Just over a month after the D.C. Circuit struck down large portions of the FCC’s 2015 Declaratory Ruling interpreting the Telephone Consumer Protection Act (TCPA), several developments on Capitol Hill last week suggest that Congress has renewed its focus on robocall issues. While these actions are preliminary, it could indicate that addressing robocalls may be priority for Congress ahead of the mid-term elections.
Tailor-Made: FCC Recognizes Need for Bespoke Rules for Smallsats
On April 17, 2018 the Federal Communications Commission adopted a notice of proposed rulemaking (“NPRM”) that seeks to streamline and otherwise tailor the agency’s current one-size-fits-all satellite regulations for small satellite systems (commonly referred to as “smallsats”). The NPRM sets forth proposals to expedite smallsat approvals and identifies certain frequency bands for potential use by smallsats.
If the proposals in the NPRM are eventually adopted, the FCC envisions that qualifying smallsat systems will be able to save significant time and money. In particular, qualifying smallsat systems would not have to go through the often time-consuming and paperwork-intensive processing rounds normally associated with the licensing or market entry approval of non-geostationary orbit (“NGSO”) satellite systems. Furthermore, qualifying smallsat systems would only have to pay the proposed satellite application fee of $30,000 (as opposed to the $454,705 satellite application fee under the standard Part 25 approval process). Last but not least, qualifying smallsat systems that deploy at least half of their satellites within one year and thirty days of FCC approval would be able to forego filing surety bonds with the Commission. That’s not a small alteration, as these bonds can cost anywhere from one to five million dollars per system. Continue Reading
Citing National Security, FCC Begins Proceeding to Bar the Use of Universal Service Monies for Equipment from Certain Countries
Echoing concerns raised by other parts of the federal government over the past several years, the FCC, at its open meeting on April 17, 2018, adopted a Notice of Proposed Rulemaking (“NPRM”) to consider a rule which would prohibit Universal Service Fund (“USF”) support from being used “to purchase or obtain any equipment or services produced or provided by a company posing a national security threat to the integrity of communications networks or the communications supply chain.” The NPRM seeks comment on issues such as how such a rule can be implemented and enforced, what types of equipment and services should be covered, and how manufacturers covered by the rule are to be identified and made known to USF recipients. Although this is only the start of the proceeding, the FCC’s action could have a broad-reaching impact for some communications equipment manufacturers and create potential liabilities for entities participating in any of the federal USF programs. All companies purchasing equipment from certain countries – principally China and Russia – may be affected, even if they don’t receive federal USF money.
FCC Commissioner O’Rielly Statement Hints at Possible Long-Awaited Movement on Team Telecom Review Process Reform
In 2016, the Federal Communications Commission (“FCC” or “Commission”) initiated a rulemaking proceeding proposing changes to the process of reviewing certain Section 214 and submarine cable landing license applications, conducted by the group of Executive Branch agencies commonly referred to as “Team Telecom.” That proceeding largely stalled after the comment cycle ended later that year. However, a Statement issued earlier this week by FCC Commissioner Michael O’Rielly endeavors to reignite movement on the long-pending issue of Team Telecom review process reform.
FCC Moves to Further Deregulate Business Data Services
Nearly a year after it ordered sweeping deregulation of the business data services (“BDS”) market, the Federal Communications Commission (“FCC”) proposed new rules that would allow certain small rural carriers to move from longstanding rate-of-return regulation to price cap regulation for their BDS offerings. The transition would reduce the regulatory obligations of such carriers, including the need to prepare and file complex cost studies, which the FCC stated would allow carriers to rededicate resources to building and maintaining networks in underserved areas. The FCC also proposed removing pricing restrictions on lower-speed BDS offerings in areas with sufficient competition and sought input on whether pricing restrictions for higher-speed DBS offerings also should be eliminated.
Unlike prior BDS actions, where the issue was hotly contested for years and deregulation passed on a party-line vote, the proposed rulemaking was supported by all five Commissioners, at least for purposes of gathering a record. It’s not clear if this unanimity will hold throughout the proceeding, but the FCC may be on the verge of turning a page in its focus on these services, which are a bedrock for both retail offerings and for competitive carriers extending their networks.
FCC Further Clarifies and Streamlines Environmental and Historical Review Processes for Wireless Deployments
On March 30, the Federal Communications Commission (“Commission” or “FCC”) released a Second Report and Order (“Order”) that further clarifies and streamlines the environmental and historical review processes related to deployment of certain wireless infrastructure. The Commission intends by these actions to facilitate faster deployment of antennas for next-generation wireless networks.
When Public Safety Isn’t Enough: FCC Considering Expanded Use of the 4.9 GHz Band
At its March Open Meeting, the FCC adopted a long-awaited Sixth Further Notice of Proposed Rulemaking (“FNPRM”) to consider promoting additional investment and activity in the 4.9 GHz band while preserving the core public safety purpose of the band. Finding the band underutilized by public safety users, the FNPRM invites comment on ways that the band might be more heavily utilized by public safety while entertaining several options by which others might gain access to the band on a shared basis, including those supporting Critical Infrastructure Industries (“CII”), Unmanned Aircraft Systems (“UAS”), and 5G networks. To implement any sharing scheme, the Commission proposes to draw upon previous experience in other bands, such as TV white spaces. Continue Reading
Consolidated Net Neutrality Appeal Transferred to D.C. Circuit
On March 28, 2018, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit granted an unopposed motion filed by the petitioners to transfer the consolidated appeals of the Restoring Internet Freedom Order to the D.C. Circuit. As we explained in an earlier blog post, the D.C. Circuit decided the last three challenges of the FCC’s open Internet policies, making it a natural venue to hear this appeal. And while this decision will add a dose of familiarity to the case (particularly if the case is heard by judges who participated in the earlier challenges), there still remains significant uncertainty with respect to the ultimate outcome. We will continue to track the appeal as it develops.
D.C. Circuit Issues Landmark Decision Reviewing FCC’s 2015 TCPA Declaratory Ruling and Order, Sets Aside FCC’s Clarifications of an ATDS and Treatment of Reassigned Numbers
Today, the U.S. Court of Appeals for the D.C. Circuit issued its long-awaited decision reviewing the FCC’s 2015 TCPA Declaratory Ruling and Order. In the case of ACA International v. FCC, Case No. 15-1211, the Court, in a 3-0 opinion authored by Judge Srinivasan, granted in part and denied in part the various petitions for review. It set aside the FCC’s clarifications of an ATDS and its one-call safe harbor for reassigned numbers but upheld the FCC’s approach to revocation of consent. The case will now be remanded to the FCC, where the Commission will have an opportunity to reconsider the issues and address the court’s criticisms.
In prior briefing and during oral argument, Petitioners and Intervenors challenged the Order’s considerable expansion of the scope of the TCPA. Petitioners and Intervenors focused on three main issues from the 2015 Declaratory Ruling and Order: (1) the expanded definition of what types of equipment serve as an autodialer, leading to liability under the TCPA for using such technology to place calls, (2) the called party/reassigned number provision, which mandates the imposition of strict liability for any call beyond the first call to a reassigned number, and (3) whether the FCC must give clearer guidance relating to how consumers can revoke consent to receive calls or text messages.
To read our full advisory, please click here. We are reviewing the decision in detail and will have a more comprehensive summary available soon. In addition, Kelley Drye will be hosting a free webinar to discuss the implications of the decision and the future of TCPA reform efforts at the FCC and in Congress. More details will follow in the next few days.
Ninth Circuit Selected to Hear Consolidated Net Neutrality Appeals
On March 8, 2018, the United States Judicial Panel on Multidistrict Litigation randomly selected the U.S. Court of Appeals for the Ninth Circuit to hear the petitions for review of the Federal Communications Commission’s (FCC’s) Restoring Internet Freedom Order. Under FCC rules, petitioners of FCC orders have ten days from the date of publication of the order to file an appeal and notify the FCC that they would like be considered for the judicial lottery drawing. In this case, petitions had been filed in the D.C. Circuit and the Ninth Circuit.
The decision is notable because the last three appeals of previous FCC net neutrality orders were heard in the D.C. Circuit. The last time the Ninth Circuit heard a challenge of FCC net neutrality rules was nearly 15 years ago, in Brand X Internet Services v. FCC, which led to the Supreme Court’s seminal opinion on the FCC’s classification of cable modem service in 2004, National Cable & Telecommunications Association v. Brand X Internet Services. The Brand X decision in turn ushered in a decade of deregulatory policy in the broadband ecosystem.
The Ninth Circuit’s most recent foray into broadband policy came last month when an en banc panel held that the “common carrier exemption” in Section 5 of the Federal Trade Commission (FTC) Act—which prohibits unfair and deceptive trade practices—was “activity-based” and therefore that the FTC could bring a suit against AT&T Mobility for alleged violations of Section 5 related to the company’s non-common-carrier broadband service. A previous panel had held that AT&T Mobility was entirely exempt from Section 5 based on its “status” as a common carrier, raising significant questions about the boundaries of FTC and FCC jurisdiction. The en banc decision brings the Ninth Circuit back into harmony with other circuits that have addressed the issue.
We’re monitoring the appeal and will continue to update this blog with developments.
