TR Daily Pai Tees Up RIF Remand, 5G Fund, White Spaces, Cell Sites Items
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Monday, October 5, 2020

Pai Tees Up RIF Remand, 5G Fund, White Spaces, Cell Sites Items

FCC Chairman Ajit Pai announced today that he plans at the agency's Oct. 27 meeting to ask his fellow Commissioners to affirm the FCC's 2017 decision in the restoring Internet freedom (RIF) order on three issues remanded by a federal appeals court; to approve rules for allocating Phase I 5G Fund support using yet-to-be-gathered mobile broadband coverage from the Digital Opportunity Data Collection; to modify the agency's TV white spaces rules to enable expanded rural broadband coverage and narrowband Internet of things (IoT) innovation; and to enable streamlined state and local review of construction within 30 feet of an existing wireless cell site.

In addition, Chairman Pai plans to seek votes on freeing incumbent local exchange carriers from network unbundling requirements in certain areas; expanding the FCC's audio description requirements for TV programming; and allowing AM broadcasters to move to all-digital signals, if they choose, he said in a blog post. He also plans to see a vote on an Enforcement Bureau action, but details on the item will not be made public until after it is adopted.

In a 2019 decision (TR Daily, Oct. 1, 2019), the U.S. Court of Appeals for the District of Columbia Circuit largely upheld the FCC's 2017 RIF order, including its reclassification of broadband Internet access service (BIAS) as an information service subject to light regulation under Title I of the 1934 Communications Act, as amended, rather than a telecommunications carrier, subject to heavier, common carrier regulation under Title II. However, the court remanded three issues on which it said the FCC either failed to examine, sufficiently explain, or adequately address the effects of its order: public safety, Lifeline, and pole attachments. The Commission took comments on the remanded issues earlier this year (TR Daily, April 21).

In his blog post today, Chairman Pai said, "Having reviewed the input received, the law, and the facts, I am confident that the regulatory framework we set forth in the Restoring Internet Freedom Order appropriately and adequately addresses each issue. Accordingly, I have circulated an Order for consideration at our October meeting addressing the points raised by the D.C. Circuit. It affirms that the FCC stands by the Restoring Internet Freedom Order, consistent with the practical reality consumers have experienced since December 2017 of an Internet economy that is better, stronger, and freer than ever."

Chairman Pai said that the RIF order has been a success. "In fact, since we adopted the Restoring Internet Freedom Order, average download speeds for fixed broadband in the United States have doubled, increasing by over 99% (so much for getting the Internet one word at a time). And in 2018 and 2019, we added over 72,000 wireless cell sites in the United States, after adding fewer than 20,000 in the prior four years," he said.

"Moreover, during the pandemic, our networks have held up extremely well. Not only have they handled the surge in Internet traffic, but average speeds have actually gone up over the past six months. We haven't had to follow the path of some other countries, which embraced utility-style Internet regulation and, after years of subpar infrastructure investment, had to ask streaming services like Netflix and YouTube to proactively throttle consumers' video streams [link in original] from HD to SD," Chairman Pai added.

Commenting on the Chairman's proposal to affirm the RIF order on the remanded issues, FCC Commissioner Jessica Rosenworcel said, "This is crazy. The internet should be open and available for all. That's what net neutrality is about. It's why people from across this country rose up to voice their frustration and anger with the Federal Communications Commission when it decided to ignore their wishes and roll back net neutrality. Now the courts have asked us for a do-over. But instead of taking this opportunity to right what this agency got wrong, we are going to double down on our mistake."

She added, "The FCC is going to make it easier for broadband companies to block websites, slow speeds, and dictate what we can do and where we can go online. It's insane that this is happening now, during a pandemic when we rely on internet access for so much of day-to-day life. It's also cruel that this is our priority when this crisis has exposed just how vast our digital divide is and how much more work we have to do for broadband to reach 100% of us—no matter who we are or where we live."

TechFreedom's General Counsel James Dunstan said, "We're happy to see the FCC move forward with this order now, even during a heated presidential election season. BIAS providers and the public alike deserve certainty on the categorization of BIAS. There's nothing in the record to overturn the FCC's fundamental decision to reclassify BIAS service as a Title I information service, as it was prior to 2015, and no amount of complaining can change what the Mozilla court said—or the law of the case."

He added, "While Title II proponents will again claim that the sky is falling and that the Internet will break any second unless the FCC returns to heavy-handed Title II regulation, the way in which the Internet (and ISPs) has functioned during the COVID pandemic is a testament to how much quicker private companies can react to a crises than can government agencies.

Free Press Policy Manager Dana Floberg said, "Pai's tired arguments rest on unproven claims that the FCC repeal has somehow spurred a golden age of broadband investment and fiber deployment. But these investment claims are built on falsehoods and disinformation, with zero evidence in actual investment figures. The reality is, broadband investment has declined during Pai's tenure. The deployment gains he routinely takes credit for were overwhelmingly planned, announced and begun during the latter part of the Obama administration, when Title II was the law of the land. And Pai's boasts of a 99-percent increase in broadband speeds pales in comparison to the 210-percent increase seen during Obama's second term."

Regarding the 5G Fund for Rural America item, Chairman Pai said, "The new program would use multi-round reverse auctions to distribute up to $9 billion, in two phases, to bring voice and 5G broadband service to rural areas of our country that would be unlikely to see the deployment of 5G-capable networks without subsidies. Building upon lessons learned from the Mobility Fund, and overwhelming support in the factual record we've developed, we would adopt our proposal to determine which areas will be eligible for 5G Fund support based on improved mobile broadband coverage data that will be gathered through the Commission's new Digital Opportunity Data Collection [link in original]. This approach won't be the fastest possible path to the Phase I auction, but it will allow us to identify with greater precision those areas of the country where support is most needed and will be spent most efficiently."

Mr. Pai also said that the Commission plans to "vote on a Report and Order that would make targeted changes to our white space device rules by expanding these devices' ability to provide broadband coverage in rural and unserved areas while still protecting television broadcasters in the band. The Order would also modify our rules to facilitate the development of new and innovative narrowband Internet of Things devices in TV white spaces. We expect that these changes will spur continued growth of the white space ecosystem and help to close the digital divide."

The item would follow up on a notice of proposed rulemaking (NPRM) adopted by the FCC in February that proposed to relax the agency's TVWS rules to make it easier to deploy services in rural and underserved areas (TR Daily, Feb. 28).

The NPRM responded to a 2019 petition filed by Microsoft Corp. (TR Daily, May 3, 2019).

"Specifically, we propose to permit higher transmit power and higher antenna HAAT [height above average terrain] for fixed white space devices in 'less congested' geographic areas. In addition, we propose to permit higher power mobile operation within 'geo-fenced' areas," the FCC said in the NPRM, which was adopted in ET docket 20-36. "We also propose rule revisions designed to facilitate the development of new and innovative narrowband IoT services. We also seek comment on methods that could be used to allow higher power operation by white space devices when operating within the service contour of an adjacent channel TV station."

"Specifically, we propose to increase the maximum permissible radiated power from 10 to 16 watts EIRP in these areas, and to increase the maximum permissible antenna HAAT from 250 meters to 500 meters," the NPRM added. "Given these proposed revisions, we also propose to protect other users of the TV bands by increasing the minimum required separation distances from protected TV service contours and other protected services for white space devices operating at the proposed higher power and antenna height limits, and we continue to protect Wireless Medical Telemetry Service and Radio Astronomy Service operations by maintaining the current power and HAAT limits on Channel 36."

The NPRM drew praise from a number of parties, while others, including TV broadcasters and wireless microphone manufacturers, expressed concern about particular proposals (TR Daily, May 5).

"We are pleased that the FCC will vote on a TV White Space item during this month's Open Meeting, an important step towards putting our unused TV airwaves to good use," WifiForward said today. "This forward-leaning technology promises to connect schools, farms, hospitals and homes in unconnected communities nationwide—connections that will literally save lives during this pandemic and beyond. We commend the Commission for its commitment to efficient, smart spectrum policy like this."

Mr. Pai also said that the Commission plans to vote on its latest item to streamline the deployment of wireless infrastructure.

"To facilitate the collocation of antennas and associated ground equipment, the Commission will vote on a proposal to further streamline the state and local government review process for limited modifications to existing wireless infrastructure," he said. "Congress limited state and local jurisdictions' authority to deny these modifications in 2012, under section 6409(a) of the Spectrum Act [link in original]. Under the order we will vote on this month, excavation and deployment up to 30 feet in any direction outside of the existing site would not 'substantially change' the physical dimensions of the facility and therefore would not disqualify the collocation from streamlined state and local review."

"For more Americans to access resilient, powerful 5G, we need to cut the red tape that hampers work on tower sites," Commissioner Brendan Carr, the point person for wireless infrastructure issues at the Commission, said in a statement. "Through this action, the FCC will expedite the private sector's efforts to make towers more resilient and powerful—to provide backup power during natural disasters and to install the equipment that will make 5G fly."

The FCC solicited comments on the issue of excavation and deployment up to 30 feet outside of an existing site in June in an NPRM it adopted along with a declaratory ruling clarifying rules adopted in 2014 implementing section 6409(a) of the Spectrum Act (TR Daily, June 9). The June vote on the item in WT docket 19-250 and Rulemaking 11849 was 3-2, with Democratic Commissioners Jessica Rosenworcel and Geoffrey Starks dissenting

While many municipal interests expressed consternation, telecommunications industry players threw their support behind the NPRM in their comments on the item (TR Daily, July 23).

In a joint filing, the National Association of Telecommunications Officers and Advisors, the United States Conference of Mayors, the National League of Cities, the National Association of Counties, and the National Association of Towns and Townships said the FCC should define a "site" as the boundary of the leased or owned property surrounding a tower and any related access or utility easements as of the date the facility was last reviewed and approved by a local authority. The FCC should also clarify that any changes to the definition apply only to towers outside of public rights of way, and that "last reviewed and approved" does not apply to an eligible facilities request application or other "non-discretionary" review process, the groups said. They also said that the Commission should also clarify that any easements would continue to apply after an expansion.

"Local Government does not think that a predicate had been established for the rule change, but we offered what we hope are seen as constructive edits to the proposed rule, many of which were similar to the industry's requests," Gerry Lederer, a partner at Best Best & Krieger LLP who represents local government interests, told TR Daily today. "Many of the requests sought to ensure that regulatory permission is not confused with the surrender of proprietary rights. The Commission has shown a sensitivity to such differences of the two in the past and we hope they will continue to in the future.

"We do hope that the order will speak to the issue of generators," he added. "We were told that one of the driving forces for the NPRM was the installation of generators for backup power, but we see industry opposition around to country to having back-up power as a requirement."

"We are disappointed the Commission intends to move forward with the wireless industry's request for even more power to put up facilities regardless of the impact on the safety and values of local communities," NATOA General Counsel Nancy Werner, told TR Daily today. "We'll have to wait until the draft item comes out to know just how much power the industry might get. Hopefully it does not go as far as industry requested, which would allow large deployments well outside of existing tower sites—an outcome that cannot reasonably be deemed a non-substantial change to an existing wireless tower." The wireless industry welcomed news of the FCC's plan to vote on the section 6409(a) item at this month's meeting.

"We're glad that the @FCC will vote on another critical broadband deployment reform at the Open Commission Meeting later this month. Thank you @AjitPaiFCC for your focus on important issues," the Wireless Infrastructure Association tweeted.

The Chairman also said he plans to seek a vote on a report and order easing current network unbundling requirements on incumbent telcos, which were imposed by the 1996 Telecommunications Act.

"The voice and broadband marketplaces are filled with competition from a multitude of providers using a variety of technologies and offering capabilities and services unforeseen in 1996. The Commission has repeatedly adjusted the incumbent LEC-specific obligations in the 1996 Act, including unbundling and resale requirements, to account for changed circumstances. Given the dramatic change in the market in recent years and continued vigorous debate on this topic, I encouraged industry to negotiate and propose solutions for the path forward in this area. INCOMPAS and USTelecom led negotiations and ultimately submitted two compromise proposals [TR Daily, Aug. 6], helping us close out one of the most contentious issues underlying the 1996 Act—the appropriate scope of the Commission's unbundling rules. I want to thank them for coming to the table in good faith and doing the painstaking work that consensus-building requires. Based on their work, I've circulated a Report and Order that would continue to modernize these requirements and would end unbundling and resale requirements where they stifle the transition to IP networks and broadband deployment. At the same time, it would preserve unbundling requirements where they are still necessary to realize the 1996 Act's goal of robust intermodal competition benefiting all Americans," he said (link in original).

The audio description item follows an NPRM issued earlier this year (TR Daily, April 23) that proposed expanding the agency's video description rules to an additional 40 broadcast television markets at the rate of 10 markets per year and to redesignate video description as audio description in its rules for the audio narration of key visual elements of programming inserted during pauses in dialog with the aim of making programming more accessible to blind and visually impaired individuals. Currently the rules apply to the top 60 markets.

In his blog post, Chairman Pai said, "[W]e'll vote on new rules to expand the Commission's video description regulations by phasing them in for an additional 10 markets each year for the next four years. Additionally, we'll be revising our rules to adopt the term 'audio description' instead of 'video description,' a recommendation made by disability rights advocates, including the Commission's Disability Advisory Committee. This will ensure that the Commission uses the terminology currently used throughout the federal government and the industry, providing consistency for everyone."

Mr. Pai also said the FCC "will vote on a Report and Order that would give AM broadcasters the option to convert to all-digital operations, which offer listeners a higher quality audio experience over a greater area."

Finally, the Chairman said the agenda would include "an Enforcement Bureau item, the details of which cannot be disclosed at this time." —Lynn Stanton, [email protected]wolterskluwer.com; Paul Kirby, [email protected]

MainStory: FederalNews FCC Courts NetNeutrality UniversalServiceLifeline SpectrumAllocation WirelessDeployment DisabilityAccess

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