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Telecom Alert - December 17, 2018: California Telecom Tower Standard; SCOTUS Considers Agency Deference; FCC Confirmation Vote; FCC Office of Economics and Analytics

California Proposes New Telecom Tower Standard

The California-OSHA Standards Board will hold a public hearing on its revised rules for fall protections on telecom towers and poles in January 2019.  The Standards Board intends to bring Cal/OSHA in line with federal OSHA walking/working surfaces and personal fall protection equipment regulations.  Under federal rule, 29 C.F.R. 1910.268(g), OSHA aims to reduce falls by requiring pole and tower climbers to use positioning or personal fall protection systems.  However, under current Cal-OSHA regulation, Telecommunication Safety Orders Section 8615(g), climbers in California are not required to use fall protection equipment for point-to-point travel on telecom towers and poles.  The Standards Board proposes to eliminate this Cal-OSHA exception and give employers the discretion to use alternative measures when fall protection systems are more hazardous or infeasible.

SCOTUS to Consider Agency Deference Standard in Kisor  

On December 10, the U.S. Supreme Court granted cert to review an agency deference standard in Kisor v. Wilkie, which could have significant impacts on administrative law.  The maritime-law veteran benefits case asks the Court to consider whether to overrule a string of decisions in which SCOTUS instructed federal courts to defer to agencies’ own interpretations of their own ambiguous regulations.  Should SCOTUS overrule this precedent, judges will apply heightened scrutiny to agencies’ interpretations of their own rules.  Such a decision would indicate SCOTUS might, if presented with a suitable case, limit, scale-back, or even overrule the long held principle of the Chevron decision that obligates reviewing courts to defer to agency interpretations of ambiguous provisions in the laws the agency administers, such as the FCC and the Communications Act. 

FCC Confirmation Vote

In light of recent increased funding through the FCC’s Connect America Fund (CAF) for rural broadband Senator Dan Sullivan, R-Alaska, may remove his hold on the confirmation of two FCC nominees, Republican Brendan Carr and Democrat Geoffrey Starks, by the end of the year.  The Alaska senator intends to delay the vote until he is satisfied with the FCC’s attention to broadband funding to carriers in his state and in other hard-to-reach rural areas.  Senator Joe Manchin (D-WV), however, issued a press release explaining that, because the Commission is putting the Mobility Fund II on hold, he has placed a hold on the nomination of Commissioner Carr.

FCC Opens Office of Economics and Analytics

The FCC’s new Office of Economics and Analytics (OEA) is open as of December 11.  The OEA aims to help incorporate economic and data analysis into FCC policymaking through four divisions: the Economic Analysis Division; the Industry Analysis Division; the Auctions Division; and the Data Division.  In a press release on the OEA’s opening, FCC Chairman Pai stated, “The communications sector is a major part of America’s economy, and [the FCC’s] rules can substantially affect incentives of companies and consumers.  [The OEA] makes it essential that [the FCC] systematically incorporate sound economics in [its] work.” 

© 2019 Keller and Heckman LLP


About this Author

C. Douglas Jarrett, Keller Heckman, telecommunications lawyer, procurement law

Douglas Jarrett joined Keller and Heckman in 1979. Mr. Jarrett specializes in telecommunications law, policy and procurement matters.

Mr. Jarrett is a recognized expert in representing enterprises in negotiating telecommunications services agreements with the major wireline and wireless carriers, domestically and globally.  He also advises enterprises on M2M services, cloud computing and IVR technology procurements. 

Mr. Jarrett represents technology companies in securing amendments to the FCC rules to enable the...

Gregory E. Kunkle, Keller Heckman, regulatory attorney, FCC lawyer

Gregory Kunkle joined Keller and Heckman in 2006. Mr. Kunkle practices in the area of telecommunications, with an emphasis on assisting corporate clients and trade associations with various legal and regulatory matters before the Federal Communications Commission.

Mr. Kunkle regularly counsels critical infrastructure companies, such as electric utilities, oil and gas companies, and railroads, public safety agencies, and commercial providers regarding FCC wireless licensing and compliance issues.  He assists clients in identifying and acquiring wireless spectrum through a variety of means, including spectrum leasing, purchase and sale of licenses, and the FCC's auction process. His spectrum acquisition practice spans all of the FCC’s wireless frequency allocations, including the 220 MHz band, AMTS (217/219 MHz), VHF/UHF Part 22 Paging, the 1.4 GHz band, Part 90 800/900 MHz bands, MAS, the 2.5 GHz EBS/BRS band, and the 700 MHz band.

Mr. Kunkle counsels clients that become involved in the FCC's enforcement process including by responding to and vigorously defending against complaints and investigations and, where appropriate, negotiating settlements with the Commission. 

Thomas B. Magee, Keller Heckman, transactional counsel, litigation attorney, FCC law, safety violation lawyer

Thomas Magee joined Keller and Heckman in 2000. Mr. Magee provides regulatory, transactional and litigation counsel to investor-owned electric utilities, electric cooperatives and municipalities regarding pole attachments and Federal Communications Commission (FCC) licensing of private wireless telecommunications services.

Mr. Magee has helped to resolve dozens of pole attachment disputes affecting make-ready costs, safety violations, unauthorized attachments, annual rental rates and other terms and conditions of access. He negotiates,...

Tracy Marshall, Keller Heckman, regulatory attorney, for-profit company lawyer

Tracy Marshall joined Keller and Heckman in 2002. She assists clients with a range of business and regulatory matters.

In the business and transactional area, Ms. Marshall advises for-profit and non-profit clients on corporate organization, operations, and governance matters, and assists clients with structuring and negotiating a variety of transactions, including purchase and sale, marketing, outsourcing, and e-commerce agreements.


Wesley K. Wright, Keller Heckman, Telecommunications Lawyer, FCC Enforcement Attorney, DC

Wesley Wright joined Keller and Heckman in 2006 and practices in the areas of telecommunications law.  He assists corporate clients and trade associations with various legal and regulatory matters before the Federal Communications Commission, Federal Aviation Administration, courts and state agencies.

Mr. Wright’s practice includes private wireless licensing, FCC enforcement, and related transactional matters.  He counsels clients on internal operations and governance matters and has drafted and negotiated asset purchase agreements,...