House Democrats on May 12 introduced a $3 trillion COVID-19 response bill that includes $4 billion for a new Emergency Broadband Connectivity Fund to provide deeper Lifeline discounts to help low-income households and those who have lost their jobs during the pandemic pay for broadband connections, as well as $1.5 billion for a new Emergency Connectivity Fund that schools and libraries could use to provide Wi-Fi hot spots and other connected devices and services to students, school staff, and library patrons engaged in remote learning, working, and other online activities while staying home to reduce the spread of the virus.
The House Democrats’ proposal for what would be the fifth legislative package to address the COVID-19 pandemic — dubbed the Heroes Act in a nod to provisions aimed at providing financial support to first responders, health care workers, teachers, and essential workers — would also authorize, subject to later appropriation, an additional $5 billion for the Emergency Connectivity Fund for schools and libraries, an additional $8.8 billion for the Emergency Broadband Connectivity Fund, an additional $2 billion for an Emergency Health Care Connectivity Fund, and $200 million for state grants to connect the state supplemental nutrition assistance program database to the National Lifeline Eligibility Verifier.
The FCC would have seven days after enactment of the bill to adopt rules for both the ECF and EBCF.
At least 5% of the $5 billion ECF would be set aside for schools and libraries serving people living on tribal lands. Monthly EBCF support for low-income individuals on tribal lands would be $75, rather than the $50 monthly benefit for individuals not on tribal lands.
Households that meet existing FCC Lifeline requirements and households of which at least one member has "experienced a substantial loss of income since February 29, 2020, documented by layoff or furlough notice, application for unemployment insurance benefits, or similar documentation" would be eligible for EBCF support.
The bill would require that Lifeline-supported mobile service include unlimited monthly voice minutes, an unlimited monthly data allowance, and 4G speeds.
The money for both the ECF and the EBCF would remain available until Sept. 30, 2021.
The bill also would repeal the statutory requirement that the FCC auction public safety T-band spectrum and relocate incumbents. The public safety community has been pushing for such action. The Senate version of the Coronavirus Aid, Relief, and Economic Security (CARES) Act (HR 748), which was signed into law in March (TR, April 3), did not include the T-band provision, although the original House version of the bill did. Under the Middle Class Tax Cut and Job Creation Act of 2012, the FCC has to auction public safety T-band spectrum by 2021 and relocate incumbents by 2023.
The Heroes Act also contains provisions to prohibit telephone and broadband service providers from stopping service to consumers unable to pay during the duration of the emergency; to prohibit them from imposing late fees; and to prohibit them from imposing data limits or overage charges. It would require providers that operate Wi-Fi hot spots in public spaces to open them to the public at no charge during the COVID emergency period.
The bill would require the FCC to adopt rules to ensure just and reasonable inmate calling rates, pending which interim rate caps of 4 cents per minute for debit and prepaid calls and 5 cents per minute for collect calls would apply.
It would designate "988" as the short dialing code to reach the nationwide suicide prevention and mental health crisis hotline.
In a tweet, House Majority Leader Steny Hoyer (D., Md.) said that the House would vote on the bill as early as May 15.
In a joint statement, House Energy and Commerce Committee Chairman Frank Pallone Jr. (D., N.J.) and communications and technology subcommittee Chairman Mike Doyle (D., Pa.) said, "With schools closed and millions out of work, Congress must use its powers to keep Americans connected. This bill keeps all of our kids safe and digitally connected, providing $1.5 billion immediately for online distance learning. It also provides much-needed support to struggling families, those who are low-income or have someone in the family who has been furloughed or laid off, by providing them a monthly credit of up to $50 on their internet service bills. We’re hopeful that this legislation will garner strong, bipartisan support so we can stand up for children and families who are struggling during this pandemic."
House Commerce Committee ranking member Greg Walden (R., Ore.) criticized the bill as "partisan," saying that it was "[w]ritten behind closed doors in the Speaker’s Office."
House Minority Leader Kevin McCarthy (R., Calif.) rejected the bill, saying in a statement, "The problems with this 1815-page, multi-trillion dollar messaging bill are plain to see. Its central demands — changing election laws, bailing out mismanaged pensions, and temporarily suspending the cap on SALT tax deductions for millionaires and billionaires — were drafted behind closed doors, predate the crisis, and are not targeted to coronavirus."
He added, "Republicans reject Democrats’ liberal wish list and will continue to focus on getting Americans back to work and defeating this virus by incentivizing rehiring and removing regulatory barriers to job creation, protecting small businesses from frivolous lawsuits, and returning our supply chain from China. That is the type of focus the American people expect from their government."
Senate Minority Leader Chuck Schumer (D., N.Y.) issued a statement in support of the Heroes Act, saying, "The American people need their government to act strongly, boldly and wisely, and this new legislation is just what this crisis demands. [Senate Majority Leader Mitch] McConnell [R., Ky.] and Senate Republicans ought to heed the lessons of U.S. history and not repeat the mistakes made by President Hoover that helped lead to the Great Depression. Despite Senator McConnell’s recent statement that he feels no urgency to act immediately, tens of millions of American families and workers struggling to put food on the table, afford rent, and provide for their children need help from the federal government and we must deliver it fast."
Christina Mason, VP–government affairs for the Wireless Internet Service Providers Association, said, "WISPA appreciates the scope of the HEROES Act, especially as it pertains to keeping families hit hardest by the pandemic online, connected and safe. We signed the FCC’s Keep Americans Connected pledge, as well as its extension, and the support noted in the Act will go far to ensure all Americans remain connected through the duration of the pandemic. We look forward to working with the FCC in implementing the Act, creating a flexible and sufficient framework which helps keep small ISPs on the frontlines of this battle as they support those who call for their service."
John Windhausen Jr., executive director of the Schools, Health & Libraries Broadband (SHLB) Coalition, said, "By introducing the HEROES Act, House Democrats show that they recognize the vital importance of connecting people they serve to affordable broadband during and after the COVID-19 health crisis. But the legislation does not provide sufficient funding for schools, libraries, and healthcare providers to address the school closures, health crises, and economic dislocation caused by the COVID-19 pandemic. The SHLB Coalition has proposed $2 billion in appropriations for the Rural Health Care program and $5.25 billion for E-rate to the Home, and we encourage Congress to provide these resources as soon as possible."
National Association of Broadcasters President and Chief Executive Officer Gordon Smith applauded the inclusion in the bill "of expanded access to Payroll Protection Program loans for local radio and television stations in today’s draft Coronavirus economic relief legislation."
In a statement, Free Press Action Vice President–policy and general counsel Matt Wood said that the bill’s $50 per month low-income emergency broadband benefit "should allow millions more people to afford internet connections at home, serving the whole family during these difficult times rather than keeping them exclusively dependent on less robust mobile connections."
Mr. Wood also praised the bill’s moratorium on telecom and broadband disconnections for nonpayment as "vastly improving on the voluntary pledge put forth by the FCC, which implored these corporations to make similar promises but had no real ability to ensure those pledges were kept."
As for the inmate calling provisions, Mr. Wood said, "While this kind of legislation was sorely needed before the pandemic, the suspension of visitations and the rapid spread of the virus in prisons, jails and detention facilities has made the status quo untenable. People who are incarcerated and their families must have access to communications services at just and reasonable rates. This bill would give the FCC the authority to take action."
Public Knowledge Senior Policy Counsel Jenna Leventoff said, "Although connectivity was critical before this pandemic, it is particularly critical when most Americans are being told to stay at home. This legislation contains key provisions to ensure that broadband is affordable to both those who could not afford it before the pandemic, and those who cannot afford it now. It also ensures that no one is cut off from this vital service due to an inability to pay and that students without broadband can get connected so that they don’t fall behind their peers during the pandemic. We encourage Congress to pass this package as well as additional legislation aimed at fully closing the digital divide once this pandemic ends."
38 House Members Seek Open RAN Funding in COVID-19 Bill
Reps. Doris Matsui (D., Calif.), Brett Guthrie (R., Ky.), and 36 other House members from both parties are urging House leaders to include in a COVID-19 package funding for open radio access networks (RANs), which they said "can help enable more flexible, efficient, secure, resilient, and intelligent mobile communication."
In a letter dated May 8 to House Speaker Nancy Pelosi (D., Calif.) and House Minority Leader Kevin McCarthy (R., Calif.), the lawmakers said, "As you consider additional legislation to maintain economic stability and stimulate growth throughout the COVID-19 pandemic, we urge you to provide funding to support the development and deployment of open and interoperable wireless radio access networks (RANs) that can help enable more flexible, efficient, secure, resilient, and intelligent mobile communication. As the COVID-19 outbreak has shown, increased stress on global supply chains can threaten public safety and hinder economic growth. By investing in open radio access network (Open RAN) technologies, Congress can help facilitate a network evolution with the potential to create lasting domestic economic opportunities for American workers while increasing supply chain diversity and promoting competition."
"Huawei is rapidly emerging as a leading producer of 5G network equipment. This has allowed them to integrate their equipment throughout the U.S., Canada, Europe, and emerging markets. While Congress has taken meaningful steps to locate and remove vulnerable equipment produced by Huawei and ZTE from U.S. networks, without viable domestic alternatives, the U.S. has struggled to convince allies that similar steps are necessary in their countries," the letter added. "By investing in startups, entrepreneurs, and trusted vendors that are developing alternatives to Huawei and ZTE, we can ensure that the deployment of Open RAN technologies happens in a way that is technologically neutral, market-based, and scalable. Establishing additional trusted alternatives to state-backed, untrusted vendors would mean secure technology is available for our allies to replace existing vulnerable equipment and deploy in new networks. American companies and trusted suppliers can be at the forefront of creating this innovation, which can in turn provide new job opportunities for American workers to meet the demands of a growing 5G global market."
Last month, a bipartisan House bill was introduced to establish a $750 million grant program that would provide funding to companies working on ways to deploy 5G networks using software and virtualization technology rather than hardware.
The bill is similar, though not identical, to a Senate bill, the Utilizing Strategic Allied (USA) Telecommunications Act (S 3189), which was introduced in January. Both bills aim to undercut the dominance of Chinese hardware companies in the market for 5G network deployment by making the networks of the U.S. and its allies more reliant on software-based solutions.
The House version of the Utilizing Strategic Allied (USA) Telecommunications Act was introduced by Reps. Frank Pallone Jr. (D., N.J.), chairman of the House Energy and Commerce Committee; Greg Walden (R., Ore.), the committee’s ranking member; and Reps. Guthrie and Matsui.
Bill to Ban Net, Voice Service Terminations During Pandemic
Sens. Jeff Merkley (D., Ore.), Bernie Sanders (I., Vt.) on May 12 introduced a bill that would prohibit Internet access service providers and voice service providers from terminating service during the COVID-19 national emergency declared by President Trump on March 13 or during the 180 days following the end of the national emergency.
The proposed Continuing Online Networking, Negating Economic Conditions on Technology at Home (CONNECT at Home) Act would also require Internet and voice service providers that have terminated a customer’s service between the beginning of the national emergency and the date the bill is enacted to reinstate that service within 14 days of enactment.
Terminations or failures to reinstate service in violation of the CONNECT at Home Act would be subject to civil forfeitures up to $100 per day, with a maximum forfeiture of $1 million per termination to a single customer. Forfeiture payments would be used to assist low-income individuals who lack access to affordable broadband during the COVID-19 national emergency.
In addition to FCC enforcement, the bill would authorize state attorney general’s to enforce its provisions.
The bill would create an unwaivable private right of action in state court, if otherwise allowed, for monetary and/or injunctive relief. Willful or knowing violations would be subject to treble damages.
It would leave room for state laws that provide greater protection.
Sen. Merkley said, "Now — as millions of Americans hunker down, work from home, and engage in remote learning — would be the absolute worst time for Americans to lose a critical utility like internet service. Oregonians and people across America deserve to know that as we weather the social and economic consequences of this storm together, they will still have be able to go to work, go to school, buy groceries, and stay connected to loved ones — all of which many depend on the internet to do. Congress should include this protection in the next coronavirus response bill."
In a statement, Free Press Action Policy Manager Dana Floberg said, "Under social-distancing orders, having internet at home is a literal lifeline for communities across the nation. Our digital connections to doctors, family, jobs and schools become even more critical when physical connection is a serious public-health risk. With unemployment levels we haven’t seen since the Great Depression, millions of people can’t afford to pay for broadband, but they can’t afford to be disconnected either. Efforts at the Federal Communications Commission have not been enough. ... Free Press Action appreciates the many internet service providers that have signed Chairman Ajit Pai’s pledge not to terminate service for customers who can’t pay their bills, the fact remains that this pledge is voluntary, unenforceable and far from universally adopted."
Carr: FCC in ‘Good Shape’ On COVID-19 Telehealth Program
FCC Commissioner Brendan Carr said on May 11 that the FCC is in "good shape" in terms of remaining resources for the $200 million COVID-19 Telehealth Program, which was funded by Congress.
"Right now, I think we’re in good shape," Mr. Carr said in response to a question during a video conference organized by the Federal Communications Bar Association that replaced what had been planned to be an appearance at the FCBA’s annual luncheon. "We’ll see what happens when we get close to $200 million."
Mr. Carr, who is the point person at the Commission telemedicine issues, said he is pleased how quickly agency staff have announced the award of funds to entities around the country under the program.
Mr. Carr also noted that the FCC "really sprang into action" on a number of fronts to address COVID-19 pandemic issues, including helping carriers get access to additional spectrum, providing relief for low-income users, and assisting remote learning activities.
"This was an unprecedented stress test of the Internet, and in the U.S. it performed very well," Mr. Carr said, adding that FCC actions to eliminate unnecessary regulations spurred increased investment in U.S. networks.
"We’re in great shape as a country to handle the capacity because we’ve been investing," he said, adding that by some accounts, U.S. networks have outperformed those in other countries that have "a different regulatory environment."
GE Healthcare Granted Waiver for Medical Devices
The FCC’s Wireless Telecommunications Bureau and Office of Engineering and Technology have granted GE Healthcare an 18-month waiver to allow medical devices to be imported, marketed, and operated before equipment is authorized. In seeking the waiver last month, GE Healthcare cited supply chain problems for medical devices that have occurred during the COVID-19 pandemic (TR, May 1).
GE Healthcare asked "that the waiver grant cover medical devices marketed to healthcare providers and operated on the premises of health care facilities at the direction of authorized health care providers throughout the U.S. and its territories," including (1) "[b]edside patient monitors; telemetry transmitters; and antenna infrastructure"; (2) "[w]earable patient monitors; wireless sensors"; (3) "[d]iagnostic testing ECG analysis systems"; and (4) "[m]obile radiology; portable X-rays."
"The COVID-19 pandemic has caused an unprecedented strain on our nation’s healthcare system. The action taken by the Commission today will enable GE Healthcare to overcome disruptions in the medical device supply chain as it addresses the surge in demand for critical medical equipment," the FCC said in a May 11 news release. "Without the waiver, many of GE’s devices that are sourced from new suppliers or that contain new components would have required prior FCC equipment certification, which would delay GE’s ability to provide medical facilities with the equipment needed to treat patients."
"The FCC is committed to doing everything in its power to help healthcare facilities treat patients during the coronavirus pandemic," said FCC Chairman Ajit Pai. "This waiver will enable GE Healthcare to get new medical equipment into the field that will benefit healthcare professionals during this difficult time."
The news release noted that the order "waives certain rules in parts 2, 15, 18, and 95 of the agency’s rules. It also requires GE Healthcare to test the devices prior to deployment and imposes a condition that GE Healthcare must obtain the required equipment certifications for all devices within 18 months or it will have to collect any unauthorized devices at the end of the waiver period."
"We are pleased with the FCC’s decision to waive certification requirements, which will help ensure clinicians have access to medical equipment that is important in the diagnosis and treatment of COVID-19 patients," a company spokesperson said.
HBCUs Seek More Aid From FCC, Congress
University leaders have urged the FCC and Congress to provide additional relief to help historically black colleges and universities (HBCUs), which they said are struggling more than ever financially as a result of the COVID-19 pandemic.
During a May 6 online roundtable organized by FCC Commissioner Geoffrey Starks, the university leaders urged the FCC to expand the Lifeline program and encourage partnerships with HBCUs to expand rural broadband deployment, such as through the deployment of hot spots. They also called on Congress to allocate additional funding to HBCUs for technology grants that could help schools upgrade their infrastructure.
The university leaders described the herculean efforts they faced in transitioning in-person instruction to distance learning within days as their campuses closed due to the pandemic. The challenges included ensuring that all of their students had laptops. Another obstacle has been that not all students, faculty, and staff have adequate broadband service at home, they said.
Commissioner Starks opened the event by noting that he has called for a connectivity stimulus program that includes expansion of the Lifeline program, noting that only about 7 million of the 38 million eligible households are currently enrolled in the program. He also said that while some providers have offered free or discounted broadband for college students, more need to step up.
Rep. Alma Adams (D., N.C.) urged Congress to reserve additional COVID-19 relief funding for a technology fund that can be used to enable remote learning and provide at least $10 million in infrastructure funding for HBCUs and other institutions that service minorities.
Rep. G.K. Butterfield (D., N.C.) noted that he introduced legislation last year to provide technology grants to HBCUs. He also noted that House Democrats have proposed spending $80 billion over five years to expand broadband access.
Javaune Adams-Gaston, president of Norfolk State University, said that her school had to provide laptops to more than 250 students who needed them for remote learning. She said it also provided hot spots for those without adequate Internet access. "We need to close the gap on access and affordability," she added.
Howard University President Wayne Frederick stressed the importance of telehealth for those who have been reluctant to go to hospitals with conditions other than the coronavirus. His school is standing up a telehealth program with a grant from Bank of America, he said.
George French Jr., president of Clark Atlanta University, said that COVID-19–related funding appropriated by Congress so far has been appreciated, including a carve-out for HBCUs. But he said it’s not enough, estimating that enrollment at his school will decline 25% to 35% in the fall.
Larry Robinson, president of Florida A&M University, cited the "remarkable transformation" that led to online learning this spring. But he also said there will be a funding gap at schools that he and others hope Congress will help bridge.
"We were already strapped. But this really took us for a loop," echoed Quinton Ross Jr., president of Alabama State University.
The FCC should partner with HBCUs on rural broadband deployment, said M. Christopher Brown II, president of Kentucky State University.
Rural Coalition Urges Support For Infrastructure in COVID-19 Bill
The Rebuild Rural Coalition, which includes more than 250 organizations representing the agricultural sector and rural businesses, communities, and families, has asked Congress to include support for infrastructure in future legislative responses to the COVID-19 pandemic, "including specific provisions focused on the unique needs of rural communities and food and agriculture sector," such as water and wastewater facilities, surface transportation infrastructure, power facilities, health care, housing, and broadband.
In a letter to Senate Majority Leader Mitch McConnell (R., Ky.), House Speaker Nancy Pelosi (D., Calif.), Senate Minority Leader Chuck Schumer (D., N.Y.), and House Minority Leader Kevin McCarthy (R., Calif.), the coalition said, "Many of these needs — including access to broadband and quality healthcare — have become acute in the past several weeks because of COVID-19. Media have reported parents driving students to fast food parking lots for access to Wi-Fi, and the current challenges of rural hospitals which struggled to meet the needs of the communities they serve under normal conditions before this pandemic and the economic viability of rural communities."
It added, "Rebuild Rural believes any future legislation addressing the impact of the Covid-19 pandemic should address the infrastructure needs of our country, and specifically of our rural communities. We also recognize federal resources alone cannot fill the entirety of the need. As organizations serving these rural communities, we are already hard at work doing all that what we can to serve our neighbors during this difficult time, and we recognize fulfilling this promise to our rural residents requires creative solutions that pair federal, state and local investment along with private sources of capital. We stand ready to work with you during these unprecedented times to achieve these objectives in the national interest."
Senators Seek $2 Billion For Rural Health Care Program
Four senators have called on Congress to appropriate in COVID-19 legislation $2 billion for the Rural Health Care (RHC) Program to help health care providers expand telehealth offerings by bolstering their broadband access.
"We write to express our support for dedicated funding for broadband for health care providers in any future coronavirus relief package Congress considers. The coronavirus pandemic has dramatically increased the need to expand telehealth so that health care providers can treat patients safely, without putting themselves or their patients at risk. As a result, many health care providers are facing connectivity challenges in meeting this new demand for telehealth. It is imperative that Congress act to ensure our front-line responders have the tools they need to combat this deadly virus," the senators said in a May 11 letter to Senate Majority Leader Mitch McConnell (R., Ky.), House Speaker Nancy Pelosi (D., Calif.), Senate Minority Leader Chuck Schumer (D., N.Y.), and House Minority Leader Kevin McCarthy (R., Calif.).
The letter was signed by Sens. Brian Schatz (D., Hawaii), Lisa Murkowski (R., Alaska), Angus King (I., Maine), and John Boozman (R., Ark.).
"Unfortunately, demand for the RHC Program has outpaced available funding over the last several years, and the COVID-19 pandemic impact will likely exacerbate this issue. The Centers for Disease Control and Prevention has recommended that health care providers use telehealth to direct patients to the right level of care for their health care needs, to conduct initial screenings of patients who may be infected with COVID-19, and to ensure that patients have access to necessary care without potentially exposing themselves by entering a hospital or physician’s office. Congress’s actions to waive restrictions on the use of telehealth in Medicare during the coronavirus outbreak in the Coronavirus Preparedness and Response Supplemental Appropriations [CARES] Act, 2020 and the Coronavirus Aid, Relief, and Economic Security Act will also likely increase demands for telehealth and requests for support through the RHC Program," the letter added.
"Congress must do more for our health care providers so that they can meet telehealth needs during the COVID-19 pandemic. That is why we are writing you to request that Congress provide $2 billion in additional support for the RHC Program in any future coronavirus response. This additional support would expand the reach of the RHC Program to enable health care providers at non-rural and mobile health care facilities to engage in telehealth, eliminate administrative red tape that slows down the ability of front-line providers to obtain broadband connectivity, and provide more resources to current health care providers in the RHC Program so they can increase their broadband capacity to effectively treat their patients," the senators said.
The CARES Act provided $200 million for telehealth telecommunications and information services; the FCC created the separate COVID-19 Telehealth Program to distribute that funding.
Simons Explains FTC Concerns For Consumers During Pandemic
In a generally amicable teleconference forum on May 11, members of the House Energy and Commerce Committee’s consumer protection and commerce subcommittee asked Federal Trade Commission Chairman Joe Simons to explain the agency’s efforts to address scams and fraudulent claims related to the ongoing COVID-19 pandemic, privacy concerns arising from increased use of videoconferencing, and proposals to harness technology to track people’s location in order to trace contacts as potential virus transmission vectors.
They also asked what additional authority the agency might need to address consumer concerns at this time.
Subcommittee ranking member Cathy McMorris Rodgers (R., Wash.) emphasized that as track and trace proposals are rolled out, "Americans must be assured of their privacy" because, "without trust, the success of these technologies will be limited."
Rep. Lisa Blunt Rochester (D., Del.) asked about the extent of FTC authority to address the track and trace issues.
Mr. Simons emphasized that the agency wants to be sure that companies under existing consent decrees with respect to their privacy practices remain compliant. He added that the agency is talking to industry about privacy practices.
Rep. McMorris Rodgers also noted that as people stay home to reduce the spread of the virus, "we’re all using Zoom" and there has been "a lot of issues raised around the privacy of those sessions."
Mr. Simons said that users can take steps to protect themselves, such as using a password for their videoconference meeting and locking the meeting after all expected participants show up. "You may get an unexpected meeting link. ... Don’t click on that link. It may be a phishing attack," he warned.
Rep. Jerry McEnerny (D., Calif.) noted that he had joined other members last month in sending a letter to the chief executive officer of Zoom to ask about its privacy and security practices, but he acknowledged that there might be limits on what the FTC chairman might be able to say regarding its investigatory or enforcement efforts in that area.
Mr. Simons said that in general, "we’re willing to take complaints from anywhere." He added, "If you’re reading about it in the media you can be assured that we’re either working on it already or we will be as result of that media attention."
Subcommittee Chair Jan Schakowsky (D., Ill.) said that "some price gouging laws that do exist don’t cover the current situation." She noted that she has proposed federal price gouging legislation and asked whether the FTC has enough authority to address price gouging.
Mr. Simons said, "No, we don’t really think we have the authority right now. It’s not a good fit for our current statute," that is, the FTC Act. He said the agency would appreciate and use any additional authority granted by Congress.
Rep. Fred Upton (R., Mich.) asked how enforcement with respect to price gouging is working in states that don’t have price-gouging laws and whether there is anything Congress can do.
The FTC is sending referrals to states and "looking to make referrals" to the U.S. Department of Justice, Chairman Simons said. "They have 200 open investigations just for price gouging. We maybe have 200 open investigations into everything we do," he noted.
Full committee Chairman Frank Pallone Jr. (D., N.J.) asked what the FTC is doing about scams related to the pandemic.
"When we’ve seen questionable claims we’ve reacted quickly by sending warning letters," Mr. Simons said. Almost all of those warned have responded by removing the claims, but where they haven’t, the FTC has pursued enforcement, he added.
In response to a question from Rep. Tony Cardenas (D., Calif.), the FTC chairman said that the agency does not have an estimate on total monetary damages to U.S. consumers from scams and fraud during the pandemic period. He said that the FTC needs congressional action to boost its authority in this area.
Rep. Kathy Castor (D., Fla.) asked what the FTC is doing to ensure compliance with its Children’s Online Privacy Protection Act (COPPA) rule, now that many students are engaged in online learning and have increased online activity overall, since they can’t leave home.
Mr. Simons said the agency is continuing to enforce the COPPA rule.
In response to a question about how the FTC is using AI (artificial intelligence) as an enforcement tool, FTC Consumer Protection Bureau Chief Andrew Smith, who was also present for the virtual forum, said that the agency has been using AI to crawl the web to find COVID-19 scams.
Asked by Rep. Michael Burgess (R., Texas) about whether he has seen any trends on consumer protection issues during the pandemic, Mr. Simons said, "I think it’s pretty standard." He outline three types of cases the agency is seeing: bogus cures and preventions for coronavirus; scams that are based on financial hardship and confusion over government programs; and imposter scams. He noted that "based on what we saw on the 2008 [financial] downturn, we expect these types of [government program] scams [to continue] for a long time." He said that the FTC is engaged in consumer education and enforcement for all three types of cases.
Rep. Doris Matsui (D., Calif.) asked whether the FTC has adequate resources to monitor labor markets for collusion.
Mr. Simons said the agency is "very much on the lookout and where appropriate would refer these kinds of cases" to the Justice Department. He added that a lull in premerger review filings has freed up human resources at the agency to be redirected to other issues such as the labor market.
In his opening statement, Mr. Simons emphasized that the FTC is "continuing to fulfill our mission to protect American consumers even under these conditions [with] staff working almost entirely from home."
FOCUS ON CYBERSECURITY AND PRIVACY
Bipartisan Senate Letter Calls For FTC Children’s Privacy Probe
Noting that the Federal Trade Commission is currently engaged in reviewing its Children’s Online Privacy Protection Act (COPPA) rule, Sens. Ed Markey (D., Mass.), Josh Hawley (R., Mo.), Richard Blumenthal (D., Conn.), Bill Cassidy (R., La.), Dick Durbin (D., Ill.), and Marsha Blackburn (R., Tenn.) have asked the FTC to launch an investigation of educational technology companies’ use of children’s personal information using its authority under section 6(b) of the FTC Act.
"Specifically, the Commission should conduct a review of data collection and processing practices of educational technology (‘ed tech’) companies and firms involved in digital marketing. The FTC must have all necessary facts and a full public record as it reviews the COPPA Rule to ensure that this important privacy safeguard effectively protects kids online today," the senators said in a letter to all five FTC commissioners, dated May 8.
They noted that section 6(b) of the FTC Act gives the agency "the ability to compel entities to submit ‘annual or special ... reports or answers in writing to specific questions’ to uncover findings about the entities’ ‘organization, business, conduct, practices, management, and relation to other corporations, partnerships, and individuals.’ Congress granted the FTC the power to undertake important fact-finding efforts, and we urge you to use this tool to better understand children’s privacy issues online as an essential step in the COPPA Rule review."
They also emphasized the increased relevance of ed tech as learning moves online with the closure of schools in response to the COVID-19 pandemic. "Many of these changes will remain after the Coronavirus pandemic is over, as leading technology companies continue to expand their reach into kids’ educational experiences. For the COPPA Rule to meet the needs of educators, parents, and children, it must account for this new normal," the senators said.
They pointed to findings by privacy and security experts of "widespread lack of transparency and inconsistent privacy and security practices in the industry for educational software and other applications used in schools and by children outside the classroom for learning." They said that breaches can expose children to predators as well as to "social engineering, bullying, tracking, identity theft, or other means for targeting children."
Among the questions the senators urged the FTC to explore are what personal data ed tech services and providers collect from children and teens; how they obtain consent for this collection; how long they retain the data and what their processes are for deleting student data; whether they offer schools incentives for integrating the ed tech products and services into the schools’ systems; whether they offer incentives to adults to consent to children’s data; whether they use student information for non–ed-tech purposes such as behavioral advertising; what steps they take to ensure data security; whether they have suffered any data breaches involving children’s or teens’ information; "[w]hether parents have adequate alternatives to consent to the collection of their children’s data, and what options are provided to parents in the course of obtaining consent"; and "[h]ow they notify parents and schools about changes to their terms of service."
"The FTC should use its investigatory powers to better understand commercial entities that engage in online advertising to children — especially how those commercial entities are shifting their marketing strategies in response to the Coronavirus pandemic and increased screen time," the senators said.
They urged the FTC to ask companies involved in digital marketing to children about their collection of personal data from children; how they obtain consent; "[w]hether parents are provided adequate opportunities to consent to such advertising, and how a parent’s decision not to consent to collection of their child’s data would affect the child’s experience with the product or service"; how they employ machine learning and data analytics; whether they collect voice information from children; what third-parties they work with to collect and process children’s information; whether they sell or share data; and whether and how they use geolocation information to market to children.
They also urged the FTC to ask such companies "[w]hether they collect information about protected demographic characteristics or information that can be used as proxies for that type of information from children; [i]f they operate a platform for both adults and children, how they determine if a user is a child; [h]ow they have shifted their data practices in response to the Coronavirus pandemic; and [w]hether they participate in a safe harbor program under COPPA, and if so, have there been any instances in which the safe harbor program enforced its requirements."
China Telecom Seeks Show Cause Order Clarification
China Telecom (Americas) Corp. has requested clarification on the scope of information in a show-cause order issued by the FCC’s International, Wireline, and Enforcement bureaus regarding the proposed revocation of the company’s domestic and international section 214 authorizations and reclamation of its international signaling point codes (ISPCs).
"At this point, CTA has clarification concerns associated with one request. The Show Cause Order seeks, among other things, ‘a description and listing of China Telecom Americas’ subscribers and other customers for domestic and international services.’ As CTA provides service to hundreds of enterprise customers and tens of thousands of MVNO mobile resale services customers, it cannot reasonably be expected to produce detailed information about such a large volume of customers, and address associated confidentiality issues, within the Show Cause Order’s allotted timeframe," China Telecom said in a filing dated May 8 in GN docket 20-109.
"It is also unclear what the Commission means by asking for a ‘description’ of these thousands of individual customers. Under the circumstances, CTA expects to provide in response to Request No. 8 a listing of the categories of CTA’s customers and the approximate aggregate number of customers in each category," it added.
The filing continued, "Apart from its clarification concern, as discussed in CTA’s motion for extension of time, CTA maintains that more than 30 calendar days are needed to complete all of the information sought by the Show Cause Order, including its detailed response to the 57-page recommendation of the Executive Branch agencies and accompanying 2,783 pages of exhibits."
The carrier also said that "CTA’s efforts to provide all information required by the Show Cause Order are frustrated by the continuing lack of access to the FISA-related, obtained, or derived information regarding CTA in the Commission’s possession, and information contained in the classified appendix to the Executive Branch agencies’ recommendation to the FCC, as requested in CTA’s outstanding May 1, 2020, letter to Chairman [Ajit] Pai seeking prompt production of such material."
The show-cause order was one of three that the bureaus issued jointly last month to four companies that are indirectly owned and controlled by the Chinese government: one for CTA (GN docket 20-109), one for China Unicom (Americas) Operations Ltd. (GN docket 20-110), and one for Pacific Networks Corp. and its wholly owned subsidiary ComNet (USA) LLC (GN docket 20-111) (TR, May 1).
Meanwhile, in a May 11 filing in GN docket 20-110, Wang Xiaochu, the chairman and chief executive officer of China Unicom (Hong Kong) Ltd. (CU), the indirect controlling shareholder of China Unicom (Americas) (CUA), said, "I am surprised to hear about the Order to CUA given CUA’s general history of compliance with U.S. laws and regulations. CUA is a separate legal entity, incorporated in the U.S., with a board of directors that operates in accordance with U.S. laws and its own bylaws. I understand CUA is proud that for nearly 20 years it has been a trusted partner to U.S. carriers and other customers providing them with global integrated telecommunications services and solutions that they need to operate their businesses."
The filing continued, "CU has in place and enforces a strict policy that all overseas subsidiaries or members of our group, including CUA, must operate in compliance with the laws and regulations of the jurisdictions in which they operate. In addition, CU’s policy directs that should any requirements of internal corporate governance codes and policies conflict or be inconsistent with the local laws and regulations of the jurisdictions in which the overseas subsidiaries or members operate, they must first apply and abide by the local laws and regulations." The letter said that CUA would cooperate with the FCC’s inquiry.
FTC Proposes Changing Rule On Health Data Breach Notice
As part of its periodic review of its rules, the Federal Trade Commission is seeking comment on proposed changes to its breach notification rule for health records companies.
"The Health Breach Notification Rule, which went into [effect] in 2009, requires vendors of personal health records and related entities that are not covered by the Health Insurance Portability and Accountability Act (HIP[A]A) to notify individuals, the FTC, and, in some cases, the media of a breach of unsecured personally identifiable health data. Currently, the Rule requires such entities to provide notifications within 60 days after discovery of the breach. If more than 500 individuals are affected by a breach, however, entities must notify the FTC within 10 business days," the FTC said on May 8.
Specifically, it is seeking comment on issues such as "whether the Rule has resulted in under-notification, over-notification, or an efficient level of notification; whether the Rule’s definitions should be modified to reflect legal, economic, and technological changes; whether the timing requirements and methods for reporting a breach are adequate; the implications for enforcement raised by direct-to-consumer technologies and services such as mobile health apps, virtual assistants, and platform health tools; and whether and how the Rule should address any developments in health care products or services related to COVID-19."
Comments will be due 90 days after publication of a notice in the Federal Register.
The FTC voted 5-0 in favor of seeking comment.
Senate Commerce Bill Tackles Privacy, Tracking in Fight Against COVID-19 Spread
The Republican leadership of the Senate Commerce, Science, and Transportation Committee has proposed a bill to address privacy issues related to location tracking and data collection aimed at fighting the spread of the coronavirus that causes COVID-19.
Committee Chairman Roger Wicker (R., Miss.), communications, technology, innovation, and the Internet subcommittee Chairman John Thune (R., S.D.), transportation and safety subcommittee Chairman Deb Fischer (R., Neb.), manufacturing, trade, and consumer protection subcommittee Chairman Jerry Moran (R., Kan.), and committee member Marsha Blackburn (R., Tenn.) said in a May 7 joint press release that their proposed COVID-19 Consumer Data Protection Act would "provide all Americans with more transparency, choice, and control over the collection and use of their personal health, device, geolocation, and proximity data. The bill would also hold businesses accountable to consumers if they use personal data to fight the COVID-19 pandemic."
Specifically, the bill would "[r]equire companies under the jurisdiction of the Federal Trade Commission to obtain affirmative express consent from individuals to collect, process, or transfer their personal health, device, geolocation, or proximity information for the purposes of tracking the spread of COVID-19" and would "[d]irect companies to disclose to consumers at the point of collection how their data will be handled, to whom it will be transferred, and how long it will be retained."
It would also "[e]stablish clear definitions about what constitutes aggregate and de-identified data to ensure companies adopt certain technical and legal safeguards to protect consumer data from being re-identified" and would "[r]equire companies to allow individuals to opt out of the collection, processing, or transfer of their personal health, geolocation, or proximity information."
The bill would "[d]irect companies to provide transparency reports to the public describing their data collection activities related to COVID-19" and would "[e]stablish data minimization and data security requirements for any personally identifiable information collected by a covered entity."
It would also "[r]equire companies to delete or de-identify all personally identifiable information when it is no longer being used for the COVID-19 public health emergency" and would "[a]uthorize state attorneys general to enforce the Act."
Chairman Wicker said, "As the coronavirus continues to take a heavy toll on our economy and American life, government officials and health-care professionals have rightly turned to data to help fight this global pandemic. This data has great potential to help us contain the virus and limit future outbreaks, but we need to ensure that individuals’ personal information is safe from misuse."
Chairman Thune said, "While the severity of the COVID-19 health crisis cannot be overstated, individual privacy, even during times of crisis, remains critically important. This bill strikes the right balance between innovation — allowing technology companies to continue their work toward developing platforms that could trace the virus and help flatten the curve and stop the spread — and maintaining privacy protections for U.S. citizens."
Sen. Blackburn said, "Health and location data can reveal sensitive and personal information, and these companies must be transparent with their users."
—Lynn Stanton, [email protected]
Senators Ask ‘Solarium’ Members For Cyber Legislative Language
Members of the Cyberspace Solarium Commission (CSC) told a Senate committee on May 13 that they would prepare legislative language to help Congress adopt the commission’s recommendations, including the establishment of a Senate-confirmed national cyber director (NCD) within the Executive Office of the President and a national data breach notification law.
Sen. Angus King (I., Maine), the CSC’s co-chairman, will work on a bill to establish the NCD position, he told the Homeland Security and Governmental Affairs Committee. The NCD would "centralize and coordinate the cybersecurity mission at the national level," he and his fellow commissioners said in written testimony.
"The National Cyber Director will work among federal departments and agencies to bring coherence both to the development of cybersecurity policy and strategy as well as its execution. This Senate-confirmed position will provide clear leadership in the White House and signal cybersecurity is an enduring priority in U.S. national security strategy," they said.
Sen. Ron Johnson (R., Wis.), the committee’s chairman, said he viewed the creation of an NCD as an important piece of the U.S. response to cyber threats. "As our federal agencies have evolved to counter these threats, ultimately expanding federal programs and bureaucracy, it has become more and more clear that we can’t answer a simple question: Who’s in charge?" Sen. Johnson said.
"I am pleased that the president appointed a senior White House official as the point person on 5G issues who can define that problem and provide a clear federal strategy. Yet I believe we need that kind of clarity across all cybersecurity policy," he added.
"There are many outstanding questions, however, like how a National Cyber Director would be involved in defensive cyber operations, combating the theft of intellectual property, and reviewing budgets. We also need to find consensus on the appropriate scope of authorities and powers a National Cyber Director would need to be successful. We need to get these details right to ensure that this new position can cut through the bureaucracy, not add to it," Sen. Johnson said.
Zoom Reaches Agreement With New York AG on Practices
Zoom Video Communications, Inc., and New York Attorney General Letitia James (D.) have announced an agreement that will require Zoom to enhance its data security and privacy practices.
Because Zoom cooperated with the attorney general, offered free services to New York public schools, and "acted to quickly to address the issues," Ms. James ended the investigation by entering a "letter agreement" with Zoom "in lieu of commencing a statutory proceeding," according to the agreement.
Stay-at-home orders issued in March to help contain the COVID-19 pandemic caused a surge of traffic over Zoom’s various video conferencing platforms and revealed privacy and cybersecurity shortcomings in Zoom’s services, Ms. James noted. "Zoom had a sudden surge in both the volume and sensitivity of data being passed through its network, but the exponential increase in users also exposed security flaws and vulnerabilities in Zoom’s platform and software and a lack of privacy protections," she said.
Zoom’s founder and chief executive officer, Eric Yuan, acknowledged the problems in early April and said the company would embark on a 90-day effort to improve by hiring outside security consultants, beefing up its internal security team, and making immediate changes to the company’s products and services.
The letter agreement with Ms. James requires Zoom to continue with those efforts. "Zoom has agreed to implement and maintain a comprehensive data security program to protect all users that will be designed and run by the company’s head of security," Ms. James’ office said on May 7.
"Zoom will also conduct risk assessment and software code reviews to ensure that the company’s software does not have vulnerabilities that would allow hackers to exploit users’ information. The company has agreed to take steps to protect consumers from attacks where hackers attempt to access accounts using old credentials," it said.
"Additionally, Zoom has agreed to enhance its encryption protocols by encrypting users’ information, both in transit and as stored online on their cloud servers. Finally, Zoom will operate a software vulnerability management program and will perform the most thorough form of penetration testing each year," it added.
Zoom has pledged to abide by the federal Children’s Online Privacy Protection Act and various New York state laws regarding privacy for adults and students. The agreement will be in effect for three years.
Meanwhile, Zoom has acquired Keybase, a secure messaging and file-sharing service, as part of the video conferencing company’s effort to make its platform more secure.
BROADBAND AND INTERNET
Bureau Approves Sixth Set Of COVID-19 Telehealth Awards
The FCC’s Wireline Communications Bureau has approved 33 funding applications for a total of $8.36 million funding in its sixth set of approvals in the COVID-19 Telehealth program established by the Coronavirus Aid, Relief, and Economic Security (CARES) Act earlier this spring.
As of the May 13 announcement, the bureau has approved funding for 82 health care providers in 30 states for a total of $33.26 million in funding, the FCC noted in a press release.
The recipients announced on May 13 include Bee Busy Wellness Center in Houston; Behavioral Health Services North in Plattsburgh, N.Y.; Bethesda Community Clinic in Canton, Ga.; Chicago Family Health Center in Chicago; Cincinnati Children’s Hospital in Ohio; Community Healing Centers in Kalamazoo, Mich.; Community Service, Inc., in Morrilton, Ark.; Community Teaching Homes, Inc., in Toledo, Ohio; the Council for Jewish Elderly in Chicago; Four County Mental Health Center in Independence, Kan.; Franklin County Memorial Hospital in Meadville, Miss.; Genesis PrimeCare in Marshall, Texas; Grace Medical Home in Orlando, Fla.; and Greater Elgin Family Care Center in Elgin, Ill.
Also on the list were Helio Health in Syracuse, N.Y.; Heritage Clinic and Community Assistance Program for Seniors in Pasadena, Calif.; Hope House Outpatient Clinic in Albany, N.Y.; Impact Family Counseling in Birmingham, Ala.; Intermountain Health Care in Murray, Utah; Jewish Family and Children’s Services in Tucson, Ariz.; Jewish Family Service of the Desert in Palm Springs, Calif.; Mattapan Community Health Center in Mattapan, Mass.; OLV Human Services in Lackawanna, N.Y.; Reliance Health, Inc., in Norwich, Conn.; River Edge Behavioral Health in Macon, Ga.; Salina Family Healthcare Center in Salina, Kan.; and Southeast Alabama Rural Health Associates in Troy, Ala.
Rounding out the recipients were Southwest General Health Center in Middleburg Heights, Ohio; Tanner Medical Center, Inc., in Carrollton, Ga.; the Transition House, in St. Cloud, Fla.; Via Care Community Health Center in Los Angeles; Wirt County Health Services Association, Inc., in Elizabeth, W.Va.; and Yakima Neighborhood Health Services in Yakima, Wash.
FCC Commissioner Brendan Carr, who has been a longtime champion of telehealth efforts at the FCC, told reporters during a May 13 conference call that he has "been very pleased with the pace at which the staff are working on these" applications, especially as they are working from home during the pandemic. He noted that there has been "a lot of geographic diversity" in the applications.
"I don’t think we’ve done one where there’s not strong indicia of COVID issues in that area," he added.
On May 6, the bureau approved $11.2 million in COVID-19 Telehealth Program support for 26 applicants as its fifth wave of awards.
Awards covered a range of applications, such as video telemedicine services through mobile telehealth sites at public housing locations; remote patient monitoring devices such as connected thermometers, pulse oximeters, and blood pressure monitors; and telehealth for primary care, mental, health, and dental services to low-income and vulnerable populations.
Facebook Oversight Board Set to Begin Work
With the selection of the 20 initial members of Facebook, Inc.’s, Oversight Board, the board is ready to begin hearing cases "in the coming months" on the removal of content from the Facebook and Instagram social media platforms, it said on May 7.
The board will hear appeals of the Facebook decision by users as well as cases referred by Facebook.
"When we begin hearing cases later this year, users will be able to appeal to the Board in cases where Facebook has removed their content, but over the following months we will add the opportunity to review appeals from users who want Facebook to remove content," it said.
"The Board will review whether content is consistent with Facebook and Instagram’s policies and values, as well as a commitment to upholding freedom of expression within the framework of international norms of human rights," it said.
Its decisions on content removal will be "final and binding" and its members are not Facebook employees and cannot be removed by Facebook.
The initial 20 members are drawn from around the world and from civil society, academia, and journalism. The four co-chairs are Catalina Botero-Marino, dean of the Universidad del los Andes Faculty of Law in Colombia; Jamal Greene, professor at Columbia Law School in New York; Michael McConnell, professor and director of the Constitutional Law Center at Stanford Law School in California; and Helle Thorning-Schmidt, former prime minister of Denmark.
"Over time we expect to grow the Board to around 40 Members. While we cannot claim to represent everyone, we are confident that our global composition will underpin, strengthen and guide our decision-making," the board said.
In a blog post, Facebook Vice President–global affairs and communications Nick Clegg said that in establishing the board, Facebook engaged in "a global consultation process of workshops and roundtables with more than 650 people in 88 different countries, that resulted in: [r]elease of a final charter, which establishes the board’s structure, scope and authority; [c]reation of the Oversight Board Trust to safeguard the board’s ability to make independent decisions and recommendations; [p]ublication of the board’s bylaws, which outline its operational procedures; [h]iring of the board’s director, who will lead the board’s administration and staff; and [c]reation of a recommendations portal, through which the board can accept nominations and applications from anyone interested in serving as a member."
"We expect them to make some decisions that we, at Facebook, will not always agree with — but that’s the point: they are truly autonomous in their exercise of independent judgment. We also expect that the board’s membership itself will face criticism. But its long-term success depends on it having members who bring different perspectives and expertise to bear," Mr. Clegg said.
House Democrats Expand on Earlier Plan For Broadband Infrastructure, Adoption
A dozen Democratic House members, including Majority Whip and Democratic Rural Broadband Task Force Chairman James Clyburn (D., S.C.), Energy and Commerce Committee Chairman Frank Pallone Jr. (D., N.J.), and communications and technology subcommittee Chairman Mike Doyle (D., Pa.) have proposed a plan to connect all Americans to affordable broadband Internet, which updates and expands the broadband provisions of House Democrats’ "Moving America Forward" infrastructure framework proposed in January.
Supporters of the proposal emphasized the importance and urgency of expanding broadband connectivity that have been revealed by the stay-home policies during the COVID-19 pandemic.
"Democrats welcome recent reports that Republicans support the inclusion of broadband investment in the next coronavirus response packages," they said in a joint press release on April 30.
The earlier proposal for $760 billion in infrastructure investments over five years included $86 billion to expand broadband Internet access and adoption in unserved and underserved rural, suburban, and urban communities and $12 billion to modernize public safety networks (TR, Jan. 31).
The recent proposal, like the earlier version, calls for $80 billion over five years "to deploy secure and resilient broadband infrastructure to expand access for communities nationwide" and $5 billion in low-interest financing for broadband deployment (secured loans, lines of credit, or loan guarantees).
The recent proposal also includes a "dig-once" provision that "[p]romotes the installation of broadband conduit during the construction of any road receiving federal funding to facilitate the building of broadband network infrastructure," according to the press release.
It also calls for establishing an Office of Internet Connectivity and Growth within the National Telecommunications and Information Administration that would be "responsible for coordinating with other federal agencies to streamline the application processes for broadband funding programs; ensure that broadband-related support is being administered in an efficient, technology-neutral, and financially sustainable manner; and track all federal money used for construction and use of broadband infrastructure," according to the press release.
This is also a provision of the Advancing Critical Connectivity Expands Service, Small Business Resources, Opportunities, Access, and Data Based on Assessed Need and Demand Act (ACCESS BROADBAND) (HR 1328/S 1046).
The proposal calls for the new office "to conduct a study on the extent to which cost remains a barrier to broadband adoption and the feasibility of providing additional targeted federal subsidies to offset costs for low-income households," the press release says.
The plan announced calls for leveraging the infrastructure funding to ensure affordable Internet access by giving preference to projects that will offer open access to multiple providers and by requiring Internet service providers whose networks receiving funding to offer at least one affordable option.
It also would increase the monthly subsidy for Lifeline subscribers, expand eligibility, and eliminate "barriers to helping low-income and recently unemployed Americans afford broadband access."
It would ensure that local governments, public-private partnerships, and cooperatives can provide broadband services, "which has lowered prices in many communities," the press release says. Many states have passed laws restricting or barring local governments from owning or operating broadband networks.
It would direct the FCC "to collect data on prices charged for broadband service throughout the country and make that data widely available with appropriate privacy protections."
To promote Internet service adoption, the plan calls for providing more than $1 billion to establish a State Digital Equity Capacity Program, "an annual grant program for states to create and implement comprehensive digital equity plans to help close gaps in broadband adoption and digital skills, and to also establish the Digital Equity Competitive Grant Program to further support these efforts through digital inclusion projects undertaken by individual organizations and local communities."
It also calls for mobile hot spot lending programs for students who lack Internet access at home and for funding Wi-Fi connections on school buses "so that students can be connected, especially in rural areas where long bus rides are common," the press release says.
Majority Whip Clyburn said, "Just as the Great Depression made clear to all that electricity was the ‘next greatest thing’ in the 20th century, the coronavirus pandemic is making clear to all that broadband is the ‘next greatest thing’ in the 21st century. Just as the Rural Electrification Act made electricity accessible and affordable to all Americans, the plan we are announcing today will make broadband accessible and affordable to all Americans. As we see millions of our fellow Americans unable to telework, learn remotely, or access telehealth because they lack broadband, now is the time to act."
Joining in the proposal were Reps. Jerry McNerney (D., Calif.), Dave Loebsack (D., Iowa), Marc Veasey (D., Texas), Anna Eshoo (D., Calif.), Peter Welch (D., Vt.), Ben Ray Lujan (D., N.M.), Paul Tonko (D., N.Y.), Grace Meng (D., N.Y.), and Mark Pocan (D., Wis.).
—Lynn Stanton, [email protected]
ICANN Board Rejects Transfer Of ‘.org’ gTLD to Ethos Capital
The board of the Internet Corporation for Assigned Names and Numbers has rejected the proposed change of control of the Public Interest Registry (PIR), which operates the ".org"’ generic top-level domain (gTLD), from the Internet Society (ISOC) to Ethos Capital, which had evoked strong opposition from some public interest groups and nonprofit organizations that use the domain over issues such as how the investment firm planned to generate additional revenue to service the debt incurred to finance the transaction.
"ICANN’s role has been to evaluate the reasonableness of PIR’s request for indirect change of control and entity conversion. In doing so, ICANN evaluated an extensive amount and variety of information related to the proposed transaction, including details of the transaction structure, financing, and other funding sources of Ethos Capital, the parties involved, the role of the Pennsylvania authorities [in overseeing nonprofits like PIR incorporated in the state], information related to financial resources and operational and technical capability, how the new for-profit PIR under the control of Ethos Capital would be responsive to the needs of the non-commercial community, what input the .ORG community had provided to PIR or ISOC on the proposed transaction, and how that community input would be reflected in the operations of PIR following its conversion," ICANN board Chair Maarten Botterman said in a blog post dated April 30.
Mr. Botterman added, "After completing its evaluation, the ICANN Board finds that the public interest is better served in withholding consent as a result of various factors that create unacceptable uncertainty over the future of the third largest gTLD registry."
Among the factors considered were that PIR would change "to an entity that is bound to serve the interests of its corporate stakeholders, and which has no meaningful plan to protect or serve the .ORG community"; that the "US$360 million debt instrument forces PIR to service that debt and provide returns to its shareholders, which raises further question about how the .ORG registrants will be protected or will benefit from this conversion"; the untested nature of the Stewardship Council proposed by Ethos in its commitments to secure approval; and the untested arrangement for relying on ICANN "as a backstop for enforcement of disputes between the .ORG community and the registry operator," Mr. Botterman said.
"The entire Board stands by this decision. After thorough due diligence and robust discussion, we concluded that this is the right decision to take. While recognizing the disappointment for some, we call upon all involved to find a healthy way forward, with a keen eye to provide the best possible support to the .ORG community," he added.
In its decision, the ICANN board said that the benefits to ISOC of receiving "a US$1 billion endowment to secure its future through the proposed transaction, ... is not within the scope of ICANN’s consideration."
It noted that it had received letters from the Pennsylvania Attorney General’s Office and the California Attorney’s General Office, which oversees the operations of nonprofits such as ICANN in California, both of which the ICANN board weighed as support for the reasonableness of withholding consent for the requested change of control.
During an April 30 conference call organized by opponents of the transaction, Electronic Frontier Foundation Staff Attorney Cara Gagliano said that if ISOC doesn’t want to continue its stewardship of the .org domain, it should return it to ICANN to choose a new steward. "This isn’t something ISOC paid for and are now selling. ... They were selected and entrusted to be a steward."
In a May 1 statement, EFF Senior Staff Attorney Mitch Stoltz said, "We’re gratified that ICANN listened to the .ORG community, which was united in its opposition to the sale. Under the deal, .ORG would be converted to a for-profit entity controlled by domain name industry insiders and their secret investors. Nonprofits are vulnerable to the governments and corporations who they often seek to hold accountable. The public interest community rightly questioned whether an owner motivated by profits would stand up to demands for censorship of charities who rely on .ORG so that people can find and rely on their vital services."
Ms. Gagliano said on May 1, "The sale of .ORG was announced, without .ORG community input, not long after price caps on registration fees for domain names were lifted and PIR acquired new powers to allegedly ‘protect’ the rights of third parties. It was obvious to many that .ORG registrants could face higher operating costs and degradation of service as Ethos sought to increase fees and seek profitable arrangements with businesses keen to silence nonprofits. This concern grew after it was revealed that the transaction required taking on a $360 million debt obligation."
In a press release, Sens. Ron Wyden (D., Ore.), Elizabeth Warren (D., Mass.) and Ed Markey (D., Mass.) and Rep. Anna Eshoo (D., Calif.) praised the decision of the ICANN board.
Sen. Wyden said, "This deal would have saddled the .org registry with hundreds of millions of dollars of debt, putting it in an unstable position during this current economic crisis, solely to enrich a private equity firm at the expense of users and nonprofits. The .org registry is too important to be at the mercy of wealthy investors."
Sen. Warren said, "I’m glad ICANN listened to our concerns and blocked a private equity takeover of the .org domain registry, which would have raised costs on .org websites and threatened them with censorship. This is good news for nonprofits and everyone who relies on a free and open internet."
Rep. Eshoo said, "ICANN’s decision is a big win for the internet. Like so many people and organizations around the world, I strongly opposed the takeover of ‘.org’ by a private equity firm and joined my colleagues in urging ICANN to reject the proposal. Now more than ever, nonprofits, mission driven organization[s], charities, and international organizations depend on reliable and affordable ‘.org’ domains to fulfil their missions, and I applaud ICANN’s decision to side with the public interest."
Sen. Markey said, "ICANN was right in its decision to keep nonprofit domains out of the domain of a private equity firm. It made no sense to subject the .org registry with debt and uncertainty just so wealthy investors could make a buck. The .org registry helps support the backbone of our nonprofit community, and we need them protected now more than ever during the coronavirus crisis."
CONGRESS & THE ADMINISTRATION
At Hearing, Providers Urge More Funding During Pandemic
Representatives of broadband service providers urged members of the Senate Commerce, Science, and Transportation Committee during a May 13 hearing — held partially remotely but mainly in a sparsely populated hearing room — to address their needs for financial support to keep their operations running while providing free service or deferring payment from many subscribers who have lost jobs and income during the COVID-19 pandemic and to help those same subscribers who could be facing large payment arrears when the economy reopens.
There was bipartisan recognition among committee members of the manner in which the current public health crisis and stay-home policies have made the need for ensuring all Americans have access to broadband even more evident.
In his opening statement, Committee Chairman Roger Wicker (R., Miss.) thanked broadband providers and technicians for the work they have been doing while many other Americans stay home to try to quell the spread of the coronavirus.
"Unlike in other countries, the surge in online traffic and bandwidth consumption in the United States has not diminished network performance nor has it required the slowing of online services and applications. Instead, U.S. providers have been able to meet the growing demand, allowing Americans to continue enjoying high-quality Internet services throughout this pandemic, and that is a fine accomplishment," he said.
In his statement as prepared for delivery, communications, technology, innovation, and the Internet subcommittee Chairman John Thune (R., S.D.) said, "Because of the light-touch approach to broadband regulation by the federal government in the United States, we’ve seen access to these critical services expand significantly, including to some of the most rural areas of this country. If we want the Internet to continue to thrive and serve as an engine for economic innovation and advancement, we should ensure that our policies continue to encourage more investment by the private sector in our communications infrastructure."
Committee ranking minority member Maria Cantwell (D., Wash.) thanked committee member Ed Markey (D., Mass.) "for his tireless efforts to close the homework gap. I’m proud to be a cosponsor of legislation that he has for emergency FCC E-Rate funding to address this need and try to close the gap."
She also stressed the importance of broadband for telehealth, and highlighted the broadband gap between tribal and nontribal areas.
Witness and Competitive Carriers Association President and Chief Executive Officer Steve Berry applauded the FCC "for helping carriers temporarily tap into a pool of unutilized spectrum to meet these demands. I hope this experience will encourage additional innovative uses of spectrum partitioning and disaggregation going forward."
Mr. Berry called a voucher program to address the issues of consumers who "may accrue significant balances on accounts for communications services. To assist these consumers, CCA supports the stay-connected voucher proposal. The stay-connected voucher is the missing element to allow consumers to remain connected without later facing bill shock and undue hardships. It’s a technology-neutral approach that empowers consumers by giving them the ability to determine which services are most important during these difficult times. And importantly it builds on Congress’s work in the CARES Act itself and would not require new eligibility or verification processes."
In his written statement, Mr. Berry explained how the program would work. "Qualified households would receive two $50 vouchers during each month of the declared COVID-19 crisis to apply to communications services bills or at the point of sale. Vouchers would expire six months after the end of the emergency period. Eligible consumers could choose to apply their vouchers to one or more communications providers, according to their household’s unique communications needs — broadband, mobile, video, or voice. Further empowering consumers, vouchers could be used separately (one for each of two different providers) or combined to pay a single provider. The vouchers could be used for prepaid or postpaid services. Upon receipt of a voucher from an eligible consumer, providers would redeem the voucher for reimbursement from a fund established by the voucher legislation," he said.
"Every household with an individual that received a full rebate check under the CARES Act would receive the vouchers. ... The program would also utilize the existing distribution mechanism that Treasury has set up for CARES Act checks," he added.
NTCA CEO Shirley Bloomfield said during the pandemic, her members continue to deploy and extend broadband networks and provide broadband for free to household with students.
"NTCA providers are doing everything they can to keep everybody’s Internet lights on. But to do that they need to keep their own lights on. An increasing number of customers are becoming unable to pay for service, and members are concerned about their ability to repay loans and purchase critical supplies like routers, fiber, or backbone access to the Internet, and of course they have to pay their own employees as well. None of these costs are things they can simply barter away or ignore. Speaking of employees, sourcing personal protective equipment ... continues to be a struggle. It’s critical for our members to obtain access to masks, disinfectant wipes, gloves, and hand sanitizers, especially if anybody wants to reopen the economy. Concerns about delays in the supply chain for equipment could also hinder deployment plans later this year. We’ve also encountered frustration when it comes to the Paycheck Protection Program. While this program offers helpful promise, there’s still confusion among stakeholders about whether certain kinds of small businesses such as cooperatives actually even qualify. To help with some of these challenges, NTCA recommends that Congress view the challenges ahead as requiring a mix of near-term and longer-term solutions," Ms. Bloomfield said.
Chairman Wicker said, "I see no reason why a 501(c)12 nonprofit cooperative who is otherwise qualified should be prohibited from participating in the Paycheck Protection Program and I have urged Treasury to make that decision clear, and I hope we get a positive answer very soon."
Ms. Bloomfield expressed NTCA’s support for the proposed Keeping Critical Connections Act introduced by Sens. Amy Klobuchar (D., Minn.) and Kevin Cramer (R., N.D.).
Ms. Bloomfield offered NTCA’s recommendation of the "forever connected approach" to broadband policy, saying that Congress should focus on leveraging existing programs; preventing duplication of scare federal resources by requiring all agencies to coordinate programs; requiring all agencies to use updated broadband maps and meaningful challenge processes; investing in technology that can easily be upgraded; and remembering that programs must focus not only on building broadband network but on sustaining that network over time.
Chairman Wicker emphasized the importance of not allowing the auction for Rural Development Opportunity Fund support to slip from its November schedule.
Both Mr. Berry and USTelecom President and CEO Jonathan Spalter warned against any effort to move the auction to an earlier date, given that potential participants have been working under an existing schedule.
Also testifying at the hearing was Public Knowledge Senior Adviser Gene Kimmelman.
Bicameral Bill Would Fund Broadband for College Students
Democrats in the Senate and House have introduced bills that would provide $1 billion to colleges and university to pay for at-home Internet access service, as well as routers, modems, Wi-Fi hot spots, tablet, and laptops, for financially needy students, so that they can participate in distance learning.
The proposed Supporting Connectivity for Higher Education Students in Need Act would prioritize historically black colleges and universities, Hispanic-serving institutions, tribal colleges and universities, minority-serving institutions, and rural-serving institutions. Institutions that receive funding would be required to prioritize students eligible for need-based financial aid such as Pell Grants or means-tested social safety net programs such as the Supplemental Nutrition Assistance Program and Medicaid.
In the House, the sponsors are Reps. Anna G. Eshoo (D., Calif.), Doris Matsui (D., Calif.), G.K. Butterfield (D., N.C.), Joaquin Castro (D., Texas), Marcia Fudge (D., Ohio), Lisa Blunt Rochester (D., Del.), and Alma S. Adams (D., N.C.).
In the Senate, sponsors are Sens. Amy Klobuchar (D., Minn.), Mazie Hirono (D., Hawaii), Gary Peters (D., Mich.), and Jacky Rosen (D., Nev.).
Rep. Fudge said, "College students without adequate technology or access to internet are at risk of falling behind as their classrooms go virtual due to the pandemic."
Rep. Adams said, "You can’t have equity in education without eliminating the digital divide. Today’s students have to have a reliable internet connection and up-to-date technology if they want to succeed."
The sponsors cited more than 60 groups that support the legislation, including the National Urban League, the League of United Latin American Citizens, the United Negro College Fund, MediaJustice, Public Knowledge, New America’s Open Technology Institute, the Schools Health & Libraries Broadband (SHLB) Coalition, the National League of Cities, and the American Association of State Colleges and Universities.
Bipartisan House Bill Would Expand Universal Service Fund Contribution Base
With bipartisan support, Rep. Collin Peterson (D., Minn.) and Don Young (R., Ark.) introduced a bill on May 5 that would expand the contribution base for the Universal Service Fund to include broadband services, rather than relying on the shrinking current contribution base of interstate and international telecommunications services.
The proposed Universal Broadband Act would also codify "that broadband is within the definition of Universal Service."
It would require the FCC "to set the contribution rate as needed to meet Universal Service goals and serve all Americans."
It would require consultation between the U.S. Department of Agriculture’s Rural Utilities Service (RUS), the National Telecommunications and Information Administration, and the FCC.
The bill would "create reporting requirements to ensure the FCC is meeting their build out goals."
And it would "[p]rioritize unserved areas, and further ensure tribal areas are served," according to a press release from Rep. Peterson’s office.
Co-sponsors include Reps. T.J. Cox (D., Calif.), Hal Rogers (R., Ky.), Angie Craig (D., Minn.), Frank Lucas (R., Okla.), Luis Correa (D., Calif.), Jeff Van Drew (R., N.J.), Ed Case (D., Hawaii), and Vicente Gonzalez (D., Texas).
The bill has been referred to the House Committee on Energy and Commerce.
Rep. Peterson said, "It’s unacceptable that rural communities have limited, unreliable or worse yet no broadband access. In response to these inequities I have introduced the Universal Broadband Act that secures adequate funding to support the construction of broadband infrastructure in rural and underserved areas without having to increase the national debt."
Rep. Young said, "The COVID-19 pandemic has underscored the importance of broadband access for our communities, schools, and health care providers. We must work so that those in our rural areas can have access to the connectivity they need to keep their families safe and give them a semblance of normalcy."
Rep. Rogers said, "This legislation will help shore up the fund that allows us to support broadband expansion in communities where it’s needed the most for economic development."
Rep. Gonzalez said, "By reforming the Universal Service Fund, the Universal Broadband Act provides a thoughtful solution and a stable revenue stream to fund long-term investment in marginalized communities and close the digital divide."
Among industry supporters are NTCA and WTA.
NTCA Chief Executive Officer Shirley Bloomfield said, "Unfortunately, even as the importance of universal broadband connectivity increases, the system that governs contributions to the Universal Service Fund (USF) — the program that enables such connectivity — has continued to erode and become less stable. By directing the expansion of the USF contribution base to include broadband access services — those very services that have become a primary focus of our country’s shared universal service mission — this bipartisan bill charts a course for steadier long-term support of the USF program on a more equitable basis, and it will therefore help to promote achievement of all aspects of that mission."
Ms. Bloomfield added, "NTCA endorses this bill wholeheartedly, and with this more stable foundation beneath all of the essential universal service programs, NTCA’s members are eager to continue leading the charge in both deployment of networks and ongoing delivery of cutting-edge services at affordable rates in rural areas. We look forward to working with Congress on this critical issue as this debate moves forward."
WTA Senior Vice President–government and industry affairs Derrick Owens said, "This legislation is long-overdue, and we support it. As we’ve seen during this pandemic, the ability to have access to affordable broadband at home is critical. USF helps with both network construction and affordability. We appreciate Reps. Peterson and Young taking the bold step to modernize the fund. All four USF program are focused on broadband; it makes no sense to solely assess long distance telephone revenues for contributions. If Congress were designing USF today, it would never structure it the way it is currently structured. The Universal Broadband Act would fund USF consistent with the services being offered in the 21st Century."
—Lynn Stanton, [email protected]
Capito, Manchin Seek to Ease Way for Public-Private Networks
West Virginia’s U.S. senators have introduced a bill to smooth the way for public-private broadband projects to receive funding under the Commerce Department’s Economic Development Administration grant program.
The Eliminating Barriers to Rural Internet Development Grant Eligibility (E-BRIDGE) Act proposed by Sens. Shelley Moore Capito (R., W.Va.) and Joe Manchin (D., W.Va.) would give such public-private projects greater flexibility in complying with the program’s matching fund requirements.
It would also eliminate barriers to funding broadband investments in distressed communities, clarify that recipients may include public-private partnerships and consortiums, provide flexibility in the procurement process to account for limited availability of broadband services in distressed communities, clarify that grant funds can be combined with funding from other federal sources, and provide accounting flexibility to allow in-kind resources to meet the nonfederal cost share, according to a press release from Sen. Capito’s office.
Meanwhile, in a letter to congressional leadership, Sen. Manchin urged the inclusion of funding in the next COVID-19 response package for a variety of priorities, including rural hospitals, small business support, widespread COVID-19 testing, investment in mobile hot spots, and improving broadband coverage maps.
Commerce Committee Republicans Highlight 15 Tech Bills for Agenda
House Energy and Commerce Committee ranking member Greg Walden (R., Ore.) and consumer protection and commerce subcommittee ranking member Cathy McMorris Rodgers (R., Wash.) on May 12 highlighted GOP-backed 15 bills in stressing the need for an emerging tech agenda.
"Now more than ever, we must create policies that ensure America beats China over the next decade and beyond by fostering innovation, securing supply chains, and protecting consumers. These pillars of our legislative agenda unleash free-market ingenuity to spur American leadership and economic growth in the next generation of technology that will define our future. We applaud the forward-thinking leadership of the subcommittee Members and look forward to working with our colleagues on both sides of the aisle to support these important initiatives," Reps. Walden and McMorris Rodgers said in a news release.
The bills include: the Smart IoT Act introduced last May by Rep. Bob Latta (R., Ohio) "promotes an IoT strategy at the federal level that streamlines development and adoption"; the Advancing IOT Manufacturing Act introduced by Rep. Richard Hudson (R., N.C.) "encourages states to adopt model codes for the manufacturing of Internet of Things (IoT) devices" and "[i]dentifies and mitigates risks to the supply chain"; the Showing How Isolationism Effects Long-term Development (SHIELD) Act introduced by Rep. Fred Upton (R., Mich.) "assesses how international data localization laws impact each country’s economy, our economy, and cross-border commerce"; the Telling Everyone the Location of data Leaving the U.S. (TELL) Act introduced by Rep. Jeff Duncan (R., S.C.) "requires disclosure whether China has access to our data transmissions"; the Internet Application Integrity and Disclosure (Internet Application I.D.) Act introduced by Rep. Adam Kinzinger (R., Ill.) "requires the disclosure of app-makers originating from China"; and the Countering Online Harms Act introduced by Rep. Brett Guthrie (R., Ky.) "assesses how we can use AI to fight online harms, such as misinformation, deep fakes, illegal content, and more."
Markey Proposes Update To National Broadband Plan
Sen. Ed Markey (D., Mass.) has announced a bill to require the FCC to update its 10-year-old national broadband plan, which the agency produced under the mandate of a provision in the 2009 American Recovery and Reinvestment Act.
The proposed National Broadband Plan for the Future Act would require the FCC to submit the plan to Congress by July 1, 2021, with an assessment of progress toward the goals in the first plan; a reassessment of the areas to focus on, such as affordability, maximized utility, and advancing "consumer welfare, civic participation, public safety and homeland security, community development, health care delivery, energy independence and efficiency, education, worker training, private sector investment, entrepreneurial activity, job creation and economic growth, and other national purposes"; examining the effects of the COVID-19 pandemic on how Americans learn, work, receive medical information and treatment, and participate in civic communications; analyze the reliance Americans will have on broadband before COVID-19 testing and vaccines are available and after; and develop short- and long-term plans for addressing that reliance.
Annually after the submission of the new report, the bill calls for the FCC to report on Congress on its progress toward achieving the goals in the new report.
Sen. Markey said, "The National Broadband Plan laid out a vision for connecting all Americans to the internet, and we have made tremendous progress over the last decade. But the coronavirus pandemic has shown us that our work is far from done to ensure universal connectivity. Now more than ever, we see how necessary robust and affordable broadband is to the future of education, employment, medical care, and commerce in America. We need to update the National Broadband Plan so we can continue to invest in our nation’s future by bringing the power and promise of broadband to us all."
Brookings Institution senior fellow Blair Levin, who headed the national broadband plan initiative at the FCC 10 years ago, said, "An update of the 2010 National Broadband Plan is long overdue, and with the COVID Crisis demonstrating the importance of abundant, affordable broadband to economic resiliency and social progress, such an update is also essential."
Public Knowledge Senior Vice President Harold Feld said, "Although some school systems have been able to go virtual, which they could not possibly have done in 2010, millions of American schoolchildren still do their homework on Wi-Fi in fast food parking lots or on jury-rigged school buses because their parents can’t afford a broadband connection at home. By any metric, we have failed to live up to the goals of the first National Broadband Plan, while the current FCC continues to issue self-congratulatory reports claiming that — despite all evidence to the contrary — broadband is being deployed in a timely manner to all Americans.
Mr. Feld added, "Once again, Senator Markey has shown leadership by issuing a call to action. This bill would require an honest assessment of where we failed to bring broadband to all Americans. It would require a look at the ugly and uncomfortable truths that the pandemic has revealed about the extent of the digital divide, and demand a plan to address them. Every year, the FCC would be required to measure itself against the plan and its concrete results, rather than having the luxury of redefining ‘success.’ In the end, however, plans and reflection are only as good as the political will to carry them out. This bill is an important first step. But unless Congress and the FCC have the political will to carry out the plan, we will find ourselves in 2030 wondering why the second National Broadband Plan of 2021 never came to fruition."
NTIA Seeks Input on Positions, Proposals for WTSA-2020
The National Telecommunications and Information Administration is seeking input on priorities to advance international communications and information policies through the International Telecommunication Union and on NTIA’s proposals and positions for matters to be addressed at the 2020 World Telecommunication Standardization Assembly (WTSA-2020) scheduled to be held in Hyderabad, India, in November.
Comments are due June 8 and may be e-mailed to [email protected], according to a notice in the May 8 Federal Register.
WTSA-2020 will set the agenda for ITU’s Standardization Sector (ITU-T) for the next four years and will select the leadership of the ITU-T study groups, NTIA noted.
"NTIA’s policy and proposal objectives will include advancing the following efforts to: (1) Further the multistakeholder approach to Internet policy; (2) advance ITU-T restructuring to increase organizational effectiveness, reduce duplication; (3) improve ITU-T processes and procedures (i.e., working methods), especially transparency; and (4) increase U.S. strategic engagement and influence in the ITU-T," it said.
"NTIA’s objectives will also support Commerce priorities to: (1) Promote technical standards that preserve our economic security, facilitate US technology leadership globally, and enhance the resilience of cyberspace; and (2) address barriers to coordination and collaboration with other industry-led standards development efforts," it added.
NTIA listed the following topics on which it expects to see proposals at WTSA-2020 and asked stakeholders what role they would like to see ITU-T take with respect to them: artificial intelligence/machine learning; consumer protection; cybersecurity; digital economy; Internet policy and governance; Internet platforms; Internet of things; 5G–IMT-2020; international mobile roaming; mobile financial services/digital currency; personal data protection; over-the-top services; health care technology; quantum cryptography; quantum computing; unmanned aerial vehicles; smart cities; mobile virtual networks; and other emerging technologies.
Senators Urge Comcast to Open Home Wi-Fi Routers to Public
To assist children trying to access virtual classrooms while their schools are closed in response to the COVID-19 pandemic, Sens. Ron Wyden (D., Ore.), Kamala Harris (D., Calif.), and Cory Booker (D., N.J.) have urged Comcast Corp. to provide free public access to "the millions of Comcast-operated public Wi-Fi networks located in homes and apartment buildings across America."
In a letter Comcast Corp. Chairman and Chief Executive Officer Brian Roberts dated May 7, the senators noted that "Comcast operates one of the largest collections of public Wi-Fi access points in the country — powered by the Wi-Fi routers it rents to its millions of residential and business customers. Comcast has configured these modems — by default — to operate two different Wi-Fi networks. While the first is password-protected for the subscribers, the second is controlled by Comcast and open for public use by any other Comcast Xfinity customer and non-subscribers who pay Comcast for a Wi-Fi access pass, which Comcast sells on an hourly, daily, weekly, or monthly basis."
They acknowledged that "Comcast has taken important steps to help Americans get connected during this global public health emergency. But it can — and should — do more to help children and teachers in Oregon and across the country. We urge you to start by dropping the paywall and providing free access to Comcast residential public Wi-Fi networks. While Comcast started providing free access to its business customers’ Wi-Fi access points on March 13, 2020, the paywall remains on the millions of Comcast-operated public Wi-Fi networks located in homes and apartment buildings across America."
Comcast was among many Internet service providers that took a pledge, at the request of FCC Chairman Ajit Pai, on March 13 and shortly thereafter that for 60 days they would "(1) not terminate service to residential and small business customers because of their inability to pay their bills due to the disruptions caused by the coronavirus pandemic; (2) waive any late fees that any residential or small business customers incur because of their economic circumstances related to the coronavirus pandemic; and (3) open its Wi-Fi hotspots to any American who needs them." As the original 60-day commitment was set to expire, many service providers, including Comcast (TR, May 1), recently extended their commitments to June 30.
The senators noted that Comcast has said that the subscriber and "public" Wi-Fi networks operating on the residential routers "are completely separated" to ensure security and subscriber access to the bandwidth they are paying for.
"However, after Senator Wyden’s office asked you to drop the paywall on your residential public Wi-Fi networks, your staff stated that doing so could create Wi-Fi congestion and could impact the speed for paying subscribers’ Internet connections," the senators said. "Comcast’s excuse simply does not add up. ... If Comcast’s previous statements are true, and use of that public Wi-Fi network does not impact the subscriber, it should not matter if the person using it has paid Comcast for a Wi-Fi access pass or if they are a low-income school child trying to do their homework."
The senators asked Comcast to respond by May 22 to a list of questions, including the number of cable modems and Wi-Fi routers deployed; the number of subscribers who have disabled the public Wi-Fi network; its revenue from cable modem and Wi-Fi rental fees for the past three years; how it has configured different models of equipment; and what specific performance issues it anticipates from removing the paywall.
In a statement regarding the letter, Comcast said, "Comcast has taken multiple unprecedented steps to make broadband more accessible during this crisis. We’ve offered free internet for 60 days for new low-income customers eligible for our Internet Essentials program. We opened our 1.5 million business and outdoor WiFi hotspots for anyone to use for free across the country for the first time, and are keeping them open until June 30. We have committed not to disconnect service or to charge late fees to our customers who are unable to pay due to the pandemic."
It added, "Our broadband network has seen extraordinary growth in traffic, and has performed exceedingly well at this new record level of traffic due to our substantial investment in our network and the herculean efforts of our front-line technicians and workers. Our engineering teams are focused on the critical work of supporting our network to allow the millions of Americans who now depend on it to stay connected through the current crisis."
IN THE COURTS
Court Rules for FoIA Seekers In RIF Comment Case
A federal district court in New York has granted summary judgment in favor of the New York Times and other parties seeking access to information from the FCC’s API (application programming interface) proxy server log related to comments filed in the FCC’s restoring Internet freedom (RIF) proceeding from April to June of 2017.
There were an unusually large number of comments filed in the proceeding, and third-party analysis suggested a significant portion of those comments were "fake" — for example, the name of the purported commenter did not match the e-mail address from which it was filed or multiple comments were filed from the same address. Members of Congress called for investigations by federal law enforcement and oversight agencies.
The newspaper sought originating IP (Internet protocol) addresses for the submitted comments and related timestamps, as well as user-agent headers and related timestamps, U.S. District Judge Lorna G. Schofield of the U.S. District Court for the Southern District of New York noted in an opinion and order in New York Times et al. v. FCC (case 18 Civ. 8607), filed April 30.
In denying the newspaper’s FoIA (Freedom of Information Act) request, the FCC "stated that the requested information contained material that is exempt from disclosure pursuant to FOIA Exemptions 6 [privacy exemption for personnel, medical, and similar files] and 7(E), and that any non-exempt material could not be reasonably segregated and released. On this [cross-]motion [for summary judgment], the agency relies on FOIA Exemption 6," the court said.
The court assumed for the purposes of balancing the exemption claim against the public interest that the disclosure of IP addresses and user-agent heads would compromise a substantial, as opposed to a de minimis, privacy interest. However, it said that it did not find that to be the case.
"The strongest argument for finding a de minimis privacy interest is that the individuals who submitted FCC comments did so voluntarily, on a public website, providing their names and addresses along with their comments. ... On the other hand, the strongest argument in favor of finding a substantial privacy interest is that digital advertisers and digital platforms could combine this data with other available information to create a detailed and intimate profile that might include information about a person’s race or ethnicity, political affiliation, religious belief, sexual identity and activity, income level, purchasing habits and medical information. ... If the record provided further insight into how likely it is that this risk would materialize, then the agency might have sustained its burden of showing that the disclosure of IP addresses and User-Agent headers would compromise a substantial privacy interest," the court said.
The court said that the public interest in disclosure in this matter "is great because the importance of the comment process to agency rulemaking is great. ... If genuine public comment is drowned out by a fraudulent facsimile, then the notice-and-comment process has failed. Disclosing the requested data in this case informs the public understanding of the operations and activities of government in two ways — at the micro level with regard to the integrity of the FCC’s repeal of the particular net neutrality rules at issue, and at the macro level with regard to the vulnerability of agency rulemaking in general."
Judges Question Carriers, FCC On Transitional Access Order
During a May 4 oral argument, federal appellate judges closely questioned attorneys for the FCC and two carriers about a dispute over access charge tariffs about the proper classification of exchange carrier involved and the lack of clarity in FCC rules — as opposed to the order adopting the rules — regarding the interstate rates of competitive local exchange carrier (CLECs).
In consolidated cases beginning at AT&T, Inc. v. FCC (case 18-1007), the three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit is considering separate appeals from Iowa Network Services, Inc. (d/b/a Aureon Network Services), which argues the FCC erred in a 2017 order that declared Aureon to be a CLEC and that retroactively voided its 2013 access charge, and from AT&T, which argues the FCC should not have used Aureon’s 2012 rate to calculate damages without first determining whether the 2012 rate violated the FCC’s CLEC benchmark rules.
The 2017 order concluded "that Aureon is subject to the Commission’s rate cap and rate parity rules and that it violated those rules by filing tariffs containing rates exceeding those prescribed by the Commission."
Circuit Judge David S. Tatel, who presided over the oral argument, which was conducted by teleconference, asked James Troup, the attorney for Aureon, to explain why the company believes it is not a CLEC for the purposes of section 51.903 of the FCC’s rules, which defines CLECs for the purposes of the FCC’s transitional access service pricing rules.
Mr. Troup said that section 51.903 does not apply to "61.38 carriers" — that is, dominant carriers that must provide cost studies and other information in support of their tariff filings.
Judge Tatel suggested that past imposition of dominant carrier regulation isn’t dispositive with respect to a distinction between incumbent and competitive carriers.
Mr. Troup said that section 61.38 applies only to incumbent carriers. "You can’t be both" incumbent and competitive, he added.
"But the rule classifies Aureon as a CLEC only — only — for the purposes of the transitional prices rules. That’s all. What about those are mutually exclusive with incumbent carriers? That’s the argument you have to prevail on here," Judge Tatel said.
"Aureon is still required to file tariff rates based on cost, so it can’t be a competitive carrier," Mr. Troup said.
Changing the subject, Judge Tatel asked if the court disagrees with Aureon as to whether the transitional pricing rules apply to the company, "do I read your brief correctly that you’re not challenging the Commission [on whether the] interstate rates violated the regulations?"
Mr. Troup said that the FCC "has not allowed Aureon to build rate case, ... so the rate ceiling cannot be just and reasonable."
Circuit Judge Thomas B. Griffith asked Joseph Guerra, the attorney for AT&T, "Isn’t it significant that the CLEC bill-and-keep rule has no interstate rate cap? It mentions it in the preamble," but not in the actual rules, he added.
Mr. Guerra demurred, pointing to the order’s statement that all interstate rates are capped.
"If you’re wrong with that, doesn’t that take care of the interstate rate issue?" Judge Griffith asked.
Again, Mr. Guerra disagreed, saying that this approach "would make a hash of the entire regulatory system," in which interstate and intrastate rates are intertwined.
Judge Griffith said that section 51.911(c) of the FCC’s rules "by its terms prohibits an increase in intrastate service above the rate in effect in 2011. That is plain as day limited to intrastate. How do we construe that provision to apply to interstate?"
He asked, "What provision in 47 CFR [Code of Federal Regulation] part 51 can we construe to cover that violation the FCC found about the 2013 filing for interstate rates?"
Mr. Guerra said that there is a reference to charts in the transformation order. "If you’re not going to accept our interpretation of the order itself as binding ... that would be a significant hole," he said.
Mr. Guerra then argued that the FCC erred in claiming that during the liability portion of the proceeding, AT&T waived its right to challenge Aureon’s 2012 rates during the damages portion of the proceeding.
Judge Tatel asked FCC attorney William Scher to point out where in the Commission’s rules it caps interstate rates. Mr. Scher pointed to paragraphs 800 and 801 in the transition order.
"That’s in the preamble?" Judge Tatel questioned.
"That’s in the text of the transformation order," Mr. Scher said. "I’m not sure I understand your question about the preamble."
Circuit Judge Gregory Katsas said, "Here’s my problem: ... ILECs [incumbent local exchange carriers] clearly have interstate rates. But the best you can come up with for CLECs is a statement in the preamble and this reference that isn’t a model of clarity. Maybe it’s a drafting order ... but it’s not there" with the clarity that exists for ILECs.
Justices Question Political Consultants’ Call To Overturn Ban on Unauthorized Robocalls
The Supreme Court appeared during a May 6 oral argument to be resisting arguments from an association of political consultants to overturn the prohibition on robocalls made without the calling parties’ consent in the Telephone Consumer Protection Act of 1991, which the association prefers to the "severance" remedy that a lower court applied for a 2015 TCPA amendment that exempted robocalls made to collect debts owed to the government.
In a ruling last year, the U.S. Court of Appeals for the Fourth Circuit (Richmond) said that the huge-number of loans that are guaranteed by the federal government means that the exemption does not pass a requirement that content-based restrictions on speech be "narrowly tailored." However, the appeals court said that the robocall prohibition could stand by severing the content-based exemption for government debt-collection calls (TR, May 3, 2019).
While the Justice Department is challenging the Fourth Circuit’s ruling that the government-debt exception violates the First Amendment, the political consultants’ group argues that the appeals court’s remedy of severing the government-debt exception from the rest of the statute was the wrong approach, and that the entire robocalling restriction should be invalidated.
During oral argument in Barr v. American Association of Political Consultants (case 19-631), which was held by teleconference out of public health concerns related to COVID-19 pandemic, the attorney for the respondents argued that the justices should view the constitutional concerns raised by 2015 exception for government debt calls as evidence that the underlying restriction has been an unjustifiable restriction on protected speech all along.
As Deputy Solicitor General Malcolm Stewart began laying out the government’s defense of the underlying automated-call restriction, Chief Justice John G. Roberts Jr. said, "I don’t see how that gets you out of the content category. ... You still have to look carefully at look what’s being said" before deciding if the exemption applies.
Mr. Stewart said that the government-debt exception does not fall within the categories of laws that the Supreme Court said in it 2015 decision in Reed v. Town of Gilbert would be considered content-based.
Chief Justice Roberts interrupted and asked him to "jump ahead and get to the severance question. When we sever provisions it’s because they’re illegal. But here there’s nothing illegal. It’s just that when combined with the rest of statute," it becomes illegal.
"The ultimate question of severability is one of congressional intent. What outcome would Congress prefer?" Mr. Stewart said.
Justice Clarence Thomas, who typically speaks rarely during oral arguments, said that it seems "a bit odd" that the severance remedy supported by the government "doesn’t seem to give anything to respondents. In fact it’s taking away speech" from entities that are not parties in the current case.
Mr. Stewart said that it is not uncommon that victory in a legal case requires prevailing on two separate legal propositions, with the second proposition being the remedy. A party can "win" the argument about whether a statutory provision is valid but fail to obtain its ultimate goal of a specific remedy that benefits it, he said.
Justice Thomas also questioned the importance of an individual’s interest in the privacy of a cellphone. "It seems to me that that privacy interest is actually not nearly as great ... as a person would have in the landline phone at home or even in someone knocking on their front door," he added.
Mr. Stewart pointed out that cellphones are more ubiquitous than landlines now, which means users can receive unwanted calls no matter where they are.
Justice Ruth Bader Ginsburg, who called into the oral argument from a hospital room in Baltimore after receiving nonsurgical treatment for a gallstone issue after the previous day’s oral argument, told Mr. Steward, "I don’t see how you can escape content-based distinctions."
Mr. Stewart said that the question isn’t "exclusively" the content of the call but whether a financial relationship in the form of debt existed between the federal government and the called party.
Justice Ginsburg asked about the argument that if the court upheld the severance remedy, the political groups would have no incentive to the challenge the provision in the first place.
Justice Stephen G. Breyer suggested that the activity in question falls into former Justice Louis Brandeis’s "third category: economic regulation."
Mr. Stewart said he doesn’t think there is a test that would work in all instances and that "even if you thought the debt exemption was content-based, it doesn’t follow that the entire automated call restriction is content-based."
Justice Samuel Alito said, "The so-called severability issue in this case is really fascinating."
Justice Sonia Sotomayor asked that, assuming that "this law is content-based," how small or large is the government-debt exception. "Even if you could show me that they are a small part of the intrusion on people, they are a big emotional complaint, as they raise a lot of ire," she said, adding, "You haven’t shown me why government-backed debt is any different from calls about commercial debt."
Mr. Stewart suggested that the appropriate pool to compare the debt calls to would be all the robocalls that would be made in the absence of the TCPA restriction.
Justice Neil Gorsuch, "[W]hat do we do about the fact ... that the plaintiffs would seemingly have no standing to challenge an exception for government debt collection activities? So they didn’t seek the relief and they don’t have standing for this relief."
Mr. Stewart said that the respondents had sought invalidation of the restriction as relief.
Justice Brett M. Kavanaugh sought clarification that the Justice Department is not arguing that the provision could satisfy a "strict scrutiny" level of judicial.
Mr. Stewart said the department made that argument for the general restriction but not for the debt-collection exemption.
Justice Kavanaugh said, "Those two things make this a severability case."
Mr. Stewart said it would be "a tail-wagging-the-dog" process if the court struck down the underlying restriction.
Justice Kavanaugh said, "So you argue that without exemption, underlying ban is perfectly constitutional," adding that the court has no precedent for dealing with that situation.
Roman Martinez V of Latham & Watkins LLP, appearing for the American Association of Political Consultants, Inc., and other respondents, said that by the TCPA favors commercial robocalls over core political speech.
The federal courts cannot cure First Amendment violations by making more speech illegal, he added.
Chief Justice Roberts said, "Your friend on the other side on the severance question makes a very strong point, that Congress had this law for 25 years and then they added this, you know, pretty discrete exception that created the problem we have today. It seems pretty obvious that the way they would solve it is get rid of this exception. It’s an extremely popular law. Nobody wants to get robocalls on their cellphone."
Mr. Martinez said that the privacy interest "isn’t that compelling, and the restriction should fall." He argued that by adopting the 2015 exemption, Congress showed that it believes "money is more important than privacy."
Justice Ginsburg said that the TCPA restriction "is on the manner of calling, not on the message."
Mr. Martinez said that "the dividing line between what is allowed and what is not allowed is based on content."
Justice Ginsburg suggested that calls about debt are "less intrusive" than other types of robocalls "because they’re not out of the blue, they’re just a reminder of your obligation."
Justice Breyer asked why this case would fall under strict scrutiny if the political speech issue is set aside. He noted that he dissented from Reed and is "trying to decide whether I should change my mind."
Justice Gorsuch suggested that it is "intuitive" to get rid of the much newer exception and "go back to the status quo ante."
Justice Kavanaugh pointed out the TCPA is very popular.
Mr. Martinez responded that the First Amendment "is not just there to protect speech that is popular."
In a joint statement following the oral argument, Sen. Ed Markey (D., Mass.) and Rep. Anna Eshoo (D., Calif.) said, "Today’s arguments made clear that the Telephone Consumer Protection Act is now, more than ever, an essential law that protects consumers from countless unwanted robocalls every year. Without such protections, these calls would intrude on Americans’ privacy, put them at risk of costly scams, and undermine confidence in the nation’s telephone networks. If the Supreme Court were to invalidate the TCPA, Americans would experience a tsunami of robocalls and constant bombardment of their mobile devices that could render them effectively useless. After hearing today’s arguments, we are confident the Court will uphold this important statute."
They filed a friend of the court brief that took no position on the constitutionality of the 2015 debt-collection exception but urged the court to uphold the remainder of the TCPA regardless of its findings on that specific exception.
—Lynn Stanton, [email protected]
Parties File Legal Challenges To FCC’s C-Band Order
A group of small satellite operators (SSOs) and a satellite transmission company have filed appeals in the U.S. Court of Appeals for the D.C. Circuit challenging the C-band order that the FCC adopted in February (TR, March 20). The order approved the clearing of 300 megahertz band of C-band spectrum for terrestrial 5G use, of which 280 MHz is scheduled to be auctioned in a sale scheduled to start Dec. 8.
One appeal was filed by SSOs ABS Global Ltd., Empresa Argentina de Soluciones Satelitales S.A. (ARSAT), Hispamar Satelites S.A., and Hispasat S.A. while another was filed by PSSI Global Services LLC, a satellite transmission company. The SSOs had said they would appeal the order.
"The Report and Order effects a sea change in the 500-megahertz-wide spectrum band from 3.7 to 4.2 GHz. That band is currently assigned to eight incumbent satellite operators. The Report and Order seeks to repurpose most of the band for use by terrestrial wireless networks in the contiguous United States. It would do so by eliminating the right of incumbent satellite licensees to operate from 3.7 to 4.0 GHz ... and auctioning that spectrum to terrestrial wireless operators," the SSOs complained.
They added that the FCC order "purports to exercise its authority under 47 U.S.C. § 316 to ‘modify’ those licenses such that incumbent satellite licensees may no longer use 300 megahertz of that spectrum. ... The Report and Order does not provide satellite incumbents with replacement spectrum, nor with monetary reimbursement for the spectrum lost, contrary to the FCC’s approach in past spectrum reallocation proceedings. Instead, it simply confiscates their spectrum and calls the result a mere license ‘modification.’ But see MCI Telecommunications Corp. v. AT&T, 512 U.S. 218, 228 (1994) (holding that the FCC’s statutory ‘authority to "modify" does not contemplate fundamental changes’)."
The filing continued, "The Report and Order, however, does provide extraordinary payments of approximately $15 billion to the Small Satellite Operators’ larger competitors — chief among them Intelsat, a dominant but financially distressed satellite provider. Only a small portion of that federally funded amount would cover the actual costs of ‘relocating’ satellite customers out of the 300 megahertz of repurposed spectrum. ... The vast majority of that $15 billion would be provided on top of actual transition costs, in the form of ‘accelerated relocation payments’ ($9.7 billion) and funding to procure and launch new satellites already slated for replacement (estimated at $1.28 to $2.5 billion). ... At least half of that above-cost amount is payable to Intelsat alone. ... Observers have correctly referred to these massive federal subsidies as an unauthorized ‘bailout’ of the struggling satellite behemoth."
The SSOs said that they "seek relief on the grounds that the Report and Order is arbitrary, capricious, and an abuse of discretion; violates the Communications Act of 1934 (as amended), the Commission’s regulations and precedent, and the Constitution; and is otherwise contrary to law."
They also asked the court to consolidate their legal challenge with that of PSSI’s, which the court did. They filed a notice of appeal (case 20-1146) and a protective petition for review (case 20-1147).
PSSI, which filed a notice of appeal and petition for review in consolidated case nos. 20-1142 and 20-1143, said, "The Report and Order has proposed drastic changes to the rules governing satellite communications signals in the 3.7–4.2 GHz frequency band (the ‘C-band’)."
PSSI added, "The C-band is the backbone of the satellite video distribution system. However, the Report and Order reduces that available spectrum by repurposing 60% of the C-band spectrum for fifth generation mobile services (the so-called ‘Flexible 5G Licenses’) and auctioning that spectrum to the highest bidder."
"Despite its contention in the Report and Order that the rules resulting in the modification of the Licenses will allow PSSI and other Transportable operators ‘to maintain the same services as they are currently providing,’ the modifications of the Licenses exceed the Commission’s authority under Section 316 of the Communications Act and are so extensive and pervasive as to render the Licenses a nullity and eliminate the continued ability of transmit/receive, transportable earth station operators like PSSI to continue to provide service to the public, in contravention of the Court’s limit for modification set forth in Cmty. Television, Inc. v. F.C.C., supra," PSSI added.
"This modification of the Licenses is arbitrary, capricious and an abuse of discretion within the meaning of Section 706 of the Administrative Procedure Act (‘APA’)," the company continued. "Appellee FCC has acted arbitrarily and capriciously and failed to engage in reasoned decision making in violation of the APA in its characterization of Appellee’s Licenses."
INSIDE THE FCC
900 MHz Band Opened For Broadband Use
The FCC on May 13 unanimously adopted an item to free up 6 megahertz of the 900 MHz band for broadband use, while preserving 4 MHz for narrowband systems. The spectrum is primarily used by land transportation, utility, manufacturing, and petrochemical companies.
Some incumbent utilities had expressed concern about the broadband proposal, including whether their narrowband operations would experience harmful interference from broadband licensees. They also had asked the FCC to make the realignment voluntary and to allow site-based licensees to hold broadband licenses. But a number of incumbents warmed to the proposal over time. Under the item, complex systems are not subject to a mandatory relocation provision.
Last year, the FCC adopted a notice of proposed rulemaking in WT docket 17-200 that proposed to reconfigure the 900 MHz band through a 3x3 MHz broadband segment, while reserving two separate segments for continued narrowband operations (TR, March 15, 2019).
In 2014, pdvWireless, Inc. (since renamed Anterix, Inc.) and the Enterprise Wireless Alliance filed a petition for rulemaking asking the FCC to realign the 896–901/935–940 MHz band to enable the private enterprise broadband (PEBB) network in a 3x3 MHz segment, with narrowband communications in a 2x2 MHz segment. The action allows Anterix, which acquired Sprint Corp.’s 900 MHz band licenses, to deploy a broadband network, giving priority access to utilities and other critical infrastructure industry entities.
"This transition will enable next generation, mission-critical applications not available via current narrowband systems and help meet the evolving technological needs of industries that provide crucial services to the American public," the FCC said in a news release.
"Specifically, the Commission approved a Report and Order, an Order of Proposed Modification, and two Orders that realign the band and establish a transition mechanism based primarily on negotiations between prospective broadband licensees and existing narrowband incumbent licensees. The item also establishes rules to prevent broadband applicants from receiving windfalls and includes application requirements and operating and technical rules applicable to the new 900 MHz broadband licenses," the news release added. "In addition, the item would modify the Association of American Railroads’ existing nationwide ribbon license in the 900 MHz band to facilitate the transition of the band without disruptions to railroads’ operations, and to enable significant railroad safety upgrades."
The news release added, "As part of today’s action, the Commission also announces a partial lifting of the 900 MHz application freeze to permit existing licensees to file applications to relocate their narrowband operations as part of a transition plan."
"900 MHz users are enthusiastic about the possibilities that reliable broadband will open for them," said FCC Chairman Ajit Pai. "Broadband access will enable industries to leverage technologies for applications like private LTE networks — next-generation networks that can enable Voice over LTE, grid resiliency and monitoring, wildfire mitigation, enhanced cybersecurity, and more. Utilities are eager to use broadband to modernize the electric grid. Southern California Edison, a utility in a state hard-hit by fires in recent years, predicts that broadband will enable innovative monitoring technologies that will help utilities detect and extinguish fires caused by downed power lines.
"At the same time, we have heard loud and clear from users of the band that narrowband still has an important place in supporting their operations," Mr. Pai stressed. "So the Order we adopt today strikes a balance between the goals of expanding access to broadband wireless communications services and maintaining access to sufficient spectrum for existing narrowband services." "We applaud the FCC for this bold decision to repurpose under-utilized spectrum, unleashing the power of broadband for utilities and other enterprises to build private LTE communications networks," said Morgan O’Brien, chief executive officer of Anterix.
—Paul Kirby, [email protected]
FCC Imposes Regulatory Fees On Foreign-Licensed Sat Operators
The FCC has unanimously adopted new rules that it says will "level the playing field for regulatory fees across satellite operators" by ensuring that "domestic and foreign licensed space stations are responsible for the same regulatory fees by assessing fees on non-U.S. licensed commercial space stations that are granted access to the U.S. market by the FCC."
Previously, foreign-licensed operators that had access to the U.S. market were not required to pay regulatory fees. The action was taken in a report and order.
"As the satellite marketplace grows rapidly, it is unfair to saddle American satellite companies with fees while their foreign competitors with the same market access do not face those same costs," the FCC said in a news release.
"The Commission also launched its annual process for establishing regulatory fees applied to all FCC-regulated industries by adopting a Notice of Proposed Rulemaking which proposes to collect $339,000,000 in regulatory fees for Fiscal Year 2020," the news release noted.
The item was adopted on May 12 in MD dockets 20-105 and 19-105.
Commissioner Mike O’Rielly said that he has "some concerns regarding the effects of shifting the balance of fees within the satellite industry to pull in foreign operators. We note in this item the potential policy implications of other countries feeling compelled to follow our example and raise fees on American operators. This is a real concern for those of us who have worked on satellite policy for many years and have seen firsthand, over and over, the proverbial arms race as countries compete for licensees through regulatory arbitrage. While we do include a slight reform to the draft to avoid capturing within our fee structure certain foreign satellites communicating with U.S. aircrafts only outside the United States and also those that communicate with U.S.-licensed earth stations solely for tracking, telemetry and command (TT&C) purposes, we will need to closely monitor the ultimate effects of today’s action on the broader satellite market."
Several satellite operators had asked the FCC to issue a further notice to explore the plan to impose regulatory fees on non-U.S. licensed space stations with U.S. market access. The operators had argued that the FCC lacked the authority to impose such fees. But U.S.-licensed operators supported the fees.
Comments on the NPRM are due June 12 and replies June 29.
FCC Seeks Comment on ESIM OOBE Interference Risk
The FCC on May 13 unanimously agreed to solicit comment in a further notice of proposed rulemaking on whether out-of-band emissions from earth stations in motion (ESIMs) operating with non-geostationary satellite orbit (NGSO) space stations will cause interference into adjacent spectrum used by the upper microwave flexible use service (UMFUS).
The further notice was adopted with a second report and order and report and order in IBs docket 17-95 and 18-315 to facilitate the continued deployment of ESIMs on ships, airplanes, and vehicles.
"Today’s action expands the frequency bands available to these moving earth stations, promotes operational flexibility, and advances regulatory consistency between ESIMs communicating with fixed satellite service systems in geostationary satellite orbit and those in non-geostationary satellite orbit," the FCC said in a news release. "The decision also adopts a regulatory framework for earth stations in motion communicating with non-geostationary fixed satellite service space stations which is similar to the current framework for geostationary connections, including extending blanket earth station licensing. In addition to the new rules, the FCC is also seeking comment on potential interference from out-of-band emissions of ESIMs operating with non-geostationary satellite orbit space stations into the adjacent band used by the Upper Microwave Flexible Use Service (UMFUS)."
Verizon Communications, Inc., and United States Cellular Corp. had asked the FCC to issue the further notice to consider the potential for interference to terrestrial operations in the 28 gigahertz band from ESIMs. But SES Americom, Inc., and its O3b Ltd. subsidiary, Inmarsat, Inc., Hughes Network Systems LLC, EchoStar Satellite Services LLC, and Viasat, Inc., had asked the FCC to reject the "eleventh hour objections" raised by Verizon and U.S. Cellular.
"While the promise of these large NGSO constellations and ESIMs seems boundless, we have virtually no record on whether their proliferation, which may be extensive, could cause harmful interference to adjacent terrestrial wireless systems in the 28 GHz band," said Commissioner Mike O’Rielly. "Therefore, I am supportive of seeking further comment on whether the Commission’s out of band emissions rules are adequate to ensure that NGSO ESIM communications will not interfere with wireless networks. It is unfortunate, however, that this issue was not raised in the original notice, and I look forward to its expeditious resolution."
Comcast, Midco Get Waiver for Auction 105
The FCC’s Wireless Telecommunication Bureau, in conjunction with the Office of Economics and Analytics, has granted separate waivers to Comcast Corp. and Midcontinent Communications (Midco), allowing them to file separate applications to participate in the auction of priority access licenses (PALs) in the 3.5 gigahertz band Citizens Radio Broadband Service (Auction 105) even though Midcontinent Communications Investor LLC (MCI) and Comcast each hold a 50% interest in Midco.
"Midco and Comcast each argue that, in this particular case, enforcing the prohibition against an entity holding a controlling interest in more than one applicant would not serve the underlying purpose of the rule. We agree," said a May 6 order in AU docket 19-244. "As the petitioners point out, the Commission’s purpose in establishing the prohibition against commonly controlled parties filing multiple applications is to guard against anticompetitive bidding behavior and ‘to ensure that auction participants bid in a straightforward manner.’ Comcast and Midco have sufficiently demonstrated that, should they both apply, they will operate independently in the auction based on Comcast’s lack of management and decision-making control over Midco and the additional internal controls on communications they assert they have agreed to. Accordingly, we find that waiver of the rule is warranted because it will not undermine the rule’s purpose and will serve the public interest."
The order added, "In their waiver requests, the petitioners explain that, under the terms of the partnership agreement between MCI and Comcast Midcontinent (Partnership Agreement), which was entered into 20 years ago, long before Auction 105, ‘for the principal purpose of operating television service,’ Comcast ‘in no way controls Midco. ...’ Although the parties have equal ownership interests in Midco, the petitioners explain that the Partnership Agreement specifically states that MCI is the managing general partner of Midco, and therefore has ‘complete and unrestricted power and authority to manage the day-to-day business and operations of the Partnership in its sole and absolute discretion.’ As a result, ‘MCI makes all decisions concerning the operation of Midco and its business, including decisions concerning services to be offered, pricing, marketing, customer service, geographic expansion, spectrum acquisition, and all other operational aspects of the business.’"
The order noted, "The petitioners also describe in their waiver requests and a subsequent ex parte letter the internal controls that they have implemented to prevent their employees and representatives from sharing information about the petitioners’ bids or bidding strategies in order to further reduce the risk of collusive or anti-competitive behavior between the two entities."
But it imposed conditions on the companies.
"First, because under the terms of the Partnership Agreement Comcast’s interest in Midco is akin to a non-controlling limited partnership interest, we require both parties, as we do in any case where one applicant has a disclosable, non-controlling interest in another, to certify in their short-form applications that they have established internal control measures necessary ‘to preclude any person acting on behalf of the applicant[s] from possessing information about the bids or bidding strategies of more than one applicant or communicating such information with respect to either applicant to another person acting on behalf of and possessing such information regarding another applicant.’
"Second, to further reduce the risk of inadvertent disclosure of information regarding bidding or bidding strategies during the quiet period, we condition the waivers on the parties’ commitment to refrain from communicating during the quiet period, either orally or in writing, about any business operations, including decisions regarding services to be offered, pricing, marketing, customer service, geographic expansion, spectrum acquisition, or any other operational aspects of the business," the order added. "We do not expect that this condition will be overly burdensome for the petitioners, as Comcast’s designated members of the Management Committee have already recused themselves ‘from all Management Committee and other Midco discussions, deliberations, and decisions, whether they relate to Midco’s direct or indirect participation or lack of participation in the Auction or to Midco’s business operations, business strategy, or business results.
CTIA Calls Google’s 911 Z-Axis Test Results Promising
Google LLC’s Android-based Emergency Location Service (ELS) showed "promise" in testing to see if it can meet the FCC’s z-axis, or vertical, indoor 911 location-accuracy requirements, although it fell short of those standards, CTIA said in a recent ex parte filing in PS docket 07-114.
The filing provided a summary of testing of the ELS in the 9-1-1 Technologies Test Bed, which was established by CTIA to evaluate wireless providers’ and location technology vendors’ ability to meet the FCC’s indoor 911 location accuracy requirements.
Google was the only entity to agree to participate in Stage Za of the test bed’s work. CTIA’s ex parte filing summarized the test bed results. Separately, CTIA submitted a request for confidential treatment of the unredacted test bed report.
"Report Za contains Google’s proprietary and commercially sensitive information, including information about how ELS technology functions, the ways in which location fixes are produced, and specifics of ELS’s performance, that is not publicly available and is protected against disclosure in the normal course of business," CTIA said. "As such, this information may be treated as confidential and withheld from public disclosure under Exemption 4 of the Freedom of Information Act (‘FOIA’). 5 U.S.C. § 552(b)(4)."
"Under the participation agreement between Google and the Test Bed, Google owns the intellectual property rights to Report Za and its completed test results and retains the right to limit access to Report Za to Test Bed subcontractors and certain representatives of those entities participating in the Test Bed’s Technical Advisory Committee," the filing added.
The filing summarizing the test bed results stressed that "Google’s participation in Stage Za demonstrates that device-based solutions offer promise to meet the goal of providing accurate vertical location information with indoor wireless 9-1-1 calls. Importantly, the results show that device-based solutions offer the prospect of rapid scalability and consistency to deliver vertical location measurements beyond the top 25 / top 50 CMAs [cellular market areas]. The results also demonstrate that Google’s ELS has the potential to produce Z-axis location information across a diverse range of devices with different capabilities, including devices that do not have barometric sensors. ELS is available today on 99% of all Android devices — and outputs x, y, z coordinates."
But the filing added, "Even with the promise of Google’s ELS solution, no commercial Z-axis solutions have yet been validated to achieve ± 3 meters for 80 percent of wireless calls across all of the test regions and morphologies in the Test Bed. As evidenced by the recent announcement of Stage Zb which is set to begin testing later this year, CTIA and the providers remain committed to continue working with stakeholders to evaluate and identify solutions able to deliver vertical location information with wireless 9-1-1 calls."
"The Test Bed performed the Stage Za testing in accordance with the ATIS methodologies," the filing said. "Testing was conducted in the dense urban, urban, suburban, and rural morphologies of the Atlanta and San Francisco regions, and in dense urban and urban morphologies in the Chicago region. Eight commercial Android mobile devices were used in each region (24 total), representing a broad cross-section of current Android devices available to consumers. Each of the eight devices represented a different variation of model and configuration, including two devices per region (six total) without a barometric sensor."
"With respect to the Fifth Report and Order’s requirement that wireless providers demonstrate in the test bed that a vertical location technology achieves 3-meter accuracy for 80 percent of wireless 9-1-1 calls, the Report demonstrates that Google’s ELS achieved ± 3 meter accuracy for more than half of calls in the test bed, and exceeded the 80th percentile metric in one morphology," according to CTIA. "The Report further breaks down the results by morphology. These results were achieved across a variety of Android devices, older and newer models, using a product that is commercially available today."
CTIA said that it "and the providers are particularly encouraged that the ELS solution produced Z-axis measurements for Android devices without a barometric sensor and performed within the same range as devices with a barometric sensor. The Report observes that an estimated 75 percent of Android devices sold in the United States between 2016 and 2018 may not be equipped with a barometric sensor. Further, this device-based solution offers the prospect of rapid scalability and consistency to deliver vertical location measurements nationally, which significantly exceeds the top 25 / 50 CMAs requirement in the Fourth Report and Order. As Google continues to enhance and evolve ELS, further testing will help the Commission, providers and public safety to monitor improvements and validate ELS’ performance."
Ergen Reiterates Call for Action By FCC on AWS-3 DE Issue
Dish Network Corp. co-founder and Chairman Charlie Ergen on May 7 reiterated his call for the FCC to resolve the situation involving SNR Wireless LicenseCo LLC and Northstar Wireless LLC, which sought designated entity status in the FCC’s AWS-3 auction.
In 2017, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit said that the FCC had not given adequate notice to SNR and Northstar that it would not give them an opportunity to cure their applications if their relationship with Dish disqualified them from receiving DE bidding credits intended for small businesses in the AWS-3 auction, which the Commission said it did (TR, Sept. 15, 2017).
Consequently, the court remanded the case to the FCC "to give petitioners an opportunity to seek to negotiate a cure for the de facto control the FCC found that DISH exercises over them." The court upheld as reasonable the FCC’s determination that Dish exercised de facto control over the two smaller companies and thus they were not eligible for about $3.3 billion in bidding credits. The companies had argued that their agreements with Dish were modeled on previous agreements approved by the Wireless Telecommunications Bureau.
In 2018, SNR and Northstar submitted amended AWS-3 auction applications with amended agreements with Dish that they said cured their original AWS-3 applications and made them eligible for the bidding credits (TR, June 22, 2018).
"The DEs, in our opinion, have cured ... and that has been in front of the FCC for well over a year and a half now, and the FCC hasn’t ruled on that," Mr. Ergen said during a conference call with analysts and reporters to discuss the company’s first-quarter 2020 financial results. "So that’s disappointing given that ... this FCC has been incredible about bringing new spectrum to the marketplace" and advancing 5G deployment.
"As management, you always want certainty, right, and we have uncertainty," he added. "So we would encourage the FCC to make a ruling on that."
He mentioned the COVID-19 pandemic in stressing the benefit of being able to plan whether Dish can access the spectrum bid on by SNR and Northstar.
Also, Dish announced that it was abandoning plans to deploy a nationwide narrowband Internet of things network.
"Now that the T-Mobile–Sprint merger has closed and there is more clarity surrounding our revised build-out requirements, we no longer intend to finish our narrowband IoT build," said Paul Orban, Dish’s executive vice president and chief financial officer. "Accordingly, we recorded [a $356 million] impairment in the quarter for the narrowband IoT assets and satellites." Mr. Ergen said Dish had spent $500 million on the narrowband system. Dish plans to deploy a 5G network and also has purchased Boost Mobile and other assets as part of a consent decree with the Department of Justice and some states related to T-Mobile US, Inc.’s, acquisition of Sprint Corp.
FCC Grants TerreStar Limited Waiver To Offer WMTS in 1.4 GHz Band
The Mobility Division of the FCC’s Wireless Telecommunications Bureau has granted TerreStar Corp. a limited, conditional waiver to allow it to offer wireless medical telemetry services (WMTS) in the 1.4 gigahertz band.
"With the COVID-19 outbreak causing increased reliance on medical telemetry monitoring in hospitals and on telehealth in general, this action will help ensure that traditional health care facilities have more spectrum capacity to meet a surge of additional monitoring demands that may occur in emergencies. It also will enable the development and use of monitoring services in non-traditional settings outside hospitals," the FCC said in an April 30 news release.
"It’s important that we do what we can to support telehealth and the tools used by health care professionals during this health crisis," said FCC Chairman Ajit Pai. "This limited waiver will provide an opportunity to expand spectrum available for critically needed services while avoiding costly interference at a time when we cannot afford it. This should put us in a better position to face future medical challenges."
The news release noted that "[i]n 2017, the Bureau found that TerreStar had not met its license requirements for use of the spectrum it had been licensed. For purposes of the instant grant of a conditional waiver, the Bureau reviewed new information raised in petitions for reconsideration by TerreStar, the American Society for Health Care Engineering of the American Hospital Association, GE Healthcare, and Philips Healthcare regarding the interference potential to the wireless medical telemetry service and the need for additional WMTS spectrum for the benefit of public health and safety.
"It also took into consideration TerreStar’s commitment to ‘provide spectrum capacity and frequency planning and coordination services, free of charge, outside of registered WMTS healthcare facilities in support of any future national public health emergency declared by the U.S. Department of Health and Human Services.’ The waiver includes strict conditions requiring TerreStar to use its licensed spectrum for wireless medical telemetry services," the news release added.
In an order on reconsideration in WT docket 16-290, the division noted that in 2017, it denied a waiver request filed by TerreStar seeking a 36-month extension to make a substantial service build-out showing for its 64 licenses in the 1.4 GHz band (TR, Oct. 15, 2017). As a result, the division said the company’s licenses terminated automatically.
But in the April 30 order, the division cited a 2018 ex parte filing "attaching a summary of what TerreStar states was a technical study conducted in 2014 to assess the compatibility of its smart grid service with WMTS in the adjacent band. TerreStar asserts that, based on the study, it ‘confirmed the existence and severity of the WMTS interference problem and concluded that it was caused by insufficient receiver selectivity, not regulatory non-compliance.’"
The order added, "The ongoing challenges associated with the COVID-19 outbreak have further demonstrated the need for new WMTS spectrum options. The outbreak has resulted in a substantial rise in the number of patients who need medical telemetry monitoring in hospitals, and has also made apparent the urgent need for new options to support remote health care and medical telemetry monitoring in non-traditional settings where WMTS cannot currently be deployed, such as in makeshift emergency hospitals, nursing homes, home monitoring environments, and other places where quarantined critical care patients must reside outside of major medical facilities."
The waiver includes a number of conditions, including initial, interim, and final deployment milestones.
For initial deployment, "TerreStar must file a progress report in ULS [by April 30, 2022] demonstrating operational deployments, using WMTS equipment, to at least 50 large health care facilities that have extensive patient monitoring."
"By January 30, 2023, TerreStar must file a progress report in ULS demonstrating operational deployments in at least 50 percent of health care facilities with WMTS systems that have been registered with the designated frequency coordinator as of the release date of this Order on Reconsideration," the order added. "By July 30, 2023, TerreStar must demonstrate operational deployments in at least 2,000 health care facilities nationwide and must also demonstrate that the operational deployments include the use of a significant portion of applicable frequencies for WMTS deployment. The deployment must include at least ten health care facilities in each Major Economic Area (MEA) for MEA-based Licenses, as well as in each area equivalent to an MEA for Economic Area Grouping (EAG)-based Licenses. If an MEA or area equivalent to an MEA contains fewer than 50 health care facilities, TerreStar must demonstrate operational deployments to at least 20 percent of the facilities in that MEA or MEA-equivalent area."
The order also said, "We understand TerreStar expects that new technology may allow it to deploy additional services in this spectrum. As such, we provide that once TerreStar has satisfactorily met its Final Deployment Obligation, TerreStar may file a letter certifying as such as well as a full technical demonstration of how such additional uses will not cause harmful interference to in-band or adjacent-band WMTS, or otherwise undermine or prevent the continued provision of WMTS (including in vehicles and locations outside of health care facilities) on its 1.4 GHz spectrum. The Bureau will release a Public Notice seeking comment on any such letter and TerreStar may commence deployment of such additional services 90 days after release of that Public Notice absent an affirmative finding by the Bureau that such additional services will cause harmful interference to WMTS. Should TerreStar file such a letter at the same time as it completes its Final Deployment Obligation, the Bureau would seek comment on both issues in a single Public Notice."
John Kneuer, president of TerreStar Medical, a subsidiary of TerreStar Corp., said, "Under Chairman Pai’s thoughtful leadership the Commission has struck the appropriate balance between protecting critical incumbents and enabling innovative new services. TerreStar Medical intends to follow this lead by bringing robust, secure, and advanced new services to the wireless medical community, while we develop compatible 5G solutions for the future."
"ASHE is pleased that the FCC has adopted a conditional waiver to allow TerreStar to begin offering wireless medical telemetry services in the 1.4 GHz band," said Benjamin Leutze, senior advocacy associate for ASHE. "This action will help ensure that traditional health care facilities have more spectrum capacity to meet a surge of additional monitoring demands that may occur in emergencies. It also will enable the development and use of monitoring services in non-traditional settings outside hospitals. The waiver includes strict conditions requiring TerreStar to use its licensed spectrum for wireless medical telemetry services."
GE Healthcare and Philips Healthcare had no comment on the FCC’s order.
—Paul Kirby, [email protected]
FCC Order Further Accelerates Realignment of 800 MHz Band
The FCC released a report and order on May 12 to further accelerate the 800 megahertz band realignment, which is nearing completion.
In a sixth further notice of proposed rulemaking adopted last October, the agency solicited views on whether it should eliminate responsibilities of the transition administrator to conduct an annual audit of rebanding expenditures and review certain amendments in contracts between Sprint Corp. and rebanding licensees. The notice was a companion to an order that streamlined rules to quicken the pace of the transition.
"After consideration of the record in this proceeding, we adopt the rule changes as proposed in the Sixth Further Notice. Accordingly, we will no longer require the Transition Administrator to furnish the Commission with an annual audit or conduct other financial reconciliation of Sprint’s rebanding expenditures and eliminate the provision in our rules — section 90.676(b)(4) — containing those requirements. The record is uncontradicted that these requirements are no longer necessary since Sprint has satisfied its anti-windfall obligation," the FCC said in the order released May 12 in WT docket 02-55.
"We also eliminate the requirement that the Transition Administrator review and approve amendments to licensee Frequency Reconfiguration Agreements with respect to cost creditability," the order added. "Sprint agrees with the Commission’s observation in the Sixth Further Notice that there are likely to be very few if any more Frequency Reconfiguration Agreement amendments now that virtually all incumbent licensees have completed physical rebanding of their systems. Moreover, even if new amendments are occasionally necessary going forward, because Sprint has satisfied the anti-windfall requirement, there is no longer any programmatic need or benefit to having the Transition Administrator review these amendments for cost creditability purposes or approve them."
The order continued, "While we eliminate the above requirements, we affirm that the Transition Administrator will continue its tracking, reporting, analytical, and mediation functions as needed to facilitate the rebanding program’s goals and assure its successful conclusion."
FCC Order Grants in Part LMCC 800 MHz Petition
The FCC released an order on reconsideration on May 12 that grants in part a petition for reconsideration of an 800 megahertz band interstitial channel order adopted by the agency in 2018 (TR, Nov. 2, 2018). The petition was filed by the Land Mobile Communications Council.
"Specifically, the LMCC urges the FCC to reconsider the definition of the interference contour to be used in coordinating an 800 MHz Mid-Band (809–817/854–862 MHz) application and the derating factors to be applied in that contour analysis," the LMCC said in its petition, which was filed in WP dockets 15-32 and 16-261. "The derating factors, which were developed for use with an F(50,50) curve, are not appropriate when applied to a more conservative F(50,10) curve. The result will provide more adjacent channel protection than needed while simultaneously reducing the spectrum utilization that otherwise could be derived from introducing interstitial channels into the 800 MHz band."
In the order on reconsideration, which was adopted May 11 in WP docket 15-32, the FCC said, "We allow for some 800 MHz interstitial channel applicants to streamline their applications, clarify standards for calculating interference contours that define the distances that must be maintained between interstitial and incumbent stations, and refine certain technical elements of the interstitial channel rules. These actions will aid public safety and other PLMR users by increasing access to interstitial channels nationwide while continuing to ensure that incumbent stations are protected. However, we decline to adopt certain LMCC proposals that would increase the risk of harmful interference or would constitute an unlawful delegation of the Commission’s authority. We also correct minor typographical errors in the rules."
New Coalition to Promote Open RAN Public Policies
A new coalition, backed by 31 telecom and technology entities, was announced recently to promote open radio access network (RAN) public policies.
"As evidenced by the current global pandemic, vendor choice and flexibility in next-generation network deployments are necessary from a security and performance standpoint," said Diane Rinaldo, executive director of the Open RAN Policy Coalition. "By promoting policies that standardize and develop open interfaces, we can ensure interoperability and security across different players and potentially lower the barrier to entry for new innovators."
"The coalition believes that the U.S. Federal Government has an important role to play in facilitating and fostering an open, diverse and secure supply chain for advanced wireless technologies, including 5G, such as by funding research and development, and testing open and interoperable networks and solutions, and incentivizing supply chain diversity," a news release said.
Ms. Rinaldo, former acting head of the National Telecommunications and Information Administration, said in a blog posting that the government should also support vendor diversity through government procurement, remove 5G deployment obstacles, and "[a]void heavy-handed or prescriptive solutions."
The founding members of the Open RAN Policy Coalition are Airspan Networks, Altiostar, Amazon Web Services, AT&T, Inc., Cisco Systems, Inc., CommScope, Inc., Dell, Inc., Dish Network Corp., Facebook, Inc., Fujitsu Ltd., Google LLC, IBM Corp., Intel Corp., Juniper Networks, Inc., Mavenir Systems, Inc., Microsoft Corp., NEC Corp., NewEdge Signal Solutions, Inc., NTT Ltd., Oracle Corp., Parallel Wireless, Inc., Qualcomm, Inc., Rakuten, Inc., Samsung Electronics America, Telefónica S.A., US Ignite, Verizon Communications, Inc., VMWare, Inc., Vodafone plc, World Wide Technology, Inc., and XCOM-Labs, Inc.
Nearly two dozen of the companies are also members of the O-RAN Alliance, which focuses on standards development.
"As 5G is now a reality and expanding to millions of Americans, it is more critical than ever to have a diverse and even more secure American communications network. We are proud to be a founding member of the Open RAN Policy Coalition to advance the adoption of interoperable RAN solutions. Ensuring an innovative and trusted global 5G supply chain in the United States and globally is a priority for us," said Chris Boyer, vice president–global public policy for AT&T.
Dimitris Mavrakis, research director at ABI Research, said, "The new coalition led by top industry players across the whole telecoms value chain is a confirmation that the Open RAN ecosystem is indeed a market reality. Open RAN can disrupt the current verticalized infrastructure supply chain, and support large scale deployments of modularized infrastructure. This coalition illustrates that there is significant activity behind the scenes for Open RAN, and we expect this to be a major milestone in the development of an open and modularized infrastructure ecosystem. ABI Research expects Open RAN to quickly mature and become a viable alternative for 5G network deployments in the next years. Incumbent vendors, who have so far been somewhat resisting Open RAN, will now be under a tremendous pressure to adopt this approach or face a massive disruption of their business looking forward."
NLC Lays Out Suggestions For Operations During Pandemic
The National League of Cities (NLC) has issued guidance for how local governments can continue to conduct business such as accepting, processing, and issuing permits in light of the work-from-home restrictions and limited access to government buildings prompted by ongoing coronavirus pandemic.
"In adjusting to these changes, local governments have continued to balance the imperative to protect the public health and safety with the need to ensure that municipal services and processes continue to the extent reasonably possible under the circumstances," NLC said.
The group also urged municipalities to be mindful of the fact that applications for some wireless deployments are subject to federal and state time limits for review and approval.
"While we believe many communications providers understand that temporary stoppages or delays in the permitting process may be unavoidable during the pandemic and will not seek to enforce these rules, jurisdictions should be aware of these obligations and the potential legal implications," NLC said. "Where permit acceptance processing times may exceed applicable shot clocks due to the constraints of the pandemic, consider asking the applicant to agree to toll, or extend, the approval time period."
NLC noted the FCC has not issued specific guidance about the application during the current pandemic of a declaratory ruling the Commission issued in 2018 finding that federal law preempts state and local moratoria on acceptance, processing, and approval of telecommunications permits.
NLC also pointed out the nonbinding guidance defining essential employees that the Department of Homeland Security’s (DHS) Cybersecurity and Infrastructure Security Agency (CISA) issued includes workers in the telecommunications industry.
The CISA guidance, NLC noted, also suggests that "essential workers should be permitted access to necessary communications sites despite quarantines, curfews, shelter-in-place orders, transportation restrictions and/or similar restrictions," and also should follow guidance from the Centers for Disease Control and Prevention, as well as state and local governments, about how to limit spread of the virus.
While many municipalities had already largely conducted some or all of their permitting processes online, NLC noted that for others "limited access to buildings and staff requires at least temporary changes to the typical permitting process to enable permits to be issued where appropriate. Additionally, as the transition out of isolation is likely to be gradual and extended, local governments may need to adjust processes for these types of interactions for the foreseeable future to limit in-person interactions."
NLC pointed to electronic filings as "an effective means of accepting and processing permits where access to government buildings is limited."
Municipalities can create an open portal on their websites or expand existing online permit application systems to enable applicants to submit all relevant documents, NLC said.
In addition, local governments can establish e-mail addresses dedicated to receiving permit applications, or designate a staff member to be the point of contact for such submissions, NLC said.
Local governments should also make sure they have updated their websites to include information about any changes made to their processes because of the coronavirus pandemic, the group said.
In situations where online filing is not possible, one "cost-effective alternative" is for municipalities to establish drop boxes that staff can routinely check, NLC said.
Municipalities should also post information about dates and times drop boxes are checked, as well as about the procedures for processing and approving permits that "will help applicants know when to drop their applications and what to expect as the application moves through the review and issuance process," the group said.
NLC also noted that municipalities that implement new or modified permitting processes may have to deal with numerous implications, such as how to comply with existing ordinances, regulations, licenses, or agreements that require original documents with signatures or raised stamps or seals.
"Where appropriate, local governments may consider if and how to temporarily waive these requirements and/or establish a process for the submittal of original documents at a later date," the group said, noting localities could also allow electronic signatures.
NLC also pointed out that many jurisdictions have established ways to hold remote meetings that comply with open meeting requirements, including hearings on applications.
Cities should also consider options for paying fees that do not require payments to be made in person, NLC said.
To deal with cases in which permits have to be available at a work site, localities should consider ways permits can be transmitted electronically and then printed by recipients, the group said.
In order to deal with situations where "critical staff are unavailable due to illness or have been reassigned to other urgent tasks," NLC urged municipalities to consider using temporary staff or conducting virtual inspections.
To work within social distancing recommendations, cities could also schedule inspections to take place when work crews are not on site, NLC said.
The Wireless Infrastructure Association welcomed the guidance issued by the NLC. WIA and other industry entities have been working with municipal entities to facilitate telecom permitting during the pandemic (TR, May 1).
"WIA is proud to collaborate with representatives of state and local governments and is glad to see them issue these important ways to move the permitting process forward amid daunting challenges," said WIA President and Chief Executive Officer Jonathan Adelstein. "We are grateful, with all they have on their plates, that local governments are actively addressing issues and engaging in constructive dialogue with industry to pursue our mutual goals of connectivity. This advice is best coming from peers in the municipality community, not from industry. Local governments are facing a myriad of challenges right now. We hope that by providing alternatives for the permitting process, such as using electronic filing and drop boxes, that industry and government can work together when so many people and businesses are increasingly reliant on wireless broadband."
Strained Municipal Budgets Seen as Obstacle
Meanwhile, panelists at a May 5 event expressed concerns that localities may struggle with reviewing and approving applications for permits to construct small cell wireless facilities because their budgets are expected to be severely impacted by the coronavirus pandemic.
During a webinar titled Small Cells, Big Impact sponsored by the Federal Communications Bar Association’s state and local practice committee, panelists recognized that while the pandemic had highlighted the need for more advanced communications, it had also brought to light the pressure that local governments were facing from the extreme loss of revenue.
"It’s going to get rougher before it gets better. Localities are already looking at reduced receipts they’ve seen from no sales tax revenue, no gambling revenue, etc. Almost all forms of revenue have vanished overnight. The natural outcome will be that they won’t be able to maintain and improve services," said Angelina Panettieri, legislative manager for the National League of Cities (NLC).
A recent study conducted by the NLC showed that cities were estimating a loss of between 300,000 to more than 1 million government jobs due to the economic crisis caused by COVID-19. "We really need a fiscal stabilization policy enacted," she said.
To address the issue, Ms. Panettieri suggested that cities would have to start bringing in consultants to help review applications and would likely need to raise rates for permitting. She also said the NLC was asking for direct support for local governments from CARES Act funding, which will be "important for continued functionality."
"Beyond that, it’s also helpful to point out that austerity doesn’t drive people to innovate. It drives people to hunker down. We will want to get resources to local governments and that will help them innovate," she said.
Anthony Lehv, senior vice president, general counsel, and secretary for ExteNet Systems, Inc., said industry and municipalities would have to cooperate to review permitting applications. He suggested companies help pay for consultants.
"It is an unfortunate fact that we have to continue to deploy these networks," he said. "As this crisis goes on, the need for telecommunications services continues to exist and to grow. Even before the pandemic, we’ve offered to pay to have applications reviewed and to help jurisdictions review the applications. We have to help municipalities get through this."
Gerard Lederer, a partner at Best Best & Krieger LLP, noted that this sort of "concierge" service between companies and municipalities had worked in the past.
Mr. Lehv added, "We’ve been very pleasantly surprised with the cooperation we’ve seen with the municipalities trying to work during this unprecedented time."
"We had some slowdown in the initial stages of the lockdown," Mr. Lehv said. "But since the last couple weeks we’ve seen a turn. ... We are moving into a new stage of permitting procedures. As a side note, the one area we’ve found a lot of difficulty with is getting power to sites from investor-owned utilities, which is not an issue with municipalities. We’re working feverishly with the power companies because that is often the last step before we can turn on our site. You obviously can’t turn on wireless equipment without power."
Aside from the challenges posed by the pandemic, Mr. Lederer said the biggest challenge with respect to deployment were concerns about radio frequency (RF) emissions.
"I’d like to see the Commission and industry and local governments do a better job of educating people," Mr. Lehv said. "I think it’s easy to give into those concerns. We’re seeing cell sites being destroyed because of concerns of RF. This issue is a very real one. I wish there was a simple answer, but I think it’s just getting the issue out. I think an industry leader needs to go into communities and educate."
John Howes, government affairs counsel for WIA, agreed that all interested parties needed to collaborate more on the emissions issue. The industry, he said, should work to "get the right information out there," and pointed to an information website set up by WIA.
"We need to describe the technology that’s being used," he said. "We are trying to get that information out there. And we need to help out colleagues in local government who are handling the calls."
Ms. Panettieri said federal agencies should step in and provide more information, noting that the only guidance available to local governments was produced 20 years ago and some "fresh" content would be helpful.
SpaceX Petition Seeks NGSO Spectrum Sharing Certainty
Space Exploration Holdings LLC (SpaceX) has filed a petition for rulemaking asking the FCC to revise section 25.261 of its regulations "to increase certainty in spectrum sharing obligations among non-geostationary orbit (‘NGSO’) satellite systems operating in the Fixed-Satellite Service (‘FSS’) and clarify the operation of a new processing round."
In the petition, which was filed April 30, SpaceX said the actions it seeks "will provide clarity to existing and future licensees, encourage more efficient use of limited spectrum resources, and — critically — encourage competition in the NGSO market. Further, revising this rule to apply to all operators equally will quell continued efforts by some to interpret the rule either in ways designed to harm U.S. operators specifically or all existing and future competitors more generally."
SpaceX said that "to encourage both more competition and more investment among NGSO FSS operators," the FCC should adopt "two small but important updates" concerning spectrum sharing.
First, "[l]icensees in later processing rounds should protect licensees from earlier processing rounds against interference to a specified level. To facilitate operations, SpaceX supports Amazon’s request that first round licensees share beam pointing information. Critically, first round protections should be sunset over time (as should most protections for incumbents)."
Second, the petition said, "[d]uring in-line events between two operators in the same processing round, first choice of home spectrum should go to the operator with the more spectrally efficient system."
SpaceX continued, "These updates to Section 25.261 will clarify the rights of licensees in a given processing round, both as against each other and as against applicants filing after the close of the round. These revisions will provide the ‘measure of certainty’ the Commission intended for participants in a processing round while also providing a clearer path for later entrants. These revisions will also increase incentives to design NGSO systems with advanced technology capable of sharing spectrum efficiently and flexibly. As a result, all interested parties will be able to proceed more confidently and expeditiously to deploy their NGSO FSS systems and provide much-needed service to American customers, especially those in rural and other underserved areas."
"The Commission should act on these updates expeditiously, as spectrum sharing among NGSOs is growing more urgent with the Commission’s recent initiation of a new NGSO processing round," SpaceX added. "Since the close of the first Ku/Ka-band NGSO processing rounds, Kuiper Systems LLC (‘Amazon’) has filed an application for an NGSO FSS constellation 3,236 satellites and WorldVu Satellites Limited (‘OneWeb’) proposed to nearly triple the number of active satellites in its NGSO constellation as originally proposed and authorized, increasing from 720 to 1,980. Telesat has indicated its desire to operate a much larger NGSO system than currently authorized, and recently submitted filings to the International Telecommunication Union (‘ITU’) for such a system. SpaceX has also submitted ITU filings for an NGSO system with a substantial number of additional satellites, and expects that if it applies to the Commission to authorize their operation it will receive equivalent treatment to the applications from these other NGSO FSS operators.
"While the Commission will address these applications individually in the new processing round, it has not yet established spectrum sharing rules for this new round," the petition added. "With the current uncertainty as to how the Commission will apply its rules for NGSO FSS systems, no one can be sure how those applications will be treated, leaving some applicants like Amazon and a collection of non-U.S. operators arguing for special treatment. Adoption of the rules proposed herein will ensure a level playing field and true competition among NGSOs."
FOCUS ON LIGADO
DoD, Lawmakers Blast FCC’s Ligado Order; DoD Eyes Recon Petition, Legislation
Department of Defense witnesses and some members of the Senate Armed Services Committee blasted the FCC on May 6 for its unanimous order last month approving Ligado Networks LLC’s license modification request to deploy a nationwide broadband network in the L-band, saying the decision will result in harmful interference to the Global Positioning System and imperil national defense and economic security. But some senators complained that Ligado and the FCC had not been invited to a hearing to discuss the order, saying they wanted to hear from them to form an opinion on the controversy.
Members of the House Armed Services Committee also registered their objection to the FCC’s decision. A DoD official said the department would ask the National Telecommunications and Information Administration to petition the FCC to reconsider its order and is also eying legislation to undo the Commission’s action.
In its order, the FCC said that its "action provides regulatory certainty to Ligado, ensures adjacent band operations, including Global Positioning System (GPS), are sufficiently protected from harmful interference, and promotes more efficient and effective use of our nation’s spectrum resources by making available additional spectrum for advanced wireless services, including 5G [TR, May 1]. Ligado’s amended license modification applications significantly reduce the power levels of its operations from its earlier proposals and commit Ligado to providing a significant guard-band in the MSS spectrum to further separate its terrestrial transmissions from neighboring operations in the Radionavigation-Satellite Service (RNSS) allocation." The FCC also cited coordination and other conditions.
The FCC’s action came over the opposition of a number of other federal agencies, including the Transportation, Commerce, Homeland Security, Interior, Energy, and Justice departments, and the National Aeronautics and Space Administration and National Science Foundation. But Attorney General Bill Barr and Secretary of State Michael Pompeo endorsed it. Ligado also has drawn opposition from aviation, satellite, weather, and other interests that also rely on GPS.
During the May 6 hearing, Senate Armed Services Committee Chairman James Inhofe (R., Okla.) argued that Ligado’s network "could be really damaging to our ... country."
"This is a complex issue, but it ultimately boils down to risk. And I do not think it is a good idea to place at risk the GPS signals that enable our national and economic security for the benefit of one company and its investors," the senator said, noting that a myriad of federal agencies oppose the FCC’s order due to concern about interference to GPS. He also said that the network would "hurt the entire American economy," noting that farmers, banks, airlines, and others rely on GPS. "Every American uses GPS every day," he added. Sen. Inhofe also argued that the GPS issue is not related to the deployment of 5G services. "In reality, these two issues are completely separate," he said.
He complained that the FCC adopted its order on a weekend "in total secrecy," adding that "they waited till the whole world was distracted ... by the virus." He said 19 senators had signed a letter protesting the FCC’s decision. The senator suggested that the Commission had taken its action with no input, although the agency took multiple rounds of comments during the years-long process.
"We want to get this thing reversed," the chairman added, without providing details. He said it is unclear whether the Congressional Review Act would apply concerning the Ligado proceeding. As to why the FCC was not invited to testify, he said, "The FCC is not in our jurisdiction."
Ranking member Jack Reed (D., R.I.), said, "This is a critical issue for the Defense Department and our nation."
He said the FCC ignored "the scientific views" of federal agencies and the private sector, and he said the order fails to recognize the complexity of DoD weapons systems.
While the FCC argues that Ligado would be obligated to replace devices, if necessary, to protect against interference, Sens. Inhofe and Reed argued that the burden would realistically be put on taxpayers and the DoD.
"How does a decision like this happen?" asked Sen. Jeanne Shaheen (D., N.H.). She said that while the FCC "bills itself as independent," "one would also hope that we’re all trying to move in the same direction as part of government."
Sen. Richard Blumenthal (D., Conn.) asked what witnesses want Congress to do. Retired Adm. Thad Allen, former commandant of the U.S. Coast Guard, suggested the issue should be referred to the Senate Commerce, Science, and Transportation Committee. Sen. Blumenthal asked if an amendment to the National Defense Authorization Act would be a way to go.
But some members of the committee said the committee should have let FCC and Ligado representatives testify.
"We’ve only heard one side of the case," noted Sen. Tim Kaine (D., Va.). "There are two sides to this." Ligado is based in Virginia.
Sen. Kaine and others noted the support of Ligado by AG Barr and Secretary of State Pompeo and asked the DoD witnesses if they knew why they had taken their positions. DoD Chief Information Officer Dana Deasy said he didn’t.
Sen. Tom Cotton (R., Ark.) said the witnesses made a fairly compelling case. But he added that "it’s really important we hear from the unanimous FCC and from Ligado." He also mentioned the support of Messrs. Pompeo and Barr.
Sen. Angus King (I., Maine) said that the FCC has "capable people" and he noted the order ran 74 pages, adding, "It strikes me that some serious thought went into it." He also questioned why DoD wants protection for spectrum that is not actually allocated for GPS, as did Sen. David Perdue (R., Ga.). DoD officials said that higher-powered operations too close to GPS would cause interference.
Sen. Marsha Blackburn (R., Tenn.) also said she would have liked to hear from the FCC. She also said that DoD doesn’t need all of its spectrum and, in fact, should give some back.
Sen. Roger Wicker (R., Miss.), chairman of the Senate Commerce Committee, said that his colleagues who raised questions about the views expressed at the hearing raised some good points and he suggested that the FCC should have been invited to testify. "There’s some things we still need to get to," he said. He said he had not studied the Ligado proceeding until now.
But in his prepared testimony, Michael D. Griffin, DoD’s undersecretary–research and engineering, warned that if the FCC’s order "is allowed to stand, it will undermine both our national defense and economic security."
"There are two principal reasons for the Department’s opposition to Ligado’s proposal. The first and most obvious is that we designed and built GPS for reasons of national security, reasons which are at least as valid today as when the system was conceived. The second, less well-known, is that the DoD has a statutory responsibility to sustain and protect the system. Quoting from 10 USC 2281, the Secretary of Defense ‘... shall provide for the sustainment and operation of the GPS Standard Positioning Service for peaceful civil, commercial, and scientific uses ...’ and ‘... may not agree to any restriction of the GPS System proposed by the head of a department or agency of the United States outside DoD that would adversely affect the military potential of GPS.’
"Leaving entirely aside the national security implications of jamming our own military navigation system, if Ligado moves forward with establishing its network, we in the United States will have imposed a self-inflicted wound on GPS," Mr. Griffin added. "Though other nations are building or upgrading their own satellite navigation systems, ours is the present world standard and the basis of hundreds of billions of dollars in economic advantage for our nation. While we set out to redesign and refresh hundreds of millions of GPS receivers in our installed national security and industrial base, others, especially Russia and China, will be quick to take advantage of our mistake by offering replacement systems that are not vulnerable to Ligado’s interference. A weakened GPS system offers our adversaries the opportunity to replace the United States as the world standard for satellite navigation. Both Russia and China will jump on that opportunity."
DoD "is not opposed to sharing the airwaves," Mr. Griffin stressed. "Indeed, as part of the DoD’s 5G-to-Next G initiative, we will be working alongside industry to test spectrum sharing technologies at military bases around the country, while promoting collaboration across the interagency, academia, and allies to develop, test, and deploy innovative solutions for spectrum sharing. But, as the Chairman and Ranking Member rightly noted in recent statements, Ligado has little to do with 5G. Although Ligado portrays their solution as 5G, there is no evidence that they have a technically viable 5G solution, and they are therefore misrepresenting their offering. Denying Ligado’s petition will not affect the pace at which the nation rolls out 5G technologies and service."
In his prepared testimony, Mr. Deasy said, "Throughout this proceeding, the Department made it clear that approving Ligado’s plans would cause harmful interference to millions of GPS receivers across the country, both civilian and military."
"A key area of disagreement is the FCC’s justification that the Order placed ‘stringent conditions’ on Ligado’s network deployment plans to ensure that GPS users would not experience harmful interference," Mr. Deasy added. "However, these conditions will not protect GPS receivers against harmful interference and are thus unrealistic and unacceptable to the Department. DoD already assessed these requirements during the interagency review process, including evaluation by the PNT EXCOM [Positioning, Navigation and Timing (PNT) Executive Committee]. In addition to the work of the PNT EXCOM, extensive and technically rigorous testing and analysis was conducted over the past nine years by DoD, the National Space-Based PNT Engineering Forum, the DoT Adjacent Band Compatibility (ABC) Assessment and Air Force testing of eighty (80) GPS L1 receivers in 2016. These efforts all reached the same conclusion, which is that the Ligado proposal will disrupt GPS."
Specifically, Mr. Deasy said that a 23 megahertz guard band, reduced Ligado power levels, coordination requirements, and remediation would be insufficient to protect GPS receivers.
"The FCC Order expects Ligado to protect U.S. government GPS receivers and to repair or replace affected receivers identified before Ligado terrestrial operations commence," the CIO noted. "But this overlooks the classified nature of military GPS use and the sheer number of government receivers and military platforms affected. The FCC expectation is unreasonable and could never be employed in real practice. To avert significant mission impacts, the government would need to undertake unprecedented accelerated testing, modification and integration of new GPS receivers on existing platforms. This is cost and schedule prohibitive and would significantly degrade national security."
"DoD has conducted a balanced approach to assessing the risks and benefits of new wireless industry proposals. This is why DoD applied technical rigor and vigorous assessment to its conclusions on the Ligado plans. The Ligado proposal and the risks posed to GPS demonstrates that the FCC decision is misguided," he concluded. "Instead, the Ligado solution causes more harm than good to the nation’s spectrum use. The Department supports the President’s 5G goals, however, we need to ensure that regulatory decisions that increase wireless industry access for cellular networks do not do so at the expense of GPS user requirements. The FCC’s Ligado decision is flawed and must be reversed. As the Committees has so clearly expressed, this is a bad deal for America."
Gen. John Raymond, chief–space operations for the U.S. Space Force and commander of the U.S. Space Command, said "anything that degrades the effectiveness and reliability of GPS has the ability to prevent military forces from training effectively to maintain readiness; and worse yet, keep us from protecting and serving the public by responding to natural disasters and providing humanitarian assistance, tracking national security threats, and defending the homeland. Transmitters adjacent to the GPS spectrum have significant potential to disrupt and degrade the operation of the approximately 1 million GPS receivers in the Department of Defense (DoD) inventory, and therefore bring harm to military training, readiness, and DoD’s ability to conduct operations. Without solid data about the location of ground-based transmitters and antennas, DoD cannot begin to fully understand and work to mitigate the impact to existing systems, if any mitigation is possible. Changes necessary to combat potential interference from systems operating near the GPS signals could delay the development and deployment of new GPS capabilities for years — and cost billions in U.S. taxpayer investment."
Among other things, retired Adm. Allen argued that the FCC did not follow its normal process for considering a terrestrial Ligado network. "As evidenced by the past nine-plus years of the Ligado waiver request and subsequent license modification proceeding, it is apparent to me the use of the MSS L-band satellite service spectrum for terrestrial wireless broadband service should have been the subject of a NPRM as normally would be required under the Administrative Procedure Act (APA)," he said.
Messrs. Allen and Griffin also criticized the FCC’s rejection of the 1 dB noise floor increase metric as a way to measure harmful interference. The threshold was a key issue in the proceeding. Ligado opposes the metric, while GPS advocates support it.
During the question-and-answer period, Mr. Deasy and others said that the typical back-and-forth process between executive branch agencies and the FCC on spectrum issues did not occur in the Ligado proceeding.
"At the end of the day, we were completely caught off guard" by adoption of the FCC’s order, Mr. Deasy said. He said DoD had expected that the FCC would reject the Ligado network.
He called the process undertaken by the FCC "unheard of," saying that DoD officials believe it is the first time the Commission has taken an action that ran counter to a unanimous opinion of federal agencies. He said DoD wants NTIA to file a petition for reconsideration.
Sen. Cotton asked if there had been testing under the conditions approved by the FCC. Mr. Griffin said there had not.
During a call with reporters after the hearing, Mr. Deasy said that DoD is considering pursuing legislation to undo the Ligado order.
"One avenue could be legislative action," Mr. Deasy told reporters. "Don’t ask me today on this phone call to describe what that looks like, the shape and form that might take. That still has to be pursued, and there [are] conversations going on to look at that."
He also noted that DoD wants NTIA to file a petition for reconsideration.
"So what we’re doing right now is we’re spending, you know, a lot of time looking through that order, and specifically identifying the areas and the reasons why we believe reconsideration is necessary," Mr. Deasy said.
He refused to discuss conversations DoD may have had with the White House concerning the Ligado proceeding, but said that "the White House has been engaged in this conversation."
In response to a question about whether lobbyists hired by Ligado had made the difference in getting the FCC to approve its network, Mr. Deasy replied, "Sir, in every major acquisition I’ve been involved with since being in — at the Department of Defense, there’s lobbying. Every major telecommunications spectrum, there is lobbying. Lobbying is not unusual in this space. It happens on a regular basis."
In a statement on the hearing, an FCC spokesperson said, "Given all of the untrue statements being made at the hearing, it is difficult to know where to begin. For example, the repeated claim that federal agencies unanimously oppose our order is blatantly false, as our decision has been endorsed by the Secretary of State and Attorney General. Moreover, the Department of Defense (and every executive branch agency that is part of the Interdepartment Radio Advisory Committee) was given our draft decision last autumn, so the assertion that they were blindsided by it this April is preposterous. More importantly, nothing said today changes the basic facts that the metric used by the Department of Defense to measure harmful interference does not, in fact, measure harmful interference and that the testing on which they are relying took place at dramatically higher power levels than the FCC approved. The bottom line here is that the FCC made a unanimous, bipartisan decision based on sound engineering principles. We stand by that decision 100% and will not be dissuaded by baseless fearmongering."
In a letter to the committee, Ligado also defended the FCC’s order.
The letter, signed by Ligado President and Chief Executive Officer Doug Smith, and Chairman Ivan Seidenberg, also complained that the panel did not invite Ligado or the FCC to testify at the hearing.
"In light of this, we take this opportunity to explain how the FCC’s Order protects GPS, describe the process the FCC has established to ensure that DoD’s concerns are addressed going forward, and clarify the inaccurate characterizations of the FCC’s adjudicative decision," the letter said.
The company said that the years-long FCC process "has resulted in unprecedented conditions on our company to protect GPS, and we willingly accept those."
It added that "GPS has long been allocated to spectrum far away from Ligado’s spectrum, specifically, a full 23 megahertz away. And that allocation is also not changed by the recent FCC action. The distance between Ligado and GPS is substantial: guardbands are typically 2–5 megahertz and 23 megahertz is roughly the amount of spectrum needed for four TV stations. The FCC Order ensured that this distance between GPS and Ligado combined with the lower power levels imposed and approved by the FCC affords GPS devices operating in the GPS spectrum a complete defense against interference from Ligado."
Ligado stressed that "the FCC imposed additional conditions to ensure that GPS devices will continue to be protected from any activity that could affect GPS operations. Specifically, the FCC directed Ligado to provide protections to GPS devices using its spectrum by imposing stringent coordination, cooperation, and replacement obligations on Ligado, so that Ligado bears the burden of ensuring that no device using Ligado’s spectrum will be negatively impacted. Make no mistake: the obligation is ours, and the burden falls solely on our company."
Ligado also said that during the long process at the FCC, "DoD never filed any technical information or analysis, and at no point did DoD provide information expressing specific technical concerns to the FCC."
House Armed Services Members Weigh In
Meanwhile, 23 members of the House Armed Services Committee, led by Chairman Adam Smith (D., Wash.) and ranking member Mac Thornberry (R., Texas), wrote the FCC May 7 to complain about the agency’s unanimous Ligado order. In the letter, the lawmakers asked Commissioners whether they had received classified briefings from the Department of Defense concerning the proceeding.
"We write to you to express our deep concern with the commission’s approval of the subject proceeding," the lawmakers said. "The national security community was unanimous in the judgement that approval of the use of certain portions of the L band spectrum could pose an unacceptable risk to the use of the Global Positioning System (GPS) in the United States. In addition, other federal and nonfederal users of this spectrum have raised serious concerns, including satellite communications providers and airlines.
"Section 1698 of the National Defense Authorization Act for Fiscal Year 2017 prevents the commission from approving commercial terrestrial operations in these bands until 90 days after the commission resolves concerns of widespread harmful interference by such operations to covered GPS devices," the letter continued. "We are concerned that your approval of any mitigation efforts not rigorously tested and approved by national security technical experts may be inconsistent with the legislative direction to resolve concerns prior to permitting commercial terrestrial operations. We urge the commission to reconsider and impose additional mitigation steps to address the concerns of these users."
The lawmakers added, "While we understand the applicant argues that the Department of Defense’s (DoD) assessment of harmful interference is not based on any testing data, we want to ensure that the commissioners have independently confirmed this assertion with a classified briefing on the testing done by DoD in conjunction with DOT’s Adjacent Band Compatibility Testing referenced in the applicant’s response. It is essential that the commissioners understand the full implications when making a decision of this magnitude."
"Our committee is actively seeking solutions that will facilitate and direct DoD to share as much spectrum as possible for commercial use, but the nation faces threats that will require DoD to continue to use parts of the spectrum needed for 5G. We must be able to develop solutions that provide for the defense of the nation, and unleash the economic potential of 5G. However, the concerns of national security experts must inform our efforts in advance of our shared goal of safety and economic prosperity," the letter added.
It asked Commissioners to respond to the following directions and questions within seven days: (1) "Please provide copies of the legal analysis that led the commissioners to their determination despite the unanimous concerns of the national security community, and whether that decision is consistent with the FY17 NDAA requirement to resolve concerns of widespread interference with GPS devices prior to permitting the commercial use of this spectrum." (2) "Did each commissioner receive a briefing from the Department of Defense on the classified test data contained in the classified report of DoD testing to accompany the Department of Transportation Adjacent Band Compatibility Assessment from April of 2018?" and (3) "For Commissioners [Jessica] Rosenworcel and [Geoffrey] Starks, you issued a joint statement of concurrence, indicating a less than full endorsement of the approval and said the decision was a close call. Do you believe the concerns of the national security community were adequately addressed? Additionally, you expressed concern about the spectrum decision making process. Were there any specific aspects of this decision that concerned you?"
The other committee members signing the letter were Reps. Jim Cooper (D., Tenn.) and Michael Turner (R., Ohio), the respective chairman and ranking member of the strategic forces subcommittee; Reps. Jim Langevin (D., R.I.) and Elise Stefanik (R., N.Y.), the respective chairman and ranking member of the intelligence, emerging threats, and capabilities subcommittee; Reps. John Garamendi (D., Calif.) and Doug Lamborn (R., Colo.), the respective chairman and ranking member of the readiness subcommittee; Reps. Donald Norcross (D., N.J.) and Rob Bishop (R., Utah), the respective chairman and ranking member of the tactical air and land forces subcommittee; and Reps. Rick Larsen (D., Wash.), Mike Rogers (R., Ala.), Seth Moulton (D., Mass.), Mike Conaway (R., Texas), Gil Cisneros (D., Calif.), Don Bacon (R., Neb.), Veronica Escobar (D., Texas), Liz Cheney (R., Wyo.), Lori Trahan (D., Mass.), Paul Mitchell (R., Mich.), Elaine Luria (D., Va.), Chrissy Houlahan (D., Pa.), and Anthony Brindisi (D., N.Y.).
An FCC spokesperson said the agency was reviewing the House letter.
Ligado had no comment on the House letter.
—Paul Kirby, [email protected]
Liberty Global plc and Telefonica S.A. has announced a joint venture to merge their operating businesses in the United Kingdom, combining Virgin Media and 02 into a conglomerate with more than 46 million video, broadband, and mobile subscribers. Each company will have a 50% interest in the joint venture.
Congress and the Administration
The governments of the U.S. and Czech Republic say they will cooperate on the secure deployment of 5G networks by avoiding the use of components from untrustworthy suppliers. "Protecting communications networks from disruption or manipulation and ensuring the privacy and individual liberties of the citizens of the United States and the Czech Republic are vital to ensuring that our people are able to take advantage of the tremendous economic opportunities 5G will enable," they said in a May 6 joint declaration. The declaration spells out principles for the two nations to observe in their 5G network deployments, including examining the trustworthiness of suppliers. "To promote a vibrant and robust 5G ecosystem, a rigorous evaluation of suppliers and supply chains should take into account the rule of law; the security environment; ethical supplier practices; and a supplier’s compliance with security standards and best practices," it said.
The Department of Commerce has announced the availability of $1.5 billion in Economic Development Administration supplemental funding under the Coronavirus Aid, Relief, and Economic Security (CARES) Act that can be used by communities for a variety of purposes to prevent, prepare for, and respond to the coronavirus pandemic, including the deployment of broadband to support telehealth and remote learning for job skills.
In the Courts
The Supreme Court has directed Google LLC and Oracle America, Inc., to file supplemental letter briefs, not to exceed 10 pages, addressing the appropriate standard of review for considering whether, as the jury in the trial below found, Google’s use of a software interface in the context of creating a new computer program constitutes fair use. The briefs should include but not be limited to "the implications of the Seventh Amendment, if any, on that standard." The Seventh Amendment states, among other things, that "no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law." Google is appealing a decision by the U.S. Court of Appeals for the Federal Circuit, which held that code used in the Android platform infringes Oracle’s copyright in code used for the Java platform. The Supreme Court had scheduled oral argument in the case for March 24 but postponed the arguments for that week and the following week in light of the COVID-19 pandemic. The briefs in Google LLC v. Oracle America, Inc. (case 18-956) are due by 2 p.m. on Aug. 7.
On the Move
Zack Roday is leaving the House Energy and Commerce Committee, where he was communications director for the committee Republicans. He is being replaced by Tiffany Haverly.
The Georgetown University Law Center’s Institute for Technology Law & Policy has named Hillary Brill interim executive director and Jennifer Sturiale program director–tech law and policy academic programs. Ms. Brill has been founding partner of HTB Strategies, an adjunct professor at the Georgetown University Law Center, and a practitioner-in-residence at American University’s Washington College of Law. Ms. Sturiale was a fellow and lecturer on law at Harvard Law School.
The Center for Democracy & Technology has announced several hires. Lydia Brown, formerly an associate at the Georgetown Law Center’s Institute for Tech Law and Policy, is joining CDT’s Privacy & Data Project as policy counsel, while Cody Venzke and Hugh Grant-Chapman are joining the Student Privacy Project as policy counsel and research and communications associate, respectively. Mr. Venzke was an attorney-adviser at the FCC, while Mr. Grant-Chapman was an intern at the Center for Strategic and International Studies.
Verizon Communications, Inc., has hired James Mitchell as executive program manager. Previously, he was chief of staff at the First Responder Network Authority (FirstNet).
The National Association of Broadcasters has announced that Dennis Wharton, the group’s executive vice president–communications, is retiring, effective July 1. Mr. Wharton joined NAB in 1996 as vice president–media relations. NAB also announced that it is merging its Communications and Marketing departments into a new Public Affairs Department that will be led by Michelle Lehman, who has been EVP–marketing since she joined the group in 2006. Ann Marie Cumming, senior vice president–communications, will be NAB’s primary spokesperson, assisted by VP–media relations Zamir Ahmed.Jen Jose will serve as SVP–public affairs, overseeing messaging, digital, and public service activities, by Gagan Nirula, VP–digital.
Qualcomm, Inc., has announced that its board of directors has appointed Jamie Miller to the board, effective immediately. Until February, she was senior vice president and chief financial officer of General Electric Co.
Incompas has announced that Tilson Chief Executive Officer Joshua Broder has been appointed to the group’s board of directors.
FCC Chairman Ajit Pai has announced a new hire and two promotions in the agency’s Office of Media Relations, which saw its third staff departure in recent months as Press Secretary Tina Pelkey announced she is leaving for the private sector. Anne Veigle is joining the Commission as deputy director–communications from the National Telecommunications and Information Administration, where she was director of public affairs. Ms. Veigle has also worked for Communications Daily, USTelecom, and the Office of U.S. Trade Representative. Will Wiquist is being promoted from deputy press secretary to associate director–communications and policy adviser. Katie Gorscak is being promoted to senior communications adviser from her role as director–communications for the agency’s Connect2Health Task Force. Ms. Gorscak has been working in the Office of Media Relations since the recent departures of Mark Wigfield and Neil Grace. Chairman Pai expressed his thanks for Ms. Pelkey’s "fantastic work during her nearly three years at the Commission."
Southern Telecom, Inc., a provider of long-haul and metropolitan dark fiber in the Southeast, has announced the appointment of Michael Britt as Southern Telecom president and chief executive officer. He had been vice president of the Energy Innovation Center at Southern Telecom’s parent company, Southern Co. He will also be responsible for the telecommunications infrastructure strategy for Southern Co.’s electric utilities. Mr. Britt succeeds Tami Barron as president of Southern Telecom. Ms. Barron will continue as president and CEO of Southern Linc, another Southern Co. subsidiary. Southern Telecom also announced that General Manager Wayne Ellis is retiring in late June after 22 years with the company. Southern Telecom also noted that it has implemented remote management of its dark fiber network to protect the health of employees during the COVID-19 pandemic.
Kevin Coyne is joining Summit Broadband as chief executive officer. He had been chief operating officer of FiberLight LLC. Summit, which is owned by Grain Management LLC, is a fiber-based telecommunications provider in central and southwest Florida.
DRFortress, a carrier-neutral data center and cloud marketplace in Hawaii, has named Eric Yeaman to its board of directors. Mr. Yeaman, the founder and managing partner of strategic advisory and investment firm Hoku Capital LLC, is a former president and chief executive officer of Hawaiian Telecom as well as former president and chief operating officer of First Hawaiian Bank. DRFortress President and founder Fred Rodi said that Mr. Yeaman’s "expertise and leadership will be invaluable as we grow our company and transform Hawaii into the largest digital hub for colocation, neutral telecommunication connectivity and cloud computing services in the Pacific." DRFortress recently received "a significant equity investment from GI Partners, a private equity firm with more than $20 billion in capital, to fuel the company’s growth initiatives," DRFortress noted.
The FCC’s Office of Engineering and Technology has approved a waiver sought by the Massachusetts Institute of Technology to allow certification and marketing of indoor health monitoring devices called the WiTrack system. "We find that such devices, when operating under the specified waiver conditions, will pose no greater risk of causing harmful interference to communication services than those devices already permitted under the existing rules and that grant of the waiver will serve the public interest," OET said in an order adopted in ET docket 19-89. "The WiTrack is a wall-mounted system that provides non-invasive health and safety monitoring for patients and senior adults," the order noted. "A WiTrack device is designed to measure physiological characteristics such as gait, breathing, heart rate, and sleep, and facilitates the detection of potentially life-threatening events, such as falls.
The FCC said that its move to a new headquarters has been delayed due to the COVID-19 pandemic. It added that the date for the move has not been determined. The move had originally been scheduled for the last week of June. The Commission mentioned the development on April 30 as it unveiled a new seal, the result of an agencywide contest in which employees and contractors were invited to submit proposals and vote on a winning entry.
The FCC’s Wireless Telecommunications Bureau has announced long-form applications that are accepted for filing for Auction 103, a sale of upper 37 gigahertz, 39 GHz, and 47 GHz band licenses that ended in March (TR, March 20).
Citing delays caused by the COVID-19 pandemic, several parties have asked the FCC to extend the tribal priority window for seeking access to 2.5 gigahertz band spectrum before it is auctioned. The National Tribal Telecommunications Association (NTTA) submitted a filing in WT docket 18-120 asking the Commission to extend the window by 90 days to Nov. 2. The window opened on Feb. 3 and currently closes on Aug. 3. Earlier, the Hawaii Department of Hawaiian Homelands and Native Public Media and MuralNet asked the Commission to extend the filing window by 12 months.
Comments are due June 3 and replies July 6 in ET docket 19-226 on a notice of proposed rulemaking that the FCC released in December regarding human exposure for radio frequency (RF) electromagnetic fields (TR, Dec. 20, 2019).
The FCC has released an order in IB docket 18-86 clarifying the date of certain rule changes adopted last year in a small satellite report and order (TR, Aug. 16, 2019). The new order said "that the amendment to the application fee schedule specified in the Report and Order will be effective 30 days after the upcoming publication of the Report and Order in the Federal Register."
The acting field director of the Enforcement Bureau has released a notice of apparent liability for forfeiture and order in file EB-FIELDSCR-20-00030473 proposing a $25,000 fine against DWireless & More, Inc., a wireless Internet service provider in Puerto Rico, for apparently causing interference to a Federal Aviation Administration terminal Doppler weather station in San Juan.
The FCC’s Office of Engineering and Technology has solicited comment on a waiver request filed by Valeo North America, Inc., to allow it "to market short-range sensing devices operating in the 57–64 GHz band at a higher power than specified in the rule, limited to operation within automotive vehicle passenger cabins." "In particular, Valeo describes the risks of inadvertently leaving children in hot vehicles, and an automobile industry commitment to providing a widely deployed rear seat reminder no later than the 2025 model year," OET noted in a public notice. "While we are aware that many manufacturers are exploring different technological solutions to the problem of leaving children in hot vehicles, we believe that Valeo is the first to seek a narrow waiver of our Part 15 rules for this particular purpose." Comments are due June 8 and replies June 23 in ET docket 20-121.
The FCC’s Office of Engineering and Technology has solicited comment on a request by Proceq USA, Inc., to modify a waiver it had previously received to increase the operating bandwidth of an ultrawideband (UWB) ground penetrating radar. The device is employed "to test the safety, durability and sustainability of materials such as concrete, metal, rock, and composites used in industrial settings," OET noted in a public notice. "This most recent waiver request seeks to extend the operating frequency range from 200–6000 MHz to 30MHz–8000 MHz, which will result in improved resolution and technical performance for the device." Comments are due June 8 and replies June 23 in ET docket 20-127.
Sinclair Broadcasting Group, Inc., has agreed to pay $48 million to close three investigations, including its disclosure of information concerning its failed acquisition of Tribune Media Co. The $48 million fine is the largest civil penalty ever imposed on a broadcaster by the FCC. "Specifically, the Consent Decree closes an investigation into the company’s disclosure of information relating to its proposed acquisition of stations owned by Tribune Media. The agreement also closes investigations into whether the company has met its obligations to negotiate retransmission consent agreements in good faith and its failure to identify the sponsor of content it produced and supplied to both Sinclair and non-Sinclair television stations," the FCC said in a news release.
The FCC’s International Bureau has released an order and declaratory ruling in IBFS File no. SAT-PDR-20180910-00069 granting Hiber, Inc.’s, petition "to access the U.S. market access to provide non-voice, non-geostationary (NVNG) mobile-satellite services (MSS) using a constellation of up to 24 small, low-Earth orbit (LEO) satellites authorized by the Netherlands. We grant Hiber market access in the 399.9–400.05 MHz (Earth-to-space) and 400.15–401 MHz (space-to-Earth) bands, subject to the conditions and other requirements specified herein. Hiber states that its proposed constellation will operate as part of a new low-power global area network, known as Hiberband, that will provide connectivity for sensors and Internet of Things (IoT) devices used by consumers in the United States and worldwide."
Citing uncertainty about the COVID-19 pandemic, the Federal Communications Bar Association has canceled its Chairman’s Dinner, which had been scheduled for December. Meanwhile, NENA has announced that it has rescheduled the NENA 2020 Conference & Expo from June 13–18 to Sept. 24–29. It will continue to be held in Long Beach, Calif., while the Utilities Technology Council announced that it will hold its UTC Telecom & Technology 2020 conference as a virtual event during the week of Aug. 31. Also, the National Institute of Standards and Technology’s Public Safety Communications Research (PSCR) Division has announced that it plans to hold a virtual event, PSCR 2020: The Digital Experience, to replace its annual stakeholder meeting, which was scheduled for next month in San Diego and was canceled. The PSCR has announced speakers for two live sessions to be held on July 28 and July 29 with more to be announced. Most of the conference sessions will be prerecorded.
The FCC’s Consumer and Governmental Affairs Bureau has conditionally certified MachineGenius, Inc., to receive TRS Fund compensation for the provision of Internet-protocol captioned telephone service (IP CTS), pending verification that its actual provision of ASR (automatic speech recognition)-only IP CTS to registered users meets or exceeds the FCC’s minimum TRS (telecommunications relay service) standards. Unlike the traditional provision of IP CTS, ASR-only IP CTS will function without participation of human communications assistants (CAs). The certification is the first for ASR-only IP CTS, the FCC said in a press release. The conditional certification is good for up to five years, pending a final determination of MachineGenius’s qualification, the bureau said in a memorandum opinion and order adopted May 5 in CG docket 03-123. The bureau noted that MachineGenius said its service would provide users with greater privacy than IP CTS provided by CAs; would cost less than traditional IP CTS; would be delivered via an app that could be installed on connected devices that consumers already own; and would allow users to see captions for both parties’ speech.
The FCC has eliminated the Media Bureau’s Engineering Division and folded its work and staff into the bureau’s Industry Analysis Division (IAD). The order adopted April 29 in an undocketed proceeding notes that after being created in 2002 at the time of the Media Bureau’s creation, "the Engineering Division processed cable industry regulatory filings (such as registrations and their updates, and signal leakage and proof of performance results), Cable Television Relay Service (CARS) applications, and requests for rulings on technical matters. As the industry has transitioned from analog to digital and from paper to electronic filing processes, and as the Commission has engaged in dozens of proceedings to modernize its rules, the Engineering Division’s tasks have diminished." Commissioner Jessica Rosenworcel concurred in the decision.
The FCC’s Wireline Competition Bureau has announced that .pdf files e-mailed to the Commission to apply for support under the COVID-19 Telehealth Program would no longer be accepted as of 11:59 p.m. on May 2. All applications from that time forward must be submitted through the agency’s online application portal available at https://www.fcc.gov/covid-19-telehealthprogram.
The 2019 nationwide test of the Emergency Alert System (EAS) was a success, but there continues to be room for improvement, according to a report released on May 12 by the FCC’s Public Safety and Homeland Security Bureau. The test, which was held on Aug. 7, 2019, was designed to only use the broadcast-based daisy chain distribution system, in the absence of Internet connectivity. "The 2019 nationwide EAS test was successful in that it demonstrated that the nationwide broadcast-based EAS distribution system would largely perform as designed, if activated without the availability of the Internet. At the same time, the test exposed several deficiencies within the system that require improvement," the report stressed.
The FCC’s Technological Advisory Committee will meet June 4 from 10 a.m. to 3 p.m. via conference call, which the public will be able to access at www.fcc.gov/live. It will hear presentations from its four working groups: 5G/IOT/V-RAN, future of unlicensed operations, artificial intelligence, and 5G radio access network (RAN) technology.
The FCC’s Communications Security, Reliability, and Interoperability Council plans to hold its next meeting via conference call June 10 from 1–5 p.m.
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