Federal & State Regulatory

Last week, the U.S. Bureau of Industry & Security (BIS) added Chinese telecommunications giant Huawei and its non-U.S. affiliates to the U.S. Entity List. The move by the U.S. export control regulator broadly prohibits U.S. and non-U.S. persons from providing the listed Huawei entities with any “items” that are “subject to” BIS’s Export Administration Regulations (EAR).

The sanctions could have a serious impact on Huawei and on companies that supply and do business with the firm. Similar sanctions temporarily imposed on ZTE, another Chinese telecommunications firm, last year were referred to as a “death penalty” ban due to the crippling impact it had on ZTE’s operations.


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By unanimous vote, the FCC launched a rulemaking this past week to consider allocating the 1675-1680 MHz band for co-primary use by flexible commercial terrestrial fixed and mobile operators with incumbent federal operators. The Notice of Proposed Rulemaking (“NPRM”), released on Monday, May 13, is, in many fundamental ways, similar to a proposal Ligado first made in a 2012 petition for rulemaking, with adjustments over the years, seeking to allow terrestrial mobile operations in the 1675-1680 MHz band.

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At its May 2019 Open Meeting, the FCC approved a Public Notice (“Notice”) that sets the stage for the auction of certain toll free numbers with the dialing code 833—the first time an auction mechanism will be used to distribute any numbering resources. The FCC intends to auction over 17,000 numbers set aside during the opening of the 833-prefix because more than one entity expressed an interest in the number. In 2018, the FCC approved the use of competitive bidding to allocate these numbers. With this Public Notice, the FCC sets proposed ground rules for the auction. Comments on the auction pre-bidding procedures proposed in the Notice are due by June 3, 2019 and reply comments by June 10, 2019.

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At its April Open Meeting, the FCC approved a Fifth Report and Order (“R&O”) in the Spectrum Frontiers Proceeding that adopted sharing rules in two settings. The new rules will allow the federal government to deploy, in limited circumstances, additional station sites in spectrum to be auctioned for flexible mobile and fixed use in the 37.6-38.6 GHz frequency range (the “Upper 37 GHz Band”). The rules also will allow fixed satellite service (“FSS”) operators to individually license earth stations in the 50.4-51.4 GHz band (the “50 GHz Band”) while the FCC considers whether spectrum in the 50 GHz Band should also be auctioned for flexible mobile and fixed use. By acting now on these matters, the Commission intends to help provide Upper Microwave Flexible Use Service (“UMFUS”) providers with certainty regarding their potential future use of the spectrum before the auctions commence.

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The FCC is requiring fixed-satellite service (“FSS”) operators to provide the Commission with information about their current use of the 3.7-4.2 GHz band (“C-Band”) by May 28, 2019, according to a Public Notice released jointly earlier this month by the FCC’s International Bureau, Wireless Bureau, and Office of Engineering and Technology. The FCC will use the information to consider potential rules that allow new commercial terrestrial services in the Band while protecting incumbent satellite and earth station operators. The Band is currently allocated to FSS and the fixed service, but the Commission has proposed adding a mobile, except aeronautical mobile, allocation, which would allow commercial wireless providers to operate 5G services in the Band. The amount of spectrum to be reallocated or shared, the extent of protection for incumbents, and the means of protection for incumbents are all, as yet, undetermined, and they are topics of substantial debate among stakeholders.

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Continuing to implement the FCC’s rules to improve service to rural areas, the FCC announced that all “intermediate providers” (i.e., entities that carry, but do not originate, long distance traffic) must register with the agency by May 15, 2019. The registration requirement stems from rules adopted by the FCC last summer designed to increase

The FCC plans to bar a Chinese telecommunications provider from offering international telecommunications service between the United States and foreign points based on national security concerns at its next open meeting scheduled for May 9, 2019. Under a draft Order released last week, the agency would conclude that China Mobile International USA (“China Mobile USA” or the “Company”) is ultimately controlled by the Chinese government and subject to Chinese government exploitation, influence, and control that could undermine the security and reliability of U.S. networks. The denial of China Mobile USA’s application would mark the first time the FCC has rejected an application to access the U.S. market based on national security concerns raised by the group of federal Executive Branch agencies commonly known as “Team Telecom.” The denial also would represent another salvo in the FCC’s recent efforts to combat network security and corporate espionage issues involving foreign-owned carriers. While the proposed action against China Mobile USA likely will not affect foreign carrier investment or access to the U.S. telecommunications market overall, it serves as a reminder of the barriers foreign-owned telecommunications providers (and particularly those with ties to China) may face when dealing with the FCC.

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Since its adoption, the Telephone Consumer Protection Act (“TCPA”) has periodically been attacked as unconstitutional on grounds that it violates the First Amendment right to free speech due to its content-based restrictions. Until today, those attacks have generally failed, leaving defendants with the threat of potentially crippling statutory damages. Today, the Fourth Circuit announced that part of the TCPA, an exemption for calls to collect government debts, is unconstitutional and will be stricken from the Act.

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