The FCC continues its efforts to improve rural call completion, teeing up a draft Fourth Report and Order (“Order”) that would adopt new service quality standards for intermediate providers (i.e. entities that carry, but do not originate or terminate calls) for consideration at its March 15, 2019 Open Meeting. The Order, which would further implement the Rural Call Quality and Reliability Act of 2017 (“RCC Act”), proposes intermediate provider service quality standards and related enforcement procedures, and sunsets existing call data recording and retention rules for covered providers. The Order also would deny two pending Petitions for Reconsideration of previous rural call completion orders. Although the proposed service quality standards would not take effect until the later of six months after the Order is released or 30 days after it is published in the Federal Register, intermediate providers will want to begin familiarizing themselves with the proposed new rules now in light of the significant potential enforcement penalties for noncompliance.
Just before suspending most operations due to the ongoing partial federal government shutdown, the FCC announced its tentative agenda for its next open meeting, scheduled for January 30, 2019. While the January agenda is brief compared to the jam-packed meetings that typified 2018, the FCC plans to adopt items to advance new anti-spoofing measures combating manipulated caller ID information and take further action to address the management and handling of 911 calls for the IP Captioned Telephone Service (“IP CTS”) that aids communication by those with hearing loss. Rounding out the notable meeting items, the FCC would adopt a mechanism to phase down legacy high-cost support for price cap carriers as well as competitive carriers previously subject to the “identical support rule” and transition such support to the winners of the recent Connect America Fund (“CAF”) Phase II auction.
You will find more details on the significant January meeting items after the break:
With speculation running rampant that Chairman Pai intends to bring a remand order from ACA International v. FCC in January 2019, the FCC took a related step to reduce misdirected calls. At the December Open Meeting, the FCC approved a Second Report and Order (“R&O”) to create a single, nationwide database for reporting number reassignments that will allow callers to verify whether a phone number was permanently disconnected before calling the number. The item is meant to reduce “wrong number” calls to mobile phones, i.e., where a caller has a legitimate reason for trying to reach a consumer but doesn’t realize that the number they have has been reassigned to someone else. The new rule would help eliminate a scenario where the new holder of the number receives an unwanted call and the prior holder never receives the call intended for them. The R&O is part of a broader effort by the FCC to address and stem the volume of unwanted phone calls in the United States.
At the Federal Communications Commission (“FCC”) December Open Meeting, commissioners voted to approve a Declaratory Ruling (“Ruling”) that classifies native forms of wireless messaging, short message service (“SMS”) and multimedia messaging service (“MMS”), as information services, and declares that such services are free from regulation as commercial mobile services. The FCC’s objective with the Ruling is to remove uncertainty for messaging service providers about applicable regulations and also enable wireless messaging providers to adopt more rigid efforts to block spam and spoofing messages. This action comes only a few months after Commissioner Mike O’Rielly publicly called for the FCC to finally act on the pending classification proceeding.
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.
In this edition of Full Spectrum’s recurring series on FCC enforcement, Partner Steve Augustino and Associate Brad Currier address the legal dangers facing entities that may be unfamiliar with telecommunications regulation. Steve and Brad focus on a multi-million dollar DOJ fraud prosecution involving the E-rate fund and a settlement of inadvertent transfers of FCC licenses occurring as a result of a transaction between two entities that are not traditionally seen as communications entities (in this case, two hospitality companies). They also look ahead to two enforcement items on the agenda for the FCC’s September 26, 2018 Open Meeting. Click here to listen to this episode and click here to subscribe on iTunes.
After almost two months of anticipation, the Federal Register is expected to publish the Notice of Proposed Rulemaking (“NPRM”) concerning the future use of 3.7-4.2 GHz (the “4 GHz Band”) by the mobile, fixed, and satellite services released by the FCC on July 13, 2018. The August 29 publication in the Federal Register will establish the comment and reply comment dates as Monday, October 29, and Tuesday, November 27, 2018.
There will be plenty for interested parties to comment on, as we discussed in an earlier blog post providing an overview of the draft NPRM, which was largely retained in the document finally adopted. The FCC is considering myriad options to restructure that spectrum to introduce commercial flexible mobile use and fixed point-to-multipoint operations while protecting incumbent fixed satellite service uses and grandfathered point-to-point licenses. The 4 GHz Band is commonly recognized by the mobile industry, the FCC, and others, as a key mid-spectrum band for next-generation networks and applications, including 5G and the Internet of Things.
The Federal Communications Commission (“FCC”) recently took steps to preserve the status quo for existing users in the 3.7-4.2 GHz band (the “4 GHz Band”) while it considers myriad options to restructure that spectrum for commercial flexible mobile use and more intensive fixed use. The FCC appears set to move forward with deliberation while it considers modifications to the regulatory structure in the adjacent 3.5 GHz Band (3.55-3.70 GHz). Both bands are touted by the mobile industry, and the FCC itself, as key mid-spectrum bands for next generation networks and applications, including 5G and the Internet of Things.
This 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 June 22, 2017. Chairman Ajit Pai continues to schedule a large number of items each month, reflecting an ambitious agenda for the agency. Indeed, for the fifth month in a row, the Commission has six or more items on its agenda. This month, the agenda consists of seven items; three Notices of Proposed Rulemaking, one Notice of Inquiry, two final actions and one enforcement item. The topics are varied this month, with at least one item from every Bureau except the Wireless Telecommunications Bureau.
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.
“Blue Alerts” Notice of Proposed Rulemaking (NPRM)
Chairman Pai has set forth a proposal to amend the Commission’s Emergency Alert System (EAS) rules to add a dedicated event code, “BLU,” for “Blue Alerts.” This is modelled on the highly successful Amber Alerts used during instances of child abduction. Blue Alerts would notify the public when there is actionable information related to a law enforcement officer who is missing, seriously injured or killed in the line of duty, or if there is an imminent and credible threat to an officer. The Department of Justice has previously identified the need for a dedicated Blue Alert EAS code. The Commission is proposing that any required technical changes to equipment be made within 6 months of the effective date of the rules.
The Commission seeks comment on several issues, including the effectiveness of the EAS to deliver Blue Alerts, whether Blue Alerts can be sufficiently geographically targeted, how Blue Alerts can be incorporated into states’ existing Blue Alert plans, the proposed alerts’ costs and benefits, and how the public will likely respond to Blue Alerts.
Report and Order on FirstNet Opt-Out Plans
Under the Middle Class Tax Relief and Job Creation Act of 2012, states that are opting out of the First Responder Network Authority’s (FirstNet’s) national plan are required to obtain FCC approval for their own radio access network (RAN) plan. The FCC will determine if the plan meets interoperability requirements. If the FCC rejects a state’s alternative plan, the state must accept FirstNet’s plan.
The draft Report and Order gives states 90 days following receipt of FirstNet’s plan to notify the Commission, FirstNet, and the National Telecommunications and Information Administration (NTIA) of their decision to opt-out of FirstNet’s plan. After notifying all parties of its decision, a state has 180 days to conduct an RFP process (including picking a winner), and then an additional 60 days to further develop the alternative plan it must submit to the FCC.
States’ alternative plans must address the RAN construction, maintenance, operation, and improvements on the existing state RAN. They must also address interoperability requirements, and all requirements of the Technical Advisory Board for First Responder Interoperability. The FCC establishes for itself an “aspirational” 90-day shot clock to review states’ alternative plans. This review will solely focus on the RAN elements, and will not include elements related to user equipment, or issues related to coverage or financing. The Commission believes these other factors will be adequately addressed by NTIA’s subsequent review.
NPRM on Law Enforcement Accessing Caller ID Information
This NPRM would allow law enforcement and interested parties to have quick access to blocked caller information in cases of threatening phone calls. The Commission argues that threatening callers have no legitimate privacy interest. The Commission has previously found public interest reasons to waive the rules, such as calls to 911, a poison control line, or other public emergency lines.
The rules propose to define a “threatening call” as any call that includes a threat of serious and imminent unlawful action posing a substantial risk to property, life, safety, or health. The Commission seeks comment on whether it should require anyone reporting a threatening call do so in conjunction with a law enforcement agency, to prevent individuals from circumventing existing caller ID privacy protections. The Commission also asks what requirements it should impose on recipients of caller information to safeguard it.
This NPRM follows an earlier waiver of the rules following a series of bomb threats against Jewish community centers across the country.
Order and Declaratory Ruling on WorldVu Satellites Limited, d/b/a OneWeb’s Request to Launch an NGSO Constellation for Broadband Service
In a draft Order and Declaratory Ruling, the Commission proposes to grant OneWeb access to the U.S. market with a proposed Ku- and Ka-band non-geostationary-satellite orbit (NGSO) constellation in the fixed-satellite service (FSS) to provide broadband service. This would be the first Commission approval of an anticipated new generation of NGSO constellations that seek to provide low latency broadband connectivity across the United States and enhance prospects for rural broadband access. Eleven other applications were filed in November 2016 in response to the processing round initiated when the FCC put the OneWeb petition for U.S. market access on public notice in July 2016. Those applications remain pending and would not be affected by adoption of the draft Order, although ten of the eleven applications were accepted for filing on May 26, 2017.
The proposed grant to OneWeb of U.S. market access would be conditioned on, among other things, ITU coordination, power limits, avoidance of in-line interference, orbital debris mitigation, the outcome of pending and future rulemakings, and satisfaction of bond and milestone requirements.
The draft Order would grant OneWeb several waivers. OneWeb seeks waivers to operate on a non-interference, secondary basis in the 17.8-18.3 GHz band (not allocated for FSS operations) and the 18.3-18.6 GHz band (allocated for FSS operations, but not NGSO systems). OneWeb also seeks a waiver allowing shared operations between OneWeb and other NGSO constellations in the 17.8-18.6 GHz, 27.5-28.6 GHz, and 29.5-30 GHz bands via in-line interference avoidance procedures rather than the existing band-splitting requirements.
Notice of Inquiry (NOI) Broadband Deployment in Multitenant Buildings
The Commission will consider a Notice of Inquiry seeking comment on ways to facilitate greater consumer choice and broadband deployment in multitenant environments (e.g., apartment buildings, condominium facilities, shopping malls)(MTEs).
In 2000, the FCC prohibited common carriers from entering into contracts that restrict owners and managers of commercial multitenant buildings from permitting access to competing carriers, and in 2007 expanded those rules to apply to multichannel video programming distributors (MVPDs).
In this NOI, the Commission asks whether there are any state and local regulations that may inhibit broadband deployment and competition in MTEs and whether the Commission should revisit an earlier decision not to prohibit MVPDs from entering into exclusive marketing and bulk billing arrangements. The FCC also seeks comment on several issues about revenue sharing agreements and exclusive wiring arrangements. The Commission also invites comment on its legal authority to address the issues raised in the NOI.
NPRM and Order to Modernize Payphone Compensation Rules
Chairman Pai circulated a Notice of Proposed Rulemaking and Order that would begin the process of eliminating the payphone call tracking system annual audit requirement and associated reporting requirement. Given the decline in payphone usage, the NPRM and Order is intended to eliminate requirements that are no longer necessary. The Commission also waives the 2017 audit and associated reporting requirement for the interim period while it considers the NPRM.
Enforcement Bureau Order
The Commission will consider an Enforcement Bureau order, which will remain confidential until the day of the meeting.
On Monday, June 19th, the Commission adopted and removed the following item from its agenda. The final text of the item was not available at the time this advisory was published.
Declaratory Ruling on Delivery of Cable Operators’ Annual Notice
The Commission adopted a Declaratory Ruling granting a 2016 petition by the National Cable & Telecommunications Association and the American Cable Association to clarify that the “written information” that cable operators must annually provide to their subscribers under FCC rules can be provided via e-mail.
All parties in the record agreed that e-mail delivery would satisfy this obligation. Under the text of the public draft, the Commission will require that the cable operator use a “verified” email address, which must satisfy one of the following criteria: (1) an e-mail address that the customer has provided to the cable operator (and not vice versa) for purposes of receiving communication, (2) an e-mail address that the customer regularly uses to communicate with the cable operator, or (3) an e-mail address that has been confirmed by the customer as an appropriate vehicle for the delivery of notices. If no verified e-mail contact information is available for a particular customer, cable operators must continue to deliver the annual notices via paper copies.
The FCC declines to allow cable operators to meet this obligation by providing a link to a publicly available website within a customer’s bill.