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Below is Kelley Drye’s preview of the items under consideration at the Federal Communication Commission’s (FCC’s) upcoming monthly Open Meeting, to be held on July 13, 2017.  Consistent with the trend since he took over the Commission, Chairman Ajit Pai continues to schedule a large number of items.  Indeed, for the sixth month in a row, the Commission has six or more items on its agenda.  This month, the agenda consists of eight items, two Notices of Proposed Rulemaking, two Notices of Inquiry, two Reports and Orders, and one Order on Reconsideration.

Each agenda item is summarized below.  Note: these brief summaries are based on draft items, which may differ from the final items released following the Open Meeting.  Please check with Kelley Drye after the meeting for more information on the items below.

Continue Reading What to Expect at the FCC’s July 2017 Open Meeting

When the United States Court of Appeals for the D.C. Circuit upheld the Federal Communications Commission’s 2015 Open Internet Order in June, it extensively applied Chevron deference in its decision. The controversial case has re-ignited the debate about whether Chevron provides too much deference to federal agencies, even as they are left applying aging statutes to new technologies and situations. In this podcast, communications partner Hank Kelly and associate Jennifer Holtz talk about the Chevron doctrine, its origins, and some key public policy considerations in light of the Open Internet decision. Listen to the episode here.

On March 19, 2014, Kelley Drye will host a free, half-day workshop, at the COMPTEL PLUS Spring 2014 Convention & EXPO in Las Vegas, NV.  The workshop is designed to help service providers identify new opportunities as changes in technology, the marketplace, and the regulatory environment continue to disrupt existing business plans. Entitled “The Next Big Thing: Capitalizing on Emerging Trends at the Intersection of Public Policy and Business,” the workshop will feature in-depth discussions with leading industry executives, mini-sessions focused on key regulatory issues led by Kelley Drye subject-matter experts and a wrap-up session with COMPTEL’s policy team.

In this new workshop format, Kelley Drye will interweave discussions and presentations with seven snapshot mini-sessions covering topics such as IP trials; Telephone Consumer Protection Act (TCPA) and text marketing; privacy and data security; 21st Century Communications and Video Accessibility Act (CVAA) obligations; and essentials for E-rate, Lifeline, and rural broadband. In-depth discussions will include an open panel discussion among wireline, wireless and satellite executives, who will forecast trends, examine business strategies, and identify the new opportunities; and another featuring service providers working within the various USF funds, who will talk about the challenges they’re facing. The workshop will conclude with a coffee-talk style conversation with members of COMPTEL’s policy team, including CEO Chip Pickering, Chief Advocate and General Counsel Angie Kronenberg, and Senior Vice President of Government Affairs Alan Hill. Kelley Drye Telecommunications practice chair John Heitmann, partners Steve Augustino, Hank Kelly and Tom Cohen will act as moderators.

“The Next Big Thing” workshop will take place from 8 a.m. to 11 a.m., March 19, in Pinyon 3 at the Aria Resort & Casino. The full agenda and confirmed speakers can be found in the COMPTEL PLUS agenda. To register to attend the COMPTEL PLUS Spring 2014 Convention & Expo, please click here.

Today, the FCC adopted a series of steps intended to solicit proposals from communications providers to conduct service-based experiments to explore the transition to all-Internet Protocol (“IP”) networks. Chairman Wheeler described today’s actions as “a big deal” and “an important moment.” He and the other Commissioners emphasized that the experiments would be completely voluntary, will focus on impact to consumer expectations, are not technology trials, and will not answer the controversial policy, legal, or regulatory issues raised by the transition to all-IP networks — such as whether the incumbent local exchange carrier interconnection and unbundling obligations under Section 251(c) of the Communications Act apply equally to all-IP networks. While Chairman Wheeler stated that the FCC will “need to protect the enduring value of competition,” the Commissioners’ comments at the open meeting confirmed that the FCC will tackle these issues in the future, in part with the data generated by the experiments announced today. While the order and other items have not yet been published, the FCC Staff outlined the key provisions of the order at the FCC open meeting, and the process by which the FCC will evaluate applications to conduct IP experiments (due February 20, 2014), including the value of the data the proposed experiments will generate and the ease by which consumers involved in the trials will be able to provide feedback.

The FCC will invite carriers and other providers to submit proposals to provide IP-based services in discrete geographic areas and for particular services. Following the proposals, the FCC will solicit comments from interested parties (due March 31, 2014) and confer with state regulators and tribal leaders, with a decision on which experiments will be accepted to be issued at the FCC’s May 15, 2014 meeting. Commissioner Rosenworcel likened the trials to a separate “sandbox” within a playground, where carriers and providers could test services and IP-based networks without interfering with the existing networks within a geographic region. The Commissioners and staff emphasized that the trials would focus on impact to consumer expectations and the FCC’s core values of public safety, universal service, consumer protection, and competition.

To better understand the transition to all-IP networks, the FCC also announced that it will be conducting a series of workshops in the spring to examine issues on rural broadband, numbering, broadband access to persons with disabilities, and public safety. For example, the FCC announced it will hold a workshop in April 2014 to examine how IP networks can be used to deliver next generation 911 services, taking into account the differences between TDM networks and fiber networks. The Chief of the Public Safety and Homeland Security Bureau, Admiral David Simpson, noted that his office is also focusing on the ability of all IP-networks to deliver continuity of communications during crises.

As a component of today’s actions separate from the experiments described above, the Commission announced it would conduct rural broadband trials funded by the Connect America Fund (“CAF”) that would be held in parallel, and would not interfere, with the allocation of Phase II CAF funds to price cap LECs in unserved areas. The Commissioners announced that all Americans must benefit from the transition. The rural trails would focus on connecting anchor community institutions to their neighboring communities. Non-binding expressions of interest for the rural experiments will be due on March 7, 2014. There will be a further notice from the FCC addressing budget matters and selection criteria, and additional actions leading to an order later in the year adopting the final framework for this component of today’s actions.

The actions taken today will also address telephone number assignment in all-IP environments, improvement of the TRS system – the FCC announced $3 million in research funding — and access for persons with disabilities in an all-IP world.

The text of the order, notice of proposed rulemaking, and a notice of inquiry in this matter adopted today are expected tomorrow or early next week.


On January 14, 2014, the DC Circuit Court of Appeals partially vacated the FCC’s net neutrality rules applicable to Internet access providers, while affirming the conclusion by the FCC that it has jurisdiction to regulate the Internet to promote broadband infrastructure investment and to promote competition. Verizon v. Federal Communications Commission ____ F.3d ___ (D.C. Cir. 2014) (“Verizon Net Neutrality Order.”) The Court determined, however, that the FCC’s own prior regulatory classification decisions limited its substantive authority to impose net neutrality obligations on broadband Internet access services, unless (the Court implied) the FCC were to reclassify Internet broadband as a telecommunications service.

The Court’s opinion appears to conflict with its 2010 ruling in its Comcast decision, striking down previous FCC net neutrality orders on the ground that the FCC had insufficient regulatory authority to adopt such provisions. See Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010). In the Verizon Net Neutrality Order, the Court deferred to the FCC’s changed understanding of the source of its authority and affirms the agency’s more recent finding that Section 706 of the 1996 Telecommunications Act does indeed vest the FCC with certain authority to regulate how broadband providers treat edge providers of content and applications. However, despite the finding of adequate jurisdiction, the Court found that the FCC had, in effect, tripped on itself. The Court concluded that two of the Commission’s net neutrality rules – specifically, the anti-blocking and the anti-discrimination provisions – were common carrier-type regulations that under the Commission’s own regulations and the Communications Act of 1934, as amended, itself, the FCC could not impose on information service providers. Because the FCC has previously held broadband Internet access services are information services, the Court rules that the Commission may not impose common carrier obligations on broadband Internet access service providers. The Court, however, let stand the rules requiring Internet broadband providers disclose information about their network management practices, performance and commercial terms of their services.

Because the Court relies significantly on the FCC’s own prior decisions construing provisions of the Communications Act, the Verizon Net Neutrality Order is a compelling decision that demonstrates the discretion and latitude that the FCC has in construing its own enabling statutes, including the scope of its own jurisdiction. The Court specifically relied on the Supreme Court’s 2013 finding that the courts must apply a deference analysis to the FCC’s interpretation of the scope of its statutory authority. See City of Arlington v. FCC, 133 S. Ct. 1863 (2013). This decision also recognizes that the FCC, with adequate explanation, can change its mind about the construction of its statutory authority. However, because the FCC had classified broadband Internet access service as an information service, the Court limited the Commission’s ability to impose common carrier-type regulations on Internet service providers. Consequently, the outcome of this appeal raises the questions of whether the FCC will consider changing the regulatory classification of broadband Internet access services and whether Congress will rewrite the Communications Act to circumscribe the scope of the discretion the Court found the FCC has out of the hands of the Commission. In short, this decision may well be an early chapter in the evolution of the regulatory framework that applies to Internet access rather than any sort of denouement.

To read the full Kelley Drye Client Advisory on the court’s decision, please click here.

The Telecommunications Act of 1996 imposes limitations on a local government’s ability to deny permits to construct telecommunication towers. These include, among others, prohibitions against discrimination, a review of applications within a reasonable timeframe, and a requirement that application denials be “in writing and supported by substantial evidence contained in a written record.” See 47 U.S.C. §332(c)(7)(B)(i)-(iv). The statute juxtaposes these restrictions against an express preservation of a local government’s “decisions regarding the placement, construction, and modification of personal wireless service facilities.” Id. at § 332(c)(7)(A).

Recently, some courts have strictly construed Section 332(c)(7)(B)’s prohibitions. For example, last week, the 9th Circuit U.S. Court of Appeals held that a local government’s requirement that municipal voters approve certain constructions was not subject to the prohibitions of Section 332(c)(7). In Omnipoint Commc’ns Inc. v. City of Huntington Beach, — F. – -, 2013 WL 6486240 (9th Cir. Dec. 11, 2013), a seventeen year-old voter initiative amended the local government’s charter to require city council and voter approval before construction costing more than $100,000 occurred on city-owned property. After initially approving the carrier’s siting of antennas in a city park within a reasonable time but discovering that the construction costs exceeded $100,000, the local government required that the construction be approved by voters. The carrier filed suit arguing that Section 332(c)(7)’s restrictions barred applying the voter-initiative requirement to the proposed construction.  Continue Reading Courts Continue to Strictly Interpret the Preemptive Scope of Tower Siting Rules