December 3, 2022

Volume XII, Number 337

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FCC Download May 2022

Nelson Mullins’ communications lawyers provide this monthly download of FCC actions of interest and upcoming filing deadlines relevant to domestic and international communications services providers, federal Universal Service Fund participants and information service providers. These items are intended to assist readers in understanding trends in communications policy and to identify changes in law that may affect their businesses. Please contact a member of Nelson Mullins’ communications team if you would like advice regarding any of the items covered in this issue.

In this month’s download:

I. Trend of the Month

II. FCC Open Meeting Actions

     a. May 19, 2022, Open Meeting Notes

     b. June 8, 2022 Preview

III. USF Corner

IV. Enforcement Corner

V. Upcoming Filings and Comments

VI. Other News


Trend of the Month: “Notice of Funding Opportunity” Arrives

After countless workshops and “listening sessions,” the U.S. Department of Commerce opened applications for $45 billion in broadband funding in May. The money is part of the $65 billion in broadband funding allocated through the Infrastructure Investment and Jobs Act (IIJA), which passed in November 2021. It will be distributed through three programs overseen by the NTIA. These include the $42.5 billion Broadband Equity, Access, and Deployment (BEAD) program; the $1 billion Enabling Middle Mile Broadband Infrastructure program; and the $1.5 billion State Digital Equity Act program.

This is an important step in obtaining broadband funding, but it is only the first step. This “NOFO” allows state entities to submit letters of intent to participate in the programs, and triggers planning funding to allow the states to prepare their funding priorities and grant processes. Notably, every state is guaranteed at least $100 million in BEAD funding, with more to be allocated based on the funding priorities in the plans. Thus, the real jockeying begins in the states, as stakeholders pitch their projects and needs for inclusion in the state plans. Already, we’re seeing push-back: some argue that the NOFO treats as “unserved” areas that are subject to funding already granted by the FCC and will lead to overbuilding. Some also argue that the NOFO gives too much weight to fiber-based deployments, at the expense of wireless solutions that can provide relief to unserved areas much faster. In the interim, interested parties should be discussing projects with their state broadband offices and preparing for grant applications.

FCC Open Meeting

May 19, 2022 Open Meeting Notes:

  • Combatting Illegal Robocalls. The Commission adopted a Report and Order, Order on Reconsideration, and Further Notice of Proposed Rulemaking addressing foreign-originated and other illegal robocalls from multiple angles. Notably, the Report and Order will impose multiple new obligations on “gateway” providers receiving foreign calls, including obligations to implement STIR/SHAKEN and sign foreign-originated calls, to file a robocall mitigation plan, to respond to traceback requests within 24-hours and to implement “know your customer” procedures for their immediate international partners. In addition, the FCC will end its suspension of the foreign carrier registration requirement effective with the rules. Finally, the FCC will seek comment on extending the gateway provider obligations to domestic intermediate carriers, who at this point only have to register as an intermediate carrier but not file a robocall mitigation plan. (CG Docket No. 17-59; WC Docket No. 17-97)

  • Expanding Broadband Service Through the A-CAM Program. The Commission adopted a Notice of Proposed Rulemaking seeking comment on a proposal by the ACAM Broadband Coalition. The proposal would make changes to the A-CAM program, with the goal of achieving widespread deployment of faster 100/20 Mbps broadband service throughout the rural areas served by rural carriers currently receiving A-CAM support. Commissioner Starks welcomed the adoption and further noted that some consumers “could see a 4-fold, 10-fold, or even 20-fold increase in their speeds.” (WC Docket Nos. 10-90, 14-58, 09-197, 16-271, RM-11868)

  • Modernizing Priority Services for National Security and Emergency Response. The Commission adopted a Report and Order that modified its priority service rules. It clarified service providers’ authorization to prioritize data, video, and IP-based voice services for eligible users on a voluntary basis. Chairwoman Rosenworcel welcomed these updates and noted that they “remove outdated requirements that were built for the analog era.” (PS Docket No. 20-187)

  • Updating FM Radio Directional Antenna Verification. In another report and order to modernize outdated technology, the Commission adopted a Report and Order allowing FM broadcasters to submit verified computer models for directional antennas instead of physical antenna mockups. Some FM stations use directional antennas in order to prevent interference to other stations. When seeking a license, FM radio stations using directional antennas are required to provide measurements of the radiated signal to verify their directional pattern by either building a full-size mockup of the antenna or building a scale model. Chairwoman Rosenworcel welcomed this update and noted that “with high-quality computer modeling tools now available, this policy no longer makes sense.” (MB Docket No. 21-422)z

June 8, 2022 Preview: FCC Adds Affordable Connectivity Item to June 8 Agenda

On June 1, the FCC announced a five-item agenda for its June 8, meeting, reflecting the four items announced on the tentative agenda two weeks ago on May 17. The recent announcement adds a draft notice of proposed rulemaking (NPRM) seeking comment on a statutorily mandated annual collection of information on the price and subscription rates of Internet service plans used by households enrolled in the Affordable Connectivity Program. The WC docket 21-450 draft NPRM began circulating among the Commissioners’ offices last month. The meeting is scheduled to start at 10:30 a.m. and will be open to the public through a livestream on the FCC’s website and its YouTube channel. Draft items available here.

  • Facilitating Access to Spectrum for Offshore Uses and Operations. The Commission will address a draft notice of inquiry in WT Docket 22-204, that would solicit views on whether rules changes would help spur the development of commercial and private wireless networks offshore. Draft notice here.

  • Improving Wireless 911 Call Routing. Also on the agenda is a draft public notice in PS Docket 18-64, that would examine recent technological improvements involving location-based routing of wireless 911 calls and what steps the FCC should consider to help reduce the misrouting of 911 calls. Draft notice here.

  • Preserving Local Radio Programming. The Commission will discuss a draft NPRM in MB docket 03-185 regarding a proposal to allow certain channel 6 low power television stations to continue to provide FM radio service as ancillary or supplementary service under specified conditions. Draft notice here.

  • Enforcement Bureau Action. The sunshine agenda also includes an enforcement action. The FCC does not provide the details of such items until they are adopted.

 Universal Service Corner

  • Chairwoman Rosenworcel Proposes the use of Federal Funding for School Bus Wi-Fi. On May 11, Chairwoman Jessica Rosenworcel announced a proposal to allow the use of federal funding for Wi-Fi in school buses. The Declaratory Ruling, if adopted, would allow E-Rate program funding to equip school buses with Wi-Fi, providing substantial benefits to students, including millions of students caught in the Homework Gap. The proposal would clarify that use of Wi-Fi, or similar access point technologies, on school buses serves an educational purpose and the provision of such service is therefore eligible for E-Rate funding. News release here.

  • ACP NPRM Circulates. A draft notice of proposed rulemaking (NPRM) in WC docket 21-450, related to the Affordable Connectivity Program (ACP), began circulating among Commissioners’ offices on Wednesday. The draft NPRM would seek comment on the annual collection of data about the Internet services used by ACP subscribers, as required by law, according to an FCC spokesperson.

  • WCB Grants Rural Health Care Petition for Waiver by Elite Program Specialists. Health care providers seeking Healthcare Connect Fund Program support are required to seek competitive bids by submitting a service request using an FCC Form 461 to USAC. After the Form 461 is posted, an applicant may enter a contract with its selected service provider and submit a funding request using an FCC Form 462. Applicants that miss the deadline are prohibited from submitting funding requests. However, the Wireline Competition Bureau granted a petition by several Louisiana providers requesting a waiver of the FCC Form 462 application filing deadline. The Bureau concluded that several natural disasters throughout the state of Louisiana justified the grant of a waiver. The Order can be found here.

  • WCB Announces Key Deadlines for Connected Care Pilot Program. On March 17, 2022, the FCC selected its final round of applicants for the Connected Care Pilot Program. The Program will assist to defray health care providers’ qualifying costs of providing connected care services. The Program will make available up to $100 million to be committed over a three-year funding period. To remain consistent with the public interest, the commission decided to modify some deadlines due to the lengthy applicant selection process. The Bureau noted that strict compliance with the June 30, 2025 end date is inequitable, as it will prevent participants starting their projects in the fall from conducting a full three-year Pilot project. The program will now end on December 31, 2025. The Notice establishing deadlines can be found here.

  • FCC Commits $50 Million in Emergency Connectivity Funding. The FCC announced that it will commit an additional $50 million in support for the Emergency Connectivity Fund. Chairwoman Rosenworcel announced that this round will support 46 schools, 7 libraries, and 2 consortia across the country. On April 26, the Commission announced that applicants had until May 13 to participate in the third window. The News release is available here.

Enforcement Corner

  • FCC Proposes $100K Fine Against LTD for Prohibited Communications. The Enforcement Bureau proposed a $100,000 fine against LTD, a Nevada telecommunications provider, for “repeatedly engaging in prohibited communications of its bidding and bidding strategies” and for “its failure to timely report such prohibited communications” in the FCC’s Rural Digital Opportunity Fund Phase I Auction. The Notice is available here.

  • FCC Requests Letters of Intent for Robocall Tracebacks Consortium. In a public notice the FCC Requested Letters of Intent for the Robocall Tracebacks Consortium. Section 13(d)(1) of the TRACED Act directed the FCC to establish a process for registering a “single consortium that conducts private-led efforts to trace back the origin of suspected unlawful robocalls.” Interested parties had until May 20 to submit their Letters of Intent. Those wishing to comment, and reply must do so in June. The Notice is available here.

  • The Federal Trade Commission Takes Action to Stop Voice over Internet Provider from Facilitating Illegal Telemarketing Robocalls. On May 6, 2022, the U.S. Department of Justice settled a complaint against VoIP Terminator, Inc., another related company, and its owner. The complaint alleged that defendants violated various provisions of the Telemarketing Sales Rule by “assisting and facilitating the transmission of millions of illegal prerecorded telemarketing robocalls, including those they knew or should have known were scams, to consumers nationwide and that defendants failed to act as a gatekeeper by preventing and blocking calls originating oversees. Complaint and Consent Motion here. The DOJ news release is available here.

  • Constellation to Pay $275,000 for Unauthorized Transfer of Wireless Licenses. Constellation has agreed to pay $275,000 under a consent decree with the FCC’s Enforcement Bureau to resolve an investigation into whether it engaged in unauthorized transfers of wireless radio licenses. Constellation stated that beginning March 15, 2019, and continuing through at least August 31, 2020, certain of its subsidiaries had acquired or sold properties in transactions that included wireless radio licenses without first obtaining Commission consent. The Order and Consent Decree is available here.

Upcoming Filings and Comments

  • May 27, 2022. The FCC extended comment and reply dates regarding the E-Rate bidding program. Reply comments were due by May 27, 2022.

  • June 1, 2022. FCC Form 462 and 466 - Funding Request June 1, 2022 - Deadline to Submit. Additionally, “My Portal Platform” which is used to submit the FCC Form 462 has been renamed to “RHC Connect.”

  • June 3, 2022. Comments on the Selection of the Traceback Consortium due by June 3, 2022.

  • June 10, 2022. Reply comments on the Selection of the Traceback Consortium due by June 10, 2022.

Other News

  • FCC, NTIA, USDA and Treasury Announce Interagency Agreement To Collaborate On Federal Broadband Funding. On May 11, 2022, the four agencies signed an interagency agreement to share information about and collaborate regarding the collection and reporting of certain data and metrics relating to broadband deployment. The agencies will consult with one another and share information on data collected from programs administered by the FCC, the USDA’s Rural Utilities Service, programs administered or coordinated by NTIA, and Treasury’s Coronavirus Capital Projects Fund and State and Local Fiscal Recovery Fund. The Memorandum of Understanding and news release can be found here.

  • Elon Musk’s Twitter Adventure. Elon Musk’s interest in the acquisition of Twitter has been received with some mixed reviews. Commissioners Brendan Carr and Nathan Simington rejected calls for the FCC to block the acquisition, stating that the FCC has no authority to block the transaction. Commissioner Nathan Simington further noted that Mr. Musk’s acquisition could lead to enhanced competition. See Carr statement here and Simington statement here.

  • Federal Trade Commission Begins Process to Expand its Telemarketing Sales Rule. On April 28, the FTC proposed rulemakings to extend protections for small businesses against telemarketing business-to-business schemes and to strengthen safeguards to protect consumers from other telemarking scams. The notice of proposed rulemaking seeks comment on business-to-business schemes and record keeping requirements. The advance notice of proposed rulemaking seeks comments on a wide range of issues including tech-support scams, click to cancel requirements, and robocalls and other telemarketing to small businesses. Comments on both proposed rulemakings are due 60 days after publication in the Federal Register.

  • Carr Calls for the FCC to Replace the 2016 Voluntary Wireless Resiliency Framework. Commissioner Brendan Carr called for the FCC to adopt new rules that will promote consumer access to robust, resilient wireless networks during disasters. Carr mentioned four specific recommendations:

    • Participation in the framework is currently voluntary and Carr proposes adopting a new rule that would require wireless providers to participate.

    • Expand the trigger to situations where ESF-2 or DIRS are activated and let certain state level disaster declarations to trigger the framework.

    • Require providers to establish the arrangements necessary to facilitate roaming during a disaster.

    • Increase disaster testing and adopt transparency and reporting obligations.

  • FCC Announces Agenda for 988 Geolocation Forum. All four Commissioners, the Secretary of Health and Human Services, representatives from Veterans Affairs and representatives from the Substance Abuse and Mental Health Services Administration will all be participating. Various topics will be discussed. The notice can be found here.

  • FCC Seeks Comment on TCPA Exemption for Health Coverage Program Enrollment Calls. The FCC released a Public Notice on May 3, 2022, requesting comments on how it should clarify “that certain automated calls and text messages or prerecorded voice calls relating to enrollment in state Medicaid and other governmental health coverage programs are permissible under the Telephone Consumer Protection Act (TCPA).” Due to the need to resolve the issue expeditiously, the comments and replies were due on May 17, and May 24, respectively. The Notice is available here.

Copyright ©2022 Nelson Mullins Riley & Scarborough LLPNational Law Review, Volume XII, Number 154
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About this Author

Steven A. Augustino Litigation Attorney Washington DC Nelson Mullins
Partner

Steve’s practice ranges from regulatory, legislative, and administrative law counsel to transactional advice, advocacy, and litigation. His practice focuses on USF contributions, E-rate and Universal Service audits and investigations. He also is a leading practitioner in anti-robocall technologies and Telephone Consumer Protection Act (TCPA) matters. For over 25 years, he has guided clients through the shifting policies

202-689-2947
Joshua Guyan Communication Attorney Washington DC Nelson Mullins
Partner

Josh advises providers of wireline, wireless, Voice over Internet Protocol, and satellite services on domestic and international compliance and licensing, as well as Universal Service Fund (USF) requirements. He also counsels technology companies and unlicensed and licensed users of spectrum on compliance strategies. Josh advocates on behalf of clients at the Federal Communications Commission (FCC)  before state commissions, and on Capitol Hill. He provides comprehensive telecommunications due diligence reviews and advises on technical and regulatory compliance,...

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John J. Heitmann Washington D.C. Communications Lawyer Nelson Mullins
Partner

John is a leading advocate for mobile wireless service providers participating in the Federal Communications Commission (FCC) administered Lifeline and Affordable Connectivity Programs. He also counsels international and domestic entities ranging from start-ups to the industry giants on regulatory strategy involving new business models and product offerings, policy, and compliance at the federal and state levels. He advises communications and technology clients on complying with the Communications Act, the Federal Trade Commission Act, and other federal and state laws...

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Debra McGuire Mercer Washington D.C. Commercial Lawyer Nelson Mullins
Of Counsel

Debra focuses on communications regulation and judicial and administrative litigation. She has represented clients in adjudicatory, enforcement, and rulemaking proceedings before the Federal Communications Commission (FCC), state public utility commissions, and courts. Debra regularly counsels state government agencies and communications companies, including companies that provide telecommunications, internet, wireless, cable television, satellite, and broadcast services, on compliance with federal and state regulatory requirements. She also advises companies regarding...

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