June 25, 2019

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Telecom Alert 8/6/18– One-Touch Make-Ready Adopted; FCC May Preempt State and Local Laws for Disaster Relief; Spectrum Frontier Auctions; Sho-Me Power Electric Cooperative Settles Class Action Easement Suit for $24 Million; AT&T Announces NPPGov Agreement

FCC Adopts One-Touch Make-Ready Policy for Pole Attachments

On Thursday, the FCC adopted a One-Touch Make-Ready (OTMR) policy for attaching telecom and cable facilities to utility poles in the 30 states that don’t regulate pole attachments themselves.  The FCC’s press release stated that the action should help enable deployment of small cells and wireline backhaul for 5G services.  However, Commissioner Rosenworcel, the only Democrat on the Commission, stated that she is concerned that the policy will slow down deployment because the Commission’s “definitions of simple and complex processes do not provide enough real-world guidance to attachers and utilities, setting the stage for disputes and delays.”

FCC May Preempt State and Local Laws for Disaster Relief

In addition to the OTMR policy adopted in its Report and Order last week, the FCC also mentioned in the Order that following natural disasters, on a case-by-case basis, it may preempt state and local laws that the Commission views as prohibiting the rebuilding or restoration of broadband facilities used to provide telecommunications services.  The Order noted that certain federal regulations may impede restoration efforts, and the FCC is working on addressing those issues as well.  The Order recognized that some state and local officials may be well positioned to respond to disasters, which is why the Commission will opt to exercise its preemption authority on a case-by-case basis, as opposed to adopting new rules.  The Commission also stated in the Order that “blanket” state and local moratoria on telecom services and facilities deployment are barred by Section 253(a) of the Communications Act. 

Bidding Procedures Announced for Spectrum Frontier Auctions

Last week the FCC released a Public Notice establishing procedures for its upcoming “spectrum frontier” auctions of almost six thousand Upper Microwave Flexible Use Service (UMFUS) licenses in the 27.5-28.35 GHz; 24.25-24.45 GHz; and 24.75-25.25 GHz bands.  The Commission will use its standard simultaneous multiple-round bidding for the auction of 28 GHz spectrum, and a clock auction format for the auction of 24 GHz spectrum.  An auction tutorial will be conducted on August 28, and the Short Form application filing window will open on September 5.  The Commission will initiate bidding in Auction 101 (28 GHz band) on Wednesday, November 14, 2018.  Bidding in Auction 102 (24 GHz band) will commence at the conclusion of bidding in Auction 101. 

Sho-Me Power Electric Cooperative Settles Class Action Easement Suit for $24 Million

Over 3,000 plaintiff landowners and Sho-Me Power Electric Cooperative settled a land-use agreement class action lawsuit following almost seven years of litigation.  Sho-Me agreed to pay $24 million to a class of Missouri landowners who initially claimed that a fiber optic cable installed in the 1990’s and cutting through more than 3,500 privately owned parcels of land was used partly for commercial telecommunications.  In 2015, a federal appellate court in Missouri found that Sho-Me’s use of the fiber optic cables installed within utility easements for utility communication purposes was permissible, but that Sho-Me’s use of excess fiber optic capacity for commercial telecommunications exceeded the scope of its easements. 

AT&T Announces NPPGov Agreement for FirstNet Contracts

AT&T announced that it is working with NPPGov, a national government procurement organization, to simplify and broaden the FirstNet contracting process for Public Safety entities.  According to AT&T, instead of public safety agencies conducting their own RFP processes, NPPGov members can skip the contracting process and access custom FirstNet pricing in their applicable state without signing a contract.  However, public safety entities can still use whatever contracting vehicle they prefer to obtain access to FirstNet.

“Don’t Break Up the T-Band” Act Introduced

Senators Markey (D-Mass.), Schumer (D-N.Y.), Gillibrand (D-N.Y.), Casey (D-Penn.), and Warren (D-Mass.) introduced the Don’t Break Up the T-Band Act of 2018 (S.3347), which seeks to repeal the section of the Middle Class Tax Relief and Job Creation Act of 2012 that requires the FCC to reallocate and auction the T-Band.  The FCC is required to reallocate and auction the T-Band (470-512 MHz) by 2021, and clear public safety users from the band within two years of the close of the auction.  The band is used in heavily populated metropolitan areas to support critical public safety communications for first responders.

FCC Enforcement Against Unauthorized Handheld Radios

The FCC released a Citation and Order last week notifying Amcrest Industries, LLC d/b/a Baofengradio.us that it is marketing an unauthorized RF device in violation of the Communications Act and the FCC’s rules.  The FCC Enforcement Bureau’s Spectrum Enforcement Division received a complaint in 2013 alleging that a Baofeng radio was capable of operating at power levels above those specified in its FCC Equipment Authorization.  Amcrest, an authorized dealer of Baofeng radios, ceased marketing three of Baofeng’s radios but failed to remove them from its website until February of 2018.  The Citation directs Amcrest to confirm in writing that it has ceased marketing of the Baofeng radio in question and remove all references to it from its website until the device is brought into compliance with the Commission’s rules. 

© 2019 Keller and Heckman LLP


About this Author

C. Douglas Jarrett, Keller Heckman, telecommunications lawyer, procurement law

Douglas Jarrett joined Keller and Heckman in 1979. Mr. Jarrett specializes in telecommunications law, policy and procurement matters.

Mr. Jarrett is a recognized expert in representing enterprises in negotiating telecommunications services agreements with the major wireline and wireless carriers, domestically and globally.  He also advises enterprises on M2M services, cloud computing and IVR technology procurements. 

Mr. Jarrett represents technology companies in securing amendments to the FCC rules to enable the...

Gregory E. Kunkle, Keller Heckman, regulatory attorney, FCC lawyer

Gregory Kunkle joined Keller and Heckman in 2006. Mr. Kunkle practices in the area of telecommunications, with an emphasis on assisting corporate clients and trade associations with various legal and regulatory matters before the Federal Communications Commission.

Mr. Kunkle regularly counsels critical infrastructure companies, such as electric utilities, oil and gas companies, and railroads, public safety agencies, and commercial providers regarding FCC wireless licensing and compliance issues.  He assists clients in identifying and acquiring wireless spectrum through a variety of means, including spectrum leasing, purchase and sale of licenses, and the FCC's auction process. His spectrum acquisition practice spans all of the FCC’s wireless frequency allocations, including the 220 MHz band, AMTS (217/219 MHz), VHF/UHF Part 22 Paging, the 1.4 GHz band, Part 90 800/900 MHz bands, MAS, the 2.5 GHz EBS/BRS band, and the 700 MHz band.

Mr. Kunkle counsels clients that become involved in the FCC's enforcement process including by responding to and vigorously defending against complaints and investigations and, where appropriate, negotiating settlements with the Commission. 

Thomas B. Magee, Keller Heckman, transactional counsel, litigation attorney, FCC law, safety violation lawyer

Thomas Magee joined Keller and Heckman in 2000. Mr. Magee provides regulatory, transactional and litigation counsel to investor-owned electric utilities, electric cooperatives and municipalities regarding pole attachments and Federal Communications Commission (FCC) licensing of private wireless telecommunications services.

Mr. Magee has helped to resolve dozens of pole attachment disputes affecting make-ready costs, safety violations, unauthorized attachments, annual rental rates and other terms and conditions of access. He negotiates,...

Tracy Marshall, Keller Heckman, regulatory attorney, for-profit company lawyer

Tracy Marshall joined Keller and Heckman in 2002. She assists clients with a range of business and regulatory matters.

In the business and transactional area, Ms. Marshall advises for-profit and non-profit clients on corporate organization, operations, and governance matters, and assists clients with structuring and negotiating a variety of transactions, including purchase and sale, marketing, outsourcing, and e-commerce agreements.


Wesley K. Wright, Keller Heckman, Telecommunications Lawyer, FCC Enforcement Attorney, DC

Wesley Wright joined Keller and Heckman in 2006 and practices in the areas of telecommunications law.  He assists corporate clients and trade associations with various legal and regulatory matters before the Federal Communications Commission, Federal Aviation Administration, courts and state agencies.

Mr. Wright’s practice includes private wireless licensing, FCC enforcement, and related transactional matters.  He counsels clients on internal operations and governance matters and has drafted and negotiated asset purchase agreements,...