September 26, 2022

Volume XII, Number 269


September 26, 2022

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Telecom Alert—Windstream Fined $18K; Pai Announces Departure; FCC Sets Max Pole Attachment Rate for Verizon; ZTE Reconsideration Denied; Comcast to Impose Home Internet Data Cap; Bill to Utilize Unspent CARES Act Funds—Vol. XVII, Issue 48

Windstream Services Fined $18,000 for Environmental, Historic Preservation Violations

Last week, the Enforcement Bureau released an Order entering into a consent decree with Windstream Services II, LLC (“Windstream”) for violating the FCC’s environmental and historic preservation rules. Under the Commission’s rules, before constructing certain wireless facilities licensees must assess whether the facility may have a significant impact on the environment or historic properties.  Licensees must also coordinate with relevant state and federal government offices and tribal nations.  In the consent decree, Windstream admits that it began constructing two tower sites without onsite monitoring requested by affected tribes and agrees to pay an $18,000 civil penalty.  

Chairman Pai Announces Departure

On November 30, FCC Chairman Ajit Pai issued a statement announcing his intent to depart the Commission on January 20, 2021.  Commissioner Michael O’Rielly will depart upon the conclusion of the current Congressional session on January 3, 2021, leaving two Democratic and one Republican Commissioner out of the current five.  Prior to the election, President Trump nominated Nathan Simington, currently at NTIA in the Commerce Department, for the seat currently held by Commissioner O’Rielly.  Hearings have been held and the nomination may receive a Senate Commerce Committee vote this week.  However, with the brief time remaining in this session of Congress and the unusual post-election status of the nomination, it is unclear whether the full Senate would act on the nomination if the Committee approves it.  One of the remaining Democratic Commissioners will replace Pai as Chairman quickly after the Biden inauguration.  

FCC Sets Max Pole Attachment Rate for Verizon

The FCC issued a Memorandum Opinion and Order last week establishing a maximum pole attachment rate that The Potomac Edison Company (“Potomac Edison”) may charge Verizon Maryland LLC (“Verizon”).  Under Section 224 of the Communications Act, the Commission must regulate pole attachment rates, terms, and conditions to ensure that they are “just and reasonable.”  The Commission found that Potomac Edison charged Verizon rates that were significantly higher than the rates it charged competitive LECs and cable providers to attach to the same poles.  Accordingly, the Commission set a maximum pole attachment rate of $12.12 per year and directed Potomac Edison to refund Verizon the difference in the rates charged for the past three years.  

ZTE Petition for Reconsideration Denied

The Wireline Competition Bureau issued a Memorandum Opinion and Order denying ZTE Corporation’s (“ZTE”) petition for reconsideration of the Bureau’s order designating ZTE as a company posing a national security threat to the integrity of communications networks or the communications supply chain (Vol. XVII, Issue 21).  Last year, the FCC banned service providers from using Universal Service Fund (USF) money to buy communications technology from companies deemed national security risks, specifically naming ZTE.  In response, ZTE filed a petition for reconsideration arguing that, inter alia, the Commission did not consider all available evidence when it concluded that ZTE did not dispute the assertations made regarding the security of its products.  After reviewing the record and the petition, the Bureau found that there is no basis for reconsideration because ZTE relies on arguments that were already considered and rejected by the Bureau and does not demonstrate that the Bureau committed any material error or omission in its analysis.  

Comcast to Impose Home Internet Data Cap

Comcast plans to impose a home internet data cap of 1.2TB beginning next year in select northeastern states and will charge customers whose usage exceeds that threshold.  Non-unlimited plan customers will be given a credit during January and February for any data usage charges over the 1.2TB limit during those months.  Starting in March, non-unlimited customers that exceed the 1.2TB monthly cap will be charged $10 per 50GB of data, for a maximum of $100.  The affected states include Connecticut, Delaware, Massachusetts, Maryland, Maine, New Hampshire, New Jersey, and New York, as well as parts of North Carolina, Ohio, Pennsylvania, Virginia, Vermont, West Virginia, and the District of Columbia. 

Legislation Introduced to Utilize Unspent CARES Act Funds

Last week, Rep. Robert Aderholt (R-AL) introduced the Enabling Extra Time to Extend Network Deployment (EXTEND) Act, which would allow unspent CARES Act Funds to be used through 2021.  The funds currently are set to expire on December 30, 2020.  The EXTEND Act would allow states to use CARES Act money for grants to deploy broadband infrastructure and services in unserved areas.  

Sean Stokes, Wesley K. Wright, Michael T. N. Fitch, Timothy A. Doughty, Kathleen Slattery Thompson and Adam (AJ) Reust contributed to this article. 

© 2022 Keller and Heckman LLPNational Law Review, Volume X, Number 335

About this Author

Jim Baller Communications Attorney Keller & Heckman Washington, DC

James (Jim) Baller represents clients across the U.S. in a broad range of communications matters including high-capacity broadband network projects, public-private broadband partnerships, telecommunications, wireless facility siting, right-of-way management, pole and conduit attachments, and barriers to community broadband initiatives.

Jim was the founder and president of the U.S. Broadband Coalition, a diverse group of more than 160 communications service providers, high technology companies, labor unions, public interest and consumer groups, state and local government entities,...

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...

Casey Lide Communication Attorney Keller & Heckman Washington, DC

Casey Lide represents clients on a broad range of communications matters including telecommunications, cable television, broadband Internet access service, wireless communications, right-of-way management, pole and conduit attachments, and barriers to community broadband initiatives.

Casey counsels public- and private-sector clients on contract drafting and negotiation matters, including fiber optic IRUs and leases, easements, franchises, attachment agreements, ISP service agreements, interconnection and collocation agreements, strategic MoUs and others.   

He collaborates...

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,...