Legislative Activity

MOBILE NOW Act Introduced in Senate

On February 11, Senator John Thune (R-SD), Chairman of the Senate Committee on Commerce, Science, and Transportation (Senate Commerce Committee) and Ranking Member Bill Nelson (D-FL) introduced the S.2555, the Making Opportunities for Broadband Investment and Limiting Excessive and Needless Obstacles to Wireless Act (MOBILE NOW Act). The bill, previously discussed here, was circulated by Chairman Thune in November 2015 as a discussion draft.

The highlights of the bill include:

• Requiring the government to make available at least 225 megahertz (MHz) of spectrum for licensing by the Federal Communications Commission (FCC) for mobile and fixed wireless broadband use by 2020;

• Requiring the FCC to conduct a feasibility assessment regarding the impact of authorizing mobile or fixed terrestrial wireless operations in the millimeter wave bands between 30 and 300 gigahertz (GHz);

• Requiring the federal government to evaluate the feasibility of allowing commercial wireless services, licensed or unlicensed, to share frequencies in the 3 GHz Band;

• Requiring the FCC to take action in speeding up the deployment of 5G wireless infrastructure;

• Speeding up wireless infrastructure deployment on federal property;

• Encouraging so-called “dig-once” policies that would facilitate placing broadband conduit when below-ground projects like highway constructions are undertaken;

• Ordering the establishment of a National Broadband Facilities Asset Database that inventories federal government property assets available or appropriate for private-sector deployment of broadband facilities; and

• Ordering the Department of Commerce to issue a report on additional legislative or regulatory proposals to incentivize federal entities to relinquish or share their spectrum.

In a press release following the introduction of the bill, Chairman Thune commented that the legislation is “our passport to a 5G future of gigabit wireless connectivity.” The bill has been referred to the Senate Commerce Committee for consideration.

Senate Passes Trade Bill Containing Permanent Internet Tax Freedom Act

On February 11, the Senate passed the conference version of H.R.644 the Trade Facilitation and Trade Enforcement Act of 2015. The bill contains provisions that would extend the Permanent Internet Tax Freedom Act (PITFA) passed by the House in June 2015. The provisions, as passed, permanently ban state taxation of Internet access and placing multiple or discriminatory taxes on electronic commerce. The provisions passed by the Senate are permanent extensions of the Internet Tax Freedom Act, which was originally passed in 1998 and extended five times with bipartisan support. That legislation, in its original form, prohibited taxation of all types of Internet connections from dial-up services to high-speed broadband connection. The bill now goes to the President for signature.

911 Accessibility Bill Introduced in Senate

On February 11, Senator Deb Fischer (R-NE) and Senator Amy Klobuchar (D-MN) introduced S.2553, the Kari’s Law Act of 2016. The bill is named for Kari Rene Hunt of Marshall, Texas who was murdered by her husband in a hotel room in 2013. Ms. Hunt’s 9 year old daughter attempted to dial 911 from the hotel phone but was unable to connect because she did not dial “9” to reach an outside line. The legislation would require multi-line telephone systems, like those found in hotels, to have a default configuration that permits users to directly initiate a 911 call without dialing additional digits, codes, prefixes, or post-fixes. The bill’s introduction elicited a statement from FCC Commissioner Ajit Pai applauding the legislation.

Companion legislation, H.R.4167, was introduced in the House in December 2015 and was previously discussed here. The Senate bill has been referred to the Senate Commerce Committee for consideration.

House Commerce Subcommittee Approves Three Communications Bills

On February 11, the Subcommittee on Communications and Technology (Communications Subcommittee) of the House Energy and Commerce Committee (House Commerce Committee) approved the following three communications bills:

• The Amateur Radio Parity Act (H.R.1301), which requires the FCC to adopt rules that would protect amateur radio equipment from the reach of community association rules and architectural standards that can interfere with the installation and operation of amateur radio towers and antennas;

• The No Rate Regulation of Broadband Internet Access Act (H.R.2666), which would prevent the FCC from using its Open Internet Rules to regulate the rates charged for broadband Internet access service; and

• The Small Business Broadband Deployment Act (available as Discussion Draft only), which would make permanent the FCC’s temporary exemption for small businesses from the enhanced disclosure rules required by the FCC’s Open Internet rules.

With the approval of the Communications Subcommittee, these three bills now go to the full committee for consideration.

Regulatory Activity

FCC Approves NPRM Containing Proposals to “Unlock the Set-Top Box”

On February 18, the FCC adopted and released a Notice of Proposed Rulemaking (NPRM) containing proposed rules intended to “pave the way for software, devices, and other innovative solutions to compete with the set-top boxes that a majority of consumers lease from pay-TV providers today,” according to a News Release. The primary proposal of the NPRM is to require multichannel video programming distributors (MVPDs) – which include cable and satellite TV companies – to offer three “information flows” on any open, standardized format that will “allow manufacturers, retailers, and other companies that are not affiliated with an MVPD to design and build competitive navigation devices.” The three information flows are: (1) service discovery (“information about what programming is available to the consumer”); (2) entitlements (“information about what a device is allowed to do with content, such as record it”); and (3) content (“the video programming itself”). Comment on the proposed rules will be due 30 days after the NPRM is published in the Federal Register, which is pending.

FCC Seeks Comment on Issues Faced by Diverse, Independent Video Programmers

The FCC adopted and released a Notice of Inquiry (NOI) on February 18 seeking comment on “the principal issues that independent video programmers confront in gaining [program] carriage in the current marketplace and possible actions the [FCC] or others might take to address those issues.” The FCC states that the “goal in this proceeding is to begin a conversation on the state of independent and diverse programming, and to assess how the [FCC] or others could foster greater consumer choice and enhance diversity in the evolving video marketplace by eliminating or reducing any barriers faced by independent programmers in reaching viewers.” Specifically, the FCC seeks comment on the state of the marketplace for independent programming and on marketplace obstacles faced by independent programmers. The FCC also “seeks input on several practices that independent programmers allege have had an adverse impact on them” including contract provisions that constrain the ability of independent programmers to compete and program bundling. Comments are due 30 days after the NOI is published in the Federal Register, which is pending.

FCC Issues Order Intended to Enhance Accessibility of Video Programming

The FCC has adopted and released a Second Report and Order (Order) containing “amendments to its rules on closed captioning of televised video programming to ensure that millions of Americans who are deaf and hard of hearing have full access to programming,” according to a News Release accompanying the FCC’s vote. The Order was adopted on February 18 and released on February 19. The Order amended the FCC’s rules to: (1) assign responsibility for the quality of closed captions to video programming distributors (VPDs) and video programmers according to what “closed captioning issues . . . are primarily within [the entity’s] control;” (2) “maintain current rules that place primary responsibility for the provision of closed captioning on television programming on VPDs, but also hold video programmers responsible for a lack of captions where they have failed to provide captions on non-exempt programs;” (3) require video programmers to file a closed captioning compliance certification; (4) allow VPDs to satisfy their obligations regarding provision of closed captioning by ensuring that each video programmer whose programming the VPD carries has such a certification; (5) revise the procedures for receiving, serving, and addressing TV closed captioning complaints; (6) establish a compliance ladder for the TV closed captioning compliance requirements; (7) require that VPDs use the FCC’s web form when providing contact information to the VPD registry; and (8) require each video programmer to register with the FCC its contact information for receipt and handling of closed captioning complaints.

FCC Adopts Orders Intended to Facilitate Deployment of Positive Train Control Safety Systems

On February 16, the FCC adopted a Proposed Order of Modification and Order on Reconsideration (Order) to “facilitate the deployment of Congressionally-mandated Positive Train Control (PTC) safety systems by three of the country’s busiest commuter railroads: the Long Island Railroad (LIRR), the Metro-North Railroad (Metro-North), and New Jersey Transit (NJ Transit).” PTC is a safety measure “intended to reduce the risk of human-error rail accidents, by preventing certain train-to-train collisions, over-speed derailments, incursions into established work zone limits, and the movement of a train through a switch left in the wrong position,” according to the Order. The FCC has stated that PTC “is a potentially transformative technology” that can “save lives, prevent injuries, and avoid extensive property damage.” In the Rail Safety Improvement Act of 2008, Congress required that “all trains providing passenger service and freight trains operating one lines carrying toxic and poisonous-by-inhalation hazardous materials to implement interoperable PTC systems by year-end 2018,” per the Order. The primary actions taken by the FCC in the Order were: (1) to “authoriz[e] the use of spectrum from the [FCC’s] inventory in the four counties needed to complete Metro-North’s PTC spectrum footprint;” and (2) to require the Metropolitan Transit Authority (MTA) to return comparable spectrum to the FCC for future deployment.

FCC Issues Forfeiture Orders to Two Companies and Their Owner for Cramming and Failure to Pay Federal Fees

On February 18, the FCC released two Forfeiture Orders (FOs) against two related companies, Calling 10, LLC and Telseven, LLC, and their owner, Patrick Hines, for “cramming” violations, i.e., placing unauthorized charges onto consumers’ telephone bills, and for deceptive marketing practices (Cramming FO, linked here), which the FCC found to be a violation of Section 201(b) of the Communications Act.  The FCC also penalized the companies for failing to pay requisite “federal regulatory fees and make timely contributions to programs such as the Universal Service Fund (USF)” (Failure to Pay Fees FO, linked here).  The Commission asserts that the companies acquired “one million toll-free numbers [that] were substantially similar to existing working numbers or were numbers formerly used by well-known entities” and when callers reached the numbers by mistake, the companies offered a directory assistance service, but also “bill[ed] consumers . . . without regard to whether [Calling 10] provided any actual directory assistance service.”  Moreover, the companies did not inform consumers that the numbers were no longer in service or “clearly and conspicuously disclose the actual fee.”  According to the Failure to Pay Fees FO, by offering the directory assistance service Telseven was required to  contribute to federal programs and pay regulatory fees, but failed to do so.