July 26, 2021

Volume XI, Number 207

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July 26, 2021

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Telecom Alert—9th Circuit Affirms Pole Attachment and Small Cell Orders; DoD Makes 100 MHz Available for Commercial Sharing; NEPA/NHPA Consent Decree; WA Dismisses CenturyLink 911 Outage Complaint; AURA Waiver Request–Vol. XVII, Issue 33

Ninth Circuit Affirms FCC’s 2018 Pole Attachment and Small Cell Orders

The Ninth Circuit Court of Appeals has issued its Opinion in City of Portland v. FCC, rejecting investor-owned utility appeals of the FCC’s August 2018 Pole Attachment Order and most municipal appeals of the FCC’s Small Cell Order (Vol XVI, Issue 17).  Regarding the August 2018 Pole Attachment Order, utilities had appealed the Commission’s rulings on overlashing, preexisting safety violations, self-help in the electric space, and ILEC rates.  The court upheld all four rulings.  With respect to the Small Cell Order, the court upheld the FCC’s “safe harbor” fees of $500 per application and $270 per year for small cell wireless access to municipal rights-of-way and municipal poles and upheld the FCC’s “shot clocks” for municipal review of small cell wireless attachment applications.  The court rejected arguments that FCC regulation of small cell attachments to municipal poles violated the federal Pole Attachment Act restriction on FCC regulation of attachments to municipal poles.  Finally, the court rejected and remanded to the FCC certain restrictions placed on municipal aesthetics decisions.

DoD Makes 100 MHz Available for Commercial Sharing

Last week, the White House and the Department of Defense announced that 100 MHz in the 3450-3550 MHz band will be available for 5G use by the end of the summer.  DoD worked with NTIA to develop a sharing framework that would allow for commercial use while maintaining national security requirements.  FCC Chairman Pai praised the announcement and said that “Together with the spectrum being made available for 5G in the C-band as well as the 3.5 GHz band, we are now on track to have a 530-megahertz swath of mid-band spectrum available for 5G from 3.45 to 3.98 GHz.”

Consent Decree for NEPA/NHPA Violation

The Commission and Public Service Towers, Inc. (PS Towers) entered into a consent decree for PS Towers’ violation of the Commission’s environmental and historic preservation rules.  After a consultant notified the Commission that PS Towers had constructed wireless facilities prior to completion of environment and historical reviews, the Commission opened an investigation.  The Commission found that PS Towers failed to comply with tribal notification procedures and failed to obtain a finding of no adverse effect from the State Historic Preservation office prior to starting construction.  As part of the consent decree, PS Towers agreed to pay a penalty of $16,000 and implement a compliance plan. 

Washington Dismisses CenturyLink 911 Outage Complaint

The Washington Utilities and Transportation Commission dismissed a complaint against CenturyLink for a 2017 911 outage.  The Commission found that, while there was a service outage, the outage did not violate the States rules.  The outage occurred during a planned switch upgrade and the Commission found that the network malfunction was not reasonably foreseeable and that CenturyLink and Intrado  “took reasonable steps in planning and implementing the switch upgrade to reduce the risk of error, provide prompt awareness of the outage, and restore 911 service as rapidly as possible.”

Parties Support AURA Waiver Request

Last week, Reply Comments were due in the Docket for a Waiver Request submitted by AURA Network Systems OpCo, LLC.  The Request seeks a waiver of the 450 MHz General Aviation Air-Ground Radiotelephone Service (450 MHz AGRAS) Rules to permit service to unmanned aircraft systems (UAS)  The record shows that parties believe AURA’s request would be in the public interest.  According to a letter submitted by UTC, a grant of the waiver request would “promote the ability of utilities and other critical infrastructure industries to use UAS to inspect utility assets and ensure they are repaired or replaced prior to failure.”

© 2021 Keller and Heckman LLPNational Law Review, Volume X, Number 230
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About this Author

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

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...

202-434-4180
Gregory E. Kunkle, Keller Heckman, regulatory attorney, FCC lawyer
Partner

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...

202-434-4178
Thomas B. Magee, Keller Heckman, transactional counsel, litigation attorney, FCC law, safety violation lawyer
Partner

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,...

202-434-4128
Tracy Marshall, Keller Heckman, regulatory attorney, for-profit company lawyer
Partner

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...

202-434-4234
Wesley K. Wright, Keller Heckman, Telecommunications Lawyer, FCC Enforcement Attorney, DC
Partner

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,...

202.434.4239
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