FCC Commissioners will consider at their June 9 meeting wireless infrastructure, Rural Digital Opportunity Fund, spectrum, ATSC 3.0, and enforcement items, FCC Chairman Ajit Pai announced today. The Commission plans to release the tentative agenda and draft items tomorrow.
The wireless infrastructure item is a declaratory ruling and notice of proposed rulemaking addressing petitions filed last year by the Wireless Infrastructure Association and CTIA. WIA filed petitions for rulemaking and declaratory ruling (TR Daily, Aug. 27, 2019), while CTIA filed a petition for declaratory ruling (TR Daily, Sept. 9, 2019).
“This latest attempt to modernize our wireless infrastructure rules will clarify the Commission’s interpretation of section 6409(a) of the Spectrum Act,” Mr. Pai said in a blog posting today. “That section provides in part that ‘a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.’ In plain English, we want to resolve uncertainty about section 6409(a) in order to expedite the process for state and local governments to review applications to deploy wireless infrastructure.”
WIA’s petitions asked the FCC to grant further relief under section 6409 of the Spectrum Act, which was part of the Middle Class Tax Relief and Job Creation Act of 2012. CTIA’s petition asked the Commission to clarify provisions of section 6409, as well as section 224 of the 1934 Communications Act, as amended.
“In a nutshell, the 5G upgrade order will make it easier for tower crews to upgrade sites that may have 3G or 4G today to 5G,” Commissioner Brendan Carr, the point person for wireless infrastructure issues, said in a briefing video today posted on Twitter. “This is going to help extend 5G builds, it’s going to add competition, it’s going to boost America’s first responders by giving them even more access to next-gen services, and it’s going to increase speeds.”
Mr. Carr is expected to discuss the item further tomorrow at WIA’s online Connect (X): All Access conference. Mr. Pai and Commissioner Mike O’Rielly also are scheduled to speak at the event.
In comments filed at the FCC, scores of municipalities and utilities asked the Commission to reject the petitions, saying they seek actions that are not necessary, would be contrary to the law and FCC precedent, and would intrude on local land use processes. But wireless industry entities asked the Commission to adopt the provisions (TR Daily, Oct. 30, 2019).
“WIA is thrilled that at its June meeting, the FCC will consider an Order to clarify Section 6409(a) to improve broadband siting policies,” said WIA President and Chief Executive Officer Jonathan Adelstein. “WIA has been working with the Commission since last year on modernizing wireless infrastructure rules to promote colocation and streamline the deployment of wireless networks.”
But National Association of Telecommunications Officers and Advisors General Counsel Nancy Werner had a different take.
“It’s disappointing that the Commission is moving forward with a declaratory ruling,” she said. “The industry petitions that prompted this action don’t provide any insight into the Commission’s thoughts on these issues, so we are left to guess how the rules might change. (I know they use the word ‘clarify,’ but if the Commission thinks clarification is required to address local permitting processes, then as a practical matter—and perhaps a legal one, too—we are talking about a change.) Given the tremendous burden local governments are under right now in dealing with the pandemic, it is unfortunate that the Commission is going to add to the load by issuing a new declaratory ruling that local governments will have to digest and implement with virtually no lead time. Though a new rulemaking process also requires scarce local government resources that are better directed elsewhere right now, at least we can review and comment on concrete proposals and have a better idea of what the Commission is considering than we’ve had so far in this docket.”
Gerry Lederer, a partner at Best Best & Krieger LLP whose clients include localities, said, “It is difficult to offer any intelligent reaction to a proposal having not yet seen it; still, many in local government will view having less than two weeks to review and comment on the proposal as a showing of bad faith on the part of the Commission and the industry.
“The local governments’ national organizations, and individual local government leaders, despite other pressing public health and public safety priorities, dedicated time and effort toward productive dialogue and sharing best practices for addressing wireless deployments in the era of Covid and shelter at home orders,” Mr. Lederer added. “And yet, not once during those conversations was there any effort to address the 6409 issues. Rather than jam this order through, I believe that the FCC could build on the foundation of good will from that dialogue and ask the parties to see if they can come to agreement on these issues. If such talks are unsuccessful, the Commission could also add the item to a future agenda.”
Chairman Pai has also circulated for the June meeting a draft public notice that would set out the procedures for the agency’s auction of $16 billion in RDOF Fund Phase I support (Auction 904). In his blog post, he indicated the start date for the auction is Oct. 29. In a March 2 public notice seeing comment on proposed procedures for the auction, the agency contemplated an Oct. 22 start date.
Phase I funding is intended for areas that the FCC’s current broadband location data indicate are wholly unserved at speeds of at least 25 megabits per second downstream/3 Mbps upstream. A future Phase II would distribute up to $4.4 billion, plus any undistributed support from the Phase I auction, to areas that are partially unserved.
Setting the bidding procedures at the June 9 meeting “will enable providers to start planning for the start of the auction in October by determining the amount of support they will need to provide a specified level of service to a specified set of eligible areas,” the FCC said in a press release on the draft public notice.
The draft public notice calls for an online auction application tutorial to be available by June 15; the short-form application (FCC Form 183) filing window to open July 1; the short-form application (FCC Form 183) filing window to close July 15; the auction bidding tutorial to be available online by Oct. 14; a mock auction to begin Oct. 26; and the auction to begin Oct. 29, according to the press release.
The press release notes that “[t]hose wishing to participate in this auction would be required to submit the short-form application (FCC Form 183) electronically prior to 6:00 p.m. EDT, on July 15, 2020, and comply with all applicable Commission rules, including the requirement to abide by the Commission’s National Security Supply Chain proceeding.”
Chairman Pai noted in the press release that the COVID-19 pandemic “highlights the need for the Commission to continue its work to ensure that all Americans have access to high-speed broadband as soon as possible.”
In his blog post, Chairman Pai said, “From 2016 to 2018, the number of Americans without access to 25/3 Mbps fixed broadband service fell by more than 30%. During that same time period, the number of Americans with access to 250/20 Mbps fixed broadband service more than doubled. And 2018 and 2019 were record years for fiber deployment in the United States.”
He added, “But despite these gains, we still have more work to do, and our primary vehicle for closing the remaining connectivity gap is our Rural Digital Opportunity Fund. … At our upcoming open meeting on June 9, …. [w]e will be voting on the auction procedures for Phase I of the Rural Digital Opportunity Fund, which will target up to $16.4 billion over 10 years to deploy broadband networks in wholly unserved areas covering nearly six million unserved homes and businesses. Adopting these auction procedures now will allow service providers that hope to bid in the auction to start planning for the upcoming October 29, 2020 start date. We are moving forward quickly in order to make sure that areas we know don’t have broadband service—where as many as 11.7 million Americans live and work—get it as quickly as possible.”
Mr. Pai also circulated an NPRM concerning the 70/80/90 gigahertz bands.
Mr. Pai said the item would “explore innovative new uses of the 71–76 GHz, 81–86 GHz, 92–94 GHz, and 94.1–95 GHz bands, collectively known as the 70/80/90 GHz bands. In particular, we will be seeking comment on potential rule changes for commercial users to facilitate the provision of wireless backhaul for 5G, as well as the deployment of broadband services to aircraft and ships, in these bands. Because this is co-primary spectrum for federal and non-federal users, we will coordinate any proposed rule changes with affected agencies through the National Telecommunications and Information Administration.”
Chairman Pai also circulated a draft declaratory ruling to clarify how TV station ownership rules apply to the lease of spectrum to provide broadcast Internet services, which will be enabled by the next-generation ATSC 3.0 broadcast TV standard, as well as a draft NPRM seeking comment “on the extent to which the Commission should clarify or modify its existing rules in order to further promote the deployment of Broadcast Internet services as part of the transition to ATSC 3.0,” he said in the blog.
Mr. Carr is the point person for that item as well. He discussed it this afternoon at an event organized by the National Association of Broadcasters and the Consumer Technology Association. His office also released a press release on the item.
“The Declaratory Ruling would ensure that Broadcast Internet services are not weighed down by legacy media regulations by clarifying that the FCC’s broadcast television station ownership rules do not apply to leasing arrangements between broadcasters and third parties for the provision of Broadcast Internet services,” the press release said. “This will help ensure that market forces determine the highest and best use of Broadcast Internet services and allow innovators to generate the geographic footprint that may be needed to deliver competitive offerings.”
“Broadcast Internet services are poised to offer a new and competitive broadband pipe,” Commissioner Carr said in the press release. “These services can leverage the power and coverage of broadcast television spectrum to deliver high-speed, 25 Mbps Internet services.”
“Broadcast Internet could play a pivotal role in autonomous vehicles, IoT, smart ag, and telemedicine, among other applications,” the Commissioner said. “These new Broadcast Internet offerings are part of a broader trend we’re seeing in communications. From innovative 5G offerings to high-capacity fixed services, providers from previously distinct sectors are competing like never before to offer high-speed Internet services through a mix of different technologies. ATSC 3.0 is the technology that will allow broadcasters to play an even greater role in this converged market for connectivity.” Mr. Pai also said that the June meeting agenda would include an unspecified Enforcement Bureau item. The Commission typically does not release details on parties or alleged violations in an enforcement item before it has been adopted. —Paul Kirby, [email protected]; Lynn Stanton, [email protected]
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