FCC Chairman Proposes Another Hurricane-Related Exception to the FCC’s Rules

A notable trend under Chairman Pai’s leadership has become the FCC’s proactive willingness to modify its rules in light of recent natural disasters.  As discussed in our recent podcast, the FCC suspended or waived a number of regulatory requirements over the past few weeks for carriers affected by recent major weather events, including rules related to service outage reporting, number portability, Lifeline, and payment of regulatory fees.  Today, the Chairman proposed yet another action consistent with this trend.

This time, the Chairman proposed a relief mechanism specifically addressing the impacts of Hurricane Maria and Hurricane Irma in Puerto Rico and the U.S. Virgin Islands.  The Chairman proposed making Universal Service Fund (“USF”) support immediately available to assist in the recovery efforts.  Specifically, the Chairman proposed allocating up to $76.9 million from the FCC’s high-cost program to affected carriers to repair landline and wireless communications networks on the islands.  Affected carriers would have the option of receiving a lump sum of seven months’ worth of USF funding in advance to expedite repair and service restoration efforts.  The Chairman noted the urgency of making support available.  The Chairman asked his fellow Commissioners to approve the proposal as soon as possible and promised a vote on the issue at the FCC’s October meeting if necessary.

The Chairman’s proposal underscores the FCC’s willingness to develop creative solutions and work with carriers impacted by recent hurricanes to provide support and alleviate regulatory burdens.  Consequently, communications providers should carefully assess the impact of recent severe weather events on their operations and consult with counsel about seeking regulatory relief to speed disaster recovery from the FCC as needed.

New Podcast: Communications Impacts of Hurricanes Harvey and Irma

As communications networks continue to recover from the devastation of Hurricanes Harvey and Irma, and with further severe weather events on the horizon, this episode of Kelley Drye’s Full Spectrum podcast takes a look at the impact the hurricanes have on communications service providers. In this episode, Partner Steve Augustino and Associate Brad Currier describe the outage reporting obligations applicable during disasters, caution providers on environmental reporting obligations that apply to communications service providers, and discuss the many waivers the FCC has granted in light of the events. It’s not “business as usual” after such events, and this episode outlines some of the ways the FCC can ease the impact of its rules on a service provider’s recovery efforts. Click here to listen.

FCC Proposes Exempting Non-Nationwide Providers From Wireless Hearing Aid Compatibility Reporting Requirement

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.

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FCC Proposes First-Ever Forfeiture Against Property Owners for Facilitating Pirate Radio Operations

Continuing its assault on unlicensed broadcast operations, the Federal Communications Commission (“FCC”) issued a unanimous Notice of Apparent Liability for Forfeiture (“NAL”) at its September meeting proposing the statutory maximum fine of $144,344 against a pirate radio operator as well as the owners of the property housing the unlicensed station.  The action represents the first time the FCC has found landowners apparently liable for pirate radio operations on their property and the first Commission-level NAL issued against a pirate radio operation.  Imposing penalties on property owners that support pirate operations has been a longstanding goal for Commissioner O’Rielly, and Chairman Pai signaled that cracking down on pirate stations remains a key enforcement priority for the FCC.

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Portions of the FCC’s Recent Wireless License Renewal Order Take Effect Oct. 2nd, but Key Rule Sections Delayed Pending OMB Review

At the beginning of August, the Federal Communications Commission (“FCC”) took steps to reconcile a diversity of renewal requirements and permanent discontinuance conditions within its rules for many of the licensed radio services.  However, although the Second Report and Order (“Second R&O”) was published in the Federal Register September 1, the rules will take effect only in staggered fashion as set forth in the notice beginning on Monday, October 2, 2017, with significant portions set to take effect months later after further review or, per the FCC’s decision, years in the future.  In the interim, depending on the service and situation, existing rules governing renewals and discontinuance will continue to apply.  Licensees will certainly want to become familiar with the parts of the Second R&O pertinent to their rules service, whether the licenses were issued on a geographic or site-based basis.  Below, we breakdown the time frames in which the rules will take effect: Continue Reading

It’s Official: The Old CPNI Rules Are Back in Effect

Today the Office of Federal Register published a final rule from the Federal Communications Commission (FCC or Commission) that formally voids the rule changes in the Commission’s 2016 Privacy Order—which Congress invalidated in a 2017 Congressional Review Act (CRA) joint resolution earlier this year—and reinstates the voice-centric customer proprietary network information (CPNI) rules “in effect immediately prior to the effect date” of the FCC’s 2016 Privacy Order.

As the Commission notes in the summary of today’s action, “because the CRA does not include direction regarding the removal . . . of the voided language from the Code of Federal Regulations, the FCC must publish this document to effect the removal of the voided” rule’s text.  The Commission further explains that the publication of the previous rules is not an exercise of rulemaking authority, but rather simply effectuates what Congress had already done, and therefore today’s action is neither subject to public comment nor to judicial review.  The FCC’s action is effective today and does not substantively modify the CPNI rules in effect immediately prior to the issuance of the 2016 Privacy Order.

In June, the FCC issued an Order that formally recognized the CRA’s disapproval of the 2016 Privacy Order and dismissed eleven petitions for reconsideration of the new privacy rules.  The June Order noted that the reinstated rules would not apply to broadband service, which would be subject only to the text of Section 222 of the Communications Act, as amended. The June Order was met with a strong partial dissent from Commissioner Clyburn, who challenged the Commission’s decision not to place the item on public comment or to provide consumers with privacy rules beyond the “bare text of section 222” and “decade-old rules for legacy voice.”

For providers, today’s action formalizes what we’ve known for some time: the old CPNI rules are back in effect for non-broadband telecommunications carriers and providers of interconnected VoIP, and the statutory text of Section 222 continues to apply to broadband providers until further action.

 

 

FCC Seeks to Create Uniformity in Formal Complaint Processes

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:

  1. Common carrier complaints – section 208 of the Act provides a process for resolution of any disputes involving common carriers;
  2. 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
  3. 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).

Proposed Fourth Quarter 2017 Universal Service Fund Contribution Factor Jumps – Poised to Hit New High

On September 12, 2017, the Federal Communications Commission’s (Commission) Office of the Managing Director (OMD) released a Public Notice proposing a universal service fund (USF) contribution factor of 18.8% for fourth quarter 2017.  This proposed contribution factor would be the highest rate since the USF program’s inception and likely reflects the impact of the declining USF contribution base. Continue Reading

Communications Service Providers Asked to Adopt the FCC CSRIC Guidance on Signaling System 7 Vulnerability Reduction

Last week, the FCC’s Public Safety and Homeland Security Bureau released a Public Notice (“Notice”) urging communications service providers to review and assess how they can incorporate the recommendations from Communications Security, Reliability, and Interoperability Council (“CSRIC”) V, Working Group 10 March 2017 Report to abate security signaling system 7 (“SS7”) protocol vulnerabilities(the “SS7 Report”).  SS7 is a communications protocol used within telephone networks to aid call setup, routing, billing and other functions between fixed and mobile service providers.

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Louisville One-Touch Make-Ready Ordinance Survives AT&T’s Challenge in Federal District Court

On August 16, 2017, the U.S. District Court for the Western District of Kentucky granted summary judgment in favor of the Louisville Metro Council to uphold the city’s recently-enacted ordinance amendments providing for “one-touch make-ready” (“OTMR”) on poles in the City’s public rights-of-way.  The ordinance had been challenged by AT&T, which alleged that in enacting it, the Louisville Metro Council exceeded its authority under state and federal law.  The victory is a win for providers seeking faster access to poles when facing routine and other make-ready work because it obviates the need for a number of procedural steps that many see engendering delays and thwarting new attachers’ desire to build our or augment their networks promptly to provide customer services.  The decision is the first in the country to review an OTMR ordinance, although other challenges to OTMR ordinances are pending.

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