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Telecom Alert—–911 Location-Accuracy Petition; 3.45-3.55 GHz Auction; Station Discontinuance Rules; Localities and Utilities Request Rehearing of 2018 Pole Attachment and Small Cell Orders—–Vol. XVII, Issue 40

911 Location-Accuracy Petition

On September 28, CTIA filed a Petition for Reconsideration of the FCC’s Sixth Report and Order, which required nationwide carriers to deploy z-axis location accuracy technology nationwide by April 2025, and established a z-axis metric of plus or minus three meters for 80 percent of indoor 911 calls (Vol. XVII, Issue 26).  The first benchmark for Commercial Mobile Radio Service (CMRS) providers mandates z-axis location accuracy technology deployment in the top 25 Cellular Market Areas (CMAs) by April 2021.  CTIA’s Petition stated that z-axis location solutions should be validated in advance of the first benchmark, and sufficient testing has been nearly impossible due to COVID-19 restrictions.  Two vendors (NextNav and Polaris Wireless) rely on network-dependent, barometric pressure sensor-based technology that could be deployed by the April 2021 benchmark, but CTIA noted these solutions will not be integrated into the devices used by most wireless 911 callers in the top markets.  

3.45-3.55 GHz Band Auction

On October 2 the FCC released a Report and Order and Further Notice of Proposed Rulemaking seeking comment on its proposal to allocate the 3.45-3.55 GHz band spectrum for flexible-use service and seeking comment on a non-federal and federal coordination scheme as well as technical rules, licensing, and competitive bidding rules for the band (Vol. XVII, Issue 37). The FNPRM proposes the use of geographic area licenses for the auctioned spectrum, but declined to identify which type of geographic areas will be used for new authorizations.  The R&O also states that non-federal radiolocation licensees and amateur license holders in the 3.45-3.55 GHz band may continue to operate until 90 days after the close of the auction of the band, which is anticipated to occur in December 2021.  The band is currently used by the Department of Defense for high-powered radar systems on fixed, mobile, shipborne, and airborne platforms.  Comments and Reply Comments are due 30 and 45 days after the R&O has been published in the Federal Register.  

Station Discontinuance Rules

Last week the FCC’s Final Rule implementing changes to the Commission’s station discontinuance rules became effective, following a nearly three-year period during which the Final Rule was under review by the Office of Management and Budget.  Prior to the effective date for the Final Rule, wireless radio licensees were subject to different permanent discontinuance rules depending on the radio service of the licensee’s system.  The Commission’s new rule replaced “disparate service-specific rules dealing with permanent discontinuance with a standardized rule” for all wireless radio service licensees.  For geographic-area licenses, authority will automatically terminate after 180 days of consecutive non-operation.  For site-based licenses, authority will terminate automatically after 365 days of non-operation.  

Localities and Utilities Request Rehearing of 2018 Pole Attachment and Small Cell Orders

Last month a number of localities and utilities filed petitions with the U.S. Court of Appeals for the Ninth Circuit seeking en banc review of the court’s decision to affirm the FCC’s rulings on overlashing, preexisting safety violations, self-help in the electric space, and ILEC rates, and certain elements of the 2018 Small Cell Order (Vol. XVII, Issue 33).  The localities noted that the three-judge panel that issued the decision split on the question of whether the FCC acted lawfully in limiting cost recovery to what localities may charge for occupying rights-of-way and poles, as opposed to market value of the access, and stated that the panel’s decision contravened statutory text and the court’s own precedent by upholding the FCC’s new interpretation of “effective prohibition.”  The American Public Power Association reiterated that the FCC has no jurisdiction over attachments to public power utilities’ poles, and stated that public power utilities have no regulatory authority over access to public rights-of-way.  

Timothy A. Doughty, Kathleen Slattery Thompson and Adam (AJ) Reust contributed tho this article. 

© 2021 Keller and Heckman LLPNational Law Review, Volume X, Number 279



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...

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 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.

In the privacy, data security, and advertising areas, she helps clients comply with privacy, data security, and consumer protection laws, including laws governing telemarketing and...

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,...