On July 13, 2018, the Federal Communications Commission (“FCC”) released a Report and Order and Further Notice of Proposed Rulemaking aimed at improving the reliability of the nation’s Emergency Alert System (“EAS”). This action comes six months after a well-publicized false ballistic missile alert that caused widespread confusion and concern in Hawaii, which the FCC observed “underscore[d] the need to streamline [its] testing processes and to ensure proper safeguards are in place.” The FCC explained that the rule changes “will help alert initiators, as well as EAS Participants to develop the skills necessary to effectively use the EAS.” EAS Participants are radio and television broadcast stations, cable systems, wireline video systems, wireless cable systems, direct broadcast satellite service providers, and digital audio radio service providers. In an unusual move, Republican Commissioner Michael O’Rielly dissented in part from the item, citing concerns about “alert fatigue” and suggesting that the Commission may be “overstepping” its bounds by requiring communications providers to provide false alert reports.
FCC Plans to Speed Broadband Deployment Through One-Touch Make-Ready Fastlane for Pole Attachments
After a year of heated debate between pole owners and service providers, the FCC is poised to adopt a one-touch make-ready (“OTMR”) process for the “vast majority” of pole attachments at its meeting on August 2, 2018. Late last week, the FCC released a draft Order and Declaratory Ruling that would implement a streamlined process for service providers to bypass certain pole owner requirements in order to gain access to poles to attach new facilities. Chairman Pai has touted the new procedure as hastening broadband deployment by allowing for faster, cheaper pole attachments. The FCC expects significant growth in pole attachments as service providers install the small cells necessary to support 5G technologies.
5G and Broadband Infrastructure in the Spotlight at August FCC Meeting
The FCC will focus on 5G spectrum and the infrastructure supporting next-generation broadband services at its meeting planned for August 2, 2018. Continuing its push to make more spectrum available for flexible wireless use to support 5G technologies, the FCC teed up two major spectrum-related items for its August Open Meeting, which comes hot on the heels of its July 12 meeting. The items would open up 1.55 GHz of spectrum for commercial use through two auctions, with the first auction set to begin later this year. The FCC also plans to take a major step forward in supporting broadband deployment by adopting a long-anticipated “one-touch make-ready” regime for pole attachments, while taking aim at deployment moratoria. Rounding out the major items, the FCC will seek comment on launching a $100 million Connected Care Pilot Program. The proposed items maintain the trend of jam-packed Summer FCC meetings (which will then take a break until September 26) and will be sure to generate input from all communications industry sectors. You will find more details on the significant August FCC items after the jump:
Fluid and Frozen: FCC Ponders Best Path Forward for 4 GHz Band
The Federal Communications Commission (“FCC”) recently took steps to preserve the status quo for existing users in the 3.7-4.2 GHz band (the “4 GHz Band”) while it considers myriad options to restructure that spectrum for commercial flexible mobile use and more intensive fixed use. The FCC appears set to move forward with deliberation while it considers modifications to the regulatory structure in the adjacent 3.5 GHz Band (3.55-3.70 GHz). Both bands are touted by the mobile industry, and the FCC itself, as key mid-spectrum bands for next generation networks and applications, including 5G and the Internet of Things.
AT&T Pays $5.25 Million and Agrees to Significant FCC Oversight to Resolve 911 Outage Investigations
On June 28, 2018, the FCC’s Enforcement Bureau announced a Consent Decree with AT&T Mobility, LLC (“AT&T”) to resolve investigations into two 911 service outages in 2017. The outages lasted for more than five hours and resulted in approximately 15,000 failed calls. The settlement was somewhat unexpected because more than a year had passed since the FCC issued its report on the outages, which did not indicate that enforcement action was coming. The penalty levied against AT&T underscores that improving the nation’s 911 capabilities continues to be a top priority for the FCC and that outages will be met with significant fines.
Podcast – Inside the TCPA: Autodialers
Kelley Drye introduces a new Full Spectrum series, “Inside the TCPA,” which will offer a deeper focus on TCPA issues and petitions pending before the FCC. Each episode will tackle a single TCPA topic or petition that is in the news or affecting cases around the country. In this inaugural episode, partner Steve Augustino and associate Jenny Wainwright discuss the definition of an autodialer or ATDS. This episode addresses the 2018 D.C. Circuit decision in ACA International and the FCC’s new proceeding to examine the definition. With initial comments filed on June 13th, Steve and Jenny analyze the principal arguments made by commenters and discuss whether Congress will weigh in on the matter. To listen to this episode, please click here.*
FCC Proposes Maximum Penalties for “Egregious” Marketing Recreational RF Devices Able To Operate In Restricted Radio Bands
On June 5, 2018, the Federal Communications Commission’s (“FCC’s” or the “Commission’s”) Enforcement Bureau (“Bureau”) issued a Notice of Apparent Liability against a manufacturer and retailer for marketing non-compliant RF devices, a dozen models of which were capable of operating in restricted spectrum bands. The FCC proposes to assess a total fine of $2,861,128.00 against ABC Fulfillment Services LLC and Indubitably, Inc. (collectively, “HobbyKing”) for equipment authorization rule violations involving 65 models of recreational audio/video transmitters (“AV Transmitters”) used with model airplanes drones. But more than $2.2 million of that resulted from the fact that twelve models apparently operates in restricted radio bands and three at higher powers than authorized in other bands. The restricted bands are those in which unlicensed transmitters are not allowed to operate because of potential interference to sensitive radio communications. In the case of HobbyKing’s the Commission found that its AV transmitters operated in bands where important government and public safety operations, such as those of the Federal Aviation Administration managing commercial and passenger flight traffic, doppler weather radar, flight testing, and other activities the FCC has determined are particularly worthy of heightened interference protection take place. In other words, the moral is that marketing devices that do not have proper equipment authorization is bad, but doing so when the devices operate within restricted bands is quite simply “egregious,” as the NAL put it.
This Time It’s Drones: FCC Reminds Retailers, Manufacturers, and Operators of Responsibilities Regarding Equipment Authorization
Simultaneously with issuing a nearly $3,000,000 fine to HobbyKing for marketing unauthorized (and in some cases not capable of being authorized) audio/video (“AV”) transmitters for use with drone mounted cameras, the Federal Communications Commission’s (“FCC’s” or “Commission’s”) Enforcement Bureau issued an Advisory Tuesday reminding retailer manufacturers, and operators of their obligations: no marketing or operation of unauthorized equipment except under very limited exceptions.
A Case of Bad Hygiene? FCC Proposes More Than $590,000 Penalty for RF Device Marketing Violations, and Commissioner O’Rielly Foreshadows Potentially Tougher Equipment Authorization Enforcement Policies
On May 30, 2018, the Commission issued a Notice of Apparent Liability (“NAL”) proposing a total penalty of $590,380 against a company for marketing noncompliant radio frequency (“RF”) devices in apparent violation of the agency’s equipment marketing rules. The allegations in the NAL provide a textbook example of how a company that becomes aware of a violation relating to products subject to the Commission equipment authorization procedures should not respond. The NAL was issued against Bear Down Brands, LLC, dba Pure Enrichment (“Pure Enrichment”), a Delaware company, in connection with fourteen models of the company’s consumer-oriented electronic personal hygiene and wellness devices it markets and imports, all of which were Part 15 or Part 18 unintentional radiators. The NAL alleges that the devices were noncompliant because they lacked proper equipment authorization, failed to make required user manual disclosures, and/or did not have compliant FCC labels.
FCC Turns to ATDS, Other TCPA Issues Following D.C. Circuit Decision
On May 14, 2018, the FCC issued a Public Notice seeking comment on a number of issues regarding the proper interpretation of the Telephone Consumer Protection Act (TCPA) in light of the recent decision by the D.C. Circuit Court of Appeals to overturn most of the FCC’s 2015 Omnibus TCPA Declaratory Ruling. Given Chairman Pai’s strong dissent from the 2015 Declaratory Ruling and his statement praising the D.C. Circuit’s findings regarding it, this comment cycle presents a valuable opportunity for parties who have been adversely affected by the uncertainty surrounding the TCPA in certain years to provide input to the FCC on how it should interpret the statute to best serve its intended purpose.
