TR Daily Approps Bill Includes RAY BAUM’S Act, $600M for Broadband Pilot
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Thursday, March 22, 2018

Approps Bill Includes RAY BAUM’S Act, $600M for Broadband Pilot

The House today passed a $1.3 trillion omnibus appropriations bill that would fund the government through the end of fiscal year 2018 and largely incorporates the RAY BAUM’S Act (HR 4986), which would reauthorize the FCC for the first time in more than a quarter-century and include modified language from the MOBILE NOW Act (S 19), which the Senate passed last August (TR Daily, Aug. 3, 2017). The bill also includes $600 million for an Agriculture Department broadband loan and grant pilot, $7.5 million for NTIA to update the national broadband map, and a bill to address the issue of law enforcement access to data stored overseas.

The House voted 256-165 this afternoon to pass its amendment to the Senate amendment to the Consolidated Appropriations Act of 2018 (HR 1625), which was released last night. The bill must pass the Senate by tomorrow and be signed by President Trump to avoid another federal government shutdown. FY 2018 ends Sept. 30.

The House passed an amended version of the RAY BAUM’S Act under suspension of the rules, which is reserved for noncontroversial rules, earlier this month (TR Daily, March 6).

Among other things, the legislation would reauthorize the FCC; implement agency reforms; appropriate an additional $1 billion for the post-incentive auction repacking for full-power TV stations as well as for low-power TV, TV translator, FM radio stations, and consumer education; allow the FCC to put auction deposits into the U.S. Treasury rather than an interest-bearing account, which would clear the way for the agency to resume holding auctions; and require an additional 255 megahertz of spectrum to be identified for fixed and mobile broadband services by 2022, generally codifying an Obama administration executive order released in 2010 to make 500 MHz available within a decade.

However, there are some differences between the version of the RAY BAUM’S Act that passed the House and the version in the omnibus, in addition to appropriation levels for the additional repacking funding, a Senate Commerce, Science, and Transportation Committee spokesman noted.

The version in the omnibus also includes additional Senate-added language from the MOBILE NOW Act to streamline the siting of broadband infrastructure on federal lands and accelerate Spectrum Relocation Fund availability so spectrum can be cleared sooner, the spokesman noted.

The version of the bill in the omnibus also removes a consolidated reporting requirement concerning the submission of FCC budget estimates and other documents to Congress, said the spokesman.

Rep. Greg Walden (R., Ore.), chairman of the House Commerce Committee, said he is pleased with the general inclusion in the omnibus of the RAY BAUM’S Act, which he said “will speed deployment of 5G across the country, setting the stage for the next great wave of technological innovation.”

Rep. Doris Matsui (D., Calif.), who co-authored the legislative provisions to address the problem involving spectrum auction deposits, said, “Together, this legislation will make our communities more competitive as they operate in the 21st century economy. By finding innovative ways to unlock more spectrum and deploy broadband, we are bolstering the infrastructure that fuels wireless networks across the country and, in doing so, expanding access to our shared digital future. I’m pleased this legislation has passed the House, and look forward its continued advancement in the Senate.”

The bill would provide an additional $600 million in FY 2018 for repacking and $400 million in FY 2019.

For FY 2018, the funding breakdown would be $350 million for full-power TV stations, $150 million for low-power TV and translator stations, $50 million for radio stations, and $50 million for consumer education.

“NAB welcomes the omnibus appropriations bill’s inclusion of RAY BAUM'S Act along with funding that fully and fairly reimburses broadcasters for their spectrum repack relocation expenses,” said Gordon Smith, president and chief executive officer of the National Association of Broadcasters. “We urge immediate passage of this omnibus legislation and look forward to a repack process that holds harmless TV broadcasters, local radio stations and the tens of millions of Americans who rely on our services every day.”

“As promised, Chairman Walden is delivering on his promise to get displacement funding for LPTV and TV translators (and we hope a few orphan Class A's not qualified for the auction nor repack),” the LPTV Spectrum Rights Coalition said.

“Chairman Walden and Ranking Member Pallone have demonstrated strong bipartisan leadership in securing the inclusion of the RAY BAUM’S Act in the Omnibus appropriations bill, ensuring the FCC has the necessary authority to hold spectrum auctions in 2018. The inclusion of Chairman Thune and Ranking Member Nelson’s MOBILE NOW language provides additional key infrastructure and spectrum reforms, and we look forward to the bill’s swift House and Senate passage,” said Kelly Cole, senior vice president-government affairs for CTIA.

The Telecommunications Industry Association “is pleased that the FY18 spending bill incorporates several important legislative priorities for the information and communications technology (ICT) industry, many of which have been years in the making,” said Cinnamon Rogers, TIA’s SVP-government affairs.

“It includes the RAY BAUM'S Act to re-authorize the FCC, which also incorporates significant portions of the MOBILE NOW Act which makes more spectrum available and further streamlines regulations for wireless broadband deployment, helping to ensure the U.S. remains a leader in the global race to 5G,” she said. “The bill also advances TIA’s long-held goal of lowering deployment costs by coordinating efforts between telecom providers and state transportation [DoTs] to install broadband infrastructure when road construction projects are taking place and to avoid multiple excavations.”

“The omnibus deal is a welcome, bipartisan approach to addressing our nation’s connected future,” said Jonathan Spalter, president and CEO of the U.S. Telecom Association. “Not only does the omnibus agreement reauthorize the FCC for the first time in over 25 years, it consolidates outdated FCC reporting requirements. It also importantly recognizes the critical need to deploy broadband to unserved areas, and USTelecom members will continue our dialogue with Congress to ensure the most effective programs are prioritized to do so.”

The FCC’s budget would total $322 million for FY 2018 under the bill, a decrease of $34.7 million from FY 2017. Of the total, at least $11 million would have to be spent for the Office of Inspector General. All of the FCC’s funds would come from regulatory fees it assesses.

Congress would continue to ban the agency from using funds to change its USF rules to implement 2004 recommendations of the Federal-State Joint Board on Universal Service concerning single connection or primary-line restrictions on support payments.

Lawmakers also would instruct the FCC to provide monthly reports on the status of TV rebanding, including “the status of any relief granted to accommodate stations that face unforeseen circumstances during the transition period.” Report language would also direct the agency “to use the Connect 2 Health tool to create a map overlaying drug abuse statistics with the level of Internet access to help address challenges in rural areas.”

The FCC also would be required to submit a report within 90 days on its efforts to address rural call completion problems and it would have “to set interim goals and performance measures for increasing access to broadband on tribal lands. …”

The FCC also would have to report to Congress “on the actions the FCC plans to take to establish a methodology that will apply to the collection of mobile broadband coverage data for the purposes of the Universal Service program, or any similar programs, to address the current limitations of coverage data no later than 180 days after enactment of this Act.”

Within six months, the Commission also would have to report to Congress “on how it will prioritize future IT reform efforts and identify the most important IT systems to be modernized.” Within 90 days, it would have to begin submitting quarterly reports “on the status of its efforts on tracking and collecting monetary penalties assessed by the agency.”

For the Agriculture Department’s Rural Utilities Service, the bill would provide $690 million for 5% rural telecom loans, cost-of-money rural telecom loans, and for rural telecom loans made pursuant to section 306 of the Rural Electrification Act; $29.851 million for the principal amount of broadband loans; $32 million for grants for telemedicine and distance learning, to remain available until expended, provided that $3 million is made available for grants authorized by 379G of the Consolidated Farm and Rural Development Act to entities that qualify as consortia; $5 million for the cost of broadband loans authorized by section 601 of the Rural Electrification Act, to remain available until expended; and $30 million for grants to finance broadband transmission in rural areas eligible for Distance Learning and Telemedicine Program benefits, to remain available until expended.

On top of that, the bill would provide an additional $600 million for a new broadband loan and grant pilot in the Distance Learning, Telemedicine, and Broadband Program. The bill would require that “at least 90 percent of the households to be served by a project receiving a loan or grant under the pilot program shall be in a rural area without sufficient access to broadband, defined for this pilot program as 10 [megabits per second] downstream, and 1 Mbps upstream, which shall be revaluated and redetermined, as necessary, on an annual basis by the Secretary of Agriculture” and that “an entity to which a loan or grant is made under the pilot program shall not use the loan or grant to overbuild or duplicate broadband expansion efforts made by any entity that has received a broadband loan from the Rural Utilities Service.”

NTCA CEO Shirley Bloomfield commended the funding for the new pilot program.

“Small telcos have a proven track record in overcoming challenges in rural areas to provide robust, sustainable broadband, and their many efforts in conjunction with long-standing, highly-effective U.S. Department of Agriculture (USDA) backing are the embodiment of precisely the kinds of public-private partnerships that our nation should be leveraging to tackle such challenges in the future,” Ms. Bloomfield said.

“We are excited by the promise of the resources provided within the omnibus and the prospect of continuing our members’ work with RUS. We are grateful to Congress for its attention to rural broadband concerns, and consistent with the directives of Congress, we hope that this new effort will build upon, and be coordinated with, existing broadband-focused initiatives within RUS and at the Federal Communications Commission to realize the shared goal of robust, affordable and sustainable universal broadband. We also look forward to further conversations with Congress, the agencies and other policymakers about additional steps and resources needed to deliver on this vision,” she added.

The bill would designate $7.5 million of NTIA’s funding to be used “to update the national broadband availability map in coordination with the [FCC] and using partnerships previously developed with the States.” The map was originally created by NTIA with funding provided by the 2009 America Recovery and Reinvestment Act, but when that funding ran out, the FCC took over the map. The FCC recently launched a new online interactive broadband map platform, although it is still displaying year-end 2016 data filed by providers on FCC Form 477 (TR Daily, Feb. 22).

“The funding provided does not constitute a new program to fund the primary data collection of broadband availability or subscription data, nor is it for funding specific data collection activities by States or third parties. Instead, NTIA should use this funding to acquire and display available third-party data sets to the extent it is able to negotiate its inclusion in existing efforts to augment data from the FCC, other Federal government agencies, State government, and the private sector. NTIA shall not duplicate FCC's efforts. The updated map will help identify regions with insufficient service, especially in rural areas,” according to a House Appropriations Committee summary.

NTIA would receive $39.5 million for FY 2018, up from $32 million in FY 2017. In report language, Congress encourages NTIA, in its oversight responsibility of the First Responder Network Authority (FirstNet), “to place equal priority on the rural deployment of the Nationwide Public Safety Broadband Network to that of urban communities.”

The Federal Trade Commission would get $306.3 million, down slightly from $313 million in FY 2017. Of the total for FY 2018, $126 million would come from premerger filing fees and $16 million would come from Telemarketing Sales Rule fees.

The U.S. Patent and Trademark Office budget for FY 2018 would total $3.5 billion, all of which would be covered by fee collections. In FY 2017, USPTO’s budget was $3.23 billion.

The omnibus appropriations bill also includes the Clarifying Lawful Overseas Use of Data (CLOUD) Act, which is aimed at settling the issue of law enforcement access to data held in overseas servers. It would require communications service and remote hosting providers to comply with legal process seeking customer or subscriber information housed outside the U.S. Providers could disclose the warrants to the relevant foreign government and could seek to quash the warrant if they believe that the customer or subscriber is not a U.S. person and does not reside in the U.S. or that compliance would cause them to violate foreign laws. The CLOUD Act would also authorize the U.S. to enter into bilateral agreements with foreign governments regarding data access for law enforcement in each other’s countries.

House Judiciary Committee Chairman Bob Goodlatte (R., Va.) said he was pleased with the progress on the CLOUD Act.

“For the past several weeks, I have worked with Members and leaders in the House and Senate of both parties, as well as the Department of Justice, to attempt to reach a consensus on the CLOUD Act, which will allow law enforcement to share data with our friends and partners in other nations, and thereby combat serious crime and terrorism,” he said. “I also consulted technology interests and civil liberties groups during this process. I am very pleased that House Leadership has included the CLOUD Act in the omnibus appropriations bill. The compromise CLOUD Act contains important changes from the introduced version, including many requested by the House Judiciary Committee to protect Congress’s constitutional oversight powers and ensure that challenges can be brought in a court of law if US citizens’ emails are targeted.”

Sen. Ron Wyden (D., Ore.) said, “Tucked away in the omnibus spending bill is a provision that allows Trump, and any future president, to share Americans' private emails and other information with countries he personally likes. That means he can strike deals with Russia or Turkey with nearly zero congressional involvement and no oversight by U.S. courts. This bill contains only toothless provisions on human rights that Trump’s cronies can meet by merely checking a box. It is legislative malpractice that Congress, without a minute of Senate debate, is rushing through the CLOUD Act on this must-pass spending bill.”

The Computer and Communications Industry Association supported the CLOUD Act when it was introduced in February, but the Center for Democracy & Technology criticized it as providing insufficient privacy protections to consumers (TR Daily, Feb. 6).

In a statement today, CDT VP–policy Chris Calabrese called the inclusion of the CLOUD Act “a lost opportunity for what could have been a win-win-win, especially at a time when Congress should be looking for clear ways to protect the privacy of Americans’ data.” He added, “While it’s too late to include in this spending bill, the Senate should take up the Email Privacy Act to complement this legislation.”

Greg Nojeim, director of CDT’s Freedom, Security & Technology Project, also criticized the CLOUD Act provisions for omitting important human rights protections. “While we appreciate the late improvements to the legislation, it is now in the hands of the Department of Justice to determine whether countries that have weak surveillance standards and procedures will be empowered to serve direct surveillance demands on U.S. providers,” he said. "DOJ could use this legislation to diminish privacy rights worldwide, or to persuade other governments to raise their surveillance standards in order to qualify for an agreement. We fear the U.S. Congress hasn't done enough to require DOJ to make the right decisions.”

New America’s Open Technology Institute criticized the CLOUD Act provisions for “ignoring most privacy and human rights concerns.”

OTI Director–surveillance and cybersecurity policy Sharon Bradford Franklin said, “The House voted to enact a bill that would pose new threats to privacy and human rights for Americans and anyone who uses the services of U.S. tech companies. While this version of the CLOUD Act includes some new safeguards, it is still woefully inadequate to protect individual rights. Critically, the bill still would permit foreign governments to obtain communications data held in the United States without any prior judicial review, and it would allow foreign governments to obtain U.S.-held communications in real time without applying the safeguards required for wiretapping by the U.S. government. Despite overwhelming opposition from privacy and human rights groups, Congress never held a hearing on the CLOUD Act, and entirely preempted any meaningful debate on the legislation by attaching it to the must-pass omnibus spending.”

Michael Petricone, SVP–government affairs at the Consumer Technology Association, said the trade group welcomed the inclusion of both the CLOUD Act and RAY BAUM'S Act in the omnibus bill, which he said “ensures Americans can safely create, share and collect electronic data while providing them the resources to do so. Strengthening America's digital infrastructure is essential for the success of future U.S. innovation. For years, CTA has advocated provisions such as the CLOUD Act to ensure consumers have confidence their personal data is legally protected, no matter where it is stored, and the MOBILE NOW Act — provisions which are included in the RAY BAUM'S Act — to increase the bandwidth that fuels America's wireless technology.”

Mr. Petricone added, “America's global standing is dependent on modernizing our privacy laws and data flow to match the realities of our connected world. We commend the House's leadership for protecting consumer rights and promoting American innovation.” —Paul Kirby, [email protected], and Lynn Stanton, [email protected]

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