January 31, 2023

Volume XIII, Number 31


January 30, 2023

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Telecom Alert: DC Circuit Remands RF Rules; 911 Reliability Certification System; AT&T Set Back in FCC Joint Use Ruling; VoIP Provider Violates Access Rules; Section 253 Petitions; 911 Disability Alerting System Bill [Vol. XVIII, Issue 34]

DC Circuit Remands RF Emissions Rules

Earlier this month, the U.S. Court of Appeals for the DC Circuit remanded to the FCC the agency’s decision not to open a proceeding to amend its current radio frequency (“RF”) emissions exposure rules (Vol. XVI, Issue 49).  In 2013, the Commission issued a Notice of Inquiry (“NOI”) to gather information about the effectiveness of the agency’s existing RF safety rules, which had remained largely unchanged since 1996.  The FCC resolved this NOI in 2019 by determining that the rules should remain unchanged.  Several groups and individuals challenged this determination in the Court and argued, among other things, that the Commission failed to consider information in the record regarding the ubiquity of wireless devices and changing nature of wireless deployments.  The U.S. Court of Appeals for the DC Circuit agreed.  Though the Court took no position on the scientific debate regarding the health and environmental effects of RF radiation, it determined that the Commission’s “cursory analysis of material record evidence was insufficient as a matter of law.”  The Court remanded the case to the FCC and ordered the agency to “provide a reasoned explanation for its determination that its guidelines adequately protect against harmful effects of exposure to radiofrequency radiation unrelated to cancer.”  The Court said the FCC “must, in particular, (i) provide a reasoned explanation for its decision to retain its testing procedures for determining whether cell phones and other portable electronic devices comply with its guidelines, (ii) address the impacts of RF radiation on children, the health implications of long-term exposure to RF radiation, the ubiquity of wireless devices, and other technological developments that have occurred since the Commission last updated its guidelines, and (iii) address the impacts of RF radiation on the environment.” 

911 Reliability Certification System Open

Last week, the FCC’s Public Safety and Homeland Security Bureau announced that the Commission’s 911 Reliability Certification System is now open for filing annual reliability certifications.  Under FCC rules, covered 911 services providers must take reasonable measures to provide reliable 911 service with respect to (i) 911 circuit diversity; (ii) central office backup power; and (iii) diverse network monitoring.  Providers must certify as to their compliance with each of these requirements or to their implementation of reasonable alternative measures.  Annual reliability certifications are due on October 15, 2021.  

AT&T Set Back in FCC Joint Use Ruling

Following an FCC Enforcement Bureau ruling on AT&T’s initial pole attachment complaint against Florida Power & Light, the Bureau last week dealt a significant blow to AT&T’s effort to block termination of the joint use agreement and FPL’s trespass claim, by ruling on a second AT&T complaint that AT&T’s arguments that the default provision and FPL’s termination notice were unjust and unreasonable were too late.  The Bureau also ruled that the joint use agreement’s “abandonment” clause does not apply to pole replacements. 

VoIP Provider Violates Accessibility Rules

The FCC issued an Order last week finding that ViaTalk, LLC (“ViaTalk”) violated its accessibility rules by failing to ensure that individuals with disabilities had access to information provided to other customers and failing to file annual compliance certifications with the Commission.  Under FCC rules, Voice over Internet Protocol (“VoIP”) providers must ensure that individuals with disabilities have access to information and documentation that the service providers provide to other customers, including product support communications.  Providers must also file an annual compliance certification with the FCC attesting to the entity’s accessibility efforts.  The Commission found that ViaTalk failed to respond to a support request from a customer with a disability.  ViaTalk must work with the customer to remedy product issues and establish processes to (i) ensure that complaints by individuals with disabilities are promptly referred to a representative; and (ii) document all efforts to resolve such complaints and retain such documents for 24 months.  

FCC Seeks Comment on Section 253 Petitions

Last week, the FCC issued a Public Notice seeking public comment on two separate Section 253 (47 U.S.C. § 253) petitions for declaratory ruling to preempt claimed municipal barriers to the provision of telecommunications service.  The first petition, filed by MediaCom against the City of West Des Moines, Iowa, alleges that the City’s proposed conduit lease agreement with Google Fiber is discriminatory.  The second petition filed by BlueBird against the City of Columbia, Missouri, claims that the City’s rights-of-way fee is impermissible under Section 253.  Comments and reply comments on the petitions are due on September 22 and October 12, respectively. 

911 Disability Alerting System Bill Introduced

Representatives Cathy McMorris Rodgers (R-WA) and Debbie Dingell (D-MI) introduced the Information Sharing and Advanced Communication (ISAAC) Alerting Act in the House last week.  The bill seeks to improve 911 emergency response for people with disabilities.  If enacted, it would require the FCC to prepare a report on the feasibility of establishing a national 911 disability alerting system that would inform first responders when a call was placed from a household or device with which an individual with a disability is associated.  Currently, the City of Spokane, Washington employs the ISAAC Alert System to aid responders in assisting individuals with disabilities. 

Casey Lide also contributed to this article. 

© 2023 Keller and Heckman LLPNational Law Review, Volume XI, Number 235

About this Author

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,...

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,...

Sean Stokes Communications Attorney Keller and Heckman Washington, DC

Sean Stokes represents clients nationally on a wide range of communications matters including broadband, cable television, wireless communications, right-of-way management, pole attachments, barriers to community broadband initiatives, and public-private partnerships. He counsels clients in developing and negotiating agreements involving access to poles, ducts, conduits, dark fiber, and towers. He has represented municipal utilities and local governments in complex negotiations developing city-wide fiber-to-the-home networks and wireless small cell siting agreements.

Sean has...

Timothy A. Doughty, Keller Heckman, Telecommunications Licensing Specialist, Lawyer, FCC Matters Attorney

Timothy Doughty joined Keller and Heckman in 2009 as a Federal Communications Commission (FCC) Licensing Specialist.

Mr. Doughty assists clients with the preparation of FCC applications, modifications, special temporary authorities, requests for rule waiver, renewals and spectrum leases in various radio services including Private Land Mobile, Microwave, Coast and Ground and Aircraft. His capabilities also include the preparation of tower registrations with the FCC and Obstruction Evaluations and Aeronautical Studies with the Federal Aviation...

Jim Baller Communications Attorney Keller & Heckman Washington, DC

James (Jim) Baller represents clients across the U.S. in a broad range of communications matters including high-capacity broadband network projects, public-private broadband partnerships, telecommunications, wireless facility siting, right-of-way management, pole and conduit attachments, and barriers to community broadband initiatives.

Jim was the founder and president of the U.S. Broadband Coalition, a diverse group of more than 160 communications service providers, high technology companies, labor unions, public interest and consumer groups, state and local government entities,...