CommLaw Monitor https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor News and analysis from Kelley Drye’s communications practice group Wed, 03 Jul 2024 05:35:33 -0400 60 hourly 1 FCC’s March Open Meeting Highlights 3.45 GHz Band Auction https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/fccs-march-open-meeting-highlights-3-45-ghz-band-auction https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/fccs-march-open-meeting-highlights-3-45-ghz-band-auction Thu, 11 Mar 2021 14:42:47 -0500 The FCC released the agenda for its next Open Meeting, scheduled for March 17, 2021. The March meeting will notably include a Report and Order that would reallocate 100 megahertz of prized mid-band spectrum in the 3.45 GHz band through Auction 110, and propose a band plan for the new 3.45 GHz flexible use wireless service aimed at supporting 5G technologies. The FCC will also consider a Public Notice for Auction 110 that would seek comment on appropriate auction application and bidding procedures. While the FCC is required to start the auction by the end of 2021, the agency expects Auction 110 to begin in October 2021. The 3.45 GHz band items are the product of long-term FCC, NTIA, and DOJ collaboration to open frequencies currently used by federal agencies for shared use by commercial wireless providers. The FCC also teed up a Report and Order that would increase public safety officials’ access to network reliability information by providing direct access to Network Outage Reporting System (“NORS”) and Disaster Information Reporting System (“DIRS”) data. In addition, the FCC will consider a Notice of Proposed Rulemaking that would propose reforms to the agency’s Emergency Alert System (“EAS”) and Wireless Emergency Alerts (“WEA”) System to facilitate comprehensive and timely emergency alerts for mobile devices. Lastly, the agency will consider a Notice of Inquiry on the status of open radio access networks (“Open RAN”) that virtualize certain network infrastructure, potentially increasing communications security.

You will find more details about the most significant items on the March meeting agenda after the break.

3.45 GHz Band Plan – The Report and Order would reallocate 100 megahertz of spectrum in the 3450-3550 MHz (3.45 GHz) band for flexible use wireless service and adopt a band plan as well as performance requirements to implement the new 3.45 GHz service. This framework would enable full-power commercial use while including protections for federal incumbents when and where they require access to the band. The FCC is required by statute to start an auction to grant new flexible use licenses in this band by December 31, 2021. The FCC also would propose modifying the licenses of secondary, non-federal radiolocation operations in the 3.45 GHz band to a new 2.9-3.0 GHz band assignment.

3.45 GHz Auction – The Public Notice would propose application and bidding procedures for the new flexible use licenses in the 3.45 GHz band through Auction 110. The FCC expects the auction to begin in early October 2021. Auction 110 would offer up to 100 megahertz of spectrum on an unpaired basis, divided into five 20-megahertz blocks licensed by Partial Economic Area. The Public Notice would seek comment on the proposed auction procedures, with comments due April 14, 2021 and reply comments due April 29, 2021.

Promoting Public Safety Through Information Sharing – The Report and Order would provide direct, read-only access to NORS and DIRS information for state, federal, local, and Tribal partners to increase public safety data sharing while preserving the confidentiality of providers’ network information. Agencies receiving the information would be permitted to share the NORS and DIRS data with agency officials, first responders, and individuals on a need to know basis, and publicly disclose aggregated and anonymized information derived from NORS or DIRS filings. The Report and Order would create an application process to grant agencies access to the information following a certification process to maintain the confidentiality of the information and databases.

Improving EAS and WEA – The Notice of Proposed Rulemaking (“NPRM”) would implement section 9201 of the National Defense Authorization Act and initiate a proceeding to ensure that mobile devices cannot opt-out of receiving WEA alerts from FEMA. The NPRM also would propose to amend annual reporting requirements for state EAS authorities, enable reporting of false EAS and WEA alerts by the FEMA Administrator as well as state, tribal, and local governments, and require repeating EAS messages when necessary. In an associated Notice of Inquiry, the FCC would seek further comment on delivering and improving EAS messages through Internet platforms, including streaming services.

Promoting Open RAN Networks – The Notice of Inquiry would ask for input on the status of Open RAN and other virtualized network environments. Specifically, the FCC asks for information about the current state of such technologies, what steps are required to deploy and scale Open RAN networks, and how deployment of these Open-RAN-compliant networks could benefit the agency’s policy goals and statutory obligations to increase the security of the nation’s communications networks. The FCC intends for carriers to consider and use the information developed in this proceeding to inform their approaches to next-generation equipment and services.

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FCC Opens New Chapter in Repurposing Spectrum in the 3 GHz Band https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/fcc-opens-new-chapter-in-repurposing-spectrum-in-the-3-ghz-band https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/fcc-opens-new-chapter-in-repurposing-spectrum-in-the-3-ghz-band Thu, 10 Sep 2020 20:25:45 -0400 In the wake of the recent completion of the 3550-3650 MHz auction of Priority Access Licenses (“PALs”) in the Citizens Broadband Radio Service (“CBRS”) making 70 megahertz of so-called mid-band spectrum available, and the adoption of the regulatory framework in the 3700-4200 MHz band that will make available another 280 megahertz for flexible use commercial wireless operations, the FCC has announced its intention to take significant steps in realigning the 3450-3550 MHz range for non-federal flexible fixed and mobile use on a shared basis with existing federal radiolocation operations. On September 9, 2020, the FCC made available a draft Report and Order and Further Notice of Proposed Rulemaking (“Order and FNPRM”) on which it will vote at its September 30 Open Meeting. This document follows closely on the heels of the FCC’s June 2020 notification to the National Telecommunications and Information Administration (“NTIA”) of a plan to commence an auction in December 2021 for flexible use licenses within the contiguous United States (“CONUS”) in the 100 megahertz of the 3450-3550 MHz band. In July 2020, the NTIA issued a report concluding that 3450-3550 MHz “is a good candidate for potential spectrum sharing, including at the commercial system power levels sought by the wireless industry.” For its part, the Department of Defense (“DoD”), a primary user of the 3450-3550 MHz band, announced earlier this summer that it had devised a sharing framework for this spectrum and will undertake the work needed to prepare the spectrum for auction in this very aggressive time frame.

As the DOD completes its efforts to enable sharing with non-federal terrestrial communications systems, the FCC will consider an Order to adopt its proposal to remove the secondary, non-federal radiolocation and amateur service allocations from 3300-3550 GHz as a first step toward making additional spectrum available for commercial wireless communications and federal/non-federal sharing. The draft Order would allow incumbent licensees to continue in-band operations on a time-limited basis while the FCC finalizes plans to reallocate 3450-3550 MHz. In general, the FCC seeks to maximize the entire 3100-3550 MHz band for potential flexible use operations in the future. Accordingly, non-federal radiolocation licensees in the 3300-3550 MHz range would be transitioned to the 2900-3000 MHz radiolocation band on a secondary basis, and amateur licensees currently in 3300-3500 MHz would have to move to other existing amateur radio allocations they choose. Moving existing radiolocation operations below 3000 MHz is characterized as a measure to retain the potential for future flexible use licensing of the 3100-3300 MHz band, in addition to 3300-3550 MHz. The draft Order would also permit continued experimental radiolocation operations under Part 5 – something that Lockheed Martin and Boeing pushed for ­­– under the same limitations as they are allowed in other flexible use bands requiring operations on a non-interference basis.

The FNPRM would seek comment on proposed subsequent steps: allocation changes to enable future commercial flexible use (except aeronautical mobile) where possible on an exclusive, not shared basis; coordination frameworks between flexible users and federal incumbents; relocation logistics for non-federal secondary users (amateur radio operators and non-federal radiolocation); and technical, licensing, and operating rules for new flexible use licensees including possible protections to flexible use licensees in the 3450-3550 MHz band from federal operations in adjacent bands, i.e., below 3450 MHz and above 3550 MHz. The FNPRM proposes licenses issued by auctions in 20 megahertz blocks on an exclusive geographic basis. The proposed sharing mechanism, on which the FCC would seek comment, would prohibit incumbent federal systems operating in the 3450-3550 MHz band from causing harmful interference to co-band non-federal operations in the band, except that non-federal systems would not be entitled to protection from federal operations and may be subject to other restrictions (1) in to-be-established limited Cooperative Planning Areas, such as military training facilities, test sites, Navy home ports, and shipyards; (2) in Periodic Use Areas where DoD will need episodic access to all or a portion of the band; and (3) during times of National Emergency.

The FCC hopes that federal agencies will file transition plans for the 3450-3550 MHz band by April 2021 and that licensed flexible use operations will commence as soon as early 2022.

Meanwhile, this is not necessarily the final chapter of opening up spectrum for flexible use in the 3 GHz Band. NTIA’s July 2020 report suggested that some federal/non-federal spectrum sharing below 3450 MHz might be possible, but would require additional analysis. The report identified four principal areas for further exploration of additional sharing in 3100-3450 MHz: (1) a more in-depth assessment of the extent each of the federal systems is used; (2) the development of a reliable mechanism for commercial operations to coordinate when federal systems are operating; (3) assessment of the potential for relocating federal systems, including nationwide airborne systems; and (4) consideration of improved out-of-band emission limits for commercial operations. As noted above, the FCC’s proposals in the draft Order and FNPRM anticipate prospects for making even more 3 GHz flexible use spectrum available in the future.

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Comment Date on Refresh of Team Telecom Reform Proceeding Approaches https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/comment-date-on-refresh-of-team-telecom-reform-proceeding-approaches https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/comment-date-on-refresh-of-team-telecom-reform-proceeding-approaches Wed, 10 Jun 2020 08:55:36 -0400 The Federal Communications Commission (“FCC”) seeks to refresh the record in a long-dormant 2016 proceeding that sought to lend greater certainty to reviews by the group of Executive Branch agencies informally referred to as “Team Telecom.” As we discussed in a prior post, an April 4, 2020 Executive Order 13913 (“E.O. 13913”) formalized Team Telecom – including naming it, officially, the “Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector.” Despite E.O. 13913 conferring some structure on the Team Telecom review process, many aspects of the review process remain to be developed. Intent on lending a helping hand filling in gaps, the FCC seeks comment on whether and how E.O. 13913 affects the 2016 proceeding proposals. The 2016 proceeding floated some proposals that would be broadly applicable, such as new certifications for all applicants not just those involving disclosable levels of foreign ownership, the usual trigger for Team Telecom review. Consequently all licensed providers may want to assess if this proceeding warrants a close look.

For those interested in participating, comments and replies are due by June 18, 2020 and July 2, 2020, respectively.

To those unfamiliar with Team Telecom reviews, the FCC refers to Team Telecom applications it receives for international Section 214 or submarine cable licenses, as well as applications to assign or transfer control of such licenses, where an applicant has ten percent (10%) or greater direct or indirect foreign ownership. Team Telecom reviews the applications for law enforcement and national security concerns. Any company that has undergone a Team Telecom review knows that the experience can be lengthy and require assembly of copious amounts of information and responses to numerous questions. The FCC’s 2016 proceeding included numerous proposals, including some from the National Telecommunications and Information Administration that were submitted on behalf of Team Telecom, to reform Team Telecom reviews by providing structure and greater transparency. Although E.O. 13913 established some review timelines and framed out certain processes to guide Team Telecom reviews, many aspects of the review process remain to be developed, especially as they impact the Commission or applicants. And, while it is not surprising that the FCC might want to provide insight to Team Telecom as the latter works to implement E.O. 13913, the FCC’s reopening of the 2016 proceeding is intriguing for a number of reasons.

Notably, the FCC’s comment request, while open to the public, expressly invites Team Telecom to comment on E.O. 13913’s effect on the FCC’s 2016 reform proceeding proposals. The FCC’s public notice poses several questions directly to Team Telecom members, including, among others, whether Team Telecom still proposes that all applicants make certain certifications with their FCC applications and whether those certifications have changed from those proposed in the 2016 proceeding. The proceeding refresh timing also is somewhat unusual. E.O. 13913 gave Team Telecom 90 days – or until July 3 – to develop an implementation plan covering certain aspects of the review process. However, the FCC tees up review process questions, such as distribution of Team Telecom data requests to applicants, whether applicants will submit responses when applications are first filed, etc., that Team Telecom presumably will only address in its implementation plan several weeks after the initial comments are due. Finally, the FCC’s request for general comment on whether E.O. 13913 needs “further or different rules to improve timeliness and transparency” may signal a belief that there is room for improvement even under the new Team Telecom review structure.

Although some of the FCC’s comment requests are directed at Team Telecom, telecommunications industry participants should consider if they have ideas or concerns to include in the record. Some proposals included in the 2016 Team Telecom reform proceeding, and for which the Commission again seeks comment, could have broad applicability. One such proposal would require that all applicants, even those without foreign ownership, certify that they will make communications within, to, or from the United States and related records subject to legal process and will appoint a U.S. citizen or lawful permanent resident, located in the United States, to execute such legal process. Similarly, industry members may want to address certain of the 2016 proceeding proposals in light of new regulatory changes such as the Clarifying Lawful Overseas Use of Data Act (the “CLOUD Act”) which could affect an applicant’s ability to make certain certifications.


Kelley Drye continues to monitor the new Team Telecom and the developing review process. Please reach out to us or your usual Kelley Drye attorneys if you have any questions.

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Section 230 Executive Order Strikes Back at Twitter, But Legal Impact Likely to be Limited https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/section-230-executive-order-strikes-back-at-twitter-but-legal-impact-likely-to-be-limited https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/section-230-executive-order-strikes-back-at-twitter-but-legal-impact-likely-to-be-limited Tue, 02 Jun 2020 19:26:05 -0400 In a move spurred by Twitter’s decision to fact-check a pair of President Trump’s tweets, the president recently signed a multi-pronged “Executive Order on Preventing Online Censorship” with the claimed intention of stopping online platforms from making content moderation decisions that discriminate against particular viewpoints. The President, along with other conservative political figures and commentators, have frequently claimed that social media platforms have used content moderation practices to stifle conservative speech. The Executive Order ("EO") evokes the First Amendment, calling online platforms the 21st century “public square,” where people go to express and debate different views, and saying the allegedly biased content moderation practices undermine that free expression.

The most controversial aspects of the order are its interpretation of Section 230 of the Communications Decency Act ("CDA")—the statutory provision that shields online service providers from liability for user-generated content and the decisions they make about how to moderate that content—and its attempt to prompt the Federal Communications Commission ("FCC") to adopt regulations further interpreting the law. Reform of Section 230 has been under consideration in Congress for years, with Republicans and Democrats both offering different—and mostly contrary—critiques about how online platforms have failed to act in accordance with the statute while also benefitting from the liability protections.

Other directives in the EO attempt to elicit other parts of the federal government to discipline online platforms for their content moderation practices. Absent Congressional action, the EO’s directives appear to stand on shaky legal ground and are likely to have limited legal impact. However, the issuance of the EO alone may be unlawful, at least according to a complaint challenging the constitutionality of the EO filed with the U.S. District Court in D.C. by the Center for Democracy & Technology ("CDT"). According to the complaint, the EO violates the First Amendment, which strictly limits the government’s ability to abridge speech, by retaliating against Twitter for exercising its right to comment on the President’s statements and because it “seeks to curtail and chill the constitutionally protected speech of all online platforms and individuals” by demonstrating the government’s willingness to retaliate against those who criticize the government.

Seeks to “Clarify” the Scope of Section 230 Immunity Through FCC Regulations

Section 230 gives online service providers immunity from liability in two ways. First, Section 230(c)(1) says that online services are not the “publisher or speaker” of the user content they host. Publishers and speakers can be held liable for language that is, for example, libelous or defamatory. This clause prevents online services from being subject to lawsuits making such claims, while preserving the ability to bring direct suits against the users who actually generate the content. Second, Section 230(c)(2) says that online service providers cannot be held liable for “any action voluntarily taken in good faith to restrict access to or availability of material that [it] considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” This clause is designed to prevent online services from being deemed publishers when they make decisions about what user-generated content to remove. Its intent originally was to remove disincentives for online service providers to employ blocking and filtering technologies to protect children from online pornography.

The EO purports to clarify the scope of the immunity available under Section 230. Specifically, the EO says that online providers are not acting in “good faith” when they claim to be forums for free and open speech but instead engage in “deceptive or pretextual actions (often contrary to their stated terms of service) to stifle viewpoints with which they disagree.” According to the EO, under these circumstances, the online services are editorializing and therefore acting as publishers, in which case, the EO says the online services should lose their immunity under Section 230(c)(2). This interpretation, which is largely contrary to more than two decades of court precedents, would effectively mean that online services could be held liable for all the content their users post if it is determined their content moderation practices are biased.

To effectuate this interpretation, the EO sets out two directives. First, it directs “all executive departments and agencies [to] ensure that their application of section 230(c) properly reflects the narrow purpose of the section.” This directive is unlikely to carry any weight as Section 230 is not applied by federal agencies, but by courts, which are not subject to presidential directives. Second, the EO directs the National Telecommunications Information Association ("NTIA") to, within 60 days, file a petition for rulemaking asking the FCC to propose regulations to further clarify the circumstances under which an online service can lose its liability protection when it “restricts access to content” in a manner not specifically protected by subparagraph (c)(2)(A),” and the conditions under which such restrictions are not made in “good faith.”

Absent additional authority delegated by Congress, the FCC is unlikely to actually implement such regulations. The Commission has been reluctant to extend regulation to edge providers, such as online platforms, and its legal authority to do so has been debated. While the CDA technically added Section 230 into the Communications Act—the FCC’s regulatory sandbox—the Communications Act does not have any legal hooks that allow the agency to regulate online platforms and Section 230 itself does not provide the agency with any such independent authority. Tellingly, the FCC did not implement Section 230 in 1996 when the provision was added to the Act and does not have any rules on its books that interpret Section 230. Even if the FCC does have such authority, current leadership has already made clear, in the Restoring Internet Freedom order, that it does not want the agency to be the arbiter of neutrality for Internet service providers, which it ostensibly has the authority to do, let alone the arbiter of neutrality by online platforms, over which it has no explicit authority. While all five Commissioners released statements after the EO, three Commissioners expressed opposition or strong skepticism of the “good faith” concept. Thus, even if NTIA were to file a petition for rulemaking, new rules appear unlikely.

Other Directives in the Executive Order

While the directives above have received the most attention, the EO includes four other directives designed to penalize online platforms that engage in alleged viewpoint discrimination.

  • Review Government Spending to Online Platforms – The EO directs executive branch departments and agencies to, within 30 days, assess their advertising and marketing spending on online platforms and report their findings to the Office of Management and Budget, while also directing the Department of Justice to “review the viewpoint-based speech restrictions imposed by each online platform identified in the report[s]” and assess whether any “are problematic vehicles for government speech due to viewpoint discrimination, deception to consumers, or other bad practices.” Conspicuously absent is an actual directive for departments and agencies to limit federal spending to such online platforms.
  • FTC Review of Content Moderation Practices – The EO directs the Federal Trade Commission ("FTC") to “consider taking action” using its authority under Section 5 of the FTC Act to determine whether online platforms have engaged in unfair or deceptive acts or practices by “restrict[ing] speech in ways that do not align with those entities’ public representations about those practices,” which is something the FTC was already permitted to do. The FTC is also required to consider whether to develop a report describing the apparent 16,000 complaints that the White House received through its “Tech Bias” reporting tool.
  • State Review of Content Moderation Practices – The EO directs the Attorney General to establish a working group to assess potential enforcement of state statutes prohibiting unfair or deceptive acts or practices against online platforms, develop model legislation for states that do not have such authority, and collect information regarding various practices by online platforms that could amount to viewpoint discrimination.
  • Federal Legislation – The EO directs the Attorney General to “develop a proposal for Federal legislation that would be useful to promote the policy objectives” of the EO.
Initial Reactions and Potential Outcomes

The order has garnered substantial criticism from online industry advocates and civil liberties groups alike. Among the online platforms, Twitter seemed undeterred by the EO, calling it a “reactionary and politicized approach” and promptly labeling another Trump tweet for glorifying violence in violation of its terms and conditions. Meanwhile, Facebook CEO Mark Zuckerberg, while critical of the EO, also critiqued Twitter’s actions, saying that social media companies should not be the arbiters of truth.

Initial reactions from the FCC Commissioners have been mixed. Republican Commissioner Carr was most supportive of the move, saying he welcomed the EO and its call for guidance on the “good faith” limitation in Section 230. Democratic Commissioner Rosenworcel had a contrary take, saying the EO would turn the FCC into the “speech police.” Both Commissioner Starks (a Democrat) and Commissioner O’Rielly (a Republican) avoided any direct criticism of the EO but affirmed the First Amendment’s important role in the issue. Chairman Pai largely stayed out of the fray, saying that the agency would “carefully review any petition for rulemaking” filed by NTIA. NTIA has not commented on the Executive Order.

The FTC commissioners have been silent on the EO, but the agency’s spokesperson, Peter Kaplan, said that “[t]he FTC is committed to robust enforcement of consumer protection and competition laws, including with respect to social media platforms, and consistent with our jurisdictional authority and constitutional limitations.”

Any substantive action at the FCC is likely months away, at best. NTIA has until July 27, 2020, to file its petition with the FCC, on which the FCC has no obligation to act. If the agency does respond, it may seek comment on whether to initiate a rulemaking first, before initiating a Notice of Proposed Rulemaking. Given the constitutional implications, the FTC may also hesitate to act in accordance with the EO. Regardless, we don’t expect any substantive action in 2020, if at all, particularly in light of the pending legal challenge by CDT. In the meantime, the impact of the EO will largely be political, not legal, while the purpose, meaning and fate of Section 230 is almost certain to be debated in Congress for years to come.

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FCC Adopts Limited Sharing Arrangements in the Upper 37 GHz and 50 GHz Bands https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/fcc-adopts-limited-sharing-arrangements-in-the-upper-37-ghz-and-50-ghz-bands https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/fcc-adopts-limited-sharing-arrangements-in-the-upper-37-ghz-and-50-ghz-bands Tue, 30 Apr 2019 19:41:32 -0400 At its April Open Meeting, the FCC approved a Fifth Report and Order (“R&O”) in the Spectrum Frontiers Proceeding that adopted sharing rules in two settings. The new rules will allow the federal government to deploy, in limited circumstances, additional station sites in spectrum to be auctioned for flexible mobile and fixed use in the 37.6-38.6 GHz frequency range (the "Upper 37 GHz Band”). The rules also will allow fixed satellite service (“FSS”) operators to individually license earth stations in the 50.4-51.4 GHz band (the “50 GHz Band”) while the FCC considers whether spectrum in the 50 GHz Band should also be auctioned for flexible mobile and fixed use. By acting now on these matters, the Commission intends to help provide Upper Microwave Flexible Use Service (“UMFUS”) providers with certainty regarding their potential future use of the spectrum before the auctions commence.

The FCC, following National Telecommunications and Information Administration (“NTIA”) recommendations, established a little less than a year ago coordination zones for non-Federal licensees to protect fourteen existing Department of Defense (“DoD”) sites where fixed and/or mobile operations are present and three active Federal scientific services sites which will enjoy co-primary status in the Upper 37 GHz Band. (In response to an NTIA request, the R&O also added a small coordination zone around a new location, the Edwards Air Force Base in China Lake, California, and the FCC consolidated four of the existing coordination zones that were overlapping into one single area under the China Lake site.)

The R&O noted that the new rules would supplement that effort and facilitate the ability of Federal agencies to add future sites on a coordinated basis. While the 37.0-37.6 band (the “Lower 37 GHz Band”) has long been targeted for coordinated co-equal, or co-primary, sharing between Federal and non-Federal users as part of the Spectrum Frontiers proceeding (although certain details are still being worked out), DoD has more recently informed the FCC that the capacity available in the Lower 37 GHz Band would not be sufficient in all locations and that it requires the flexibility to deploy additional sites in the Upper 37 GHz Band. That spectrum will be a part of the auction that also includes the 39 GHz and 47 GHz Bands (specifically 38.6-40.0 and 47.2-48.2 GHz). The FCC’s motive for adopting rules to facilitate DoD growth and sharing is to minimize possible uncertainty that potential bidders may have about the coordination rules for the Upper 37 GHz Band.

The DoD spectrum leaders have for some time been pushing for reverse sharing, whereby the military services could get access to spectrum within frequencies used predominantly by the commercial mobile industry. This new framework—much of it contained in a letter to the FCC from NTIA—is a measured step in that direction, but not likely the complete fulfillment of DoD’s vision in this regard. In the R&O, following a Third Further Notice of Proposed Rulemaking in the Spectrum Frontiers matter issued in June 2018, the FCC adopts a process in conjunction with the NTIA to allow the DoD to deploy to add sites in the Upper 37 GHz Band in select circumstances and modifies some of the arrangements related to the existing coordination zones. In addition, new procedural arrangements reflected in the rules allow DoD to provide its request for access to the Upper 37 GHz Band to the FCC for specific additional military bases and ranges for the limited purpose of defense applications or national security.

Such requests will be considered under a new coordination process that would only allow DoD access to the Upper 37 GHz Band when the proposed military operation could not be accommodated with the Lower 37 GHz Band spectrum. DoD will need to provide information to justify the necessity of its request for access to the Upper 37 GHz Band. Under the new process, FCC staff would review any request for the potential impact on non-Federal licensees and determine whether the request can to be accommodated without creating a risk of harmful interference to current or planned non-Federal deployments. Respecting the non-jurisdiction of the FCC over the DoD, the FCC will determine whether the request for access can be accommodated without creating a significant risk of harmful interference to current or planned deployments by non-Federal licensees. The NTIA, given its authority over Federal use of spectrum, would provide the applicable military departments with any new or revised frequency assignments once they are successfully coordinated with the FCC.

The approach adopted in the R&O differs from the original fourteen military sites mentioned above because it would involve DoD coordinating its use with non-Federal licensees rather than the other way around. This may be small victory for the DoD to gain access to non-Federal spectrum (outside of secondary market transactions, which present another option for access) that will, in all likelihood, go to members of the commercial mobile industry. While the Commission relates its expectation that such requests by DoD will be “relatively rare,” it may be a small sign of something that may be seen more frequently. The Repack Airwaves Yielding Better Access for Users of Modern Services Act of 2018, or the RAY BAUM’S Act of 2018, requires the Commission and NTIA to complete a bidirectional sharing study to determine the best means of providing Federal entities flexible access to non-Federal spectrum on a shared basis across a broad range of timeframes, including for intermittent purposes like emergency use.

In addition, the R&O amends existing rules in the 50 GHz Band to enable FSS operations with a limit of no more than three earth stations in any county and no more than fifteen in any Partial Economic Area (“PEA”). A notable number of FSS non-geostationary orbit (“NGSO”) satellite operators seeks access to this band, among others, as part of their applications with the FCC. The deployments would be subject to certain technical rules, including population coverage areas related to their -77.6 dBm/m2/MHz PFD contours, and certain geographic restrictions, designed to prevent the earth stations from being deployed in more urban environments where UMFUS deployments are considered more likely. These limits parallel geographic-quantitative limits the FCC has established in other high frequency bands, such as the recently auctioned 34 GHz Band (24.25-24.45 and 24.75-25.25 GHz) and the 39 GHz Band. The FCC acknowledges that part of this band and an adjacent band (51.4-52.6 GHz) are still under consideration in the FCC’s Spectrum Frontiers proceeding for possible UMFUS licensing. However, the FCC concluded that the question of FSS operations’ freedom to deploy earth stations in the band could be resolved now because “a limited number of individually licensed FSS earth stations can share the 50.4-51.4 GHz band with minimal impact on terrestrial operations in this band,” extending the conclusions it reached in those lower bands.

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Federal Register Thaw: Dates Set for Comments in the FCC’s 3.7-4.2 GHz Band Rulemaking https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/federal-register-thaw-dates-set-for-comments-in-the-fccs-3-7-4-2-ghz-band-rulemaking https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/federal-register-thaw-dates-set-for-comments-in-the-fccs-3-7-4-2-ghz-band-rulemaking Tue, 28 Aug 2018 17:41:01 -0400 After almost two months of anticipation, the Federal Register is expected to publish the Notice of Proposed Rulemaking (“NPRM”) concerning the future use of 3.7-4.2 GHz (the “4 GHz Band”) by the mobile, fixed, and satellite services released by the FCC on July 13, 2018. The August 29 publication in the Federal Register will establish the comment and reply comment dates as Monday, October 29, and Tuesday, November 27, 2018.

There will be plenty for interested parties to comment on, as we discussed in an earlier blog post providing an overview of the draft NPRM, which was largely retained in the document finally adopted. The FCC is considering myriad options to restructure that spectrum to introduce commercial flexible mobile use and fixed point-to-multipoint operations while protecting incumbent fixed satellite service uses and grandfathered point-to-point licenses. The 4 GHz Band is commonly recognized by the mobile industry, the FCC, and others, as a key mid-spectrum band for next-generation networks and applications, including 5G and the Internet of Things.

It’s worth keeping in mind several other related upcoming deadlines, one definite and the other not yet established. Operators of existing earth stations operating in the 4 GHz Band that are not yet licensed or registered – but which were constructed and operational by April 19, 2018 – have until October 17, 2018, to apply for the license or register. Already, it is reported that several thousand earth stations have taken advantage of the opportunity, but time will soon be running out for those earth station operators that have not taken advantage of the time-limited relief provided by the FCC from its temporary freeze on new registrations and license applications. (Applications for new space stations as well as new fixed point-to-point links are also temporarily frozen, but without exceptions.) For those operators of earth stations that are not yet registered or licensed that want to be considered for protection from interference under any new rules in the 4 GHz Band, this may well be your final opportunity to secure protection. The FCC has proposed making the freezes permanent. Remember that the FCC has waived the typical requirement for coordination reports with the registrations or license applications.

In addition, the date for complying with the certification and information collection requirements applicable to earth station and space station operators adopted in the Order accompanying the NPRM has not yet been set. Compliance with the information collection requirements may be critical to receiving whatever protections the FCC may afford existing fixed satellite service operations. On August 20, the Order was published in the Federal Register which requires: (1) certification by earth stations registered or licensed before April 19, 2018; (2) the submission of certain information by operators of temporary fixed and transportable earth stations; and (3) information applicable to licensed space stations. Earth stations licensed or renewed under the temporary filing window through October 17 will not be subject to the certification requirement. (In contrast with the draft NPRM, the final NPRM adopted by the FCC excluded the upfront collection requirements for operators of 4 GHz Band earth stations other than the temporary fixed or transportable variety, leaving potential collection requirements as something to be considered later in the rulemaking after a record of the need for such data is created and reviewed.) These information collection requirements are subject to the Paperwork Reduction Act and won’t become effective until approved by OMB and a subsequent notice is released setting the compliance date, a process which could take a couple of months or longer. For now, there is not a whole lot to do but wait for that process to play out, although it might be good idea to start gathering the information, particularly for entities that have a lot of earth stations subject to the requirements.

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Fluid and Frozen: FCC Ponders Best Path Forward for 4 GHz Band https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/fluid-and-frozen-fcc-ponders-best-path-forward-for-4-ghz-band https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/fluid-and-frozen-fcc-ponders-best-path-forward-for-4-ghz-band Mon, 02 Jul 2018 17:32:46 -0400 The Federal Communications Commission (“FCC”) recently took steps to preserve the status quo for existing users in the 3.7-4.2 GHz band (the “4 GHz Band”) while it considers myriad options to restructure that spectrum for commercial flexible mobile use and more intensive fixed use. The FCC appears set to move forward with deliberation while it considers modifications to the regulatory structure in the adjacent 3.5 GHz Band (3.55-3.70 GHz). Both bands are touted by the mobile industry, and the FCC itself, as key mid-spectrum bands for next generation networks and applications, including 5G and the Internet of Things.

Many other countries are moving forward with plans to make these and/or nearby frequencies available for 5G this year or shortly thereafter, underscoring the FCC’s drive to move forward expeditiously. However, given the variety of views regarding the 4 GHz Band generated in the 2017 Mid-Band Notice of Inquiry (“Mid-Band NOI”), as well as in response to the recent FCC public notice seeking comment to help prepare the report to Congress on the 4 GHz Band required by the recently-passed RAY BAUM’S Act, there is every reason to expect that the precise outcomes of this proceeding will remain uncertain for some time despite the general move toward making more spectrum available for flexible use applications.

The agency’s most significant recent action was to release a public draft of a Notice of Proposed Rulemaking and Order (“Draft NPRM”) that it plans to vote on at its upcoming July 12 Open Meeting. As a general matter, the Draft NPRM makes plain the FCC has before it three primary objectives which, in both the near- and long-term, may be in tension:

  • Add a primary mobile allocation to the band (except aeronautical mobile) and propose to clear at least part of the band for flexible mobile use “beginning at 3.7 GHz and moving higher up in the band as more spectrum is cleared.”
  • Consider rule changes that “promote more spectrum efficient and intensive fixed use of the band on a shared basis starting in the top segment of the band [i.e., near and below 4.2 GHz] and moving down the band,” namely point-to-multipoint (“P2MP”) services.
  • Protect incumbent operations – fixed point-to-point and fixed satellite service (“FSS”) – in the band.
The resolution of these tensions and weighing the current and potential future uses is the key task before the FCC. An exact mix of how the two types of services – flexible mobile and point-to-multipoint – will share access to the band (and protect incumbents) is not spelled out in the Draft NPRM. The resolution of these competing objectives promises for a fluid, if not contentious, proceeding as there are a host of differing positions put forth by the mobile industry (led by CTIA), the Broadband Access Coalition, members of the satellite industry, and others. Tellingly, the Draft NPRM reflects many options for licensing (auctions and non-auctions), service, and coordination rules.

As the FCC recognizes, key challenges will be “to protect existing earth station users while limiting uses that would hamper new intensive terrestrial use of the band” and what protection should be afforded existing fixed microwave links. The FCC will tackle the relative obligations and/or rights that each category of protected incumbents may have under each approach for more intense terrestrial use of the band and determine which, if any, categories of incumbents must new flexible use licensees relocate and under what standards, terms, or rules.

The challenge of protecting earth station users will require information the FCC does not yet have. The same day the FCC released the Draft NPRM, the International Bureau extended by 90 days the recently opened temporary filing window – from the original July 18 deadline to October 17, 2018 – for existing earth station operators to license or register earth stations in the 4 GHz Band that currently are not licensed or registered. When that window was open, the FCC froze all new FSS earth station and fixed microwave link applications and registrations, as applicable, in the 4 GHz Band. Further, the International Bureau, also on June 21, simultaneously issued a second public notice announcing a temporary freeze, effective immediately, on the filing of new space station license applications and new requests for U.S. market access through non-U.S.-licensed space stations to provide service in the 4 GHz Band.

The ostensible purpose of the earth station filing window afforded to operators is to allow the FCC to better understand the extent to which the band is used prior to making changes that could impact those uses. While almost 5,000 earth stations were licensed or registered as of the time of the freeze, many were not. Estimates are that there may be thousands of stations that are not in the database, but were constructed and operational, in use for a variety of non-governmental (e.g., video content) and governmental purposes (e.g., environmental and meteorological data and alerts).

The proof may be in the pudding, meaning the number of station operators that take advantage of the filing window. The Draft NPRM states the FCC’s tentative conclusion to not afford interference protection of any kind to earth station operators who do not both license or register existing operations by the October 17 deadline and also respond to an additional information request (and requirement for a certification of construction and operational status) that the Draft NPRM would direct the International Bureau, the Wireless Telecommunications Bureau, and the Office of Engineering and Technology to issue in a subsequent public notice. Indeed, the Draft NPRM seeks comment on making the freezes permanent (both for earth stations and space stations). The FCC appears to have concluded tentatively that limiting new earth stations in this manner would provide a stable spectral environment for more intensive terrestrial use, an issue to be resolved in the rulemaking based, in part, on the data collected. To complement the data collected as a result of filings made during the current limited window and in response to the forthcoming public notice contemplated by the Draft NPRM, the FCC intends to consult with the National Telecommunications and Information Administration and affected Federal agencies regarding the Federal entities, stations, and operations in the 4 GHz Band.

In addition to better understanding FSS use, the FCC concludes that co-channel sharing between incumbents and mobile services is not feasible, and seeks comment on different proposals to clear all or part of the band for flexible mobile use. Echoing some of the considerations that are in play in the contentious Ligado license modification proceedings, i.e., in the 1675-1680 MHz band where Ligado hopes to gain access to spectrum currently used for the downlinking of GOES-R weather data by transitioning satellite users to a terrestrial content delivery network, the Draft NPRM asks whether there are alternative technologies and means by which earth station operators can retrieve their information currently made available via 4 GHz Band FSS.

One last item of note: The Draft NPRM has its roots in the record developed in response to the FCC’s 2017 Mid-Band NOI, which sought to obtain information on existing and proposed uses of spectrum between 3.7 GHz and 24 GHz in the search for additional spectrum for flexible use. The Mid-Band NOI sought specific comment on the 4 GHz Band, as well as the “6 GHz Bands,” in particular 5.925- 6.425 GHz and 6.425-7.125 GHz. The Draft NPRM does not extend to the 6 GHz Bands, but foreshadows that the FCC “may address” these and other mid-band spectrum “in subsequent items.” Given the strong interest in the 6 GHz bands by advocates of unlicensed operations, and the FCC’s general goals of making unlicensed spectrum available along with licensed frequencies, those subsequent actions may be coming to an FCC Open Meeting soon.

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Comment Deadlines Set for FCC Rulemaking Seeking to Expedite the Team Telecom Application Review Process https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/comment-deadlines-set-for-fcc-rulemaking-seeking-to-expedite-the-team-telecom-application-review-process https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/comment-deadlines-set-for-fcc-rulemaking-seeking-to-expedite-the-team-telecom-application-review-process Wed, 20 Jul 2016 13:54:17 -0400 As Kelley Drye reported in an earlier post, the Federal Communications Commission (FCC) is moving quickly on efforts to expedite review of certain FCC applications, including, but not limited to, Section 214 and submarine cable-related applications, by the Executive Branch agencies known as Team Telecom. In a May 2016 request to the FCC, the National Telecommunications and Information Administration (NTIA) suggested applicants be required to include information addressing several topics typically reviewed by Team Telecom and make certain compliance certifications in initial application filings. In response to NTIA’s Request, the FCC released a Notice of Proposed Rulemaking (NPRM) in June, seeking comment on a number of issues such as the confidentiality of application information, timeframes for Applicant responses to Team Telecom questions, exemptions for Applicants with existing mitigation agreements and the scope of the proposed application information requirements. See our post on the NPRM for additional details.

The NPRM was published yesterday in the Federal Register resulting in a comment date of August 18, 2016 and a reply comment date of September 2, 2016. All industry participants contemplating actions requiring applications impacted by the proposed rules should consider if they want to share their views on whether the proposed rules will expedite and clarify the Team Telecom review process or if the burdens will outweigh the benefits.

Should you have any questions about this proceeding and what the proposed rules may mean for your business, feel free to contact a member of Kelley Drye’s Communications practice group.

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FCC Proposes Rules to Expedite Initial Stages of the Team Telecom Application Review Process https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/fcc-proposes-rules-to-expedite-initial-stages-of-the-team-telecom-application-review-process https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/fcc-proposes-rules-to-expedite-initial-stages-of-the-team-telecom-application-review-process Tue, 28 Jun 2016 13:27:10 -0400 World Global ConnectionsThe Federal Communications Commission ("Commission" or "FCC") is looking to jump start the initial steps of the Executive Branch process of reviewing certain applications, including Section 214 and submarine cable-related applications. In a May 2016 request from the National Telecommunications and Information Administration ("NTIA"), NTIA proposed rule changes designed to facilitate more rapid opening stage review by the Executive Branch agencies known as Team Telecom (which includes the Departments of Justice, Homeland Security, Defense, Commerce, State, Federal Bureau of Investigation, and United States Trade Representative) of certain applications. Toward that end, last Friday, the FCC adopted a Notice of Proposed Rulemaking ("NPRM") soliciting comments on rules to expand the information required when certain applications are filed. The proposed rules would potentially have broad applicability, including some rules extending to applications lacking traditional levels of reportable foreign ownership. Both domestic and international carriers and submarine cable operators should review the NPRM to determine if participation in the proceeding would advance their interests. Comments and reply comments will be due, respectively, within 30 and 45 days of NPRM publication in the Federal Register.

As we noted previously, NTIA requested the Commission consider adopting new rules to streamline review by Team Telecom. The potentially affected applications include those seeking a grant of or consent to transfer control of or assign international or domestic 214 authority, seeking a grant of or consent to transfer submarine cable licenses or satellite earth station licenses, or requesting a Section 310(b) foreign ownership ruling ("Covered Applications").

The NPRM notes the FCC's anticipation that Team Telecom review would be rare but determined that, from 2013-2015, nearly 20% of applications were referred to Team Telecom. Chairman Wheeler notes this review takes, on average, 250 days, however, there is great variability as some applications can take well more than a year for Team Telecom to complete its review. As a result, the FCC solicits comment on proposals to improve the timeliness and transparency of the Team Telecom referral and review process. First, the Commission asks whether applicants with reportable direct or indirect foreign ownership should provide information about ownership and network operations (“Threshold Information") when they file Covered Applications with the Commission. The information is not currently required under the Commission’s rules but Team Telecom seeks it in requests issued directly to affected applicants after the Commission refers the application to Team Telecom. The Commission proposes to review responses to these threshold questions for completeness before forwarding to Team Telecom. The idea is that the Commission would, at least in part, render more automatic the current process for obtaining Threshold Information, which is not subject to any particular schedule after an application is referred to Team Telecom.

Second, the Commission proposes that all applicants, even those without any measure of direct or indirect foreign ownership certify at the time they file Covered Applications that they will comply with certain law enforcement requirements (the “Law Enforcement Compliance Certification”).

Third, and this would be the most far-reaching of the Commission’s proposals, the NPRM proposes a ninety (90) day timeline for Team Telecom to complete its review, with an additional one-time ninety (90) day extension in rare circumstances, provided Team Telecom demonstrates a need for additional time and provides a status update every thirty (30) days.

Some of the NPRM’s key proposals and questions include, but are not limited to, the following:

Proposals:

  • Provision of Threshold Information would not be presumed confidential as it is when applicants today respond directly to Team Telecom requests; applicants would have to seek confidential treatment of the responses.
  • Applicants would have seven (7) days to respond to Team Telecom follow-up questions or a draft mitigation agreement unless an extension of time was granted and any such extension would stop the ninety (90) day review clock.
  • An Applicant’s failure to provide any Threshold Information, provide a complete Law Enforcement Compliance Certification or respond to follow-up Team Telecom questions in a timely fashion would be grounds for dismissal of the Covered Application with the ability to refile.
  • International 214 and submarine cable license applications with foreign ownership that are referred to Team Telecom would be processed on a non-streamlined basis. This would also include any transaction involving joint domestic and international section 214 authority.
Questions:
  • Should earth station applications continue to be excluded from referral to Team Telecom unless the applicant also requests a Section 310(b) foreign ownership ruling?
  • Do NTIA’s proposed categories of Threshold Information exceed the current scope of information collected by Team Telecom?
  • Should applicants with existing Letters of Assurance (LOA) or National Security Agreements (NSA) be exempted from some or all of the proposed Threshold Information requirement at the time an application is filed?
  • Are there any categories of applications with foreign ownership, i.e., pro forma transactions, applicants with existing LOAs/NSAs, etc. that should be exempt from referral to Team Telecom?
In another initiative, not directly related to the NTIA request, the FCC proposed to require applicants seeking to obtain or transfer international or domestic 214 authorizations or submarine cable licenses to include voting interest information for all individuals and entities with ten percent (10%) or greater, direct or indirect ownership interest in the applicant. The submarine cable license rules currently require disclosure of voting interest in the cable segments but neither the submarine cable license rules nor the Section 214 licensing rules requires disclosure of voting interest in license applicants. The Commission noted that the licensing rules were established at a time when equity and voting interests were usually the same and that, while some applicants provide voting interest information in their applications, staff often has to contact applicants to request the information. Such applications would also be required to include diagrams identifying all ten percent (10%) or greater direct or indirect voting or equity ownership interest holders.

All FCC licensees or industry participants contemplating actions requiring Covered Applications will want to pay close attention to this proceeding and decide if they want to share their views on whether such proposals will help expedite Team Telecom review or whether the costs of the additional information requirements will outweigh any benefits of the proposed more transparent review process.

We will continue to monitor the proceeding and post updates as developments occur.

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NTIA Suggests Steps to Expedite Executive Review of Applications for Section 214 and Submarine Cable Act Authority; FCC Seeks Comment https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/ntia-suggests-steps-to-expedite-executive-review-of-applications-for-section-214-and-submarine-cable-act-authority-fcc-seeks-comment https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/ntia-suggests-steps-to-expedite-executive-review-of-applications-for-section-214-and-submarine-cable-act-authority-fcc-seeks-comment Sun, 15 May 2016 20:58:41 -0400 World Global ConnectionsThe “Team Telecom” review process of applications involving foreign ownership has long endured a reputation for excessive length and opacity. It appears change may be on the horizon. The National Telecommunications & Information Administration (NTIA) filed a letter (NTIA Letter) on May 10, 2016 with the Federal Communications Commission (FCC or Commission) requesting the Commission require applicants for certain authorizations, including international 214 authorizations and transfers, section 310 license ownership rulings, submarine cable landing licenses and satellite earth station authorizations, submit additional information and certifications with their applications. NTIA asserts that submitting this information and certifications upfront will streamline the Executive Branch agency review process. Today, those reviews are undertaken by the Departments of Justice, Homeland Security, Defense, Commerce, State, Federal Bureau of Investigation, and United States Trade Representative (Team Telecom).

In response to the NTIA Letter, the Commission released a Public Notice late last week seeking comments on NTIA's request. The Commission suggested that any comments received would inform the Commission’s planned formal rulemaking proceeding. The FCC seeks comments on or before Monday, May 23, 2016.

As NTIA explains, under the current review process for applications involving reportable foreign ownership under the FCC’s rules, the FCC refers the application and seeks input from Team Telecom on national security and law enforcement issues. Typically, when Team Telecom initiates its review, it requests information from the applicant(s) beyond what is required in the FCC applications by issuing its so-called “triage questionnaire.” Team Telecom’s initial set of questions typically follows a set model, with some variations in particular circumstances, and responses are submitted under protection of confidentiality.

The NTIA proposal seeks to streamline the initial steps in this supplemental information gathering by requiring that certain information be submitted with the initial application rather than later as part of the Team Telecom triage questionnaire process. NTIA proposes the Commission require applicants to provide certain information about the corporate structure and shareholder information; relationships with foreign entities; financial condition and circumstances; compliance with applicable laws and regulations; and business and operational information, including services to be provided and network infrastructure. While the above categories are among those usually covered in the triage questionnaire, the list does not cover all of the usual triage questionnaire categories.

NTIA also requests that the Commission require applicants to agree to and certify compliance with what NTIA refers to as “routine national security and law enforcement mitigation measures.” NTIA anticipates and suggests this upfront certification could eliminate the need for mitigation - often takes the form of a national security agreement (NSA) or letter of assurance (LOA) - for a significant number of applications. The proposed certifications would address compliance with the Communications Assistance for Law Enforcement Act; would commit applicants to make certain categories of communications and records subject to lawful requests under U.S. law; and commit an applicant to establish a U.S. point of contact for the execution of such lawful requests.

Providers with international or submarine cable authorizations or who plan to seek such authorizations should consider participating in either or both the informal comment process and the future formal rulemaking proceeding. The Administration’s proposed requirements would place extra burdens on carriers’ initial application submissions and require more extensive certifications than currently required, placing the Team Telecom review burden on all qualifying applicants. However, some carriers may appreciate the chance, as a matter of standard procedure, to address sooner rather than later parts of the Team Telecom triage process.

Carriers will want to pay close attention to this proceeding and consider sharing in comments with the Commission exactly what such additional requirements will mean in terms of burden, implementation, and compliance.

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White House Announces ConnectALL Initiative to Spur Broadband Deployment and Adoption https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/white-house-announces-connectall-initiative-to-spur-broadband-deployment-and-adoption https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/white-house-announces-connectall-initiative-to-spur-broadband-deployment-and-adoption Thu, 10 Mar 2016 13:22:55 -0500 funding_opportunity_v1r1The Administration continues to drive efforts to spur broadband deployment across the country and to ensure that all Americans have access to affordable broadband service. Yesterday afternoon, President Obama announced ConnectALL, an effort aimed at connecting 20 million more Americans to broadband by 2020.

This announcement builds on the successes of ConnectED, the White House effort with the Department of Education and Federal Communications Commission (FCC) which brings broadband access to 20 million K-12 classrooms and libraries, and ConnectHome, the White House effort with the Department of Housing and Urban Development (HUD), which brings 28 communities together to ensure kids living in public housing have reliable access to get online and do their homework. ConnectALL integrates these efforts into a comprehensive approach to making broadband available and accessible to all Americans by:

Submitting Formal Recommendations to the FCC Proceeding on Modernizing Lifeline

Under ConnectALL, the Department of Commerce's National Telecommunication & Information Administration (NTIA) submitted formal recommendations, on the Administration's behalf, to the FCC on modernizing the Universal Service Lifeline program. NTIA recommended that the FCC maintain support for affordable voice service and create a process to periodically assess and calibrate the Lifeline subsidy, noting that $9.25 may not be adequate to foster the zero-to-low cost options that will encourage the level of adoption required to bridge the digital divide. NTIA also argued that the FCC should further examine costs and benefits before imposing minimum service standards for broadband, stating that Lifeline consumers should have the ability to use their subsidy to purchase the broadband services that meet their needs.

Releasing a Study on the Economic Benefits of Broadband

The Council of Economic Advisors (CEA) released a new study on the economic importance of broadband. Building on data from the Department of Commerce's 2014 American Community Survey and CEA's prior research, the study highlights the progress made in connecting Americans to broadband while noting a significant digital divide. The study finds while 75% of American households subscribe to an internet connection, under half of households in the bottom income quintile use the Internet at home compared to 95% of households in the top income quintile. The study also highlights that broadband can improve labor market outcomes, increase economic growth, provide access to better health care and enhance civic participation. Addressing the digital divide will require a focus on affordability through policies that promote competition, access to devices and digital literacy.

Increasing Access to Digital Literacy Training and Devices

The Corporation for National and Community Service and the Institute of Museum and Library Services are launching a Digital Literacy Pilot Project. AmeriCorps VISTA members will support libraries, museums and community organizations located in tribal and rural areas to build capacity and enhance existing digital literacy training.

To increase access to devices, the General Services Administration (GSA) is re-engineering its Computers for Learning Program, which provides surplus federal computer equipment to schools and libraries. GSA will expand Computers for Learning to more organizations providing digital literacy training for low-income Americans.

Empowering Communities to Accelerate Broadband Planning

In yesterday's blog post, I discussed NTIA's Community Connectivity Initiative, designed to help local communities accelerate local broadband planning efforts. The White House announcement highlights those organizations who are partnering with NTIA's BroadbandUSA to help develop and design the Community Connectivity Initiative:

American Library Association; Blandin Foundation; ConnectME Authority; EveryoneOn; ICMA, The International City/County Management Association; National Association of Counties; National Association of Telecommunications Officers and Advisors; National Digital Inclusion Alliance; National League of Cities; New America's Open Technology Institute; Next Century Cities; NTCA-The Rural Broadband Association; Schools, Health and Libraries Broadband Coalition; and US Ignite

Additionally, the initial communities supporting the effort are:

Ammon, ID; Arvada, CO; Baltimore, MD; Bettendorf, IA; Boston, MA; Charlotte, NC; Greenbelt, MD ; Hopewell, VA.; Hot Springs, AK.; Hurst, TX; Kansas City, MO.; Kenmore, WA; Lenexa, KS.; Oak Harbor, WA; Putnam, CT; SeaTac, WA; Red Wing, MN; Sammamish, WA; and Seattle, WA.

This initiative is designed as a public-private partnership. Any private sector entities interested in participating should plan to attend the half-day workshop on March 22 in Seattle, Washington or alternatively, either of the webinars scheduled for March 24 and April 12.

We expect to see more activity from the Administration on the broadband front in the coming months and will continue to monitor these efforts.

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NTIA's BroadbandUSA Announces a Community Connectivity Initiative Workshop, one of the Recommendations from the Broadband Opportunity Council https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/ntias-broadbandusa-announces-a-community-connectivity-initiative-workshop-one-of-the-recommendations-from-the-broadband-opportunity-council https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/ntias-broadbandusa-announces-a-community-connectivity-initiative-workshop-one-of-the-recommendations-from-the-broadband-opportunity-council Wed, 09 Mar 2016 17:06:19 -0500 This monfunding_opportunity_v1r1th marks the one year anniversary of the Presidential Memorandum that created the Broadband Opportunity Council (Council), a federal inter-agency council, tasked with using all available and appropriate authorities to identify and address regulatory barriers to broadband deployment and adoption. My former BroadbandUSA colleagues at the Department of Commerce's National Telecommunications & Information (NTIA) are quite busy implementing the recommendations from the Council's Report (Report), released last year.

In just a few weeks, BroadbandUSA will host a half-day workshop on the Community Connectivity Initiative, designed to enable local leaders to better assess their community connectivity and strengthen efforts to align broadband technology with local policies and priorities. The March 22nd workshop, to be held in Seattle, will engage stakeholders in developing meaningful measures for community broadband access, adoption, policy and use. Specifically, participants will have the opportunity to share insights and suggestions on the design of the program. Several weeks later, on March 24 and April 12, BroadbandUSA will host two follow-up webinars.

The Report recommended that NTIA, with support from the White House Office of Science and Technology Policy (OSTP) and National Economic Council (NEC):

"convene a series of stakeholder forums to develop an index program that encourages advancements and investments in community connectivity. Stakeholders will include private, public, philanthropic and nonprofit groups with interests in leveraging broadband to support innovation, economic growth and digital inclusion. The index program will identify indicators of community connectivity in a range of categories related to broadband deployment, competition, and adoption, such as average broadband speed and adoption rates, local/regional policies that support broadband, digital inclusion policies, public access points and online applications such as telehealth, digital learning or e-government."

The Report identified the goals of the program as 1) providing a framework and tools for communities to learn about the factors that influence a community’s connectivity; 2) mobilizing community action and coordination to improve connectivity; 3) encouraging and recognizing innovative policies and programs; and 4) attracting economic development and investment.

Companies, non-profits and other entities with an interest in public-private partnerships that focus on bringing broadband to communities across the country, whether urban, rural or Tribal, as well as those seeking to use broadband as a means to improve outcomes in health, education, public safety, civic engagement and economic development should consider attending either the in-person workshop or one of the webinars to share expertise and determine whether to participate in the Community Connectivity Intuitive.

The Workshop will be held from 8:30 a.m. to 12:00 noon PST in the Chief Seattle Conference Room of the Federal Office Building (FOB), 909 1st Avenue, Seattle, WA 98174. NTIA will also host a first webinar on March 24, 2016, from 2:00 p.m. to 3:00 p.m. EST and a second webinar on April 12, 2016, from 2:00 p.m. to 3:00 p.m. EST. To attend either the in-person workshop or the webinars, participants must register in advance.

With the Council agencies implementing the recommendations from the Report, we expect to see more activity from the BroadbandUSA team and the Council member agencies in the coming months ahead and will continue to monitor its progress.

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FirstNet Releases Final RFP for Up to $6.5 Billion https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/firstnet-releases-final-rfp-for-up-to-6-5-billion https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/firstnet-releases-final-rfp-for-up-to-6-5-billion Tue, 19 Jan 2016 09:18:20 -0500 funding_opportunity_v1r1FirstNet released its final Request for Proposals (RFP) seeking a Contractor to build and operate the nationwide public safety broadband network (NPSBN), as authorized by the Middle Class Tax Cut and Job Relief Act of 2012 (Act), and fund FirstNet operations. The RFP is the result of input to more than 13 Requests for Information, two public Industry Days, and a year of dialogue with the public safety community. The RFP provides for a single award, Indefinite Delivery-Indefinite Quantity (IDIQ) contract with fixed price payments. In exchange, the winning contractor gains access to 20 MHz of contiguous 700 MHz spectrum and the ability to lease excess network capacity to secondary commercial users, receiving up to $6.5 billion in funding from FirstNet. FirstNet envisions a 25-year public-private partnership, suggesting that solutions may include "various partnerships and business arrangements that monetize new public safety market offerings via devices, applications and other value-added benefits and services." FirstNet plans to select a contractor by the end of the year.

The Funding

What's unique about this RFP is that the winning bidder will receive up to $6.5 billion in funding from FirstNet but the winner will have to make regular payments to FirstNet based on the following estimated costs that FirstNet expects to incur over the life of the contract, including base operating and general administrative costs: at least $80 million during the first five years, $130 million in year 6, $205 million in year 11, $305 million in year 16, and then $430 million each of the last five years. Any revenue FirstNet generates from these payments will be reinvested in to the network. This will also account for the Contractor's proposed total amount of payments for all 56 States and Territories. Should a State or Territory "opt-out," the Contractor's payments to FirstNet will be adjusted accordingly.

One factor which will affect the payments flowing from FirstNet to the Contractor is how many States and territories decide to "opt-out" and deploy, operate and maintain the Radio Access Network (RAN) within their own State or territory. For those states and territories that "opt-out," the Department of Commerce's National Telecommunications and Information Administration (NTIA), which oversees the quasi-independent FirstNet, reserves the right to administer a RAN construction grant program. FirstNet will reduce the Contractor payments for each State or territory that notifies FirstNet of its intent to deploy its own RAN. The onus is on the Offeror to propose the payment adjustments. NTIA will not finalize the RAN Construction Grant amount until after FirstNet awards the RFP.

The Solution: An Objectives-Based Approach

Specifically, FirstNet seeks a “comprehensive network solution covering each of the 56 states and territories,” which includes: "the deployment and provisioning of a nationwide Core Network (Core), and RAN services; backhaul, aggregation, and the use of national transport networks and operation centers; a device ecosystem; use of network infrastructure; deployable capabilities; use of operational and business support systems; an applications ecosystem; network services; and the integration, maintenance, operational services, and ongoing evolution of these systems required to function fully as an operational wireless 3rd Generation Partnership Project (3GPP) standards-based Long Term Evolution (LTE) NPSBN."

What's unique about this RFP is FirstNet's approach, which is an objectives-based model rather than a traditional requirements-driven model. This means that FirstNet is requiring offerors to achieve broad objectives through innovative solutions not limited by any particular type of solution or type of entity. FirstNet directly states that the RFP is open to all entities, "whether traditional wireless incumbents or new entrants." The rationale for using an objectives-based model is to provide industry with the "maximum opportunity and flexibility in the development of innovative solutions for the NPSBN."

The winning bidder must meet sixteen objectives:

  1. Building, deployment, operation, and maintenance of the NPSBN
  2. Financial sustainability
  3. First responder user adoption
  4. Device ecosystem
  5. Applications ecosystem
  6. Accelerated speed to market
  7. User service availability
  8. Service capacity
  9. Cybersecurity
  10. Priority services
  11. Integration of state-deployed rans
  12. Integration of existing commercial/federal/state/tribal/local infrastructure to support NPSBN services
  13. Life-cycle innovation
  14. Program and business management:
  15. Customer care and marketing:
  16. Facilitation of FirstNet’s compliance with the act and other laws
Given that this is the final remaining recommendation to implement from the 9-11 Commission Report and the political pressure from the Hill to deploy the NPSBN, FirstNet is leveraging the momentum from its stakeholder engagement process and leaving the technical expertise to the marketplace.

Timeline

Interested parties may submit questions seeking clarification no later than February 12, 2016. FirstNet will hold an in-person, pre-proposal conference on March 10, 2016, which requires registration. Parties submitting proposals must file a capability statement by March 17, 2016. Those parties interested in subcontracting and teaming opportunities with other potential Offerors who would like their contact information on a FirstNet compiled list must submit their business name, size, email and phone number no later than March 17, 2016.

Proposals are due no later than April 29, 2016.

If you are interested in learning more about FirstNet, please contact Jennifer Holtz at [email protected] or any member of the Communications Practice Group.

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Broadband Stimulus NOFA Published in Federal Register https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/broadband-stimulus-nofa-published-in-federal-register https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/broadband-stimulus-nofa-published-in-federal-register Wed, 08 Jul 2009 12:03:33 -0400 The Notice of Funds Availability issued jointly by the Rural Utilities Service and the National Telecommunications and Information Administration was published in the Federal Register today. The NOFA is 121 pages long and lists the rules for applying to receive funding in the first round, which will make available up to $4 billion of the total commitment of $7.2 billion in broadband stimulus monies. This represents nearly all the RUS funds ($2.4 billion) and about 1/3 of the NTIA funds ($1.6 billion). The RUS funds are provided under the heading of the Broadband Initiatives Program (BIP) and the NTIA funds are in the Broadband Technology Opportunities Program (BTOP). Applications seeking more than $1 million must be submitted electronically and be filed no later than 5:00 p.m. EDT on August 14, 2009. Paper applications may be filed by applicants seeking less than $1 million (if electronic filing would be a hardship) and by any applicant whose representative is an individual with disabilities. Those applications also must be filed by 5 p.m. EDT on August 14, 2009.

BIP funds from RUS are limited by statute to projects to provide service to areas which are at least 75 percent rural and lack access to sufficient high speed broadband to facilitate economic development. Grants may be obtained to serve exclusively remote, unserved rural areas. Loans will be given for plans to serve non-remote but underserved rural areas. The funds are to be made available in categories: up to $1.2 billion for Last Mile projects (i.e., ones that serve end users); up to $800 million for Middle Mile projects (i.e., ones that do not serve end users directly but instead provide internet backbone and the like); and up to $325 million is available for a “national reserve.” Unused funds will be made available for subsequent rounds of applications.

NTIA has divided its BTOP funds into three categories: Broadband Infrastructure (both Last Mile and Middle Mile), Public Computer Centers, and Sustainable Broadband Adoption. The funds in this first round of applications are to be allocated as follows: up to $1.2 billion for Broadband Infrastructure; up to $50 million for Public Computer Center projects; and up to $150 million for Sustainable Broadband Adoption.

The complete eligibility criteria and application requirements can be found in the NOFA. However, potential applicants should be aware that all Last Mile projects for either BIP or BTOP must be for service to areas that are either “unserved” or “underserved”. An “unserved” area is composed of census blocks where at least 90 percent of households lack access to facilities-based, terrestrial broadband service, either fixed or mobile, at speeds of 200 kbps upstream and 768 kbps downstream. Obviously, this restriction is extremely limiting to Last Mile projects. Similarly, “underserved” areas are made up of census blocks where (i) no more than 50% of households have access to terrestrial broadband at speeds of 200/768 kbps; or (ii) no provider advertises broadband at speeds of 3 MBps or higher; or (iii) the “take rate” for broadband subscription is 40% or less of total households. Again, the first two of these criteria are extremely limiting in geographical scope, while the third one suffers from a lack of data on which to base a proposal.

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