“Inside the TCPA” offers 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 episode, partner Steve Augustino and associate Jenny Wainwright discuss the consent issues before the FCC in the agency’s remand proceeding after the 2018 D.C. Circuit decision in ACA International. In addition, Steve and Jenny examine three other petitions pending before the agency that could be resolved with the remand proceeding. To listen to this episode, click here.*
Two years after the first Spectrum Frontiers report and order, the Federal Communications Commission (“FCC” or “Commission”) is completing the final set of preliminaries before commencing the first mmW auction. With the release of a draft Public Notice (“Notice”) on July 12, 2018, the Commission gave a sneak preview of the application and bidding procedures for upper microwave flexible use service (“UMFUS”) licenses in the 28 GHz and 24 GHz band. The Commission will vote on these procedures at its next Open Meeting, scheduled for August 2, 2018. The auction will be an important milestone in the Commission’s efforts to make high band spectrum available for next-generation applications, including 5G wireless connectivity.
As we enter the dog days of summer, the FCC continues to turn up the heat on equipment marketing enforcement. But while million dollar fines for marketing noncompliant devices capture the spotlight, the FCC also quietly issued a number of equipment marketing actions focused on a single type of device: LED signs. In just the last three months, the FCC has settled over ten investigations involving the marketing of LED signs used in digital billboards for commercial and industrial applications without the required authorizations, labeling, or user manual disclosures. Each action involved an entity that either manufactured or sold (or both) LED signs. The agency’s recent actions should be a shot across the bow to any retailer of LED signs to ensure that their devices are properly tested and authorized prior to sale. Otherwise, these companies may face significant fines and warehouses of unmarketable devices.
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.
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.
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:
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.
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.
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.*
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.