Rinehart’s Regulatory Review June 2017, by Bette Rinehart

FCC Establishes Process for State “Opt-Out”

On June 19, FirstNet announced that it would be delivering to each state, via web portal, its proposal describing how it intends to build out the Radio Access Network (RAN). States will have 45 days to review the proposal and exchange feedback to FirstNet before the 90 day response period begins.  States who opt out of the FirstNet plan must submit their proposal to develop a state RAN to the FCC for that agency’s approval.  To get FCC approval, the state-proposed RAN must interoperate with the FirstNet broadband network.

This month the FCC established the timeline and process by which a state will notify the Commission of the decision to opt out as well as the FCC’s review process.

In the Report & Order the FCC determined:

  • FirstNet must notify the FCC of the date on which plans are delivered to a state or states
  • FCC must issue a Public Notice announcing the deadline by which the state or states must provide opt out notifications to FirstNet, NTIA and the FCC
  • States will have 90 days after receiving the final plan to review the FirstNet proposal and either accept it or opt out and build their own RAN.
    • Opt Out Notice must include certification that NTIA and FirstNet were notified
    • A special email address will be established for this purpose
  • Either the Governor or a designee may provide the notice
    • Governor must provide written notice of the delegation of authority
  • After opting out, the state has 180 days to:
    • Develop and issue an RFP providing for full deployment of the state RAN (not just development of a plan),
    • Receive firm bids in response to the RFP
    • Select a winning bidder
  • After selecting a winning bidder, the state has an additional 60 days to finalize their opt out plans
  • Opt out plans must be filed with the FCC within 240 days of the opt out notification
    • Filers may request confidential treatment of their Plan
  • Plans must address:
    • The four general subjects identified in the Act – construction, operation, maintenance and improvements of the state RAN
    • The two interoperability requirements set forth in the Act and
    • The Technical Advisory Board for First Responder Interoperability Report requirements for the RAN
  • The Plan must include a certification that the 180-day timeframe was met
  • The Plan must include a certification by the Governor or a designee, confirming the state’s adherence to FirstNet network policies relating to technical interoperability as well as to the Interoperability Board Report recommendations
  • Plans should follow the statute, have clear headers identifying each required element and an explanation as to how the state plan meets the requirements
    • Suggested headers are: Construction, Maintenance, Operation, Improvements of the RAN
    • Simply attaching the RFP will not be sufficient
  • Each filing will be treated as a separate restricted proceeding with the parties initially limited to the State, the NTIA and FirstNet
  • After the opt out period has elapsed, the FCC will release a Public Notice listing states which have opted out, each with a separate rulemaking proceeding
    • Parties other than the state, NTIA and FirstNet will have 30 days to ask to participate in the review of the state opt out plan.
      • Anyone making such a filing will have to explain why they are interested in the proceeding, how their participation would help the FCC in its review of the opt out plan and why their interests are not represented by either FirstNet, NTIA or the state.
  • The FCC will make an initial review (within 10 business days of filing if possible) of the opt out plans to ensure that they meet the filing criteria and issue one or more Public Notices announcing that the application has been “accepted for filing.”
    • The Accepted for Filing Public Notice will start the 90 day aspirational “shot clock” established by the FCC during which it must review and approve or dismiss the opt out plans
    • Within 15 days of the “accepted for filing Public Notice,” NITA, FirstNet and any others who have been granted party status in the proceeding must review and provide comments on the state opt out plan
    • The state will have 15 days to respond to any comments filed, by either amending their plan or filing reply comments
      • States may respond only to issues raised in Comments; they may not amend other areas of their plan
  • The FCC will suspend its 90-day “shot clock” only under special circumstances such as a national, state or local emergency that would require diversion of Commission resources to address the emergency.
  • FCC review of the opt out plans will be limited to:
    • The RAN elements (defined as cell site equipment, antennas and backhaul equipment) required to enable communications with subscriber devices using the PS broadband spectrum
    • Does the plan demonstrate compliance with the Interoperability Board’s requirements characterized as “SHALL”?
      • Those requirements were included in Attachment B of the Report & Order
  • The second prong of FCC review was to evaluate the interoperability of the state RAN with the PSBN.
    • FirstNet filed ex partes containing documents that they asked the FCC use when evaluating interoperability with the PSBN.
    • To obtain a full record, the Order requires the PSHSB to release a Public Notice providing a brief period for public comment on FirstNet’s proposals
    • Once the public input has been reviewed, the FCC will release a separate Order indicating which elements of the FirstNet proposal it will use to evaluate the opt out plans
  • States will not have to demonstrate interoperability in the field
  • FirstNet will not have to modify its network to suit a state plan
  • After completing the review of each state opt out plan received, the FCC will release a separate Public Notice for each request briefly describing the Commission’s decision.
  • NTIA will review elements related to coverage, financing, applications and equipment https://apps.fcc.gov/edocs_public/attachmatch/DOC-345465A1.pdfThe text of the Report & Order is available at: https://apps.fcc.gov/edocs_public/attachmatch/FCC-17-75A1.pdf

Comment Sought on FirstNet’s Ex Parte Filings Related to State Opt Out Plan Requirements

The FCC is seeking comment on two ex partes filed by FirstNet which outline requirements for state plans to meet the statutory requirement for interoperability with the National Public Safety Broadband Network (PSBN).  FirstNet has provided an interoperability compliance matrix for the FCC to use in its evaluation of state plans.

Comments are due July 17. The text of the Public Notice is available at:


Filing Window for 3650-3700 MHz Licensees to Provide Supplemental Information to Create a Grandfathered Protection Zone

In April the FCC released a Public Notice announcing the opening of a four month filing window during which existing 3650-3700 GHz licensees can provide additional information necessary to create a Grandfathered Protection Zone (GPZ) around sites registered in ULS as of April 17, 2015 and operational by April 17, 2016.

The Public Notice provides a list of the information that must be provided. The ULS has been amended to add a “3650” log in area at which the supplemental information can be filed.  Prior to accessing the system, licensees must register for an FCC User name and associate their FRN with that user name.

The FCC will be conducting webinars on how to use the 3650 GPZ registration tool. Dates and times for the webinars will be listed at www.fcc.gov/3650-3700-mhz-radio-service. That site will also provide links to recorded webinars and additional tutorials.

The filing window will close on August 7, 2017. Licensees who fail to provide the additional information by this date may continue to operate but will not be afforded interference protection from new Citizens Broadband Radio operations.

The text of the Public Notice is available at: https://apps.fcc.gov/edocs_public/attachmatch/DA-17-340A1.pdf

Comment Sought on Petitions for Rulemaking in 3 GHz Citizen’s Broadband Filed by T-Mobile and CTIA

The FCC is seeking comment on Petitions for Rulemaking filed in the 3 GHz proceeding (Docket 12-354) that established the Citizen’s Broadband Network. The Public Notice also referenced other ex parte filings in the proceeding that commenters might wish to address.

Comments are due July 24; Reply Comments are due August 8. The text of the Public Notice is available at:


IMSA Waiver Request to Delay 6.25 kHz Capability in Radios Denied

The FCC has denied a waiver request filed by the International Municipal Signal Association (IMSA) which sought to delay until January 1 2020, the requirement that radio equipment manufactured to operate in the VHF and UHF bands include a capability to operate at 6.25 kHz or equivalent efficiency.

After three delays, the 6.25 kHz requirement for equipment certification went into effect on January 1, 2015. IMSA filed its request for waiver in 2016.

IMSA had argued that enforcing the rule caused an increase in the price of radio equipment which, in turn, presented a financial hardship for buyers including volunteer fire companies and ski patrols. The Association argued that since public safety agencies need to continue to operate in analog mode on the interoperability and mutual aid frequencies, there is no need to mandate digital operation as well.  IMSA worried that imposing the 6.25 kHz capability in radios would lead to the proliferation of incompatible equipment, reducing interoperability.  They suggested that the FCC delay enforcing the 6.25 kHz equipment requirement until January 1, 2020 at which time the agency should re-examine the decision.

The Commission denied the waiver request, pointing out that it has repeatedly said that the conversion to 12.5 kHz (or equivalent) equipment was merely an interim step to the ultimate goal of 6.25 kHz or equivalent efficiency. Allowing equipment that is not capable of 6.25 kHz, would delay the eventual migration to 6.25. The FCC was also unpersuaded by IMSA’s cost argument noting that no supporting data was provided in the waiver request.  In response to the argument that the Commission had removed the 6.25 kHz transition deadline from the 700 MHz band, the agency stated that the 700 MHz general use band is administered regionally by Regional Planning Committee who have a better knowledge of local spectrum requirements and are in a better position to manage the transition to 6.25 kHz.  The decision did not foreshadow the removal of the 6.25 kHz requirement from other bands.

The text of the Order is available at: https://apps.fcc.gov/edocs_public/attachmatch/DA-17-632A1.pdf

Arizona Public Service Company Seeks Waiver of Mexican Border 800 MHz Application Freeze

Arizona Public Service Company (APSC), the largest electric service company in the state, has filed applications seeking to license a statewide 800 MHz trunked system. APSC’s current system relies on equipment that is no longer supported by the manufacturer, so the utility is proposing to deploy a new P25 system that will improve coverage.  To accommodate the new system, APSC will need to license additional 800 MHz frequencies.  APSC is located in NPSPAC Region 3 which is currently under an application freeze implemented by the FCC in order to preserve vacant 800 MHz frequencies that might be needed by incumbents to accomplish 800 MHz band reconfiguration in that Region.

To add the additional 800 MHz frequencies that it needs to accommodate the new system, APSC is seeking a waiver of the application freeze. In the Public Notice, the Commission points out that some of the frequencies requested by APSC are Expansion Band frequencies which are subject to a pending rulemaking.

Comment is sought on the waiver request, particularly from entities who would be impacted by a grant of the waiver. Comments are due July 31; Reply Comments are due August 15. The text of the Public Notice is available at:


Jamul Indian Village Development Corporation Informed of FCC Intention to Modify its 900 MHz License

Last June, the Jamul Indian Village Development Corporation (JIVD) was granted a license to operate a six frequency 900 MHz trunked system at Jamul, CA. The application was coordinated by the Wireless Infrastructure Alliance (WIA – formerly PCIA).  Two of the frequencies licensed to JIVD had been granted five days previously to Mark Abrams.  JIVD’s Jamul site is within 22 miles of Abrams’ Poway site.  When Abrams learned of the JIVD license, he asked his frequency coordinator to contact WIA to resolve the issue.  WIA took no action.  Abrams then filed a request with the FCC asking that JIVD’s license be modified to remove the two improperly short-spaced frequencies.  He argued that the JIVD application had faulty frequency coordination and that JIVD’s operations would cause harmful interference to his operations. The FCC agreed and issued an Order Proprosing Modification.  JIVD’s license will not be modified until JIVD has received notice of the FCC’s intent and the opportunity to file a protest.

The text of the Order Proposing Modification is available at:


Wireless Telecommunications Bureau Reminds Licensees of Construction Requirements

The Wireless Telecommunications Bureau has released a Public Notice reminding licensees of the requirement to construct communications facilities for which they hold licenses within the timeframe prescribed within the rules.

In the Public Notice, the Commission explained that construction requirements help promote its goals of making spectrum available to all the people of the United States. The Public Notice reiterated the agency’s commitment to facilitating deployment of broadband and other wireless services.

To that end, the FCC used the Public Notice to remind licensees that requests for extension of time to construct facilities are not routinely granted. Rule section 1.946(e) provides two instances under which an extension of time to construct may be granted: involuntary loss of the site or other causes beyond a licensee’s control.  The rule section specifically states that failure to obtain a transmitter site, failure to order equipment in a timely manner and failure to obtain financing are not grounds for a construction extension.

The Public Notice warned that the FCC would continue to carefully scrutinize requests for extension of time to construct to ensure that licensees were using spectrum in the public interest.

The text of the Public Notice is available at:


Addition of Blue Alerts to Emergency Alert System Proposed

The FCC is proposing to add an alert option to the Emergency Alert System (EAS) to aid law enforcement officers. The “Blue Alert” would be used to warn the public through TV, satellite, radio and wireless communications when a law enforcement officer was injured, killed, or missing in the line of duty.  The Blue Alert could also warn the public if there was a violent suspect in the area and would provide instructions on how to stay safe and what to do if the subject were spotted.

The Notice of Proposed Rulemaking (NPRM) seeks comment on proposals to amend the EAS to establish a dedicated Blue Alert event code that could be used by state and local officials to provide warnings to the public. Some states already have Blue Alert programs in place, but the NPRM would establish a nationwide framework that states could adopt.

Comments are due July 31; Reply Comments are due August 29. The text of the News Release is available at:


The text of the NPRM is available at: https://apps.fcc.gov/edocs_public/attachmatch/FCC-17-74A1.pdf

The text of the Public Notice announcing Comment and Reply Comment dates is available at:


Amtrak Part 15 U-NII Waiver Granted

The FCC has granted a request to waive certain sections of Part 15 filed by Amtrak last year. The waiver allows Amtrak to use 5.15-5.25 (U-NII-1) and 5.75-5.85 (U-NII-3) in its wireless trackside network (TSN) to provide high capacity broadband on the trains in the Northeast Corridor (NEC).

Because the Amtrak system is not a fixed point-to-point system while the train is traveling between stations, it must comply with the lower power limitations imposed on mobile operations. In its waiver, Amtrak sought regulation of its TSN under the technical rules imposed on fixed operations.

In granting the waiver, the FCC determined that Amtrak’s proposed use of the U-NII frequencies very closely resembled a fixed point-to-point network; the antennas are highly directional and Amtrak will operate only along a fixed path in a defined area.

The waiver is subject to the following conditions:

  • Total number of stations (both trackside and train-based) must be fewer than 1000
  • Stations may operate only within the right-of-way of the Boston-to-Washington, DC section of the NEC
  • No direct-to-consumer connections are allowed; communications permitted only from track-side stations to train-based stations
  • Equipment used must be certified as compliant with FCC’s technical rules for point-to-point operations
  • No data transmission from a trackside station unless a train is in position to receive the data transmission
  • No more than 50 train-based radios may transmit simultaneously along the entire Boston-to-DC area
  • Amtrak must report any cases of interference to the Commission and must cease operations until the interference is resolved.

The text of the letter to AMTRAK is available at:


FCC Chairman Pai Announces Appointments

During the month of June, FCC Chairman Ajit Pai announced appointments to four of the FCC’s Bureaus.

Fowlkes Named Chief of Public Safety and Homeland Security Bureau

Lisa M. Fowlkes was chosen to serve as Chief of the Public Safety and Homeland Security Bureau. Ms. Fowlkes had been serving as Acting Chief.

The text of the News Release is available at: https://apps.fcc.gov/edocs_public/attachmatch/DOC-345307A1.pdf

Stockdale to Lead Wireless Telecommunications Bureau

Donald Stockdale, an economist and attorney with extensive FCC and private sector experience has been named to become Chief of the Wireless Telecommunications Bureau.

The text of the News Release is available at: https://apps.fcc.gov/edocs_public/attachmatch/DOC-345365A1.pdf

Sullivan To Head International Bureau

Tom Sullivan, who had been serving as Acting Chief, was appointed Chief of the International Bureau. The text of the News Release is available at:


Harold Appointed Chief of Enforcement Bureau

Rosemary Harold, an attorney and former journalist, has been named to head the Enforcement Bureau. The text of the News Release is available at: