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Telecom Alert— FPL/AT&T Joint Use Rate Decision; Draft T-Band NPRM; FCC to Consider Wireless Infrastructure Rules Clarification; National Emergency Executive Order on Foreign Communications Tech Extended; Draft RDOF Procedures – Vol. XVII, Issue 21

The FCC’s Enforcement Bureau released a Memorandum Opinion and Order on May 20 in the AT&T v. Florida Power and Light proceeding, ruling that AT&T was entitled to the Old Telecom Rate (i.e., pre-2011 Order Telecom Rate) for its attachments to FPL’s poles, rather than the rate specified in the parties’ joint use agreement.  The Order leaves unresolved a number of issues regarding the joint use rates that investor-owned utility and ILEC pole owners may charge each other, but it provides helpful guidance on several very significant issues.

Chairman Pai Circulates Draft T-Band NPRM

Last week, the FCC announced that Chairman Ajit Pai had circulated a draft Notice of Proposed Rulemaking that would establish a competitive bidding system in the T-Band (Vol. XVII, Issue 11).  A section of the Middle Class Tax Relief and Job Creation Act of 2012 mandates that the FCC reallocate and auction public safety spectrum in the T-Band.  

FCC to Consider Wireless Infrastructure Rules Clarification

The FCC issued a draft Declaratory Ruling and Notice of Proposed Rulemaking last week seeking to clarify its rules governing State and local government reviews of requests to modify existing wireless structures.  Section 6409(a) of the Spectrum Act of 2012 mandates State and local governments must approve facility modifications that do not substantially change the physical dimensions of the structure, and the Commission adopted rules in 2014 accordingly (Vol. XVI, Issue 37).  In the draft Declaratory Ruling, the FCC clarifies that the 60-day shot clock to review and approve a modification commences when the applicant takes the first procedural step that the local jurisdiction requires and submits documentation showing the modification qualifies for streamlined review.  It also clarifies the definition of “substantial change” and that environmental assessments are not required under certain circumstances.

Trump Extends National Emergency on Foreign Communications Tech

Last week, President Donald Trump extended an Executive Order declaring a national emergency with respect to information and communications technology or services that are developed, manufactured, or supplied by foreign adversaries (Vol. XVI, Issue 20).  The Executive Order prohibits U.S. companies from using telecom equipment and services supplied by entities that are deemed a threat to national security in their networks.  Accordingly, the FCC issued an Order last November banning service providers from using Universal Service Fund (USF) money to buy communications technology from companies deemed national security risks, specifically naming Huawei and ZTE. 

Draft RDOF Procedures Released

The FCC issued a draft Public Notice last week outlining procedures for the Rural Digital Opportunity Fund (RDOF) Phase I auction (Auction 904). It is scheduled to be adopted at the FCC’s June 9, 2020 Open Meeting.  In the draft Public Notice, the Commission adopts a multi-round, descending clock auction with census block groups as the minimum bidding areas.  It leaves open the possibility for fixed wireless providers to demonstrate they can provide gigabit tier service.  The draft document also announces that the final list of eligible areas will be released no later than 14 days prior to the start of Auction 904 that is set for October 29, 2020, with the short-form application filing window open from July1 to July 15. 

© 2021 Keller and Heckman LLPNational Law Review, Volume X, Number 147



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...

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 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.

In the privacy, data security, and advertising areas, she helps clients comply with privacy, data security, and consumer protection laws, including laws governing telemarketing and...

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,...