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.
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.
At the January Open Meeting, the Federal Communications Commission (“FCC”) adopted a Public Notice (“PN”) that sets July 24, 2018 as the start of the Connect America Fund Phase II auction (“Phase II Auction”) in which service providers can compete for up to $1.98 billion annually in financial support over 10 years. This will be the first time a reverse, multi-round auction is used to provide support for high-cost rural areas. The FCC also adopted an Order on Reconsideration (“Recon Order”) that resolves outstanding reconsideration petitions related to the Phase II Auction.
At the December Open Meeting of the Federal Communications Commission (“FCC”), the Commissioners approved a Report and Order (“Order”) that adopts a new form of emergency alerting, Blue Alerts, which would serve to inform the public of actionable threats to state or local law enforcement. Once the new alert is implemented, radio and TV broadcasters and a variety of other video providers will broadcast emergency alerts much as they do for weather and other emergencies. Wireless telephone providers also may transmit the alerts through their emergency notification system. The action was adopted less than six months after the rulemaking proposal was initiated, a significantly shorter time period than that in which the Commission typically acts.
At the November Open Meeting of the Federal Communications Commission (“Commission” or “FCC”), Commissioners approved a Report and Order (“Order”) and Further Notice of Proposed Rulemaking (“FNPRM”) that targets a high-priority issue for Chairman Pai – curbing illegal telemarketing and other calls. Acting with unusual speed (at least, by the standards of past Commissions), the Order implements a number of proposals made in March 2017 (for more see our earlier post). With the Order, the FCC adopts rules that enable voice service providers to block calls from invalid, unallocated, and unassigned numbers before they ever reach a consumer’s phone, while the FNPRM seeks input on ways to make sure that blocking does not impact lawful calling practices. FNPRM comments are due by January 23, 2018 and reply comments by February 22, 2018.
The Federal Communications Commission (“Commission” or “FCC”) recently released a Public Notice seeking comment on a petition filed by the Entertainment Software Association (“ESA”) seeking a one year final extension of its class waiver from the FCC’s accessibility requirements (“Petition”). Specifically, ESA seeks waiver from the 21st Century Communications and Video Accessibility Act’s (“CVAA”) requirement that advanced communications services (“ACS”), like voice and text communications, built into video game software be made accessible for people with disabilities. Comments on the Petition are due by December 1, 2017.
The Federal Communications Commission (“FCC” or “Commission”) voted unanimously at its October Open Meeting to initiate a notice of proposed rulemaking (“NPRM”) and a notice of inquiry (“NOI”) on how to facilitate nationwide number portability (“NNP”), an issue it last addressed after the passage of the 1996 Telecommunications Act (the “Act”). According to the Commission, allowing a consumer to keep their current phone number when changing providers, regardless of the size or type of service, will increase competition. Comments on the NPRM and NOI will be due 30 days after publication in the Federal Register and reply comments will be due 60 days after publication.
The Federal Communications Commission (“FCC” or the “Commission”) adopted a Notice of Proposed Rulemaking (“NPRM”) at its September Open Meeting that proposes significant changes to not only the methodology for assigning toll-free numbers but also the management of the toll free number assignment process. The principal proposal in the NPRM is to use an auction process to assign certain highly valued (e.g., vanity and repeater) toll free numbers “to better promote the equitable and efficient use of numbers.” The Commission also proposes to eliminate its prohibition on the brokering of toll free numbers, which would open the marketplace for sales of valuable toll free numbers. Comments will be due 30 days after publication of the NPRM in the Federal Register and reply comments will be due 60 days after publication.
The Federal Communications Commission (“Commission”) voted unanimously at its Open Meeting on September 27, 2017 to approve a Notice of Proposed Rulemaking (“NPRM”) that proposes exempting certain types of wireless providers from the hearing aid compatibility (“HAC”) reporting requirements. The NPRM outlines possible revisions to the wireless HAC rules that would “reduce unnecessary regulatory burdens, particularly for non-nationwide service providers.” The reporting requirements currently apply to facilities-based and reseller wireless service providers of all sizes and this rulemaking represents a prime opportunity for smaller wireless carriers to remove some burdensome reporting obligations, which have led to enforcement actions in the past. Comments will be due 30 days after publication of the NPRM in the Federal Register and reply comments will be due 45 days after publication.
This week, the Federal Communications Commission (“FCC” or “Commission”) released a Notice of Proposed Rulemaking (“NPRM”) to increase uniformity among several diverse sets of FCC complaint procedures. Today, there are three different mechanisms for complaints handled by either the Market Disputes Resolution Division (“MDRD”) or the Telecommunications Consumers Division of the Enforcement Bureau regarding common carriers generally; pole attachments; and the accessibility for people with disabilities of advanced communications services (“ACS”) and equipment under the Communications Act of 1934 (the “Act”). In the NPRM, the FCC considers harmonizing, consolidating, and streamlining the procedural rules that govern filing and resolving these formal complaints as well as introducing several new requirements. Included among the proposed new requirements is that pre-complaint settlement discussions would have to occur at the executive level for section 208 and ACS accessibility complaints, as is currently the case in pole attachment complaints.
The changes proposed in the NPRM are procedural in nature and thus the FCC is not required under law to undergo a formal notice and comment proceeding before changing the rules. The FCC is, however, seeking comments to inform its decision. Comments will be due 30 days after publication of the NPRM in the Federal Register and reply comments will be due 45 days after publication. Publication has not yet occurred.
Under current Commission rules, there are established procedures that individuals or organizations must follow when filing formal complaints which vary based on context. The NPRM focuses on the following complaint mechanisms:
- Common carrier complaints – section 208 of the Act provides a process for resolution of any disputes involving common carriers;
- Pole Attachment Complaints – section 224 of the Act authorizes the FCC to hear and resolve complaints about rates, terms, and conditions for access to poles and other utility rights-of-way; and
- ACS Accessibility Complaints – under sections 255, 717, and 718 of the Act, the Commission can resolve complaints regarding the lack of accessibility to persons with disabilities of advanced communications services and equipment.
The FCC explicitly excludes the Open Internet complaint process from its proposals, noting that it is the subject of a separate NPRM.
In this NPRM, the Commission considers creation of a uniform set of procedural rules to govern all three formal complaint processes, although it appears some variation would remain. The section 208 (common carrier) complaint process serves as the baseline for most of the elements of the proposed more standardized approach. The ability to file complaints under section 208 has been in place since 1997, and the ACS accessibility process largely mirrors the process under section 208. Below is a summary of the changes being considered:
- Filing Deadlines. The FCC proposes a thirty-day (30-day) deadline for answering any formal complaint. Currently, the section 208 and ACS accessibility rules include twenty-day (20-day) response deadlines, while the pole attachment rules have a thirty-day (30-day) deadline. Additionally, replies to answers would be due within ten (10) days after service instead of the current timelines of three (3) days for section 208 and ACS accessibility complaints or twenty (20) days for pole attachment complaints.
- Information Designations. The section 208 and ACS accessibility processes currently require parties to identify in the complaint, answer, and reply individuals that have firsthand knowledge of the facts in their allegations. The FCC proposes to apply the same requirement to pole attachment complaints, which would more closely align all processes with a similar standard under Federal Rule of Civil Procedure 26.
- Discovery Process. The section 208 and ACS accessibility rules outline the specific number of interrogatories a party can serve with a complaint and answer. However, the current pole attachment rules only state that the FCC may request “additional filings.” The FCC proposes a uniform approach wherein a complainant may file and serve up to ten (10) written interrogatories with its complaint; a defendant may serve up to ten (10) interrogatories with its answer; and a complainant may file up to five (5) additional interrogatories with its reply. Parties under the proposal would no longer need to request permission from the FCC to serve interrogatories, but they still will need to explain why the requested information is necessary to the resolution of the dispute. Parties also retain the right to object to any interrogatory.
- Required Conclusions of Law. For the section 208 and ACS accessibility process, the complaint, answer, and reply currently must include proposed findings of fact and conclusions of law. The FCC proposes eliminating this requirement for all complaint processes.
- Section 208(b)(1) Complaints. Section 208(b)(1) includes a five-month deadline within which the FCC must issue an order concluding any investigation of a complaint about “the lawfulness of a charge, classification, regulation, or practice.” The FCC has interpreted this provision to apply to tariffs filed with the FCC. In order to expedite complaint resolution, the FCC now proposes to require parties to a tariff complaint governed by section 208(b)(1) to engage in pre-complaint discussions with the FCC as currently occurs in most cases.
- Settlement Discussions and Mediation. The FCC proposes to supplement the existing requirement for a certification of pre-complaint settlement efforts under the section 208 and ACS accessibility complaint processes with a stricter requirement for such settlement discussions to occur at the “executive-level.” (This requirement already exists in the pole attachment process.) Additionally, the FCC proposes to codify the availability of the MDRD’s current staff-supervised meditation services for parties that choose to negotiate a resolution of their dispute.
- Initial Status Conference. Under the section 208 and ACS accessibility rules, FCC staff can now direct parties to a complaint to appear for a status conference after the answer is filed. The FCC proposes to allow staff the option to direct status conferences for pole attachment complaints as well.
- Accelerated Docket. The FCC suggests consolidating all the Accelerated Docket provisions, which appear in multiple parts of the section 208 rules, into one new rule. The FCC would also streamline the rules to afford FCC staff more flexibility to tailor the accelerated docket based on the facts of a case. The proposal also calls for the option of an accelerated docket to be extended to pole attachment complaints. The rules do not, however, propose extending the treatment to disability access complaints under sections 255, 717, and 718, which was rejected in the past.
- Shot Clock. The FCC also seeks comment on whether it should adopt shot clocks for each of the three complaint processes addressed by the NPRM.
This proceeding addresses a few matters regarding pole attachment complaints and the related regulations under Part 1 of the FCC’s Rules that were raised in the May 2017 wireline infrastructure proceeding (see our previous client advisory for more information).