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Telecom Alert, August 13, 2017: FirstNet and APCO; 3.5 GHz Band PN; 911 Grant Program; Wireless Siting Moratoria Clarification Requested; Massachusetts Dismisses 911 Fee Action; WV Business Benefits from Private Broadband

FirstNet and APCO 2018

FirstNet was a prominent topic at APCO’s annual conference held last week in Las Vegas, Nevada.  Early in the week, AT&T’s Executive Vice President of Regulatory & State External Affairs, Joan Marsh, published a blog post, stating that AT&T is pleased that Colorado withdrew its filing seeking clarification on FirstNet interoperability guidelines.  The blog further explained that allowing other networks to access FirstNet’s core could pose security concerns.  Senior Vice President, Verizon Enterprise Solutions - Public Sector, Michael Maiorana, presented at the conference, emphasizing the importance of interoperability for FirstNet and promoting the benefits of Verizon’s network. 

3.5 GHz Band Public Notice

The Commission’s Office of Engineering and Technology released a Public Notice seeking comment on the 2015 3.5 GHz rulemaking.  The Spectrum Pipeline Act requires the Commission to submit a report by November 2, 2018 regarding the 3.5 GHz band rule changes and “proposals to promote and identify additional spectrum bands that can be shared between incumbent uses and new licensed and unlicensed services under such rules and identification of at least 1 gigahertz between 6 GHz and 57 GHz for such use.”  Comments are due September 11, 2018 and Reply Comments are due September 26, 2018. 

911 Grant Program

NTIA and NHTSA announced that the agencies will move forward with their NG-911 grant program, allocating up to $110 million to upgrade call center equipment and operations to NG-911 capabilities.  The application process will consist of two steps.  The Notice of Funding Opportunity provides that the initial application, the first step, is due September 10, 2018. 

Request for Clarification of FCC Declaratory Ruling on Wireless Siting Moratoria

On August 3, 2018, the Commission adopted a Declaratory Ruling under Section 253(a) of the Communications Act, ruling that local or state moratoria on the deployment of telecommunications services or telecommunications facilities are a violation of Section 253(a).  The FCC’s action is widely opposed by municipal governments. Last week, AT&T submitted an ex parte filing requesting the Commission “clarify the types of municipal regulations that ‘have the effect of prohibiting’ the provision of wireless service.” 

Highest Massachusetts Court Dismisses 911 Fee Qui Tam Action  

Over the past few years, Phone Recovery Services, LLC has filed qui tam lawsuits in a number of state courts against prominent telecom companies, alleging the telcos are underreporting the number of landlines served to minimize payment of state E-911 surcharges assessed on a per telephone line basis. Under a qui tam action, the plaintiff is deemed to be acting on behalf of the state to recover monies unlawfully paid to or payments avoided by private firms and individuals.  Last week, the Massachusetts Supreme Judicial Court ruled that Phone Recovery Services, LLC lacked standing to sue on behalf of the state because Massachusetts law only allows individuals to bring such a suit.  The plaintiff has brought similar actions in other states, largely unsuccessful to date. 

Private Broadband Arrangement Assists Small Rural Business

Last summer, FCC Chairman Ajit Pai published a blog post, in which he described a visit to Capon Springs, West Virginia.  Capon Springs and Farms, a family-owned resort had been struggling to maintain connectivity, which in turn was greatly affecting their business.  This spring it was announced that Capon Springs and Farms had worked out a private arrangement to secure fixed wireless Broadband service.  Senator Shelly Moore Capito’s (R-WV) Capito Connect Plan played a role in developing the private arrangement.  The broadband capability will make it easier for the business to attract visitors who require a strong Internet connection while away.  While this arrangement is private, the resort hopes it can help the broader community gain broadband capabilities. 

© 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. 

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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,...

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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,...