to protect birds from coming into contact with radio towers. Comments are due in January, with reply comments due in February. Click here to read more. (Story updated 4/22/07)