The 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.
The 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.
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.
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.
In 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.
The Department of Housing and Urban Development (HUD) is proposing rules requiring the installation of broadband infrastructure during construction of HUD-financed multi-family rentals, or apartments, recognizing the cost-savings when incorporated into the initial planning stages. Building on its ConnectHome initiative to extend affordable broadband access to families living in HUD-assisted housing in 28 communities nationwide, HUD is seeking comments on a proposed rule that will require the installation of broadband infrastructure at the time of new construction or substantial rehabilitation of multi-family rental housing that is funded or supported by HUD. The release of this proposed rule also follows more than a year of work since President Obama released the presidential memorandum, Expanding Broadband Deployment and Adoption by Addressing Regulatory Barriers and Encouraging Investment and Training, highlighting that “access to high-speed broadband is no longer a luxury, but it is a necessity for American families, businesses and consumers.”
The Federal Communications Commission’s (FCC or the Commission) Notice of Proposed Rulemaking (NPRM) on the transition from text telephone (TTY) to real-time text (RTT) was published in the Federal Register on May 25, 2016, which triggers comment and reply deadlines of July 11 and July 25. The Commission proposes to amend its rules to replace the obligations of wireless service providers and equipment manufacturers to support TTY technology with obligations that these entities support RTT over IP-based wireless voice services. The proposal requires RTT to be interoperable across networks and backwards compatible with TTY technology. The Commission proposes that larger Tier I wireless providers must implement RTT by December 31, 2017, and seeks comment on an appropriate timeline for smaller providers (i.e., non-nationwide carriers). Continue Reading
More than a year after seeking comment on proposed revisions to its communications network outage reporting (NOR) requirements, the Federal Communications Commission (FCC or Commission) has released an Order. (The proposed NOR requirements for submarine cable systems was released in November 2015 and that proceeding remains pending.) Recognizing that communications technology has evolved since the Part 4 NOR rules were put in place in 2012, and seeking a means to enhance the information it receives from carriers about network outages, on Thursday, the Commission released an Order, Further Notice of Proposed Rulemaking (FNPRM) and Order on Reconsideration (Order) adopting some NOR rule updates and soliciting comment on others. Almost all telecommunications providers – whether VoIP, wireless, satellite or wireline – are impacted by the new rules or could be affected by the proposed revisions in the FNPRM, so all providers should closely review their current reporting mechanisms and update their internal processes to ensure compliance with the new requirements and deadlines. The exact comments deadlines have not been set, but comments will be due 45 days after publication in the Federal Register with replies due 60 days after publication in the Federal Register.
On Monday, May 23, 2016, the Consumer and Government Affairs Bureau (CGB or Bureau) of the Federal Communications Commission (FCC or Commission) released a Public Notice seeking comment on the state of compliance with the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA) and the FCC regulations implementing the law. The comments will be used to prepare the third biennial report to Congress on CVAA compliance. The report will assess compliance by telecommunications carriers, VoIP providers, providers of advance communications services (ACS) and manufacturers of equipment for such services, including mobile phones. More specifically, the Commission seeks comment from interested parties on whether the services and devices covered are “accessible,” the degree to which manufacturers and providers are including people with disabilities in product design and market research, and the extent to which entities are working with disability-related organizations, among other questions. The report will also include the extent to which accessibility barriers remain with respect to new communication technologies and the impact of the recordkeeping and enforcement provisions on the development and deployment of new communications technologies.
Comments are due to the Bureau by June 22, 2016. The Commission will use these comments to inform tentative findings, which will then be open for another round of public comment. The report to Congress is due by October 8, 2016. Continue Reading
The “Team Telecom” review process of applications involving foreign ownership has long endured a reputation for excessive length and opacity. It appears change may be on the horizon. The National Telecommunications & Information Administration (NTIA) filed a letter (NTIA Letter) on May 10, 2016 with the Federal Communications Commission (FCC or Commission) requesting the Commission require applicants for certain authorizations, including international 214 authorizations and transfers, section 310 license ownership rulings, submarine cable landing licenses and satellite earth station authorizations, submit additional information and certifications with their applications. NTIA asserts that submitting this information and certifications upfront will streamline the Executive Branch agency review process. Today, those reviews are undertaken by the Departments of Justice, Homeland Security, Defense, Commerce, State, Federal Bureau of Investigation, and United States Trade Representative (Team Telecom).
In response to the NTIA Letter, the Commission released a Public Notice late last week seeking comments on NTIA’s request. The Commission suggested that any comments received would inform the Commission’s planned formal rulemaking proceeding. The FCC seeks comments on or before Monday, May 23, 2016.