Posted By: Nick Miller, Partner, Miller & Van Eaton
The federal stimulus bill contains $7.2B for broadband projects to “unserved” and “underserved” populations.
You should push your IT and City management to apply for this money. This race will go to the swift. All local governments are defined as eligible entities for grants, either directly in combination with others in a joint application.
The money is split $4.7B in grants by the Department of Commerce, National Telecommunications and Information Administration (NTIA), and $2.5 B in grants, loans and loan guarantees by Department of Agriculture, Rural Utility Service (RUS).
The statutory mandates are different for the two agencies, with RUS money limited to projects that serve at least 75% “rural” areas, and NTIA grants intended to address “unserved” and “underserved” areas which don’t overlap with areas receiving RUS funds.
The NTIA money specifically is available to
1. Provide broadband education, awareness, training, access, equipment, “support” to schools and libraries, healthcare providers or “other community support organizations”; or
2. Facilitate greater use of broadband service by low-income. unemployed, aged, or “otherwise vulnerable populations; or
3. Improve access to, and use of broadband service by public safety agencies; or
4. Stimulate demand for broadband, economic growth and job creation
NTIA (not RUS) must award all of its money by September 30, 2010. And the NTIA projects must be completed within 2 years of grant award.
NTIA and RUS both anticipate working with the States to identify priority of the competing proposals.
On March 10, at 10 AM EST; Obama Administration officials plan a public meeting to discuss details and plans for seeking grant and loan proposals from eligible entities. The meeting will be streamed live over the internet.
More information is available at
If you download that presentation, you will see a full page of useful links for more information.
So get your folks going now, coordinate with your governor’s office, and be the first in line.
Posted by: Nicholas P. Miller, Partner, Miller & Van Eaton, PLLC
There was another pair of shoes thrown last week. It occurred in Washington DC, when leaders in Congress, not frustrated Iraqis, took aim at the Federal Communications Commission.
The current Chair of the FCC, Republican Kevin Martin, has been broadly attacked to the point of being investigated for manipulating FCC processes in ways inconsistent with the agency’s own rules and in ways designed to frustrate public participation and effective consideration by other commissioners [Link]. Congress reacted strongly to statements by the Chairman that “business would continue as scheduled” in regular Commission meetings in mid-December and mid-January. In a letter dated Dec. 12, 2008, and unlike any previous in my memory, presumed Senate & House Committee Chairs Senator Rockefeller (D-WV) and Henry Waxman (D-Ca) said: Stop the boat. Focus on the Digital TV transition. And stop trying to push through major policy changes as a lame duck Commission.
Chairman Martin finally conceded it was time to stop further major Commission actions until the Presidential Transition is completed and cancelled the December and January Commission meetings, although items could still be approved with written consent of the other Commissioners.
This concession means the FCC will not likely act on any major policy issues until the Obama administration designates a new FCC Chair. Congress will also have to confirm a fifth member to the FCC as Commissioner Deborah Tate must leave the Commission upon the swearing in of the 111th Congress. Until then the FCC will be stalemated 2-2..
So why does this “inside baseball” story matter to City Attorneys? Let me list the reasons:
• The wireless industry’s effort to get FCC preemption of local cell tower zoning is stopped dead, for now. (http://fjallfoss.fcc.gov/cgi-bin/websql/prod/ecfs/comsrch_v2.hts)
• The reconsideration petition filed by local governments challenging the Commission’s preemption of local cable franchising for incumbent cable operators is further deferred. (http://fjallfoss.fcc.gov/cgi-bin/websql/prod/ecfs/comsrch_v2.hts)
• The reallocation of telephone subsidies which support rural and high cost subscribers will be left to the next administration. (http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-08-262A1.pdf); and
• Most important, the 700 MHz or “D Block” public-private public safety interoperability auction rules remain undetermined. ( http://fjallfoss.fcc.gov/cgi-bin/websql/prod/ecfs/comsrch_v2.hts)
Later blogs will devote more time and comment to the 700 MHz D Block issue. For now, consider these orientation comments:
1. Would 1st Responders benefit from Broadband communications capabilities on every portable laptop in every emergency vehicle?
2. Would metropolitan areas and local governments benefit from broadband and interoperable mobile?
3. Would all citizens benefit from universally available and very fast wireless internet access?
4. Would inner city and under-served rural areas benefit from robust, high-speed internet access without the expense of building wires to every location?
Too good to be true? Not if the FCC sets the right rules for the merged construction and operation the 700 MHz D Block with the existing allocation of 700MHz wideband public safety spectrum which comes available in February 2009 after television broadcasters move from analog to digital transmission.
If the D Block is successfully merged into a common network with the public safety allocation, 20MHz of spectrum would be available nationwide. This is sufficient bandwidth to meet the entire wish-list above.
Unfortunately, economics and physics have a habit of intruding on wishlists. In this case, a nationwide system of antennae and network links must be built (estimated to cost at least $10 Billion). Reception devices (PC cards @ $50-$100 each) need to be provided to each user. And someone must operate the network.
The Public Safety wideband 10 MHz has been licensed to a national consortium of public safety operators. [www.psst.org] But that group, its member agencies, and state and local government in general, do not have the financial resources to build a nationwide wireless network. The FCC had a plan to do this. [In the Matter of Auction of the D Block License in the 758-763 and 788-793 MHz Bands, Order, 23 FCC Rcd 5421 (2008)] The FCC tried to auction the D Block to a private operator, with the requirement that the successful bidder would operate the D Block along with the 10 MHz of wideband spectrum already set aside for public safety. The FCC hoped the D Block bidder would build a single nationwide network, serving both private and public wireless users. No one accepted the offer.
So the FCC has been reconsidering how to structure a new auction of the D Block. And until the Congressional letter, the lame-duckedness of the current FCC created risks. Many private sector players are trying to get the FCC to adopt quick D Block auction rules, relieving the successful bidder of the most costly obligations associated with serving public safety and building a true nationwide system.
The freeze on major FCC actions stopped this raid on public spectrum. Now state and local governments must nail theses shenanigans permanently shut. We all will benefit from a broadband, nationwide, wireless system that is soundly financed, built universally and able to support all levels of local government requirements. Doing it right will resolve major public safety communications problems as well as major problems integrating rural areas and others into the national internet economy.
More later on how the D Block/Public Safety 20MHz system should be structured.
Posted By: Joesph Van Eaton, Partner, Miller & Van Eaton, PLLC
After February 17, 2009, full-power television broadcast stations must transmit only digital signals and may no longer transmit analog signals. 47 U.S.C. §§ 309(j)(14) and 337(e). Cable operators, however, are not bound by this statutory deadline, and many plan to convert the broadcast signals back to analog and deliver them to subscribers. This has several advantages for the cable industry: it means that cable operators can advise consumers that, as long as they subscriber to cable, they can receive service without being required to obtain a digital converter box. Several are doing just that.
However, many cable operators face another problem: they do not have enough capacity to respond to anticipated customer demand for Internet, phone service and video services. So at the same time some operators are trying to maintain a market advantage by delivering some channels in an analog format, they are trying to free up bandwidth by converting channels to a digital format (analog channels require more bandwidth to deliver).
While localities may find that many consumers are unprepared for the broadcast digital transition, the real legal headaches for local governments are arising as cable operators go through their own, partial digital conversion (caution: in some places all channels are being provided in a digital format, or all subscribers already are required to have converters. In those places, the changes described below have little effect):
– Some operators are converting public, educational and government (“PEG”) channels to a digital format. This means that the channels cannot be received without a converter box, or without a digital TV. A box is required for every set a subscriber wishes to use to view the channels. Subscribers are already paying for the PEG channels through rates, and often pay a fee to support the PEG channels. The result of the conversion: basic local information may be less accessible, or cost more to receive.
–Some operators are converting some commercial channels on the lowest tiers to a digital format. In communities that can still regulate cable rates this is significant, because the rate an operator is permitted to charge for a tier of service depends on the number of channels being delivered to subscribers. The legal question: should channels be counted as “delivered” if a subscriber must obtain special equipment to view them?
– There are reports that some channels are being converted to a digital format without any notice being given to subscribers. Those channels effectively “disappear” on analog sets. What rights does a consumer have to notice before that happens? Note that from a marketing standpoint, if an operator had to clearly notify subscribers as to plans for digitizing channels, some operators might lose marketing points that they are trying to capitalize upon.
The changes have already resulted in legal actions – with good results for many localities. A district court in Michigan issued a temporary restraining order and preliminary injunction that stopped Comcast from changing PEG channels to a digital format. The court recently denied in large part a Comcast motion to dismiss the complaint that had led to the injunction. In that same order, the court indicated that it would refer certain questions to the FCC for determination – including questions as to whether conversion of the PEG channels to a digital format violates federal laws and regulations. That may occur soon. The FCC has already issued one decision imposing penalties on Cox for delivering some channels in a switched digital video format. In re Cox Communications, Inc., Fairfax County, Virginia Cable System, DA 08-2299, EB-07-SE-351 (October 15, 2008); see also Public, Educational, and Governmental (PEG) Access to Cable Television Before the House Subcomm. on Financial Services and General Government, September 17, 2008 (statement of Monica Shah Desai, Chief of the Media Bureau Federal Communications Commission).
The efforts by incumbent operators like Comcast to shift PEG channels to a digital format, while delivering other channels in an analog format is of great concern to many in the municipal and PEG community. However, as troubling, if not more so, is the approach to PEG by AT&T on its U-Verse system. AT&T delivers video using Internet Protocol. Despite the difference in the delivery technology, most commercial channels are delivered in a manner which allows them to be selected and viewed in much the same way that commercial channels are viewed on traditional cable systems.
PEG access programming is not delivered via a channel. It is delivered via what AT&T calls its “PEG application.” When one tunes a converter to “99,” the PEG application starts. After a significant delay, the viewer is presented with a menu that lists all PEG channels for every community within the designated market area served by its system. In some areas, the DMA is large enough that the list could include dozens of channels. The viewer then must scroll through the list, and select a feed: what the viewer then receives is a streaming video feed that many claim is inferior in quality and functionality to regular commercial video channels carried on the system. Among other things, the AT&T PEG application does not support closed captioning services, or other basic functions that are provided for commercial channels AT&T offers for its profit. The California Public Utility Commission’s Division of Ratepayer Advocates issued a consumer advisory and posted a video demonstration of the AT&T system, links to which can be found here.
What is already clear is that local governments will have a significant interest in ensuring that these proceedings result in rules that protect local interests and consumers. The issues surrounding the PEG channel changes and the digital conversion on cable systems will be played out in the courts and before the FCC – and likely very soon. It may require concerted, joint actions by localities to prevail.