What to Expect at the FCC’s June 2017 Open Meeting

iStock_000006131068MediumThis is Kelley Drye’s preview of the items under consideration at the Federal Communication Commission’s (FCC’s) upcoming monthly Open Meeting, to be held on June 22, 2017.  Chairman Ajit Pai continues to schedule a large number of items each month, reflecting an ambitious agenda for the agency.  Indeed, for the fifth month in a row, the Commission has six or more items on its agenda.  This month, the agenda consists of seven items; three Notices of Proposed Rulemaking, one Notice of Inquiry, two final actions and one enforcement item.  The topics are varied this month, with at least one item from every Bureau except the Wireless Telecommunications Bureau.

Each agenda item is summarized below.  Note: these brief summaries are based on draft items, which may differ from the final items released following the Open Meeting.  Please check with Kelley Drye after the meeting for more information on the items below.


“Blue Alerts” Notice of Proposed Rulemaking (NPRM)

Chairman Pai has set forth a proposal to amend the Commission’s Emergency Alert System (EAS) rules to add a dedicated event code, “BLU,” for “Blue Alerts.”  This is modelled on the highly successful Amber Alerts used during instances of child abduction.  Blue Alerts would notify the public when there is actionable information related to a law enforcement officer who is missing, seriously injured or killed in the line of duty, or if there is an imminent and credible threat to an officer.  The Department of Justice has previously identified the need for a dedicated Blue Alert EAS code.  The Commission is proposing that any required technical changes to equipment be made within 6 months of the effective date of the rules.

The Commission seeks comment on several issues, including the effectiveness of the EAS to deliver Blue Alerts, whether Blue Alerts can be sufficiently geographically targeted, how Blue Alerts can be incorporated into states’ existing Blue Alert plans, the proposed alerts’ costs and benefits, and how the public will likely respond to Blue Alerts.


Report and Order on FirstNet Opt-Out Plans

Under the Middle Class Tax Relief and Job Creation Act of 2012, states that are opting out of the First Responder Network Authority’s (FirstNet’s) national plan are required to obtain FCC approval for their own radio access network (RAN) plan.  The FCC will determine if the plan meets interoperability requirements.  If the FCC rejects a state’s alternative plan, the state must accept FirstNet’s plan.

The draft Report and Order gives states 90 days following receipt of FirstNet’s plan to notify the Commission, FirstNet, and the National Telecommunications and Information Administration (NTIA) of their decision to opt-out of FirstNet’s plan.  After notifying all parties of its decision, a state has 180 days to conduct an RFP process (including picking a winner), and then an additional 60 days to further develop the alternative plan it must submit to the FCC.

States’ alternative plans must address the RAN construction, maintenance, operation, and improvements on the existing state RAN.  They must also address interoperability requirements, and all requirements of the Technical Advisory Board for First Responder Interoperability.  The FCC establishes for itself an “aspirational” 90-day shot clock to review states’ alternative plans.  This review will solely focus on the RAN elements, and will not include elements related to user equipment, or issues related to coverage or financing.  The Commission believes these other factors will be adequately addressed by NTIA’s subsequent review.


NPRM on Law Enforcement Accessing Caller ID Information

This NPRM would allow law enforcement and interested parties to have quick access to blocked caller information in cases of threatening phone calls.  The Commission argues that threatening callers have no legitimate privacy interest.  The Commission has previously found public interest reasons to waive the rules, such as calls to 911, a poison control line, or other public emergency lines.

The rules propose to define a “threatening call” as any call that includes a threat of serious and imminent unlawful action posing a substantial risk to property, life, safety, or health.  The Commission seeks comment on whether it should require anyone reporting a threatening call do so in conjunction with a law enforcement agency, to prevent individuals from circumventing existing caller ID privacy protections.  The Commission also asks what requirements it should impose on recipients of caller information to safeguard it.

This NPRM follows an earlier waiver of the rules following a series of bomb threats against Jewish community centers across the country.


Order and Declaratory Ruling on WorldVu Satellites Limited, d/b/a OneWeb’s Request to Launch an NGSO Constellation for Broadband Service

In a draft Order and Declaratory Ruling, the Commission proposes to grant OneWeb access to the U.S. market with a proposed Ku- and Ka-band non-geostationary-satellite orbit (NGSO) constellation in the fixed-satellite service (FSS) to provide broadband service.  This would be the first Commission approval of an anticipated new generation of NGSO constellations that seek to provide low latency broadband connectivity across the United States and enhance prospects for rural broadband access.  Eleven other applications were filed in November 2016 in response to the processing round initiated when the FCC put the OneWeb petition for U.S. market access on public notice in July 2016. Those applications remain pending and would not be affected by adoption of the draft Order, although ten of the eleven applications were accepted for filing on May 26, 2017.

The proposed grant to OneWeb of U.S. market access would be conditioned on, among other things, ITU coordination, power limits, avoidance of in-line interference, orbital debris mitigation, the outcome of pending and future rulemakings, and satisfaction of bond and milestone requirements.

The draft Order would grant OneWeb several waivers.  OneWeb seeks waivers to operate on a non-interference, secondary basis in the 17.8-18.3 GHz band (not allocated for FSS operations) and the 18.3-18.6 GHz band (allocated for FSS operations, but not NGSO systems).  OneWeb also seeks a waiver allowing shared operations between OneWeb and other NGSO constellations in the 17.8-18.6 GHz, 27.5-28.6 GHz, and 29.5-30 GHz bands via in-line interference avoidance procedures rather than the existing band-splitting requirements.


Notice of Inquiry (NOI) Broadband Deployment in Multitenant Buildings

The Commission will consider a Notice of Inquiry seeking comment on ways to facilitate greater consumer choice and broadband deployment in multitenant environments (e.g., apartment buildings, condominium facilities, shopping malls)(MTEs).

In 2000, the FCC prohibited common carriers from entering into contracts that restrict owners and managers of commercial multitenant buildings from permitting access to competing carriers, and in 2007 expanded those rules to apply to multichannel video programming distributors (MVPDs).

In this NOI, the Commission asks whether there are any state and local regulations that may inhibit broadband deployment and competition in MTEs and whether the Commission should revisit an earlier decision not to prohibit MVPDs from entering into exclusive marketing and bulk billing arrangements.  The FCC also seeks comment on several issues about revenue sharing agreements and exclusive wiring arrangements.  The Commission also invites comment on its legal authority to address the issues raised in the NOI.


NPRM and Order to Modernize Payphone Compensation Rules

Chairman Pai circulated a Notice of Proposed Rulemaking and Order that would begin the process of eliminating the payphone call tracking system annual audit requirement and associated reporting requirement.  Given the decline in payphone usage, the NPRM and Order is intended to eliminate requirements that are no longer necessary.  The Commission also waives the 2017 audit and associated reporting requirement for the interim period while it considers the NPRM.


Enforcement Bureau Order

The Commission will consider an Enforcement Bureau order, which will remain confidential until the day of the meeting.


Deleted Item:

On Monday, June 19th, the Commission adopted and removed the following item from its agenda.   The final text of the item was not available at the time this advisory was published.

Declaratory Ruling on Delivery of Cable Operators’ Annual Notice

The Commission adopted a Declaratory Ruling granting a 2016 petition by the National Cable & Telecommunications Association and the American Cable Association to clarify that the “written information” that cable operators must annually provide to their subscribers under FCC rules can be provided via e-mail.

All parties in the record agreed that e-mail delivery would satisfy this obligation.  Under the text of the public draft, the Commission will require that the cable operator use a “verified” email address, which must satisfy one of the following criteria: (1) an e-mail address that the customer has provided to the cable operator (and not vice versa) for purposes of receiving communication, (2) an e-mail address that the customer regularly uses to communicate with the cable operator, or (3) an e-mail address that has been confirmed by the customer as an appropriate vehicle for the delivery of notices.  If no verified e-mail contact information is available for a particular customer, cable operators must continue to deliver the annual notices via paper copies.

The FCC declines to allow cable operators to meet this obligation by providing a link to a publicly available website within a customer’s bill.

Connect with Kelley Drye at next Presidio Forum on IoT Security in San Francisco on June 20

Kelley Drye is excited to support the next Presidio Forum on “Securing (and Regulating) the Internet of Things: Policy, Innovation & Investment,” in San Francisco on June 20, 2017.  The forum will present a candid discussion exploring today’s expanding IoT threat landscape, continued rise of regulatory interests and the increasing venture capital investment for IoT Security entrepreneurship.  John Heitmann, chair of the Communications Group, and associate Jameson Dempsey will both be speaking.  Other speakers include Marc Rogers, Head of Information Security & IT for Cloudflare, Dmitry Dain, Co-Founder Virgil Security, and Nils Puhlmann, Co-Founder of Cloud Security Alliance.  To register click here.  The event is free to attend.  Please contact John or Jameson if you have any questions about the event.

FCC Amends NAL in Rural Healthcare Proceeding, Increases Proposed Fine

CashIn the first action of its kind, on June 7, 2017, the Federal Communications Commission (“FCC”) issued an amendment to a Notice of Apparent Liability for Forfeiture and Order (“NAL”), for alleged violations of the rules governing the Universal Service Rural Health Care Program (“RHCP”). The FCC found that the fine proposed in the initial NAL was not based on the correct violations and included violations beyond the agency’s one-year statute of limitations.  However, by changing the type of conduct found to violate the RHCP rules and increasing the proposed fine, the FCC’s amendment presents its own statute of limitations concerns and raises questions about the use of amendments in enforcement actions.  The amendment also is the first foray by Chairman Pai into Universal Service enforcement matters since he assumed the chairmanship in January of this year.

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Carpenters, Carriers, and Cell-Sites (Oh My!): SCOTUS to Hear Mobile Locational Privacy Case

Pole-2On June 5, 2017, the United States Supreme Court granted cert in Carpenter v. United States, a case in the hotly contested area of mobile cellular location data privacy.  The question before the Court is whether law enforcement must obtain a warrant for historical cell-site location information.

The case stems from 2014, when Timothy Carpenter was sentenced for his alleged role in coordinating a series of armed robberies of smartphone vendors.  To support its case, law enforcement obtained access to 127 days’ worth of Mr. Carpenter’s cell-site location records through what is commonly referred to as a “D order” (after the subsection of the act under which the records were requested).  Whereas warrants require the government to show probable cause, under the Stored Communications Act, a D order merely requires that law enforcement present “specific and articulable facts showing that there are reasonable grounds to believe” that the records requested “are relevant and material to an ongoing criminal investigation.”  18 U.S.C. § 2703(d).  Continue Reading

Commission Resolves Long-Pending Stratos and Morris USF Contribution-Related Petitions

In orders issued last week, the Federal Communications Commission (Commission) continues what appears to be a trend of resolving long-pending universal service fund (USF) contribution issues.  The Orders, released May 23, 2017 and May 24, 2017 by the Commission’s Wireline Competition Bureau (Bureau), ruled on petitions filed by, respectively, Morris Communications, Inc. (Morris) and Stratos Government Services, Inc. (Stratos).  The Morris Decision provided a Morris a partial victory with the Bureau denying Morris’ request to reverse a Universal Service Administrative Company (USAC) decision regarding unpaid USF contributions but granting Morris’ request that associated late payment fees be recalculated.  The Stratos Decision clarified that the USF contribution exemption for entities that provide service exclusively to public safety and government entities does not apply to subcontractors providing such services.  These and other recent decisions may signal – at least for USF contribution-related issues – a Commission focus on clearing out the backlog of long-pending petitions. Continue Reading

Blackburn Introduces Sweeping Internet Privacy Reform Legislation

On May 19, 2017, House Communications and Technology Subcommittee Chairman Marsha Blackburn (R-TN) introduced the Balancing the Rights of Web Surfers Equally and Responsibility Act of 2017 (the Browser Act or the bill), which overhauls privacy requirements for both Internet service providers (ISPs) and edge providers (e.g. Facebook, Netflix) (collectively, service providers).  The bill adopts policies similar to the broadband privacy rules adopted by the Federal Communications Commission (FCC or the Commission), which were overturned by a Congressional Review Act resolution in late March of this year.

The Browser Act would require service providers to provide their users with notice of the provider’s privacy policies; require user opt-in for sensitive information and an opt-out option for non-sensitive information; prohibit the conditioning of service on waivers of privacy rights; and specifically authorize the Federal Trade Commission (FTC) to oversee the privacy practices of ISPs.  Co-sponsor Rep. Brian Fitzpatrick (R-PA) said in a statement the bill is intended to “introduce comprehensive internet privacy legislation that will more fully protect online users in their use of Internet service providers, search engines and social media.”  The bill is likely to face an uphill battle in both the House and the Senate, and has drawn mixed reviews from industry and public interest groups.

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Split FCC Proposes Rural “Rate Floor” Reform

iStock_000006131068MediumOn May 18, 2017, at its May Open Meeting, the Federal Communications Commission (“FCC”) adopted a Notice of Proposed Rulemaking and Order on a two-one vote, seeking comment on whether it should reform the so-called rural “rate floor” on basic voice service or eliminate it entirely.  The rural rate floor rule requires carriers receiving Connect America Fund support to charge rural customers a minimum monthly rate or risk losing subsidies.  The FCC imposed a two-year freeze on the rural rate floor to provide it with sufficient time to consider the proposed reforms.  The rulemaking is yet another reversal of a policy supported by former FCC Chairman Wheeler, which current Chairman Pai dissented from as a Commissioner, and represents another step by the Pai FCC to roll back its predecessor’s actions.

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That Won’t Fly: The D.C. Circuit Strikes Down the FAA’s Registration Regime for Recreational Drones

Last week, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) struck down an FAA regulation that required the owners of small Unmanned Aircraft Systems (“UAS”) to register with the agency (the “Registration Rule”).

In 2012, Congress passed the FAA Modernization and Reform Act (“FMRA”), which prohibited the FAA from creating “any rule or regulation regarding a model aircraft.”  Under the FMRA, a model aircraft is a UAS that is:

  • capable of sustained flight in the atmosphere;
  • flown within visual line of sight of the UAS operator; and
  • flown for hobby or recreational purposes.

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Divided FCC Begins Proceeding to Revise Internet Oversight Policy, Reverse Many “Open Internet Order” Decisions

laptop  On May 18, 2017, at the Federal Communications Commission’s (“FCC” or “Commission”) May Open Meeting, the Commission adopted, on a two-one vote, a notice of proposed rulemaking (“NPRM”), titled “Restoring Internet Freedom,” that would negate and replace the Commission’s 2015 Open Internet Order, which the NPRM refers to as the “Title II Order.”  This action begins a process that re-ignites differences between the Republicans and lone Democrat on the Commission, and signals that the effort to repeal the rules will be bumpy.  Despite all the immediate public interest and controversy surrounding the proposal, however, the notice and comment process initiated looks to take at least four months before any rule changes can be adopted, and likely several months after that before they take effect.  There are also other legal avenues that could impact the network neutrality debates—the Supreme Court could review a previous D.C. Circuit decision to uphold the Title II Order, or Congress could intervene by writing an update to the Communications Act or FTC Act that would reconsider FCC jurisdiction over Internet access services.  Either action could moot the proceeding begun today.

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FCC Takes No Enforcement Action Despite Report Finding that Avoidable Failures Led to AT&T Mobility 911 Outage

911-emergency-service-777x437  On May 18, 2017, at the Federal Communication Commission’s (“FCC” or “Commission”) May Open Meeting, the Public Safety and Homeland Security Bureau (“Bureau”) presented its final report on its investigation into the VoLTE 911 outage experienced by AT&T Mobility (“AT&T”) on March 8, 2017 (“the Report”).  The Bureau offered a strong critique of AT&T, concluding that the outage could have been avoided had AT&T adopted network reliability best practices previously recommended by an FCC advisory committee.  Despite the criticism, however, neither the Bureau nor the Commissioners made any mention of possible enforcement action against AT&T for the outage — at least not at this time.

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