Comment Deadlines Set for FCC Rulemaking Seeking to Expedite the Team Telecom Application Review Process

As Kelley Drye reported in an earlier post, the Federal Communications Commission (FCC) is moving quickly on efforts to expedite review of certain FCC applications, including, but not limited to, Section 214 and submarine cable-related applications, by the Executive Branch agencies known as Team Telecom.  In a May 2016 request to the FCC, the National Telecommunications and Information Administration (NTIA) suggested applicants be required to include information addressing several topics typically reviewed by Team Telecom and make certain compliance certifications in initial application filings.  In response to NTIA’s Request, the FCC released a Notice of Proposed Rulemaking (NPRM) in June, seeking comment on a number of issues such as the confidentiality of application information, timeframes for Applicant responses to Team Telecom questions, exemptions for Applicants with existing mitigation agreements and the scope of the proposed application information requirements.  See our post on the NPRM for additional details.

The NPRM was published yesterday in the Federal Register resulting in a comment date of August 18, 2016 and a reply comment date of September 2, 2016.  All industry participants contemplating actions requiring applications impacted by the proposed rules should consider if they want to share their views on whether the proposed rules will expedite and clarify the Team Telecom review process or if the burdens will outweigh the benefits.

Should you have any questions about this proceeding and what the proposed rules may mean for your business, feel free to contact a member of Kelley Drye’s Communications practice group.

The Month in FCC Enforcement: June 2016

As this blog has frequently covered, FCC Enforcement has been a significant and controversial area under Chairman Wheeler.  We have seen a trend toward higher profile enforcement actions, often with proposed fines in the tens of millions of dollars, and settlements with stricter terms than in the past.  In this podcast, partner Steve Augustino introduces a new monthly Kelley Drye Full Spectrum series in which we will examine two or three interesting actions recently released by the FCC.  This episode features an “Order to Pay or Show Cause” directed to LDC Telecommunications, a Consent Decree with Puerto Rico Telephone Company and America Movil involving foreign ownership restrictions, and a Consent Decree with General Communication, Inc. regarding a 911 outage. Listen to the episode here.

Details of Mandatory Network Outage Obligations for Submarine Cable Operators Released

As we noted in a prior post,  on June 24, 2016, the Federal Communications Commission (Commission) adopted new mandatory network outage reporting requirements for submarine cable licensees.  The Commission’s Submarine Cable Network Outage Reporting Order (Order), released Tuesday, identifies Commission expectations and provides exact rule language for the reporting requirements which had been described at only a high-level during the Commission’s June Open Meeting.  The reporting requirements apply to all submarine cable licensees and will become effective six months after Office of Management and Budget (OMB) approval.  While the OMB approval process could extend for several months or more, affected submarine cable licensees should familiarize themselves with the reporting rules and begin developing internal mechanisms and procedures to ensure compliance once the rules become effective.

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D.C. Circuit Affirms FCC’s Net Neutrality Order

On June 14, 2016, the United States Court of Appeals for the D.C. Circuit upheld the FCC’s 2015 Open Internet Order, which classified broadband Internet access service (BIAS) as a “telecommunications service” under Title II of the Communications Act of 1934, and imposed on providers a slate of “open Internet” and traditional common-carrier regulations. In this podcast, Jennifer Holtz and Jameson Dempsey, associates in Kelley Drye & Warren’s Communications Group, review the challenges to the FCC’s order, and unpack the decision and its reasoning. Listeners should also check out our client advisory on the decision.

Listen to the podcast here and subscribe to Kelley Drye’s Full Spectrum podcasts to keep up to date on the latest trends and topics in communications.

FCC Issues Declaratory Ruling That the Federal Government and Contractors Acting Within Agency Scope Are Not Subject to the TCPA

On July 5, 2016, the FCC issued a Declaratory Ruling in which it determined that the Telephone Consumer Protection Act (TCPA) “does not apply to calls made by or on behalf of the federal government in the conduct of official government business, except when a call made by a contractor does not comply with the government’s instructions.”  The Commission based the decision upon its finding that the federal government is not a “person” as defined in section 227(b)(1) of the Communications Act, and therefore is outside the TCPA’s scope.  The order specifically responds to petitions filed by three government contractors seeking such a ruling.  The Commission further noted that its conclusion was bolstered by the Supreme Court’s recent ruling in Campbell-Ewald Co. v. Gomez, in which the Court held that derivative sovereign immunity may be available for government contractors under certain circumstances.

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FCC Proposes Rules to Expedite Initial Stages of the Team Telecom Application Review Process

World Global ConnectionsThe Federal Communications Commission (“Commission” or “FCC”) is looking to jump start the initial steps of the Executive Branch process of reviewing certain applications, including Section 214 and submarine cable-related applications.  In a May 2016 request from the National Telecommunications and Information Administration (“NTIA”), NTIA proposed rule changes designed to facilitate more rapid opening stage review by the Executive Branch agencies known as Team Telecom (which includes the Departments of Justice, Homeland Security, Defense, Commerce, State, Federal Bureau of Investigation, and United States Trade Representative) of certain applications.  Toward that end, last Friday, the FCC adopted a Notice of Proposed Rulemaking (“NPRM”) soliciting comments on rules to expand the information required when certain applications are filed.  The proposed rules would potentially have broad applicability, including some rules extending to applications lacking traditional levels of reportable foreign ownership.  Both domestic and international carriers and submarine cable operators should review the NPRM to determine if participation in the proceeding would advance their interests.  Comments and reply comments will be due, respectively, within 30 and 45 days of NPRM publication in the Federal Register.

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FCC Imposes Mandatory Network Outage Reporting Requirements on Submarine Cable Licenses

World Global ConnectionsThe Federal Communications Commission (Commission) today adopted  mandatory network outage reporting requirements for submarine cable licensees less than a year after proposing to do so.  This mandatory reporting reflects a significant change from the voluntary submarine cable outage reporting system currently in place.  The new rules will apply to all submarine cable licensees, regardless of when they obtained their licenses, and licensees potentially will have only a six (6) month transition period before the reporting requirements take effect.  Therefore, every any submarine cable license holder should be sure to familiarize itself with the new rules and implement compliance procedures.

The text of the Order has not yet been released – so any information will be preliminary pending issuance of the Order and rules – but the discussion at today’s Commission Open Meeting provides insight into some of the new rules.  Industry advocacy appears to have been influential in convincing the FCC to soften some of the more burdensome reporting timelines although it is uncertain if efforts to reduce onerous report contents were equally successful.  In addition, the Commission stated it will open a proceeding, in three years, to revisit the reporting requirements.  Accordingly, licensees may have another opportunity to make their views known and possibly to shape the reporting requirements going forward.

Reportable Outage Threshold Extended – In Part

As proposed, licensees will have to report network outages, possibly including planned outages, of a qualifying portion of a cable system lasting more than thirty (30) minutes regardless of whether traffic can be rerouted. The trigger for reporting failure or significant degradation of a cable lasting at least four hours will trigger a reporting obligation.  However, whether the final definitions of “outage,”  “failure,” and “degradation” reflect the NPRM’s proposed definitions will remain unknown until the Order is released.

Increased Reporting Deadlines

The Commission has retained the proposed three-part reporting structure similar to existing network outage reporting regime for other communications providers.

  • For outages occurring during the first three (3) years after the rules take effect, initial reports must be submitted within eight (8) hours of the licensee identifying a reportable outage event. This timeframe marks a significant increase in time from the NPRM’s proposed two (2) hour initial report deadline.  After the first three (3) years, the time to file the initial report will be halved to four (4) hours.
  • Interim reports will be due within 24 hours of the licensee receiving a cable repair plan providing the projected cable restoration timeline and identifying any logistical challenges. This interim reporting schedule represents a substantial increase from the Commission’s initially proposed two (2) hour interim reporting timeline.
  • The final report due date remains unchanged from the NPRM proposal and will be due within seven (7) calendar days after the cable is repaired.

The enlargement of the initial and interim reporting deadlines appears to address, to some extent, licensee concerns that they simply would not have all of the proposed outage report information, such as the root cause of the outage, within the proposed shorter deadlines.  However, until the final rules are released, it is not certain exactly what information will be required for each of the reports.
The Commissioners and the Chairman generally noted the critical importance of submarine cable systems to issues such as communications, national security and the global economy, , however, the 3-2 split with Commissioner’s Pai and O’Rielly dissenting, was not unexpected.  Both Pai and O’Rielly strongly criticized various aspects of the Order with Commissioner Pai detailing numerous errors in the cost benefit analysis of the new rules and Commissioner O’Rielly questioning the reporting trigger timeframes.

The Order should be released in the near future and Kelley Drye will provide a more detailed review once the text is available.

Client Advisory: D.C. Circuit Upholds FCC’s Net Neutrality Rules

On June 14, 2016, the United States Court of Appeals for the D.C. Circuit upheld the Federal Communications Commission’s (FCC’s or Commission’s) 2015 Open Internet Order (2015 Open Internet Order), which classified broadband Internet access service (BIAS) as a “telecommunications service” under Title II of the Communications Act of 1934, as amended, and imposed a slate of “open Internet” and traditional common-carrier regulations on BIAS.  The 2015 Open Internet Order was the Commission’s third attempt at imposing Open Internet regulations, after the first two attempts were overturned by the D.C. Circuit.  Although additional appeal options are available, this decision is likely to hold and it removes substantial doubt about the Commission’s efforts to regulate BIAS.  In the short term, the decision is likely going to embolden the Commission to undertake enforcement actions under its Open Internet rules, and pursue its rulemaking proceeding on broadband privacy rules. The Commission also will likely begin looking at other broadband practices, such as its ongoing inquiry into the zero-rating practices of various BIAS providers.  As a result, BIAS providers should review carefully their practices and policies to ensure compliance with the Commission’s newly affirmed rules.

To see our full client advisory please click here. If you have any questions about the open Internet rules or the decision, feel free to reach out to the authors of this blog post or your usual Kelley Drye contact for more information.

FCC Enforcement: A Year in Review

New Enforcement Bureau Chief, Travis LeBlanc, took the FCC by storm when he assumed his position in 2014.  In this podcast, Communications partner Steve Augustino provides a review of LeBlanc’s second year running the Enforcement Bureau.  Mr. Augustino addresses the trends in enforcement over the past year and the emergence of an unlikely critic of the FCC’s enforcement practices.  Listen to the full podcast here.  Subscribe to Kelley Drye’s Full Spectrum podcasts to keep up to date on the latest trends and topics in communications.

D.C. Circuit Upholds FCC’s Open Internet Rules

iStock_000008141839LargeIn a 2-1 decision, the D.C. Circuit’s Court of Appeals upheld the Federal Communications Commission’s (FCC or Commission) 2015 Open Internet rules, which reclassified Broadband Internet Access Services (BIAS), including mobile broadband, as telecommunications services subject to Title II common carrier regulations, as well as its rules against blocking, throttling, paid prioritization and enhanced transparency.

We are in the process of reviewing the decision and will circulate a client advisory in the coming days.  In the interim, please contact John Heitmann or Jennifer Holtz with any questions.