While no one is likely to bemoan the Federal Communications Commission’s (FCC’s or Commission’s) May 30, 2023, Memorandum Opinion and Order (MO&O) to vacate the 2015 Forfeiture Policy Statement that had adopted a methodology of treble damages for violations of rules requiring payments to the Federal Universal Service Fund (USF), other funds applicable to common carriers, annual FCC regulatory fees, some semblance of certainty of maximum penalties may have been lost.  The Commission going forward will apply its discretion to determine forfeitures based on a review of statutory and rule-based factors, the Commission’s 1997 Forfeiture Guidelines, and “the individualized circumstances of each future adjudication.”  In effect, this is what the FCC has been doing since it, according to the MO&O, has not actually applied the “treble damages” limit in the past eight years in any adjudication.

Continue Reading FCC Abandons 2015 <em>Forfeiture Policy Statement</em> in Favor of Case-by-Case Approach

On today’s episode of Full Spectrum, the Kelley Drye Communications team will be discussing several of the matters raised at the FCC’s May 18, 2023 Open Meeting. First, Partner Chip Yorkgitis discusses the Commission’s Report and Order expanding unlicensed uses in the 60 GHz band (57-71 GHz).  Chip also summarizes the Commission’s Report and Order declining to adopt rules to enable terrestrial mobile service in the 12.2-12.7 GHz Band and a related Further NPRM which will consider liberalizing licensed terrestrial fixed service rules in the band, and introducing unlicensed applications for the first time in this frequency range.  Next, Special Counsel, Michael Dover, discusses Commission’s proposals relating to use of the 12.7-13.25 GHz Band for mobile broadband and other expanded services in a new rulemaking.  Finally, Partner Hank Kelly examines the Commission’s Order, Further Notice, and Notice of Inquiry that would expand the Commission’s efforts relating to call blocking requirements to promote robocall mitigation.

Listen to the podcast here.

On this episode of Full Spectrum, we continue our coverage of the Federal Communications Commission’s April Open Meeting. Specifically, Partner Chip Yorkgitis will provide an overview of the FCC’s adoption of a Policy Statement addressing spectrum management principles that will guide the Commission in future spectrum proceedings. Chip will also summarize a Report and Order and Further Notice of proposed Rulemaking regarding the sharing of spectrum by non-geostationary satellite constellations.

On the prior episode, we discussed two items adopted by the FCC at the Open Meeting: one, the FCC’s proposed changes to the International Section 214 authorization regime applicable to providers of telecommunications services between the U.S. and other countries and, two, Commission proposals relating to expanded accessibility and transparency in the Wireless Emergency Alert program.

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On April 25, 2023, the Federal Communications Commission “(FCC” or Commission”) released a Notice of Proposed Rulemaking (“NPRM”) that foreshadows a potentially radical revision to the regulatory framework governing the provision of international telecommunications services.  Such services are regulated under Section 214 of the Communications Act of 1934 (“Section 214”), and the FCC’s rulemaking is considering changes to almost every aspect of the authorization lifecycle.  If the proposed rules are largely adopted, following public comment and follow-on lobbying in the coming months, the result will be a substantially increased compliance burden for international telecommunications carriers which may complicate their investment and transactional strategies.  Right now, this is a situation of a few “knowns” and a lot of open questions.  (Note that the NPRM generally does not propose rule changes with regard to domestic (i.e., interstate) Section 214 authority obligations.)

Accompanying the NPRM was an Order that mandates a one-time data request for ownership information to all holders of international Section 214 authority.  See our FAQs document describing the Order.  The response deadline is not yet known as the Office of Management and Budget must first complete a review of the Order’s information collection obligations.  The response deadline will be at least thirty days after the OMB review is completed as announced in the Federal Register.

Continue Reading FCC Considering Major Changes to Section 214 Application and Authorization Rules

On this episode of Full Spectrum, Senior Associate Winafred Brantl discusses the Commission’s proposed significant changes to the International Section 214 regime. Responding to growing concerns regarding undisclosed foreign ownership of international Section 214 carriers, the FCC will conduct a one-time data collection from all international Section 214 authorization holders and has proposed a requirement for periodic renewals or reviews of international Section 214 authorizations as well. At the same time, the FCC proposes to expand the scope of information required in any international Section 214 application and to implement recurring update filing requirements. In addition, Special Counsel Mike Dover discusses the Commission’s proposals relating to expanded accessibility and transparency in the Wireless Emergency Alert program.

Click here to listen to the full episode.

Full Spectrum’s FCC Open Meeting Recaps feature a first take and analysis following the FCC’s monthly Open Meetings, with an emphasis on the agenda items directly impacting our clients.

The Federal Communications Commission (“FCC”) adopted an Order on April 20, 2023 imposing a one-time ownership-related data request to which all holders of international Section 214 authority must respond.  The due date for affected carriers to respond is not yet known and will be established after review and approval of the FCC’s Order by the Office of Management and Budget. Noncompliance will subject International 214 Holders to potential monetary and other penalties up to and including license revocation. 

Members of Kelley Drye’s Communications Group have prepared a document answering Frequently Asked Questions regarding the Order.  If you have a question not addressed in this document, please do not hesitate to reach out to one of the attorneys of the Kelley Drye Communications Group.

Read more here.

On March 24, 2023, in Consumers’ Research v. FCC, the U.S. Court of Appeals for the Fifth Circuit issued a Decision (No. 22-60008) upholding the constitutionality of Congress’s delegation of administration of the Universal Service Fund (USF) to the FCC and the FCC’s subsequent reliance on Universal Service Administrative Company (USAC) for support USF programs.  The challengers argued that Congress failed to supply the FCC with an “intelligible principle” to guide the FCC’s administration, and that the FCC’s relationship with USAC violates the private nondelegation doctrine.  On the same day, FCC Commissioner Starks issued a statement about the decision upholding the constitutionality of the FCC’s administration of the USF. In his statement, Commissioner starks highlighted the importance of the USF and its impact on rural and low-income communities.

For a more in-depth look at March USF news and provide and updates on pending appeals and guidance requests before the FCC relating to USF contributions issues, click here to read and subscribe to our monthly USF Tracker.

On today’s episode of Full Spectrum, Hank Kelly will be discussing the FCC’s adopted order to block spam texts and another order intended to improve caller ID authentication. Second, special counsel Mike Dover will cover the FCC’s issuance of a Further Notice of Proposed Rulemaking which proposes to expand audio description requirements.

Listen to the full episode here.

In November 2022, the FCC published a Notice of Funding Opportunity (NOFO) seeking community partners to develop outreach programs to promote awareness of the Affordable Connectivity Program (ACP) among eligible households in historically underserved and unserved communities as part of the ACP Outreach Grant Program.  On Friday, March 10, 2023, the FCC announced approximately $66 million in grant funding for two of the four sub-programs in the Outreach Program:  the National Competitive Outreach Program (NCOP) and the Tribal Competitive Outreach Program (TCOP).  The FCC’s announcement accepts about 190 grant applicants, amounting to $60 million for the NCOP, and 20 grant applicants, amounting to about $6 million for the TCOP.  Once the Notice of Awards are issued, grant recipients will have 30 days to accept the awards.  These funds will be used for digital campaigns, door-to-door canvassing, operate phone banks, distribute direct mail, host ACP application enrollment and outreach events in 50 states and territories.  Grants in the other two sub-programs in the Outreach Grant Program, the Your Home, Your Internet Outreach Grants and the ACP Navigator Pilot Program Outreach Grants, will be announced in the future. 

In addition, the FCC’s announcement highlighted its plan to release, “in the next few weeks,” new enhancements to the ACP online consumer application and enrollment process.  The announcement states that the FCC will incorporate feedback from navigators and other stakeholders that “will make the application and enrollment process easier by reducing the number of steps required to apply and improving language clarity.”  The impact on ACP consumers and providers as a result of that upcoming release remains to be seen.

A key aspect of the FCC’s ACP Transparency Data Collection rules may be in doubt if the FCC takes up a recent petition for reconsideration.  In its Fourth Report and Order and FNPRM, the FCC adopted an aggregate-level approach for collecting ACP subscriber pricing and plan information, finding that ACP providers should submit ACP subscriber data grouped by each unique plan for a given geographic area (such as by state) rather than submitting that data through National Lifeline Accountability Database (NLAD) at the time of enrollment.  Relying on provider comments discussing the administrative burdens of subscriber-level data collections, the FCC reasoned that “the subscriber-level approach as proposed by the Commission may conflict with the statutory requirement to stand up an annual collection and may be too administratively burdensome for subscribers and providers, particularly with respect to obtaining subscriber consent to the collection of additional subscriber-specific data and in light of privacy concerns.”

However, Next Century Cities and the Benton Institute for Broadband & Society (Petitioners) challenged that conclusion in a Joint Petition for Reconsideration on February 13, 2023.  Petitioners argue that collecting aggregate-level subscriber data fails to meet the statutory requirements for data collection in the Infrastructure Investment and Jobs Act, Pub. L. No. 117-58, § 60502(c)(1) (IIJA), and undermines overall integrity of the ACP.  Specifically, Petitioners point out the IIJA does not establish an initial data collection date – it only requires publication of collection rules within one year of the IIJA’s passage.  Petitioners assert that the FCC should have enacted rules that deferred the start of ACP data collection until after the FCC could determine the best way to collect subscriber-level data.  Petitioners further assert that the IIJA’s statutory directives to the FCC include targeting ACP public awareness and enrollment support and determining local subscription rates, requirements necessitating subscriber-level data.  Further, Petitioners assert that subscriber-level data is also needed to investigate complaints and enforce ACP rule compliance.  Addressing the “annual” collection component of the IIJA requirements, Petitioner contend that pricing and plan data submitted through NLAD would be an annual collection if the FCC implements snapshot-date approach.

Petitioners’ challenge strikes at the core of ACP providers’ processes for implementing the FCC’s ACP Transparency Data Collection rules.  As of this publication, the FCC has not yet taken action on the petition.