January 24, 2021

Volume XI, Number 24

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Telecom Alert—DoT Requests Hold on 5.9 GHz Proceeding; FCC Ruling on Duplicative ROW Fees; 2.5 GHz Tribal Priority Window; Cities Vote to Expand Broadband Options; Form 477 Data—Vol. XVII, Issue 46

DoT Requests Hold on 5.9 GHz Band Proceeding

Last week, the National Telecommunications and Information Administration (NTIA) submitted a letter to the FCC from the U.S. Department of Transportation’s general counsel (DoT) asking the Commission to pause its 5.9 GHz band proceeding (Vol. XVII, Issue 43) and reengage with the DoT and other stakeholders before moving forward.  In its letter, the DoT emphasized that the FCC’s reallocation is unworkable and undermines innovation in transportation safety, it undervalues the safety benefits of the band and underestimates the cost and disruption that will result, and that the FCC has chosen unproven technology (cellular vehicle-to-everything technology).  The Commission will consider its proposal at its Open Meeting on November 18.  

FCC Issues Ruling Preempting Duplicative ROW Fees

Last week, the FCC’s Wireline Competition Bureau issued a Declaratory Ruling preempting rights-of-way (“ROW”) fee requirements imposed by three Missouri cities.  The Ruling was issued in response to a Petition for preemption filed by Bluebird Network alleging that the duplicative nature of the ROW fees creates a barrier to entry in violation of Section 253 of the Telecommunications Act (47 U.S.C § 253).  Bluebird asserted that the cities’ ordinances required both the entity that owned the telecommunications facilities located within the ROW, such as dark fiber, and the entity that utilized those facilities to provide services, to pay ROW fees.  The FCC’s Ruling preempts the cities’ ordinances to the extent they allow the cities to effectively double charge for the same use of the public rights-of-way by the same facilities. The FCC made clear that the Ruling is expressly limited to the “unique” facts of the case.   

2.5 GHz Tribal Priority Window Applications

The FCC issued a Public Notice last week announcing that 57 more applications were accepted for filing as part of the Rural Tribal Priority Window for licenses of unassigned spectrum in the 2.5 GHz band (Vol. XVII, Issue 36).  If accepted for final approval, these Tribal applicants will receive licenses for exclusive use of up to 117.5 megahertz of 2.5 GHz spectrum to assist with serving their communities with broadband and other wireless services, including 5G.  Petitions to deny the applications must be filed by December 10, 2020, oppositions to petitions to deny must be filed by December 21, 2020, and replies to oppositions must be filed by December 29, 2020.  Last month, the Commission granted 154 Tribal licenses through this first-of-its-kind Rural Tribal Priority Window. 

Chicago, Denver Vote to Expand Broadband Options

Earlier this month, voters in Chicago and Denver voted to approve moving forward with exploring ways to expand broadband access in their respective cities.  In Chicago, nearly 90% of ballots cast voted yes to a non-binding referendum question asking if the city should ensure that all of its community areas have access to broadband internet.  In Denver, over 80% of voters cast ballots in favor of allowing the city to opt out of SB 152.  That state law prevents municipalities from building and managing their own broadband networks.  Since 2005, when SB 152 was first enacted, 140 communities have opted out.  

FCC Releases Form 477 Data on Broadband Deployment

The FCC issued a Public Notice last week announcing the release of updated data on fixed broadband deployment and mobile voice and broadband deployment as of December 31, 2019.  According to the data collected via Forms 477submitted by all broadband providers in the United States, the number of Americans living in areas without access to terrestrial fixed broadband with speeds of at least 25/3 Mbps fell to 14.5 million at the end of 2019, a 46% decrease from the end of 2016.  While the Form 477 data may accurately identify wholly unserved census blocks, the Form 477 data is regarded as an inadequate indicator of unserved locations within partially served census blocks. 

Co-authored by Wes Wright and Sean Stokes

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© 2020 Keller and Heckman LLPNational Law Review, Volume X, Number 321
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