The FCC plans to take aim again at unwanted texts and robocalls at its next meeting scheduled for December 12, 2018. Unwanted robocalls and texting consistently top the list of complaints received by the FCC and that has driven much regulatory attention by the agency in recent years. Specifically, at its December meeting, the FCC intends to classify most text messaging as an “information service” to preserve service providers’ ability to block robotexts and other unsolicited messages. The FCC’s anticipated action comes after years of debate regarding the proper regulatory treatment for text messaging and could have far-reaching impacts by exempting such services from the standard “common carrier” rules applicable to most legacy telecommunications. The FCC also plans to order the creation of a reassigned numbers database that would allow robocallers and others to check in advance whether a particular number still belongs to a consumer that has agreed to receive prerecorded calls. Rounding out the major actions, the FCC released draft items that would: (1) set the stage for the next Spectrum Frontiers auction of high-band spectrum; (2) offer additional funding to rural broadband recipients of Connect America Fund money if they increase high-speed offerings; and (3) issue the FCC’s first consolidated Communications Marketplace Report, providing a comprehensive look at industry competition. The December items cover many priority Pai FCC topics and would affect service providers of all sizes while tackling longstanding consumer protection and broadband deployment issues. You will find more details on the significant December items after the jump:

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The FCC’s Spectrum Frontiers proceeding, which is focused on making millimeter wave (“mmW”) spectrum available for flexible commercial mobile and fixed use, seems poised to move into a new phase even as the current phase is playing out. At its next meeting on December 12, 2018, the agency will vote on rule changes to facilitate a consolidated auction of spectrum in three spectrum ranges designated in 2016 and 2017 for flexible mobile and fixed use:  the so-called Upper 37 GHz Band (37.6-38.6 GHz), the 39 GHz Band (38.6-40.0 GHz), and the 47 GHz Band (47.2-48.2 GHz). The FCC reportedly anticipates completing the auctions by the end of 2019, following the present auction of 28 GHz Band licenses (in 27.50-28.35 GHz) and the immediately-following auction of 24 GHz Band spectrum (in 24.25-24.45 and 24.75-25.25 GHz). A draft order has been made available to the public.

Of particular interest, the recently released draft item would lay the groundwork for the FCC’s second incentive auction (after the “inaugural” broadcast incentive auction completed in March 2017). A 39 GHz incentive auction would be structured quite differently than the 600 MHz broadcast incentive auction and attempt to reduce encumbrances in the 39 GHz Band by offering existing licensees the option to relinquish their licenses in exchange for payment. The FCC leadership appears bullish that the three auctions will draw significant interest from major service providers looking to support next-generation applications, including 5G wireless connectivity and the Internet of Things. Naturally, the first-in-time 24 and 28 GHz auctions may give some sense in advance of that interest. Through November 26, 2018, after 18 rounds, the 28 GHz Band auction had generated under $200 million in bids, albeit that spectrum is encumbered in many of the largest markets and in slightly more than 50% of all counties nationwide, including the most populous. The 24 GHz Band auction may prove a much better test of the appetite for participants to pay high prices for so-called “high band” spectrum.


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At its November 15 Open Meeting, the FCC intends to vote on a Report and Order (“Order”) to make some important changes to the requirements for wireless service providers to report on the number of hearing aid compatible (“HAC”) handsets they offer. The dual aims of the rule changes are to ease the burden of the reporting obligations while improving consumer access to information about HAC wireless handsets. Specifically, the FCC proposes to drop the requirement for service providers to file annual forms with HAC device information, and instead disclose detailed information on their websites and make an annual certification of compliance with the rules. Websites updated with the new required information and the first certification of compliance will be due 30 days after notice of Office of Management and Budget (“OMB”) approval of the new rules is published in the Federal Register. If the Order is adopted at Thursday’s meeting, service providers should promptly begin working on website revisions and not wait for OMB approval.

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The Federal Communications Commission’s (“FCC’s” or “Commission’s”) vote at its open meeting on October 23, 2018 on a Report and Order regarding the 3550-3700 MHz band (“3.5 GHz Band”) was split along party lines. This was hardly surprising given the criticism of the original order in 2015 by the then-Republican minority. As the now-Republican majority approved changes sought by the commercial mobile industry to the Priority Access License (“PAL”) rules, the lone Democratic Commissioner, Jessica Rosenworcel dissented. Spectrum in and around the 3.5 GHz range is often touted as a lynchpin for initial 5G deployment internationally. The FCC, in response, seeks to promote greater investment in the band, by 5G proponents in particular by making PALs, which are to be auctioned, more attractive to commercial mobile service providers. The Order hopes to accomplish this by, among other things, increasing the size of PAL license areas from census tracts to counties, and extending license terms from three to ten years with a renewal expectancy. Commissioner Rosenworcel casts the action as a missed opportunity for spectrum policy that promotes innovation by favoring instead the same old, same old.

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Although FCC actions concerning commercial mobile radio and unlicensed spectrum grab the big headlines, the Commission is addressing the needs of other radio users, too. On October 23, 2018, the Commissioners will vote on plans to make available additional channels for, and remove or reduce other requirements applicable to, private land mobile radio (“PLMR”) operations in the 806-824 MHz and 851-869 MHz bands (the “the 800 MHz Band”) and, to a lesser extent, the 450-470 MHz band. These frequencies are relied upon by, among other entities, public safety agencies, state/local governments, commercial security operations, utilities, and manufacturers for internal radio communications. While the FCC has worked for years on re-banding and other measures designed to increase utilization of fallow spectrum, it is now intent on addressing a number of rule changes to makes these frequencies more readily accessible by a larger number of PLMR entities. Many PLMR rules have remained unchanged since the 1990s or earlier, and eligible entities for years have sought changes to current regulations to foster greater deployment of new equipment and services. The FCC’s draft item made available to the public earlier this month would address a number of these pending proposals.

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Responding to demands by high tech companies for more so-called “mid-band” unlicensed spectrum to augment that already made available in the 5 GHz Band, which accommodates Wi-Fi, Internet of Things (“IoT”), and other Unlicensed National Information Infrastructure (“U-NII”) applications as well as Licensed Assisted Access and LTE-Unlicensed solutions, the FCC will vote on a draft Notice of Proposed Rulemaking (“NPRM”) at its October 26 Open Meeting to make up to 1200 megahertz of nearby spectrum available for similar purposes. The draft leaves no doubt that, to make the 5.925-7.125 GHz band (the “6 GHz Band”) available for unlicensed use, sophisticated sharing mechanisms will need to be in place. Various parts of this frequency range are already used by fixed, mobile, and satellite services, and the draft item commits to protecting these incumbents and allowing these services to grow while at the same time opening the band to increased numbers of unlicensed devices. To achieve this, the Commission is considering drawing upon its experience with white spaces and the Citizens Broadband Radio Service (at 3550-3750 MHz), and would seek comment on numerous subjects before adopting rules. The draft item would be a stepping stone to enabling unlicensed devices to operate with wider bandwidths and higher data rates, which the Commission hopes would set off a new wave of innovation in consumer devices complementing its recent moves to spur the rollout of next-generation 5G networks. The NPRM, when adopted, will be sure to generate a wave of comments from both equipment manufacturers and broadband providers hungry for more spectrum as well as incumbent public safety organizations, utilities, satellite companies, and various other fixed and mobile services licensees seeking to protect and hoping to expand their existing operations in the 6 GHz Band, particularly as relocation options for other similar spectrum are increasingly scarce.

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At its open meeting on September 26, 2018, the Federal Communications Commission (“FCC”) unanimously voted to adopt a Report and Order and Further Notice of Proposed Rulemaking to consolidate the agency’s rules governing three different types of mobile earth stations that operate in the Fixed Satellite Service (“FSS”) and communicate with geostationary satellites (“GSOs”). The consolidated rules will apply to all categories of Earth Stations in Motion (“ESIMs”). More importantly, the Commission extended the frequency bands on which ESIMs can operate on a primary basis into the conventional Ka-band. It also seeks comment in the FNPRM on expanding ESIMs operations into additional spectrum in the Ku-band and Ka-bands, potentially on a secondary or unprotected basis. However, the Commission left addressing ESIM operations with non-geostationary satellite orbit (“NGSO”) FSS systems for a separate NPRM.

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Full Spectrum’s “Inside the TCPA” podcast series offers a deeper focus on TCPA issues and petitions pending before the FCC. Each episode tackles a single TCPA topic or petition that is in the news or affecting cases around the country. In this episode, partner Steve Augustino discusses efforts by the FCC and private industry to

Our “Spectrum Update” podcast series takes a close look at hot topics and issues in wireless spectrum. In this episode, Partners Chip Yorkgitis and Josh Guyan discuss the hotly contested changes that are proposed and ongoing in the spectrum between 3.1 and 4.2 GHz in the U.S. There appear to be potential opportunities for commercial