CommLaw Monitor News and analysis from Kelley Drye’s communications practice group Mon, 15 Apr 2024 06:05:18 -0400 60 hourly 1 FCC Open Meeting Recap: March Sun, 24 Mar 2024 00:00:00 -0400 On this episode of Full Spectrum the Kelley Drye Communications team will be providing summaries of several of the items adopted by the FCC at its most recent open meeting on March 14th. Chip Yorkgitis, partner, will be discussing a number of rules the Commission adopted to create a voluntary cybersecurity labeling program for wireless consumer Internet of Things (IOT) products. Next, Mike Dover, special counsel, will discuss new requirements for cable and satellite TV providers to provide “all-in” pricing information for their video programming services. Third, Jenny Wainwright, senior associate, will be talking about the FCC’s findings following its most recent inquiry into whether advanced telecommunications capability (essentially broadband) is being deployed across the country in a reasonable and timely fashion. Finally, Chip will wrap up by going over some rules and proposals by the FCC aimed at enhancing network coverage for consumer handsets through better coordination between satellite and terrestrial networks.

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FCC Open Meeting Recap: February Wed, 21 Feb 2024 15:02:00 -0500 On this episode of Full Spectrum, partner Chip Yorkgitis, special counsel Mike Dover, and senior associate Jenny Wainwright provide an overview of four items adopted by the FCC at its most recent open meeting on February 15, 2024. First, Mike discusses a Notice of Proposed Rulemaking aimed at expanding accessibility of the emergency alert system (EAS) by facilitating dissemination of alerts in languages other than English (0:01:30). Second, Chip summarizes a Report and Order adopting rule changes that permit operations by Wireless Multichannel Audio Systems (WMAS), a new wireless microphone technology, in broadcast television and other Part 74 low-power auxiliary station frequency bands, as well as on an unlicensed basis (0:12:38). Third, Jenny outlines a Report and Order and Further Notice of Proposed Rulemaking to change robocall and robotext rules, specifically related to revocation of consent, pursuant to the Telephone Consumer Protection Act (TCPA) (0:26:10). Finally, Chip discusses a Notice of Proposed Rulemaking for licensing space stations engaged in in-space servicing, assembly, and manufacturing (ISAM) activities (0:37:43).

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REMINDER: Responses of All International Section 214 Holders to the Commission’s Mandatory Ownership Information Collection Are Due by January 22, 2024. Fri, 05 Jan 2024 16:01:00 -0500 In our postings last month, we shared the news that the deadline for responses to the Federal Communications Commission (“FCC”) mandatory ownership information collection (“Information Collection”) applicable to all holders of international Section 214 authority (“International 214 Holders”) has been set as January 22, 2024. We also circulated links to the guidance materials issued by the Office of International Affairs (“OIA”), including the December 13, 2023, Public Notice overview of the process, the detailed 24-page Handbook with a walk-through of responding to the information requests, and a link to the dedicated webpage established by OIA to gather all the related materials and information in one location. Responses are to be submitted through a newly created One-Time Information Filing System.

International 214 Holders that received a grant of authority from the FCC for a substantive (non pro forma) transaction, such as a transfer of control or an assignment, within the last three years may be eligible for an exemption and will want to examine the criteria for an exemption closely. International 214 Holders qualifying for the exemption will be able to file a considerably more streamlined response to the Information Collection requirement.

We remind International 214 Holders that before they can even begin to submit their responses, they must ensure that they have a current FRN (FCC Registration Number) associated in the International Communications Filing System, or ICFS, database with the specific international Section 214 authorization(s) for which responses are being submitted. Instructions for confirming this association are provided in both the Public Notice and the Handbook. Arranging new associations and/or correcting existing associations must be coordinated through FCC Staff. (The volume of requests for Staff assistance with the response process is likely to be high and parties should not delay in determining whether they will need such assistance and making the request.)

As discussed in our December 15, 2023, Advisory, we also remind parties needing to file responses that the One-Time Information Filing System appears potentially challenging in its logistical constraints. To minimize complications during the process, we recommend close review of the Public Notice and Handbook before submitting responses to the Information Collection.

The authors and other attorneys of Kelley Drye’s Communications Group are available to provide assistance to any International 214 Holders that have questions regarding their responses to the Information Collection.

FCC Issues Detailed Instructions for All International 214 Holders to Respond to the Commission’s Mandatory Ownership Information Collection (by January 22, 2024) Thu, 14 Dec 2023 17:08:00 -0500 In our post last week, we explained the deadline has been established for the Federal Communications Commission’s (“FCC’s” or “Commission’s) mandatory ownership information collection (“Information Collection”) applicable to all holders of Section 214 authority to provide international telecommunications services (“International 214 Holders”): January 22, 2024. We also explained that the FCC’s Office of International Affairs (“OIA”) would shortly issue a public notice with detailed instructions for submission of carrier responses. Well, that day has arrived. The OIA Public Notice was issued December 13, 2023, announcing the opening of a newly created One-Time Information Filing System (the “Filing System”). The Public Notice provides an overview of the process, supported by a detailed 24-page Handbook with a walk-through of the information requests. OIA also established a dedicated webpage on the Information Collection process, with additional materials and FCC contacts for assistance.

Based on our initial review of these materials, it appears that the filing process may prove cumbersome, regardless of the simplicity or complexity of a carrier’s specific ownership information. In our earlier posts on this subject, we encouraged International 214 Holders to begin collecting not only their direct ownership details but, perhaps more importantly, all indirect ownership, control, and investment management information. Foremost among the potential logistical challenges is resolution of any FRN-related issues. We emphasized that all International 214 Holders must respond to the Information Collection and that each must have an FRN in the FCC’s CORES system; however, the OIA’s instructions clarify that the FRN must also be associated in ICFS with the specific international Section 214 authorization(s) for which responses are being submitted. This association should be checked specifically by each responding International 214 Holder. Instructions for confirming this association are provided in both the Public Notice and the Handbook. Arranging new associations and/or correcting existing associations must be coordinated through FCC Staff, which may take some time if the level of requests is high, which might be the case because many Section 214 authorizations likely were issued many years ago.

In addition, use of the Filing System presents a number of somewhat cumbersome logistical aspects – e.g., users cannot go back through the program to correct responses on earlier screens. Instead, to effectively accomplish that, a special link must be requested by email from the Commission to view and modify the already completed screens. Responding International 214 Holders wishing to review their entire submission before certifying are advised to print (or screen-shot) each screen as they complete it because the total set of responses can only be printed after they are submitted. We find that various inadvertent keystrokes may cause the user to be “directed out of the form” and have to re-enter. Generally, users may reduce the risk of these technical “perils” by closely reading the instruction materials.

Every International 214 Holder is strongly recommended to closely review the Public Notice and Handbook before complying with the Information Collection, with particular attention to the discussion of the FRN-authorization association, and proceed to address any FRN association issues as soon as practicable.

Responses from All Holders of Section 214 Authority to Provide International Telecommunications Services to the FCC’s Mandatory Foreign Ownership Information Collection Are Due January 22, 2024 Fri, 08 Dec 2023 17:51:00 -0500 The FCC mandated, in an April 25, 2023, Order, that every holder of an international Section 214 authorization will be obligated to submit current ownership information identifying certain direct and indirect interest holders (the “Information Collection”) by a deadline that would be established by a later notice in the Federal Register. That notice was published in the Federal Register today, setting the deadline to respond to the Information Collection as January 22, 2024 (the “Response Deadline”). In a Supplemental Order (released on August 22, 2023), the FCC provided for a streamlining of the Information Collection limited only to certain holders whose foreign ownership has been reviewed by the Executive Branch agencies and approved by the FCC in the three years prior to the Response Deadline and which meet other criteria. Carriers that fail to respond in a timely fashion to the Information Collection risk monetary penalties and possible cancellation of their Section 214 authorizations.

We are providing an update to our May 2023 Frequently Asked Questions document regarding the Information Collection. The update reflects today’s Federal Register notice and the limited streamlining in the Supplemental Order.

A separate Public Notice is to be issued shortly by the FCC’s Office of International Affairs (“OIA”), reiterating the response deadline and providing further instructions, and a form, for response submissions. We will circulate and post a copy of the OIA Public Notice, when issued.

FCC Open Meeting Recap: October Tue, 07 Nov 2023 16:00:00 -0500 On this episode of Full Spectrum partners Tom Cohen and Chip Yorkgitis discuss the Notice of Proposed Rule Making adopted by the Commission at its October 19 Open Meeting in its newly-commenced Open Internet (or Net Neutrality) proceeding proposing to reclassify broadband Internet access service (“BIAS”) from a lightly regulated information service to a telecommunications service regulated under Title II of the Communications Act. The Commission’s Notice proposes to adopt Open Internet rules that are very similar to those previously imposed in 2015 and largely rescinded in 2017. Additionally, Chip discusses a Second Report and Order adopted at the Open Meeting (but only released on November 1) that expands unlicensed use in the 6 GHz Band in the face of opposition from licensed incumbents by permitting very low power devices to operate in two sub-bands both indoors and outdoors, and both fixed and mobile. He also explains that the Commission continues to consider other proposals to expand unlicensed power and flexibility – both from a 2020 Further Notice of Proposed Rulemaking and a Second Further Notice of Proposed Rulemaking that accompanies the Second Report and Order. Finally, Tom and Chip give a brief preview of the Digital Discrimination item that is on the Commission’s tentative agenda for its November 15 Open Meeting.

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FCC Open Meeting Recap: September Mon, 02 Oct 2023 08:00:00 -0400 On today’s episode of Full Spectrum, the Kelley Drye Communications teams will discuss a number of developments from the September FCC Open Meeting. First, Tom Cohen will briefly discuss the impact of a full Commission on the heels of an election cycle. Chip Yorkgitis (3:20) will follow up to discuss two Report and Orders related to satellite and space launches. Hank Kelly (21:02) will discuss the changes the Commission made to address direct access to numbers by interconnected VoIP providers. Finally, Mike Dover (31:18) will discuss the Notice of Proposed Rule Making establishing a 5G fund for rural America.

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FCC FY 2023 Regulatory Fees Are Due September 20, 2023: The Commission Registration System (Cores) Is Now Open For Payment Mon, 04 Sep 2023 00:00:00 -0400 The FCC released a Public Notice on August 28, 2023, announcing that the deadline for payment of regulatory fees by licensees and other regulatees is September 20, 2023. The FCC collects annual regulatory fees from most federal licensees and other regulated entities to offset costs associated with the FCC’s enforcement, public service, policy, and rulemaking activities. Fees vary by type of licensee or operating entity. Information regarding the fee schedule for providers of interstate and international telecommunications and telecommunications services, radio frequency spectrum licensees, broadcast licensees, satellite and earth station licensees, submarine cable operators, among others, and the payment process is provided in the Public Notice. The 2023 Fee Schedule is set out in Appendix C to the Regulatory Fees Order.

  • All regulatory fees are to be paid electronically through CORES.
  • The FCC will not issue bills for the regulatory fees and it is the payer’s responsibility to pay the fees owed (regardless of the amount posted in the CORES system).
  • Failure to meet the regulatory fee payment deadline will result in the assessment of late payment penalties, set by statute at 25%. The FCC does not ordinarily waive late payment penalties.

Please feel free to contact us if you have any questions about the FCC regulatory fee payment process.

FCC Rejects Request for More Time to Comment on the International Section 214 Notice of Proposed Rulemaking Wed, 23 Aug 2023 00:00:00 -0400 In a recent blog post and in our August 14, 2023, Advisory regarding upcoming FCC filings, we noted that the August 31st deadline for comments on the FCC’s Notice of Proposed Rulemaking (NPRM), adopted in IB Docket No. 23-119 and MD Docket No. 23-134, regarding possible significant changes to the regulatory framework governing International Section 214 authority was the subject of a motion for extension of the comment and reply comment deadlines. Today the Office of International Affairs (“OIA”) released an Order denying that motion. Consequently, the initial comments on the NPRM remain due by August 31, 2023 and the reply comments will be due by October 2, 2023.

In the same Order, the OIA adopted an exemption from the one-time information collection requirement the Commission adopted in April 2023, applicable to international Section 214 carriers, allowing certain affected carriers to respond on a streamlined basis. We will provide more details in a successive blog post, but briefly, the new Order provides that Section 214 carriers that filed certain types of applications within three years prior to the as-yet-to-be-determined deadline for the one-time information collection will be able to provide reportable foreign interest holder information on an aggregated basis rather than providing, as required of other international Section 214 holders, the identities, specific equity and voting interests, and descriptions of the controlling interests of reportable foreign interest holders. Finally, as noted in the Order, the information request will require additional review by the Office of Management and Budget prior to OIA’s announcement of the effective date and response deadline for the information collection, to be issued via publication in the Federal Register and as an FCC public notice at least thirty days before the applicable reporting deadline. We will keep you apprised.

USF News: FCC Announces Enhanced Alternative Connect America Cost Model Program Tue, 08 Aug 2023 00:00:00 -0400 On July 24, 2023, in a Report and Order, Notice of Proposed Rulemaking, and Notice of Inquiry (FCC 23-60), the Commission announced the Enhanced Alternative Connect America Cost Model (A-CAM) program to promote the deployment of 100/20 Mbps or faster service to all locations served by the program. In the Report and Order, inter alia, the Commission extended the term of support by 10 years for electing carriers, set a methodology for determining support amounts for locations without 100/20 Mbps broadband service, and made all current A-CAM recipients and rate-of-return carriers eligible to receive Enhanced A-CAM support. In the NPRM, the Commission seeks comment on how to address legacy rate-of return support mechanisms while avoiding unnecessary duplication of support in light of other available funding programs, and in the NOI, the Commission seeks information on methods for modifying the high cost program to promote affordable and available broadband services.

For a more in-depth look at July USF news and updates on pending appeals and guidance requests before the FCC relating to USF contributions issues, click here to read and subscribe to our monthly USF Tracker.

FCC Open Meeting Recap: August Mon, 07 Aug 2023 00:00:00 -0400 On today’s episode of Full Spectrum, the Kelley Drye Communications team will be discussing several of the matters raised at the FCC’s August 3, 2023, Open Meeting. First, partner Chip Yorkgitis covers a Notice of Inquiry that initiates a mostly technical inquiry into how to measure non-Federal spectrum usage as a prelude to future spectrum management decisions. Second, special counsel Mike Dover covers a Sixth Report and Order which implements the Affordable Connectivity Program (ACP) high-cost area benefit.

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Deadline in FCC’s Rulemaking Regarding International 214 Holders and Applications Established Mon, 31 Jul 2023 00:00:00 -0400 In an earlier blog, we summarized a Notice of Proposed Rulemaking (“NPRM”) the Federal Communications Commission “(FCC” or Commission”) released following its April 2023 Open Meeting. The NPRM foreshadows a potentially radical revision to the regulatory framework governing FCC authorizations for the provision of international telecommunications services under Section 214 of the Communications Act of 1934 (“Section 214”). As we noted, the FCC’s rulemaking is considering changes to almost every aspect of the authorization lifecycle that would create new and increased burdens which may complicate investment and transactional strategies. Providers of international telecommunications and would-be international Section 214 holders will want to take note. An advance notification released today indicates that the NPRM will be published in the Federal Register on August 1, 2023, which will establish the comment due date as Thursday, August 31, 2023. Reply comments will be due Monday, October 2, 2023.

FCC Open Meeting Recap: June Wed, 14 Jun 2023 17:55:42 -0400 On today’s episode of Full Spectrum, the Kelley Drye Communications team will be discussing several of the items adopted during the FCC’s June 8, 2023, Open Meeting. First, partner Chip Yorkgitis will cover a Notice of Proposed Rulemaking that will explore how spectrum in the largely unused 42.0-42.5 GHz band might be made available for a variety of licensed fixed applications, and possibly mobile operations as well, through one of several spectrum sharing access models. Second, special counsel Michael Dover will cover a Report and Order, NPRM, and Order concerning accessibility for video conferencing services and providing guidance relating to the definition of “interoperable video conferencing service” under the Twenty-First Century Video Accessibility Act.

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USF News: WCB Grants Limited, One-Time Waiver to Number of Lifeline Subscribers Tue, 13 Jun 2023 09:44:45 -0400 On May 30, 2023, the Wireline Competition Bureau (WCB), in an Order (DA 23-460) on its own motion, granted a limited, one-time waiver to a number of Lifeline subscribers who received incorrect information about the deadline for recertifying their eligibility for the Lifeline program. In letters from the Universal Service Administrative Company (USAC), these subscribers were informed that they had approximately 80 days in which to recertify their eligibility for the Lifeline program, rather than the 60- days provided for under the Lifeline program rules. Approximately 22,000 subscribers were sent a letter with the wrong recertification deadline.

For a more in-depth look at May USF news and provide and updates on pending appeals and guidance requests before the FCC relating to USF contributions issues, click here to read and subscribe to our monthly USF Tracker.

FCC Abandons 2015 Forfeiture Policy Statement in Favor of Case-by-Case Approach Tue, 30 May 2023 15:04:52 -0400 While no one is likely to bemoan the Federal Communications Commission’s (FCC’s or Commission’s) May 30, 2023, Memorandum Opinion and Order (MO&O) to vacate the 2015 Forfeiture Policy Statement that had adopted a methodology of treble damages for violations of rules requiring payments to the Federal Universal Service Fund (USF), other funds applicable to common carriers, annual FCC regulatory fees, some semblance of certainty of maximum penalties may have been lost. The Commission going forward will apply its discretion to determine forfeitures based on a review of statutory and rule-based factors, the Commission’s 1997 Forfeiture Guidelines, and “the individualized circumstances of each future adjudication.” In effect, this is what the FCC has been doing since it, according to the MO&O, has not actually applied the “treble damages” limit in the past eight years in any adjudication.

This last fact perhaps explains why the Commission had not acted on a 2015 petition for reconsideration (and a related stay request) challenging the 2015 Forfeiture Policy Statement filed by several leading wireless and wireline carrier trade associations, which the MO&O now dismisses as moot. However, the Commission, in effect, affirmed the applicability of its existing “continuing violations” treatment of unpaid or underpaid USF contributions, other fund contributions (to the Telecommunications Relay Service (TRS) Fund, Local Number Portability (“LNP”), North American Numbering Plan (NANP), and FCC regulatory fees. By finding the challenges in the foregoing petition to the treatment of fund and regulatory fee “payment failures” as continuing violations are outside the scope of the 2015 Forfeiture Policy Statement and the MO&O’s decision, the Commission left that treatment in place – namely that fees unpaid by the deadlines set under the FCC’s rules and orders result in continuing violation until paid even if past the one-year statute of limitations that otherwise generally applies to enforcement actions. This same continuing violation treatment, which was developed between 2006 and 2015, applies currently to failures to timely report the revenues on which fund contributions and regulatory fee payments are based.

The FCC notes that, in the future, it could conclude in its discretion that a forfeiture greater than that which the treble damages approach in the 2015 Forfeiture Policy Statement would have yielded. The Commission did not elaborate the type of circumstances which would yield such a significant forfeiture. Such cases are likely to be the exception rather than the rule. Keep in mind also that the statutory maximum’s for different types of forfeitures (depending on the nature of the enforcement subject) still apply.

While the issuance of the MO&O technically is something of a non-event because the 2015 Forfeiture Policy Statement was never relied upon by the Commission, the FCC’s reiterated commitment, at least for now, to apply a continuing violation treatment – like the suggestion that a specific enforcement adjudicated forfeiture could exceed a treble damages standard – is noteworthy. That commitment underscores the importance of accurate and complete reporting of assessable revenues on the FCC’s 499-A forms and prompt revisions in the event underpayments are found.

FCC Open Meeting Recap: May Sun, 21 May 2023 12:30:00 -0400 On today’s episode of Full Spectrum, the Kelley Drye Communications team will be discussing several of the matters raised at the FCC’s May 18, 2023 Open Meeting. First, Partner Chip Yorkgitis discusses the Commission’s Report and Order expanding unlicensed uses in the 60 GHz band (57-71 GHz). Chip also summarizes the Commission’s Report and Order declining to adopt rules to enable terrestrial mobile service in the 12.2-12.7 GHz Band and a related Further NPRM which will consider liberalizing licensed terrestrial fixed service rules in the band, and introducing unlicensed applications for the first time in this frequency range. Next, Special Counsel, Michael Dover, discusses Commission’s proposals relating to use of the 12.7-13.25 GHz Band for mobile broadband and other expanded services in a new rulemaking. Finally, Partner Hank Kelly examines the Commission’s Order, Further Notice, and Notice of Inquiry that would expand the Commission’s efforts relating to call blocking requirements to promote robocall mitigation.

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Podcast: FCC Open Meeting Recap: April Part 2 Sun, 07 May 2023 12:30:00 -0400 On this episode of Full Spectrum, we continue our coverage of the Federal Communications Commission’s April Open Meeting. Specifically, Partner Chip Yorkgitis will provide an overview of the FCC’s adoption of a Policy Statement addressing spectrum management principles that will guide the Commission in future spectrum proceedings. Chip will also summarize a Report and Order and Further Notice of proposed Rulemaking regarding the sharing of spectrum by non-geostationary satellite constellations.

On the prior episode, we discussed two items adopted by the FCC at the Open Meeting: one, the FCC’s proposed changes to the International Section 214 authorization regime applicable to providers of telecommunications services between the U.S. and other countries and, two, Commission proposals relating to expanded accessibility and transparency in the Wireless Emergency Alert program.

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FCC Considering Major Changes to Section 214 Application and Authorization Rules Thu, 04 May 2023 15:07:40 -0400 On April 25, 2023, the Federal Communications Commission “(FCC” or Commission”) released a Notice of Proposed Rulemaking (“NPRM”) that foreshadows a potentially radical revision to the regulatory framework governing the provision of international telecommunications services. Such services are regulated under Section 214 of the Communications Act of 1934 (“Section 214”), and the FCC’s rulemaking is considering changes to almost every aspect of the authorization lifecycle. If the proposed rules are largely adopted, following public comment and follow-on lobbying in the coming months, the result will be a substantially increased compliance burden for international telecommunications carriers which may complicate their investment and transactional strategies. Right now, this is a situation of a few “knowns” and a lot of open questions. (Note that the NPRM generally does not propose rule changes with regard to domestic (i.e., interstate) Section 214 authority obligations.)

Accompanying the NPRM was an Order that mandates a one-time data request for ownership information to all holders of international Section 214 authority. See our FAQs document describing the Order. The response deadline is not yet known as the Office of Management and Budget must first complete a review of the Order’s information collection obligations. The response deadline will be at least thirty days after the OMB review is completed as announced in the Federal Register.

The NPRM sets out a lengthy list of possible rule changes that would address some long-standing concerns of the Commission regarding the Section 214 regulatory framework. For example, the current international Section 214 process lacks standardized post-grant follow-up or monitoring. A 2020 report from a subcommittee of the U.S. Senate Committee on Homeland Security and Government Affairs emphasized the urgency of implementing some method to reliably monitor changes to international Section 214 carriers’ foreign ownership. The concern around lack of monitoring was further elevated by FCC proceedings in the past few years revoking the Section 214 authority of several carriers deemed to be agents of the Chinese government. As the Commission looks to collaborate more closely with Executive Branch agencies (i.e., the Committee for the Assessment of Foreign Participation in the United States Telecommunications Sector, commonly known as the Committee or Team Telecom) in addressing concerns of national security (as well as law enforcement, foreign policy and/or trade policy), the FCC appears to have come to the recognition that advancing these objectives is not served by a set-it-and-forget-it exercise triggered only by new applications or requests for approval when there are substantive changes in ownership and control.

Overview of the NPRM:

The NPRM is quite extensive and this article addresses only some of the principal highlights. Because of the broad range of proposals, this proceeding merits the attention of international Section 214 authorization holders.

1. Potential Section 214 Authorization Renewals:

Currently, there is no renewal requirement for international Section 214 holders of any kind. The FCC proposes to adopt a 10-year renewal requirement for all international section 214 authorization holders (but is open to comment on other renewal timeframes). The NPRM asks, if a renewal obligation is adopted, whether the time for renewal should be reset if the carrier undergoes a separate full FCC review prior to renewal, for example, in connection with a transactional application. The FCC seeks comment on what standards would apply to its review of a renewal application, what actions it could take in response to a renewal application (and would those differ depending on whether the underlying authorization was issued prior to the adoption of the new rules), and proposes that a carrier’s failure to file by the renewal deadline would result in automatic expiration of the authorization.

In connection with a prospective renewal requirement, the FCC further proposes to prioritize its focus on:

  • carriers with foreign ownership as being of the greatest concern for the FCC and the security agencies,
  • the length of time since the last substantive review of the authorization (i.e., initial grant, modification, assignment, or transfer of control),
  • whether the authorization is subject to a mitigation agreement (noting that older mitigation agreements tended to be more general in their particulars and less facilitative of effective Team Telecom verification).
  • carriers with no reportable foreign ownership, but whose authorizations raise other issues of concern for the FCC and the Executive Branch agencies.

The NPRM proposes streamlined processing for renewal applications where carriers have no foreign ownership. The FCC also seeks comment whether, in a renewal context, there are circumstances where it should rely upon prior national security determinations (by Team Telecom, presumably) to streamline review.

As with initial Section 214 applications with at least one 10% or greater direct or indirect foreign interest holder, the FCC proposes to routinely refer to Team Telecom any renewal application of an international carrier with reportable foreign ownership and those without foreign ownership that, in the FCC’s estimation, nonetheless raise other national security, law enforcement, or policy concerns.

As anyone familiar with the Team Telecom review process knows all too well, it is a protracted affair. Even with the institution of timelines for the completion of review, when a review actually begins (and the calendar starts running) is an uncertain matter. The NPRM proposes that a properly and timely filed renewal application will confer provisional continuing authority until the application is resolved which, if adopted, would ensure no gap in authority if the renewal review extends beyond the expiration date of the authorization subject to renewal.

While the NPRM focuses almost exclusively on international Section 214 authority, the Commission solicits comment on what effect, if any, the denial or revocation of a carrier’s international section 214 authority should have upon its domestic Section 214 authority.

2. Alternative Periodic Reviews:

The FCC seeks comment whether, rather than relying on a periodic renewal framework, it should instead adopt a putatively lighter-touch review framework, requiring carriers, say on an every-three-year basis, to submit much of the same information as would be required for a renewal application and with the same prioritization for review as proposed for the renewal protocol. The NPRM seeks comment on what actions the Commission could take after such a review. For example, what standards would apply to such a review and could the FCC revoke an authorization under certain circumstances upon completing the review, or would it have to specifically start a revocation proceeding?

3. Expansion of the Information Required in Section 214 Applications:

The FCC seeks comment on a number of proposed changes in the information that applicants for international Section 214 authority must submit with their applications, whether for initial authority, transaction approvals, or, if adopted, with renewal applications. (Note that the FCC adopted requirements in the 2020 Executive Branch Process Reform Order and the 2021 Standard Questions Order imposing on applicants for international section 214 authorizations or for FCC consent to transfers or assignments the requirement to include with their applications responses to standard Team Telecom questions. Some of the adopted rules from those Orders, including those related to this informational obligation, are not yet in effect.) These include new rules that would require applicants to:

  • Disclose 5% or greater direct and indirect equity and/or voting interests, a change which would align with the threshold applied by Team Telecom when it conducts reviews of FCC applications referred to it; currently, the threshold for disclosure is a 10% direct or indirect ownership interest. In that regard, the NPRM seeks comment on whether certain qualifying ownership interest management agreements should be disclosed, whether disclosure of certain interests from 5% to <10% should be treated as “presumptively confidential,” and whether the obligation to disclose interests below 10% should be limited to foreign interest holders or simply holders associated with foreign adversary countries (as defined by the Department of Commerce regulations – that is China (including Hong Kong), Cuba, Iran, North Korea, Russia and the Maduro Regime).

    It is also worth noting that the Commission inquires whether, if it adopts a 5% threshold for reporting foreign ownership in international Section 214 applications it should extend that requirement to submarine cable landing license applications. (We should mention that, otherwise, the NPRM does not expressly propose any changes to the submarine cable landing license regulatory framework, which is involved in many transactions involving international carriers when they are also subsea cable system operators. Like international Section 214 authorizations, submarine cable system authorizations are administered by the newly-minted Office of International Affairs.)
  • Provide, routinely, certain categories of information, so-called “specific information,” which FCC staff often requests on an ad hoc basis when reviewing Section 214 applications before putting them on public notice. This “specific information” might include details of the applicant’s current and future services, markets, customers, and provisioning (owned facilities, IRUs, leasehold interests or resale).
  • Identify foreign-owned or -controlled Managed Network Service Providers (“MNSPs”) they use, including applicants without reportable foreign ownership. The NPRM is also considering whether to refer any application to Team Telecom, even if the carrier does not or will not have disclosable foreign ownership interest, if it uses and/or will use foreign-owned MNSPs.
  • Provide detailed information regarding cross-border facilities an authorization holder uses or will use to provide Section 214 services between the United States and either Canada or Mexico (including address and coordinates for the facilities, owner information for each facility, and identification of the equipment to be used, among other data points). Indeed, the NPRM suggests the Commission may, in a future order, conduct a one-time information collection concerning cross border facilities. The proposed cross-border facility information rules would apply to both facilities-based and resale carriers, with correspondingly different requirements.
  • Certify as to commitments and practices for cybersecurity, whether the carrier uses equipment or services included in the Commission’s “Covered List” of equipment and services made or provided by objectionable entities (such as Huawei) established in connection with the Secure and Trusted Communications Networks Act, and as to compliance with FCC rules/regulations, the Communications Act and “other laws.” The Commission also seeks comment on whether to impose a new obligation on international Section 214 applicants as a condition of grant that they will not purchase or use equipment or services obtained from entities on the Commission’s “Covered List.”

4. Ensuring the Currency of Information through Updates

The NPRM seeks comment whether, in the scenario where the FCC adopts the proposed periodic renewal requirement, it should impose an ongoing obligation on international Section 214 carriers requiring them to submit reports every three years (or some other period) following the grant of a renewal application, until the next grant of a renewal application, which would reset the three-year reporting requirement. The reports, depending on the scope of any such rule adopted, could include ownership information, cross border facilities information, service and geographic market information, details of their data storage facilities, the foreign locations where U.S. records are stored and from where their U.S. infrastructure is or can be accessed, controlled and/or owned; and the countries in which their employees, subsidiaries, and/or offices are currently located. The NPRM asks a variety of questions about the contents of any ongoing reporting requirement. The Commission also is considering whether to include certifications regarding cybersecurity standards, use of “Covered List” equipment or services, regulatory compliance, and other information.

We note that the NPRM also suggests imposition of a series of overlapping reporting requirements in the event that, for example, during a Section 214 “license period,” there is a grant of authority to transfer control of a Section 214 authorization. We expect comments on the NPRM will forcefully address any such additional (and arguably duplicative) requirements, and carriers will seek to streamline any new ongoing reporting requirements (or oppose them altogether).

5. Additional Management of International Section 214 Authorizations:

The Commission also seeks comment on a variety of other possible rule changes that could impact carriers’ regulatory compliance (in addition to other administrative revisions and conforming changes to Parts 1 and 63 of the Commission’s Rules), including whether to adopt

  • a rule that would (with few exceptions) limit carriers to holding a single international section 214 authorization.
  • a “use it or lose it” rule that requires new international section 214 authorization holders to commence offering service pursuant to the authority within one year following grant and provide the Commission with notice of the same. (This would be similar to other FCC licenses with deadlines to build-out and/or operate.) In the absence of notice of operations, or a good-cause waiver filing, the FCC proposes to cancel the authorization.
  • a general presumption that the international Section 214 authority of carriers that fail to meet compliance filing requirements may be cancelled where, for example, there are no other signs that the carrier is still operating. The NPRM proposes that a public notice would be released regarding the proposed cancellation, allowing thirty days for the holder to respond.
  • a revised international services discontinuance Rule such that any authorization holder that permanently discontinues service provided pursuant to their international section 214 authority must notify the Commission and affirmatively surrender the authorization. In connection with this possible rule change, the NPRM seeks comment on whether to define permanent discontinuance of service as occurring following a period of three consecutive months during which the authorization holder does not provide any service under its international section 214 authority.

The NPRM will be established upon Federal Register publication, with comments due thirty days after publication and replies due sixty days after publication. These dates are not yet set. We expect, given the far reaching potential implications of the rule proposals that the NPRM will likely draw significant input from industry participants.

FCC Open Meeting Recap: April 2023 Part 1 Fri, 28 Apr 2023 17:43:29 -0400 On this episode of Full Spectrum, Senior Associate Winafred Brantl discusses the Commission's proposed significant changes to the International Section 214 regime. Responding to growing concerns regarding undisclosed foreign ownership of international Section 214 carriers, the FCC will conduct a one-time data collection from all international Section 214 authorization holders and has proposed a requirement for periodic renewals or reviews of international Section 214 authorizations as well. At the same time, the FCC proposes to expand the scope of information required in any international Section 214 application and to implement recurring update filing requirements. In addition, Special Counsel Mike Dover discusses the Commission's proposals relating to expanded accessibility and transparency in the Wireless Emergency Alert program.

Click here to listen to the full episode.

Full Spectrum’s FCC Open Meeting Recaps feature a first take and analysis following the FCC’s monthly Open Meetings, with an emphasis on the agenda items directly impacting our clients.

FAQs on FCC’s Mandatory Information Collection Requirement for All International Section 214 Carriers Sun, 23 Apr 2023 22:21:32 -0400 The Federal Communications Commission (“FCC”) adopted an Order on April 20, 2023 imposing a one-time ownership-related data request to which all holders of international Section 214 authority must respond. The due date for affected carriers to respond is not yet known and will be established after review and approval of the FCC’s Order by the Office of Management and Budget. Noncompliance will subject International 214 Holders to potential monetary and other penalties up to and including license revocation.

Members of Kelley Drye’s Communications Group have prepared a document answering Frequently Asked Questions regarding the Order. If you have a question not addressed in this document, please do not hesitate to reach out to one of the attorneys of the Kelley Drye Communications Group.

Read more here.