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October 23, 2020

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Telecom Alert — Petition for Declaratory Relief for NHPA Violations; Broadband Pilot Program; Noncompliant Microphone NAL; 5G Fund for Rural America Eligibility Report; TV White Space Comment Deadline — Vol. XVII, Issue 15

Petition for Declaratory Relief for NHPA Violations

The Northwest Band of the Shoshone Nation (“Shoshone”) and the Skull Valley Band of Goshute Indians (“Goshute”) (collectively, the “Tribes”) filed a joint Petition for Declaratory Relief asking the FCC to issue a ruling that Uintah Basin Electronic Telecommunications, LLC (d/b/a/ Strata Networks) violated the National Historic Preservation Act (NHPA) in erecting communications towers.  Specifically, the Tribes allege that Strata Networks violated Section 106 of the NHPA by constructing at least five towers since 2001 without completing the tribal consultation process.  The Tribes ask the Commission to order the towers to immediately cease operations, be deenergized, and have their radio station antennas removed.  Alternatively, the groups ask the Commission to investigate the facts and circumstances surrounding the towers’ construction before making a decision.  

$500 Million Broadband Pilot Program

Last week, Reps. Bill Johnson (R-OH) and Rob Wittman (R-VA) introduced the Serving Rural America Act, which would create a five-year, $500 million pilot grant program aimed at expanding broadband service to unserved areas of the country.  The FCC would administer the program and prioritize funding to areas without speeds of at least 25Mbps/3Mbps.  To be eligible for the program, an internet service provider would be required to partner with a locality, city, county, wireless authority, or planning district commission to ensure the needs and input of residents are included. 

$600K Penalty Proposed for Sale of Noncompliant Microphones

The FCC’s Enforcement Bureau issued a Notice of Apparent Liability for Forfeiture on April 3, proposing a $685,338 penalty against Sound Around, Inc. for allegedly marketing noncompliant models of wireless microphones.  In 2019, the FCC found that Sound Around marketed 32 models of wireless microphones that either were operating on frequencies without authorization or were not certified with the Commission.  Sound Around was initially cited in 2011 by the Commission for marketing microphones that could operate in restricted frequency bands as well as the 700 MHz frequency band, where they were no longer authorized to operate in the United States.  The FCC proposed a base forfeiture of $224,000 and significantly increased it due to Sound Around’s repeated and continuous marketing of the devices and the egregious threats to public safety that two models posed.  

5G Fund for Rural America Eligibility Report

The FCC released a Report last week that outlines how the proposed 5G Fund for Rural America (Vol. XVII, Issue 14) would determine states’ eligibility.  The Notice of Proposed Rulemaking would seek comment on two different approaches: one using currently available data to start an auction in 2021, and a second option which would wait for new mobile broadband coverage data and begin the auction no earlier than 2023.  If an auction proceeds in 2021, the top five states in terms of land percentage that would be eligible would be Nebraska, North Dakota, South Dakota, Montana, and Wyoming.  The top five states in terms of population percentage would be Vermont, Maine, Montana, North Dakota, and South Dakota.  

TV White Space Comment Deadline

The Notice of Proposed Rulemaking seeking changes to the FCC’s White Space device rules was published in the Federal Register on April 3 (Vol. XVII, Issue 9), setting the comment and reply comment deadlines for May 4 and June 2 respectively.  The NPRM, which the Commission adopted at its February Open Meeting, proposes allowing higher transmit power and antenna height above average terrain for White Space devices to reach users at greater distances.  Additionally, it would require minimum separation distances from protected services in the TV bands for white space devices operating with higher power and antenna height.  

© 2020 Keller and Heckman LLPNational Law Review, Volume X, Number 104



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 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,...