August 2017 FCC Meeting Recap: FCC Proposes Changes to Broadband Data Collection

At its August Open Meeting, the Federal Communications Commission (“FCC” or “Commission”) voted unanimously in favor of a Further Notice of Proposed Rulemaking (“FNPRM”) that explores ways to improve the value of data, collected on FCC Form 477, regarding the availability of mobile and fixed broadband and other communications services, and to identify and eliminate unnecessary or overly-burdensome filing requirements.  The FNPRM proposes numerous changes to data collection for mobile and fixed services as well as ancillary logistical issues related to the Form 477.  Comments on the proposals set forth in the FNPRM will be due 30 days after the item is published in the Federal Register, and reply comments will be due 15 days after initial comments.  The FNPRM has not yet been published so the exact comment deadlines are not known at this time.

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August 2017 FCC Meeting Recap: FCC Commences Major Study of Spectrum Management Issues Involving “Mid-Band” Frequencies

At its August Open Meeting, the Federal Communications Commission (“Commission” or “FCC”) unanimously initiated a major inquiry proceeding into what it labels “mid-band spectrum,” namely the frequencies between 3.7 GHz and 24 GHz.   The proceeding has major potential spectrum management ramifications for the coming years as the record developed could serve as a catalyst for future allocation and rule proceedings in a number of bands.  Recall that in late 2014, the Commission launched its Spectrum Frontiers inquiry proceeding into spectrum above 24 GHz, which led to an order adopting rules for flexible licensed and unlicensed use of almost eleven (11) gigahertz of spectrum in July 2016, and a further notice which may lead to as much as another eighteen (18) gigahertz becoming available in the near future.

In adopting its Notice of Inquiry (“NOI”), the Commission cited the need to meet “future demand” and the desire to “evaluate spectrum bands in all ranges.”  According to the Commission, in extremely general terms given the more than six-fold increase in wavelength between the bottom and top of the so-called “mid-band” range and the many pre-existing allocations throughout the range, these bands have better propagation characteristics (at least in some regards) than higher frequencies and hold out the promise for greater channel bandwidths than lower frequencies. Continue Reading

August 2017 FCC Meeting Recap: Commission Sets Reverse Auction Procedures for CAF Phase II Auction

At its August Open Meeting, the Federal Communications Commission (FCC) approved a Public Notice (“Notice”) that addresses the procedures for its upcoming Connect America Fund (“CAF”) Phase II auction (“Auction” or “Auction 903”), scheduled to begin in 2018. Auction 903 will be a competitive reverse auction wherein service providers will compete for up to $1.98 billion in financial support as part of an ongoing effort by the FCC to revise the high cost universal service support program. The Notice seeks comment on the FCC’s proposed process for how an applicant can become qualified to participate in the Auction, how bidders will submit bids, and how bids will be processed to determine winners and assign support amounts. Comments are due by September 18, 2017 and reply comments are due by October 18, 2017.

The Auction is the second part of CAF Phase II. The initial part of CAF Phase II occurred in 2015, when ten price cap carriers accepted offers of support calculated by a cost model in exchange for the providers’ commitment to deploy and maintain voice and broadband service in high cost areas. Service providers that seek to participate in the Auction will bid on providing service to eligible high cost areas including those areas where incumbent price cap carriers declined the support calculated by the cost-model. In 2016, the FCC adopted the Phase II Auction Order, which established the rules for the Auction’s bidding process including the bidder performance obligations, application mechanism, bidder eligibility criteria, eligible areas, and post-auction obligations. More recently, in March 2017, the FCC adopted bidding weights for the different performance category tiers for Auction 903 (as previously discussed here). The Notice takes final steps towards executing the Auction by resolving specific details of the mechanics established in these earlier proceedings.

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August 2017 FCC Meeting Recap: FCC Rings Up Another Spoofing Robocaller, Proposing Over $82 Million in Fines

As part of its August 2017 Open Meeting, the Federal Communications Commission (“FCC”) issued a Notice of Apparent Liability for Forfeiture (“NAL”) proposing over $82 million in fines against Philip Roesel and the insurance companies he operated for allegedly violating the Truth in Caller Act by altering the caller ID information (a/k/a “spoofing”) of more than 21 million robocalls in order to generate sales leads and avoid detection by authorities.  The FCC separately issued a Citation against Mr. Roesel and his companies for allegedly violating the Telephone Consumer Protection Act by transmitting the robocalls to emergency, wireless, and residential phone lines without consent.  The NAL and Citation represent just the latest salvos in the FCC’s continuing assault on robocalling in general and deceptive uses of spoofing in particular.  With $200 million in proposed fines in only two cases, it is clear that such issues will remain an enforcement priority under Chairman Pai.

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August 2017 FCC Meeting Recap: FCC Adopts Challenge Process for Billions in Mobility Fund Phase II Support

At its August 2017 Open Meeting, the Federal Communications Commission (“FCC”) unanimously adopted an Order on Reconsideration and Second Report and Order (“Order”) outlining a process to challenge the FCC’s determinations of which areas will receive financial support in the upcoming second phase of the Mobility Fund.  The Mobility Fund provides financial support to wireless service providers to maintain and extend mobile broadband and voice services in rural and other underserved areas.  As we previously reported, the FCC plans to give out over $4.5 billion in Mobility Fund Phase II financial support over the next ten years to expand 4G LTE coverage across the country.  The Order generally mirrors the discussion draft released last month, except that parties now have more time to submit challenges.  While the FCC plans to provide additional details about the challenge process over the next year, carriers interested in participating in the Mobility Fund Phase II should review the Order carefully and consider their challenge strategies.

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ITSPs and CMRS Providers Can Now Review and Revise FCC Annual Regulatory Fee Information; September Payment Deadline Not Yet Set

By Public Notice released Friday, the Federal Communications Commission (FCC or Commission) announced that Interstate Telecommunications Service Providers (ITSP) and Commercial Mobile Radio Service (CMRS) providers can now log in to preview the provider’s FY2017 regulatory fee data in the FCC’s Fee Filer system.  ITSPs and CMRS providers have limited time to request any revisions to the data on which fees are based and therefore are encouraged to review their proposed fee data in a timely manner.

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Enforcement Action in Focus: FCC Imposes Potential Liability on Technology Platforms for Involvement in Unlawful Robocalls

On July 26, 2017, the Federal Communications Commission (FCC or Commission) released the text of the Forfeiture Order adopted at the Commission’s July 2017 open meeting against Dialing Services, LLC for enabling unauthorized prerecorded message calls (a/k/a “robocalls”) by third parties to wireless phones in violation of the Telephone Consumer Protection Act (TCPA).  The Forfeiture Order is significant for a number of reasons – not the least of which was Republican Commissioner Michael O’Rielly’s strong dissent questioning the action’s legal and policy bases.  This marks the first time that the FCC has imposed liability on a company that enables robocalling campaigns by third parties, even when the company does not directly create the robocall messages or direct who will receive the robocalls.  Moreover, the Commission’s use of a different (and arguably lesser) standard than the “high degree of involvement” standard applicable to fax broadcaster liability could trigger a new wave of litigation for calling platform vendors and other applications that enable or permit mass calling or texting.

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New Podcast: Pai the Enforcer

When Ajit Pai was a Commissioner, he was a frequent critic of the FCC’s enforcement practice.  Now that Chairman Pai has led the FCC for six months, his approach to enforcement is coming into better focus.  In this episode of Kelley Drye’s Full Spectrum podcast, Kelley Drye enforcement attorneys Steve Augustino and Brad Currier discuss what we know and what we’re yet to learn about Pai, the Enforcer. To listen to this episode, please click here.

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

Below is Kelley Drye’s preview of the items under consideration at the Federal Communication Commission’s (FCC’s or Commission’s) upcoming monthly Open Meeting, to be held on August 3, 2017. Consistent with the trend since he took over the Commission, Chairman Ajit Pai continues to schedule a large number of items.  Indeed, for the seventh month in a row, the Commission has six or more items on its agenda.  This month, the agenda consists of eight items and has several items taking concrete steps to resolve proceedings or important questions presented to the Commission.  The areas covered skew heavily toward broadband deployment, with a CAF Phase II item, a Mobility Fund item and several spectrum items.  In addition, the Commission again has enforcement items on the agenda:  one (unidentified) item on the regular agenda and a one-item consent agenda involving an additional (unidentified) enforcement action.

The most significant agenda items are 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.

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NTIA Holds Virtual Meeting of Multistakeholder Process on Internet of Things Security Upgradability and Patching

On July 18, 2017, the National Telecommunications and Information Administration (“NTIA”) hosted a virtual meeting of its multistakeholder process to address Internet of Things (“IoT”) patching and security upgrades.  The July 18th meeting represents the fourth gathering of multistakeholders in this process.

During the July 18th meeting, four working groups presented: (1) the Communicating Upgradability and Improving Transparency working group; (2) the Incentives, Barriers, and Adoption working group; (3) the Standards working group; and (4) the Technical Capabilities and Patching Expectations working group.

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