FCC Seeks Comment on Disabilities Access Findings

On August 23, 2016, the FCC issued a Public Notice seeking comment on the Consumer and Governmental Affairs Bureau’s tentative findings about the accessibility of communications technologies, which will be included in this year’s biennial report to Congress on the 2010 Twenty-First Century Communications and Video Accessibility Act (CVAA) (Biennial Report).  This will be the third such report, following earlier reports in 2012 and 2014.  Comments are due September 7, 2016.

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The Month in FCC Enforcement: July/August 2016

July was a busy month for the Enforcement Bureau, bucking the cliché of a quiet summertime in Washington D.C. In this podcast, partner Steve Augustino examines five enforcement actions: an NAL issued against AT&T for E-rate violations, a consent decree with AT&T over cramming practices, an unusual “admonishment” of Momentum Telecom Inc. for failing to pay Universal Service Fund Assessments, a consent decree agreed to by Towerstream Corporation for operating wireless facilities without a license, and two NALs issued against individuals for Caller ID spoofing. Listen to the episode here.

FCC Continues Crusade to Curb Robocalls

stock_12192012_0878The FCC’s high-profile efforts with regard to the Telephone Consumer Protection Act (TCPA) continue.   In addition to two controversial orders released in the last two weeks, the FCC is pushing the telecommunications industry to take action on blocking techniques.  Now the FCC has announced that it will host a meeting for what is billed as an industry-led “Robocall Strike Force.”  The Strike Force was created after Chairman Wheeler took to the FCC blog to prod the industry to action.

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FCC Issues Two Key TCPA Orders

In the past two weeks, the Federal Communications Commission (FCC) issued two important orders that modified and clarified the agency’s rules for enforcement of the Telephone Consumer Protection Act (TCPA).  Both orders are summarized below.

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Chevron: Too Much Deference or Just Enough?

When the United States Court of Appeals for the D.C. Circuit upheld the Federal Communications Commission’s 2015 Open Internet Order in June, it extensively applied Chevron deference in its decision. The controversial case has re-ignited the debate about whether Chevron provides too much deference to federal agencies, even as they are left applying aging statutes to new technologies and situations. In this podcast, communications partner Hank Kelly and associate Jennifer Holtz talk about the Chevron doctrine, its origins, and some key public policy considerations in light of the Open Internet decision. Listen to the episode here.

Inside the FCC’s First Enforcement Action For Violation of the E-rate Program’s Lowest Corresponding Price Requirement

Modern mobile devicesLate last month, the Federal Communications Commission (“FCC” or “Commission”) released its first enforcement action predicated on the “Lowest Corresponding Price” requirement of its E-rate rules. The LCP rules require a telecommunications carrier to offer schools and libraries communications services “at rates lower than that charged for similar services to other parties.”  The Commission’s Notice of Apparent Liability (“NAL”) proposes to fine Bellsouth (d/b/a AT&T Southeast) slightly more than $100,000 for violations of this requirement.  Surprisingly, this is the first FCC proposed fine for a violation of the “Lowest Corresponding Price” requirement, despite it being a requirement under the program since its inception nearly twenty years ago.  In this post, we take a look inside the order, with an eye toward what the FCC’s approach means for other E-rate service providers.

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Sixth Circuit Reverses FCC’s Preemption of State Laws on Municipal Broadband

iStock_000006131068MediumYesterday, the U.S. Court of Appeals for the Sixth Circuit reversed the FCC’s order preempting Tennessee and North Carolina laws that prevented municipalities from deploying cable services, video services, and Internet services beyond their current territorial boundaries to underserved nearby areas.  The decision is a setback for Chairman Wheeler, who had pushed the preemption decision through as a means to promote broadband deployment.  Republican Commissioners Pai and O’Reilly – who had dissented from the order – hailed the court’s decision as vindication and urged the Commission to change its policy approach to broadband deployment.  The Chairman’s statement appeared to concede that the Commission would not address municipal broadband again, offering instead that he would testify in support of state legislation removing bans on municipally-owned broadband services.

The Court’s decision was based on last year’s preemption by the FCC of most of the Tennessee and North Carolina laws because it would further the statutory interest of increasing broadband investment under Section 706 of the Telecommunications Act of 1996.  However, the Court concluded that “no federal statute or FCC regulation requires the municipalities to expand or otherwise to act in contravention of the preempted state statutory provisions.”  Instead, federal statutes and FCC regulations permitted providers to choose the geographic area that they serve.

The Court found that the FCC’s preemption order merely attempted to decide who gets to make the choice of whether to expand geographically, the state or municipalities. Under these circumstances, the Court found that Congress must clearly articulate the FCC’s power to preempt a state law in a clear statement specifically authorizing preemption, treating the federal statute “with great skepticism and read in a way that preserves a State’s chosen disposition of its own power.”  The FCC’s reliance on Section 706 was therefore found to be fatal to its preemption determination under this analysis.  The Court noted the aspirational nature and absence of express language referencing regulation of public entities in that Section, and concluded that “Section 706 cannot be read to limit a state’s ability to trump a municipality’s exercise of discretion otherwise permitted by regulations.”  However, the Court carefully explained that its decision did not reach whether or not Section 706 has any preemptive power, only that that Section could not be used to preempt state laws regulating municipalities.

Yesterday’s holding is a setback for the FCC and for at least some municipal broadband deployments.  Its ultimate effect on broadband deployment is disputed (among the Commissioners in particular), but appears to end the FCC’s involvement in promoting publicly owned broadband deployments.  Entities deploying broadband services should look to state laws and regulations for guidance on such deployments.

FCC Annual Regulatory Fee Information for ITSP and CMRS’ Now Available for Review; No Fee Payment Date Set

flowshcartThe Federal Communications Commission (FCC or Commission) has just announced in a Public Notice that Interstate Telecommunications Service Providers (ITSP) and Commercial Mobile Radio Service (CMRS) providers can now log into the FCC’s Fee Filer system to preview the provider’s FY2016 regulatory fee data.  ITSPs and CMRS providers are encouraged to review their proposed fee data and request any necessary revisions.

ITSPs can log into the Fee Filer system to access a preview of the FCC Form 159-W ITSP Report worksheet which identifies revenues based on the provider’s April 1, 2016 FCC Form 499-A filing.  These revenues will be used to calculate the provider’s regulatory fees once the FCC’s FY2016 Regulatory Fee Report and Order is adopted and released.  If a provider determines the revenue amount is incorrect, it must file a revised Form 499-A with the Universal Service Administrative Company to update the revenue amounts.  ITSP revenue adjustments cannot be made through the Fee Filer system.

CMRS providers also can log into the Fee Filer system to preview their subscriber, porting, and Operating Company Number information.  The “Net NRUF Telephone Number” subscriber count listed in the system will be used in determining the CMRS provider’s annual regulatory fee.  If the provider agrees with the subscriber count, then the provider does not need to take any further action.  If the CMRS provider believes its subscriber count is incorrect the provider is able to revise its subscriber count information directly via the Fee Filer system.  Any such revisions must be made by August 24, 2016 to allow the Commission time to determine whether to accept or disapprove the revision and enter any approved revisions in the fee filer system.  Revisions made after August 24, 2016 will be addressed on a case-by-case basis and must be sent directly to Roland Helvajian.

The Public Notice does not establish a payment deadline for any annual regulatory fees but, based on prior year payment deadlines, these fees likely will be due in late August or September.  ITSPs and CMRS providers should be aware that the FCC no longer mails regulatory fee notices or assessment letters and it is the licensee’s responsibility to determine the fees owed.  Failure to meet the regulatory fee payment deadline (once established) will result in late payment penalties of 25% being applied and the FCC does not waive late payment penalties.


FCC Chairman Wheeler Turns to the FCC Blog to Encourage Robocall Blocking

On July 22, FCC Chairman Tom Wheeler penned a blog post on the Commission’s website highlighting the efforts at the agency to prevent unwanted automated and prerecorded message calls restricted under the Telephone Consumer Protection Act (TCPA).  In particular, the blog post discussed recent and upcoming rulemakings, declaratory decisions, and enforcement actions, as well as efforts to engage industry stakeholders such as telephone companies and parties that facilitate mass calling, to address what the Chairman deemed “the number one complaint the FCC receives from consumers.”  At least for the remainder of Chairman Wheeler’s tenure at the FCC, the Commission appears focused on consumer protection issues, especially with regard to so-called “robocalls.”

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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.