You will find more information about the items on the December meeting agenda after the break:

Improving Accessibility and Clarity of Emergency Alerts - The EAS NPRM would propose rules to improve the accessibility and clarity of visual messages distributed to the public through the EAS, which advises the public of emergency alerts issued by government entities. The EAS is comprised of a legacy broadcast system that can only relay audio messages and an internet-based Common Alerting Protocol (“CAP”) system that can relay audio, text and visual messages. Due to the fact that alert initiators using the legacy EAS have some discretion regarding the content of the alert message while EAS participants that use video (such as broadcast or cable television operators) must rely on codes embedded in alerts to create a visual message (usually text), the audio and visual messages associated with the alerts may not match. To improve the clarity of EAS test messages, the EAS NPRM would propose the use of the following script as the visual message for all legacy EAS nationwide tests: “This is a nationwide test of the Emergency Alert System issued by the Federal Emergency Management Agency covering the United States from [time] until [time]. This is only a test. No action is required by the public.” For EAS participants that receive an alert from the CAP system, the FCC would propose to change the nationwide EAS test event code that alert initiators include in the alerts so that the following language is displayed in all visual messages: “Nationwide Test of the Emergency Alert System.” The EAS NPRM would also seek comment on how the legacy EAS can be improved to enable alert originators to relay visual text that matches the audio message and how the EAS can be modified to support greater functionality and accessibility.

Facilitating Satellite Broadband Competition – The Satellite Spectrum Sharing NPRM would grant a petition for rulemaking from SpaceX requesting revisions to the spectrum sharing requirements among NGSO FSS systems. The FCC considers applications for NGSO FSS system licenses, which are used to provide broadband services, in groups based on filing date under a processing round procedure. All NGSO FSS system operators within a processing round that are granted a license must comply with the FCC’s spectrum sharing rules and coordinate with each other in good faith to use commonly authorized frequencies. If the NGSO FSS system operators in a processing round are unable to come to a coordination agreement, then a default spectrum-splitting procedure applies. The Satellite NPRM would propose that the spectrum sharing requirement only be applicable to NGSO FSS systems approved in the same processing round. The FCC would seek comment on a rule that would protect systems processed in an earlier round from being subjected to a certain level of interference from systems processed in a subsequent round and on whether interference protection should end after a period of time. To facilitate analysis of potential interference, earlier-round NGSO FSS system operators would be required to share data regarding their beam locations with later-round NGSO FSS system operators subject to confidentiality or non-disclosure agreements.

Promoting Fair and Open Competitive Bidding in the E-Rate Program – The E-Rate NPRM would propose changes to the E-Rate program rules to improve program integrity. The Schools and Libraries program, or E-Rate, funded by the Universal Service Fund, provides discounted telecommunications and broadband services and equipment to eligible schools and libraries (referenced as E-rate “applicants”). To obtain services and equipment through the E-rate program, an applicant must conduct a competitive bidding process among interested service providers that is commenced by submission of FCC Form 470 to USAC, which then posts the form to its website. Applicants consider bids received directly from interested service providers and then seek funding to pay their chosen service providers by filing an FCC Form 471 with USAC. The E-Rate NPRM would recommend the establishment of a bidding portal through which service providers would provide competitive bidding documentation. The FCC would seek comment on whether applicants also should be required to use the portal to submit other documentation, such as bid evaluation matrices, questions from bidders, and contract documents. In addition, the E-Rate NPRM would ask whether service providers should be required to wait a certain period of time before they could access service providers’ bids. Finally, the E-Rate NPRM would request comment on various issues related to the proposed portal, including how the E-rate’s existing portal could be leveraged to accept service providers’ bids, whether any procurement laws or technical issues would preclude or limit the use of a bidding portal and whether the portal should be used as a repository of documents for purposes of meeting recordkeeping requirements.

While the final rules will not be available until a final order is adopted, which is expected by January 14, 2022, the program will launch on December 31, 2021. Here’s what we know now – a roadmap for current Lifeline and Emergency Broadband Benefit ("EBB") providers, as well as for fixed or wireless broadband providers seeking to participate in the ACP.

Click here to read our full advisory on the ACP.

You will find more information about the most significant items after the break.

Appeals of STIR/SHAKEN Revocation Decisions – The Third Report and Order (“Order”) would establish a process for the FCC’s private Governance Authority that oversees the STIR/SHAKEN framework to review and revoke the ability of a voice service provider to participate in STIR/SHAKEN. The Order would also create an appeals process for voice service providers to challenge any revocation decisions, modeled on the established appeals process and procedures for reviewing decisions by the Universal Service Administrative Company (“USAC”). Voice service providers affected by a revocation could file a request for review with the FCC, and third parties would be permitted to file oppositions and replies to the request in ECFS.

Establishing Two New Innovation Zones – The Public Notice would approve the creation of two new Innovation Zones for experimental licenses in Boston, MA (Northeastern University) and Raleigh, NC (NC State University), and would expand the geographical boundary of the Innovation Zone in New York City. Innovation Zones allow experimental licensees to conduct unrelated experiments at designated locations without requiring explicit FCC approval. The NC State Innovation Zone would be intended to study new use cases for advanced wireless technologies emerging in unmanned aerial systems (“UAS”), while the Northeastern Innovation Zone would allow researchers to use the Colosseum wireless network emulator to extend and accelerate research in wireless networked systems. The two Innovation Zones would also promote platforms to test the integration of Open Radio Access Networks (Open RAN). Both Innovation Zones would be established for a renewable period of five years.

Updating FCC Numbering Policies – The Further Notice of Proposed Rulemaking would adopt clarifications and revisions to the Commission’s numbering rules, consistent with the Congressional directives in the TRACED Act. The FNPRM would propose to require additional certifications as part of the direct access application to numbering resources and would require disclosures of foreign ownership information of applicants, proposing to refer applicants with 10% or greater foreign ownership to the Executive Branch agencies. It would also require direct access authorization holders to more frequently update the FCC of any ownership changes, and would seek comment on expanding the direct access to numbers authorization process to one-way VoIP providers or other entities using numbers.

Updating TRS Compensation – The Notice of Proposed Rulemaking would propose changes to the compensation methodology for the Internet Protocol Relay, a form of Telecommunications Relay Service (“TRS”) that allows an individual with a hearing or speech disability to communicate with voice telephone users by transmitting text via the Internet. The NPRM would propose to modify the compensation methodology to permit recovery of reasonable costs of outreach and operating margins, and would seek comment on permitting recovery of indirect overhead costs. It would also propose to calculate the base compensation level using projected costs and demand over a multi-year compensation period. The NPRM further would seek comment on a proposed potential hybrid compensation model that would rely in part on compensation for state-program relay service.

The Connected Care Pilot was established in April 2020 to make up to $100 million in Universal Service Fund support available over three years for selected projects to defray costs for projects that will bring broadband connectivity and other connected care information services to eligible health care providers. The program is primarily aimed at supporting services that will benefit veterans and low-income patients. It is a longer term initiative than the short-term COVID-19 Telehealth Program designed to provide financial support for telehealth services, which are expected to remain in demand after the pandemic fully abates.

Second Report & Order

The Second Report and Order, which was released on June 21, 2021, builds on the administrative framework the FCC laid out when it established the Pilot Program and a September 2020 Public Notice that provided initial guidance to applicants. It specifically gives participants guidance on eligible services, funding rules and procedures, and data reporting requirements so they can begin their projects.

• Eligible Services – The FCC previously established that the Pilot Program will cover up to 85% of the costs for eligible services, which include patient broadband Internet access services, health care provider broadband data connections, connected care information services, and certain network equipment. Health care providers are required to cover the remaining 15% of the costs and any ineligible expenses. The Second Report & Order clarifies that the Pilot Program will reimburse network equipment purchases necessary to make already-available broadband services functional and to enable health care providers to make connected care information services functional, even if the Pilot Program is not directly supporting the costs of those services. The equipment must be purchased either because of an increase in Internet traffic caused by the connected care services or because the equipment would be primarily used for connected care information services. This approach is more expansive than the Rural Health Care Program’s reimbursement framework. Pilot Program funds cannot be used to support network deployment, internal connections, or connectivity between health care provider sites, and are also prohibited for end-user connected devices, medical equipment, health care provider administrative costs, personnel costs, and other expenses.
• Funding Rules and Procedures – The Pilot Program’s funding rules and procedures largely mirror those of the Rural HealthCare (“RHC”) Program. Participants need to follow the same competitive bidding rules for the services they are seeking to procure, including rules to ensure the bidding is fair and open and the requirement to select the most cost-effective option. Participants will also need to submit a Request for Funding to the Universal Service Administrative Company (“USAC”), which will evaluate service eligibility and issue a funding commitment decision. Just as with the RHC Program, Pilot Program participants will be able to make site and service substitutions. One notable difference is that the Pilot Program will not follow the typical July 1 to June 30 funding period, and participants will instead need to follow dates and deadlines provided by the FCC or USAC in correspondence or on their websites. The FCC also waived the procedural rule established in the First Report & Order that invoices be submitted monthly, which the agency thought might pose an undue administrative burden for some Pilot Program participants and would be difficult to enforce. Participants can only submit invoices for eligible expenses incurred within three years from the date their projects first begin service and no later than June 30, 2025.
• Data Reporting Requirements – Pilot programs established by the FCC often become permanent if they are successful, and as part of the Connected Care Pilot Program, the FCC will study how connected care can become a permanent part of the Universal Service Fund. To this end, the FCC established three goals for the Pilot Program—determining how USF support can be used to: (1) improve health outcomes through connected care; (2) reduce health care costs for patients, facilities, and the health care system; and (3) support the trend towards connected care everywhere. To help evaluate the Pilot Program, the Second Report & Order directs participants to submit three annual reports to the FCC with anonymized, aggregated data. The final report must summarize final results and include explanations of whether the goals of the participant’s project were met and how the project served the FCC’s Pilot Program goals. The FCC’s Wireline Bureau will use the data to prepare a final report at the conclusion of the Pilot Program.

The Connected Care Program is open to eligible rural non-profit and public health care providers and such non-rural providers that are part of a consortium, including post-secondary educational institutions, community health centers, local health departments or agencies, community mental health centers, not-for-profit hospitals, rural health clinics, skilled nursing facilities, and consortia of health care providers consisting of one or more of these entities.

From the over 200 Pilot Program applications the FCC received, it has so far awarded over $57 million in funding for 59 pilot projects in 30 states plus Washington, DC, leaving nearly $43 million for future project selections. The FCC announced its initial set of 14 projects, awarding $26.5 million in support, on January 15, 2021, and the second set of 36 projects, requesting $31 million in support, on June 17, 2021. It has prioritized projects that will serve a high number of patients in the veteran and low-income populations, serve areas most in need of support for connected care, treat many of the health conditions targeted by the program, and use products and services eligible for support.

With these rules, the FCC sets in motion a process for schools and libraries to receive funding for 100% of purchases to provide remote learning and remote library services during the pandemic. This fund will be a significant one-time opportunity for applicants and service providers and is expected to see high demand for funding.

The Report and Order adopted by the FCC establishes the rules and policies that govern the ECP Fund. The FCC designated the Universal Service Administrative Company (“USAC”) as the program administrator. Schools and libraries that are eligible for support under the E-Rate Program are also eligible to request and receive support through the ECF Program.

Funding Window for School Year 2021-22 Purchases Prioritized

In a change from the draft order previously released by the Commission, the Report and Order prioritizes purchases to be used for providing remote learning and remote library services in the next school year (starting July 1). USAC will open a 45-day ECF Program filing window for purchases for the upcoming year. A date for this window has not been set, but FCC Chairwoman Jessica Rosenworcel said she expects it to open in early June.

The filing window will be available for purchases for use during the period from July 1, 2021 through June 30, 2022. Due to the emergency nature of this program, the FCC does not require competitive bidding for eligible purchases (like is required under the E-Rate program). However, it sets a cap for eligible equipment reimbursement of $400 for laptops and connected devices and $250 for Wi-Fi hotspots. For other eligible equipment (modems, routers and devices that combine the two), the FCC did not set a maximum reimbursement but delegated to the Wireline Bureau to provide guidance on reasonable expenses. The FCC similarly did not set a maximum reimbursement for “advanced communications services” but tasked the Bureau and USAC to identify “outliers” beyond an expected $10 to $25 monthly cost per month. The ECF will not fund self-provisioning or the construction of new networks, except in the case where it is demonstrated that no commercial service is available to the area.

Moreover, the FCC sets per-location and per-user limitations on the availability of funding. Reimbursement may be sought only for one fixed broadband service per location, one connected device per user and one Wi-Fi hotspot per user. In addition, the FCC clarified that Wi-Fi hotspots on school buses and bookmobiles are eligible for reimbursement under the ECF.

Funding is limited to uses made primarily for “educational purposes.” To ensure that devices and services are used primarily for educational purposes, the FCC requires schools and libraries to restrict access to users with appropriate credentials (i.e., a student ID or library card). Schools will be required to certify that they are only that they are only seeking support for eligible equipment provided to students and school staff who lacked access to connected devices sufficient to engage in remote learning. The FCC will also require schools to certify that they are only seeking support for eligible services provided to students and school staff who lacked broadband services sufficient to engage in remote learning. “Staff” includes only those staff members engaging in remote teaching or otherwise providing educational services to students (and would otherwise lack access to connected devices and broadband connections).

Prior Purchases

If funding is available after the initial filing window for 2021-22 purchases, the FCC will open a window for funding of purchase already made by schools or libraries to provide remote connectivity. Specifically, this filing window would cover purchases made by applicants between March 1, 2020 (when most jurisdictions closed schools during the pandemic) and June 30, 2021. USAC and the Bureau will announce when this window will open (assuming funding remains available).

As previously mentioned, the application window has not been announced, but we will monitor and relay updates on the ECF Program as they arise.

As with Round 1, this opportunity provides up to $1 million per application for equipment and services used for pandemic-related telehealth purposes. Specifically, the funding can be used “to support efforts of healthcare providers to address coronavirus by providing telecommunications services, information services, and devices necessary to enable the provision of telehealth services.” But there are three major differences this time:

1. Applications will be reviewed as a group, rather than on a rolling basis, as they were in Round 1. The FCC has established the filing window for applications to run between 12PM ET on Thursday, April 29 through 12PM ET on Thursday, May 6. All applications must be submitted by the close of this filing window and will be evaluated based on the FCC’s criteria.
2. The second major difference is that the FCC will be using the Universal Service Administrative Company (“USAC”), which administers other FCC funding programs, to evaluate applications. USAC evaluates the FCC’s Rural Health Care Program and will be bringing that expertise to this process
3. Finally, the FCC has provided more detailed criteria for evaluating applications, with the goals of prioritizing certain types of applications and fair geographic distribution.

• File Form 460 with USAC to confirm the that the application’s lead site is eligible for the program
• Register with the federal portal for payments, the System for Award Management

Click here to read the April issue of our USF Tracker for more information on the EBBP and related programs.

In this post, we’re going to take a look at developments in the FCC’s $9 billion-per-year Federal Universal Service Fund and more recent pandemic-related efforts to address deficiencies in broadband access that have been exposed by our year of remote work, school and social activities.

On the universal service front, the principal activity surprisingly has as much to do with non-Universal Service Fund (“USF”) programs as with the USF itself. The USF is a $9 billion-per-year fund with four primary programs aimed at different elements of the challenge to bring broadband telecommunications to all. For 25 years, the Fund has aimed to provide support to increase broadband availability in rural areas, in schools and libraries, among low-income consumers and to serve rural healthcare needs. These programs all have been modified significantly in the last ten years to re-focus on broadband services and de-emphasize (but not completely eliminate) support for voice services. The FCC also has focused on ensuring that these programs are run efficiently while protecting against waste, fraud and abuse by actors with mal intent. In 2020 and early 2021, we’ve discussed efforts to establish a new Connected Care pilot program, to waive rules during the pandemic and to implement a Rural Digital Opportunity Fund.

Separately, as the USF contribution factor continues to reach new and staggering heights, attention is again returning to the idea of USF contributions reform. With the contribution factor expected to top 33% in the next quarter, Acting Chairwoman Rosenworcel pledged to Senators Thune and Wicker to work with Congress “to explore how to improve [the contributions] system” in the coming months. We’ll have more on contributions reform in a future blog post.

Special Programs Dwarf the USF

But the big news of 2021 is turning out to be the additional funding that is being provided outside the traditional fund. In legislation since December, Congress has authorized four programs that affect USF beneficiaries, to the tune of over $13 billion.

• In the Consolidated Appropriations Act (“CAA”), Congress authorized a second Telehealth Fund to provide reimbursement for services and equipment used to provide telehealth services during the COVID pandemic. The Telehealth II fund provides $249.95 million in new funding for this program. The FCC already has designated USAC to administer the new fund and promises to adopt criteria for USAC to use in evaluating applications soon.
• Also in December, Congress authorized an Emergency Broadband Benefit of up to $50 per month for services and a one-time benefit of $100 for a qualifying computer, laptop or tablet for low-income consumers during the pandemic. (For tribal subscribers, the benefit is $75 per month). A total of $3.2 Billion is appropriated for this emergency fund. Importantly, the program is open to providers that do not currently participate in the USF programs, expanding access to the funding. The FCC recently adopted rules for the program and you can read our summary here. The program is expected to begin sometime in April.
• Congress recently approved an additional $7.1 Billion over several years for E-rate support for remote learning and remote library services. The legislation authorizes funding for the purchase of eligible equipment, advanced telecommunications services and/or information services used to support education of students at locations other than the school and to support delivery of library services at locations other than the library. This fund will reimburse 100% of the cost of the equipment or services, up to the amount the FCC determines is reasonable. Funding remains available until the June 30th that is one year after the COVID-19 public health emergency order is terminated. The FCC will have 60 days to establish rules for this program.
• Finally, although not related to the COVID emergency, Congress recently appropriated $1.9 Billion to fund the removal and replacement of telecommunications equipment that is deemed to present a national security threat. The FCC has been developing this so-called “Rip and Replace” program for over a year, contingent on the appropriation of funds, after determining in November 2019 to prohibit recipients of federal USF funding to purchase, install or maintain prohibited equipment. The FCC most recently adopted a Further Notice of Proposed Rulemaking to align its reimbursement priorities with the implementing legislation.

To stay up-to-date on these and other USF developments, join us on March 22, 2021 for our annual webinar discussing the state of the federal Universal Service Fund. This webinar, back for its 12th year, provides an in-depth look at all four USF programs and the USF contribution mechanism, highlighting major developments in the last year and trends for the upcoming year. In addition, this year we will discuss how the ongoing pandemic has influenced the importance of the USF and related policy decisions.

This webinar supplements the knowledge our clients gain from the monthly USF Tracker to provide context and analysis of the issues you need to know.

The 12th Annual Update will address the following, among other topics:

• The COVID-19 Telehealth Program
• The Connected Care Pilot and Rural Healthcare Program
• Lifeline and the Emergency Broadband Benefit Program
• E-Rate Outside the Classroom
• The Rural Digital Opportunity Fund and Broadband Mapping
• Rip and Replace
• Contributions Reform

EBB Program Overview

The EBB Program was authorized by Section 904 of the CAA, which was designed to provide affordable broadband services to low-income households on an emergency basis. Congress allocated $3.2 billion to the EBB Program to reimburse participating providers for providing discounts on qualifying internet service offerings to qualifying low-income households. The EBB Program will provide discounts of up to $50 per month ($75 for residents of Tribal lands) to subsidize broadband services for eligible households. Eligible consumers can also receive a one-time discount of up to $100 for a desktop or laptop computer, or tablet (no smartphones) supplied by a participating provider. The EBB benefit is limited to one monthly service discount and one device discount per eligible household. To qualify for the EBB program, households must prove that at least one member of their household meets one of the following criteria:

• qualifies for the FCC’s Lifeline program (including those who are receiving Medicaid or SNAP benefits);
• approved for the free or reduced-price school lunch program (including through the USDA Community Eligibility Provision);
• experienced substantial and documented loss of income since February 29, 2020 and the household had a total income in 2020 below $99,000 for single filers and $198,000 for joint filers;
• received a federal Pell Grant in the current award year; or
• qualifies for a participating provider’s existing low-income or COVID relief program (subject to FCC approval of that provider’s eligibility process).

Next Steps

The Order includes many specifics for the implementation of the EBB Program, but also delegates liberally to the Wireline Competition Bureau (“Bureau”) for additional details and processes. On Thursday, March 4, the Bureau issued additional guidance on the timeline for participating provider elections and applications. ETCs are automatically eligible as participating providers in the EBB Program and therefore need only submit an election to participate. The inbox for election notices will open on March 11, 2021. Non-ETC broadband providers that had existing low-income support programs as of April 1, 2020 can apply to be participating providers and will be automatically approved by providing certain information. Non-ETCs without such programs can also apply to be participating providers, but must submit an application to the Bureau for approval before they can elect to participate. The application window opened on March 8, 2021 and all application submitted by March 22, 2021 will be reviewed and acted on by the EBB service commencement date. Applications submitted after March 22 will be reviewed on a rolling basis.

For service providers to be eligible, they must file an election notice to the Universal Service Administrative Company (“USAC”), and non-ETCs must submit an application for either automatic or expedited approval by the Bureau.

Existing ETCs:

Existing ETCs need only submit an election notice to USAC. The following information must be included in election notices:

• a list of states in which the provider plans to participate in the EBB Program;
• a statement that, in each of the listed states, the provider is a “broadband provider” as of December 1, 2020;
• a statement identifying where the provider is an existing ETC;
• a statement identifying where the provider received FCC approval to participate in the EBB Program (this is primarily for providers that are seeking approvals outside of states where they are existing ETCs);
• a statement confirming whether the provider intends to distribute connected devices under the EBB Program; and
• a description and documentation of the Internet service offerings for which the provider plans to seek reimbursement from the EBB Program in each state.

Non-ETCs must file an application with the Wireline Competition Bureau (“Bureau”) that must be approved to participate in the EBB Program. Non-ETCs with an existing low-income support program must file an application describing:

• the jurisdictions in which it plans to participate,
• the service areas in which the provider has the authority, if needed, to operate in each state, and
• a description, supported by documentation, of the established program with which the provider seeks to qualify for automatic admission to the EBB Program.

Non-ETCs without pre-existing low-income support programs must first submit an application for Bureau approval describing:

• the states in which it plans to participate,
• the service areas in which the provider has the authority, if needed, to operate in each state but has not been designated as an ETC, and
• documentation of the provider’s plan to combat waste, fraud, and abuse.

The FCC has set the expectation that the EBB Program will begin within 60 days of the adoption of the Order. Therefore, participation providers should start providing EBB discounted services by the end of April. For more information on the EBB and related programs, join us on March 22, 2021 for Kelley Drye’s annual webinar discussing the state of the federal Universal Service Fund ("USF"). This year will feature segments on how the ongoing pandemic has influenced the importance of the USF and related policy decisions.

The December meeting may be the first attended by recently-confirmed Republican FCC Commissioner Nathan Simington, who will replace outgoing Commissioner Michael O’Rielly after today’s confirmation vote in the U.S. Senate. In addition, Chairman Pai recently announced that he intends to leave the FCC on Inauguration Day, January 20, 2021. As a result, the January 2021 FCC open meeting will be his last meeting before the change in administration.

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

Securing the Communications Supply Chain – The draft Report and Order would require ETCs receiving Universal Service Fund support to remove and replace covered equipment and services posing a national security risk from their networks. It would also establish a reimbursement program to subsidize smaller carriers to remove and replace covered equipment, specifically those providers with two million or fewer customers, once Congress appropriates the estimated $1.6 billion needed to reimburse eligible providers for such costs. The draft Order would establish the procedures and criteria for publishing a list of covered communications equipment or services, and would adopt a reporting requirement for all providers of advanced communications services to annually report on covered equipment and services in their networks.

Modernizing Equipment Marketing and Importation Rules – The draft NPRM would propose updates to the Commission’s marketing and importation rules under its equipment authorization program. The proposed rules would permit, prior to equipment authorization, conditional sales of radiofrequency devices to consumers under certain circumstances. The NPRM also would propose to allow a limited number of radiofrequency devices subject to Certification to be imported into the U.S. prior to equipment authorization for certain pre-sale activities, including packaging and shipping devices, and loading devices with specific software.

TCPA Order on Reconsideration – The draft Order on Reconsideration would clarify the Commission’s previous interpretation of the TCPA that permitted government and government contractor calls without consumers’ prior express consent. The draft item would address long-standing questions regarding a 2016 Declaratory Ruling that first set guardrails on the government and government contractor exemption. The draft text of this item has not been publicly released.

Modernizing the E-Rate Program – The draft Order would amend the E-Rate invoice filing deadline rule to ensure program participants have sufficient time to complete the invoice payment process. Specifically, the Order would address situations where USAC issues a revised E-Rate funding commitment letter, in which case the FCC will allow recipients additional time to complete the work identified in the revised funding commitment. The draft text of this item has not been publicly released.

The Connected Care Program, adopted in the Connected Care Program Order, will make available up to $100 million dollars over a three year period for selected pilot projects. The Program will provide financial support for qualifying purchases necessary to provide connected care services through the Connected Care Program, with an emphasis on providing connected care services to low-income and veteran patients. While the CARES Act allowed the Commission to quickly implement the short-term COVID-19 Telehealth Program during the early stages of the pandemic, the Connected Care Program is a longer term initiative to provide financial support for telehealth services. The Connected Care Program is open to eligible non-profit or public health care providers (“HCPs”) under the Commission’s rules. Eligible HCPs include post-secondary educational institutions, community health centers, local health departments or agencies, community mental health centers, not-for-profit hospitals, rural health clinics, skilled nursing facilities, and consortia of health care providers consisting of one or more of these entities. These providers can be located in either rural or non-rural areas, and eligible non-rural health care providers are not required to be part of a majority rural consortium.

Selected pilot projects will receive universal service support to offset 85% of the qualifying costs incurred in connection with the Connected Care Program, while the remaining 15% share of the eligible services costs and ineligible expenses are to be paid by the recipients. Specifically, eligible service costs include: (1) patient Broadband Internet access services; (2) health care provider broadband data connections; (3) connected care information services; and (4) certain network equipment (i.e., network equipment necessary to make supported broadband service functional). The Public Notice provides an extensive list of specific examples of types of items and services that are eligible for support.

The Public Notice details the application instructions for filing and reminds applicants that in order to file an application, they must have an approved FCC Form 460 (Eligibility and Registration Form) on file. Additionally, the Commission reminds applicants that all sites included in an application must each be approved as eligible. The Commission encourages interested parties to submit applications as soon as possible after the window opens, as applications will be considered on a rolling basis. Applications will be accepted through an online application system available on the USAC website. Applications submitted after the deadline, however, will not be considered. Following the close of the window, timely filed applications will be made publicly available in ECFS under Docket No. WC 18-213.

Kelly Drye will continue to monitor the Connected Care Program proceeding, so continue to check back for updates.

The FCC has not yet set a deadline for Connected Care Program applications but issued the recent Public Notice to enable HCPs to begin preparing to apply once the application filing deadline is established. If the Connected Care Program garners the same level of interest as the COVID-19 Telehealth Program – a $200 million fund that was depleted within 3 months of the Commission first accepting applications - HCPs seeking to participate in the Connected Care Program may want to consider how to prepare now to submit a timely application once the final application details and filing deadline are established. The Commission will be issuing a subsequent Public Notice identifying the final Connected Care Program application procedures and filing deadline.

Following are a few Connected Care Program highlights. HCPs interested in participating in the Connected Care Program and service providers seeking to supply services or network equipment to HCPs should be sure to read the Commission’s Connected Care Program Order and Frequently Asked Questions for more details.

Who can participate? Non-profit and public HCPs, including those in rural and non-rural locations, that meet the statutory definition of “health care provider” in the Telecommunications Act of 1996 may apply to participate in the Connected Care Program. The Commission retained its previous conclusion that “dedicated emergency rooms of rural for-profit hospitals” come within the category of rural health clinics and public health care providers and, therefore, qualify for participation in the Connected Care Program.

How can funds be used? Connected Care Program funding can be used to cover up to 85% of the costs for eligible equipment and services. HCPs should take note that the Commission is focused on supporting connected care services provided to veterans and low-income patients. Connected Care Program funding can be used for (i) patient broadband internet access, (ii) HCP broadband data connections, (iii) certain network equipment, and (iv) connected care information services. The Connected Care Program funds cannot be used to support end user devices, medical equipment, network deployment, or construction of networks between HCPs, among other things (i.e., this is not an exhaustive list).

How are services procured? Subject to some limited exemptions, HCPs must use the FCC’s Rural Health Care (“RHC”) program’s competitive bidding process when identifying providers for eligible services and network equipment. The exemptions cover circumstances such as contracts of less than one year, or voluntary extension of multiyear contracts deemed by USAC to be in “evergreen status”. HCPs selected for Connected Care Program support will receive funding commitments and the Commission will issue payments directly to the eligible services and network equipment service providers.

How can HCPs apply? The FCC has not yet issued a final version of the Connected Care Program application requirements but the Public Notice identifies information anticipated to be required in applications to assist HCPs “in preparing to apply” for the Connected Care Program. In a process that will be familiar to HCPs that participated in the COVID-19 Telehealth Program, HCPs seeking to participate in the Connected Care Program must complete procedural prerequisites, including obtaining HCP numbers and a Universal Service Administrative Company (“USAC”) eligibility determination, in addition to developing a comprehensive pilot program plan. Eligible HCPs that that received USAC eligibility determinations to participate in the COVID-19 Telehealth Program or the RHC Program can rely on those existing USAC determinations. The Public Notice identifies several categories of information that applicants must address, including detailed discussions of conditions to be treated, proposed monitoring metrics, the HCP’s telehealth experience, and information about the patient population and geographic areas to be served, among other information categories. Several of the information categories appear to be similar to those required for the COVID-19 Telehealth Program such that a HCP’s experience with the COVID-19 Telehealth Program application may aid the HCP in crafting a strong application. Although the Commission’s Public Notice details information required for the Connected Care Program application, the Commission also notes that the final application may vary such as in terms of wording or formatting so HCPs should be sure to review final application information once issued.

If you have any urgent questions, please contact your usual Kelley Drye attorney or any member of the Communications Practice Group. For more information on other aspects of the federal and state response to the COVID-19 pandemic, as well as labor and employment and other issues, please visit Kelley Drye’s COVID-19 Response Resource Center.

FCC Extends Telehealth Purchase and Implementation Deadline

On September 28, 2020, the FCC’s Wireline Competition Bureau (“WCB”) extended the deadline for COVID-19 Telehealth Program funding recipients to purchase eligible devices and implement eligible services. The Public Notice extended the deadline from September 30, 2020 to December 31, 2020. Since the start of Program funding on April 16, the FCC approved 539 applications in 47 states plus Washington, D.C. and Guam for a total of $200 million in funding — the amount of money appropriated by Congress for the Program in the CARES Act. There are no immediate plans to provide additional funding for the Program.

FCC Grants Three COVID-19-Related Waiver Requests

On September 30, 2020 the WCB granted several requests for review, requests for waiver, and petitions for reconsideration of decisions related to actions taken by the Universal Service Administrative Company (“USAC”), including three related to the COVID-19 pandemic. The Public Notice granted two requests for waiver of a filing deadline due to COVID-19 and one request for waiver of a 499-Q revision deadline due to COVID-19. In each case, the filer claimed that COVID-19 related shutdowns caused the filer to miss the filing deadline or to file an incorrect form. The Bureau cited to an order granting waivers of the filing deadlines in areas impacted by hurricanes Harvey, Irma and Maria in 2017.

If you have any urgent questions, please contact your usual Kelley Drye attorney or any member of the Communications Practice Group. For more information on other aspects of the federal and state response to the COVID-19 pandemic, as well as labor and employment and other issues, please visit Kelley Drye’s COVID-19 Response Resource Center.

FCC Seeks Comment on TCPA Exception for COVID-19 and Flu Vaccine Communications Under “Emergency Purposes” Exception

On September 18, 2020, the FCC’s Consumer and Governmental Affairs Bureau issued a Public Notice seeking comment on a request for clarification filed by the National Association of Chain Drug Stores (“NACDS”). NACDS requests clarification that communications from pharmacies related to COVID-19 vaccines, once available, and flu vaccines during the pandemic fall within the Telephone Consumer Protection Act’s “emergency purposes” exception to the statute’s prior express consent requirement. Comments are due September 25, 2020, and reply comments are due October 2, 2020.

FCC Opens Second Window for 2020 E-Rate Funding Requests

On September 16, 2020, the FCC’s Wireline Competition Bureau (“WCB”) directed the Universal Service Administrative Company (“USAC”) to open a second funding year 2020 filing window, allowing E-Rate program participants to request additional funding to purchase more bandwidth needed to meet the unanticipated and increased demand for e-learning during the pandemic. E-Rate program participants will be permitted to request additional funding for this limited purpose without having to undergo a new competitive bidding process. This window opened on September 21, 2020 with the publication of the Notice in the Federal Register and will close on October 16, 2020.

FCC Extends Inteliquent Waiver of Access Stimulation Rules Through December 1, 2020

On September 17, 2020, the WCB granted Onvoy d/b/a Inteliquent, Inc.’s (“Inteliquent”) second request to renew the temporary waiver of part of the FCC’s access stimulation rules. On June 23, 2020, the WCB granted Inteliquent’s request for renewal of its temporary waiver of certain access stimulation rules until September 1, 2020. Inteliquent requested a limited renewal of the temporary waiver with respect to traffic it terminates in four urban areas to preexisting customers on the basis that its terminating-to-originating traffic ratios in those areas continue to be particularly unbalanced as a result of the “unprecedented amounts of conference platform traffic that Inteliquent is terminating for pre-existing customers Zoom and Cisco Webex to facilitate remote work and other forms of social distancing.” Absent the waiver, Inteliquent would be required to accept financial responsibility for paying certain access charges associated with the traffic.

Inteliquent requested that the waiver be extended until March 1, 2021. However, the FCC only extended the waiver through December 1, 2020, in light of the ongoing uncertainty regarding the pandemic.

FCC Streamlines Financial Hardship Regulatory Fee Payment Request Procedures

On September 4, 2020, the FCC released a Public Notice highlighting streamlined processes for regulatees to request a waiver, fee reduction, deferral, and/or installment payment plan for FY 2020 regulatory fees in light of the pandemic. Waiver and installment plan requests must be filed on or before September 25, 2020. Waiver requests filed after that date will not be dismissed but any unpaid regulatory fees will be assessed the FCC’s 25% late payment penalty and may accrue interest.

FCC Extends E-Rate and RHC Gift Rule Waivers Through December 31, 2020

On September 3, 2020, the WCB extended waivers of the Rural Health Care (“RHC”) and E-Rate program gift rules through December 31, 2020. The FCC previously waived gift rules applicable to both programs to assist rural health care providers and schools and libraries affected by the pandemic by allowing them to accept free upgrades to connections, equipment, and other services. The WCB also waived the previously extended RHC deadline for responding to information requests from USAC through December 31, 2020. These waivers were set to expire on September 30, 2020.

As detailed in the R&O and FNPRM, the Commission will require fixed and mobile broadband providers to report more precise broadband availability and service information than required under the current FCC Form 477 filings. Separately, the Commission will create a nationwide database containing geocoded locations for all areas where broadband connections can be installed—the Broadband Serviceable Location Fabric ("Fabric"). The Commission will use the Fabric to create publicly-available maps showing areas across the country that are served and unserved by broadband service. Among the expected benefits, the new broadband deployment data collection and mapping framework will allow the Commission to better target Universal Service Fund support, which has been a hot-button issue since the agency mothballed Phase II of the Mobility Fund in 2018 after the accuracy of mobile wireless coverage maps was called into question.

The R&O creates the underlying structure for the broadband deployment data collection, creation of the maps and Fabric, and other requirements, while the FNPRM seeks comment on the specifics for these processes. As such, the summary below covers those pieces together.

Provider Reporting Requirements

Under the R&O, fixed and mobile broadband providers will be required to report broadband availability and service data twice per year. The FNPRM proposes to apply this requirement only to facilities-based providers with services exceeding 200 kbps in at least one direction, consistent with current Form 477 requirements. Each category of broadband provider will be subject to additional specific requirements. For example, wireline and satellite providers will be required to report service availability using either polygon shapefiles or lists of addresses, fixed wireless shapefiles must be in the form of propagation maps that reflect speed and latency variations, and mobile wireless providers can only use propagation maps.

Verifying Broadband Availability Data

As required by the Broadband DATA Act, the R&O includes several processes through which the Commission will “verify the accuracy and reliability” of the broadband deployment data submitted by providers, and the FNPRM seeks comment on these and other potential verification processes. In particular, the Commission plans to cross-check provider data with information in the Universal Service Administrative Company ("USAC") High Cost Universal Broadband portal, conduct audits, and use crowdsourced data from consumers and other entities using qualified third-party testing services. A corporate officer for each provider will have to certify the truth and accuracy of their submissions and the FNPRM proposes to require that mobile providers submit an additional certification from a qualified engineer and asks whether to extend that to fixed providers. Additionally, the Broadband DATA Act requires that the agency test and report on the feasibility of partnering with federal agencies to collect verification information. As such, the FCC proposes and seeks comment on a pilot program whereby drive-test hardware would be installed in some last-mile federal delivery fleet vehicles, such as those used by the United States Postal Service.

Creation of Coverage Maps

Under the Broadband DATA Act, the Commission must use the granular broadband availability data submitted by providers and other coverage information the FCC will collect from federal, state, local, and Tribal governmental entities (and potentially third parties) to create three maps: (1) the Broadband Map, depicting the availability of both fixed and mobile broadband service overlaid onto the Fabric data; (2) a map depicting the availability of fixed broadband service, and (3) a map depicting the availability of mobile broadband service. The maps must be updated at least twice a year using the most recent provider data. The DODC would have required that providers themselves submit granular coverage maps.

Creation of the Fabric

The Broadband DATA Act requires the Commission to create “a common dataset of all locations in the United States where fixed broadband Internet access service can be installed” and to use that information to create the Fabric, which must contain “geocoded information” for those locations. To identify these locations, the Commission proposes to follow the approach used in the Connect America Fund, with residential locations identified based on the Census Bureau’s definition of a “housing unit” and business locations included when they would be expected to demand consumer-grade broadband services (i.e., small businesses). Under the DODC, the Commission planned to delegate creation and management of the Fabric to USAC. The Act prohibits this but allows the Commission to contract with an entity that has geographic information system expertise to take on these responsibilities.

Challenge Process

The Broadband DATA Act requires, and the R&O establishes, a user-friendly challenge process through which consumers, government entities, and others can challenge the accuracy of provider broadband data, coverage maps, and the Fabric. The Commission originally proposed to have USAC create and manage the challenge portal, but this is prohibited by the Act. Challenges for fixed service will be permitted based on availability and coverage, but mobile broadband challenges can also be based on quality of service metrics, such as delivered user speeds. Challenges to Fabric data that providers contest will be submitted to the Commission for resolution, and it proposes to resolve these disputes within 60 days. The R&O and FNPRM also establish and seek comment on enforcement mechanisms for when inaccurate information is submitted to the FCC.

Next Steps

Congress has sent mixed messages about how quickly it wants the FCC to implement the new broadband mapping framework and data collection. On the one hand, the Broadband DATA Act gave the Commission 180 days to issue final rules implementing the Act and exempted the FCC’s rulemaking from Paperwork Reduction Act review, which often delays final enactment of rules. On the other hand, Congress has not yet allocated funding to the Commission to develop the broadband maps and Fabric, which will necessitate a lengthy procurement and development process. Nevertheless, the Commission is moving forward so that it “complete[s] the rulemaking required within the statutory deadline and in anticipation of receiving necessary funding” so that it can make the maps available “as quickly as possible.” Thus, the FCC likely will adopt final rules regarding the new broadband mapping and data collection process in September 2020.

If you have any urgent questions, please contact your usual Kelley Drye attorney or any member of the Communications Practice Group. For more information on other aspects of the federal and state response to the COVID-19 pandemic, as well as labor and employment and other issues, please visit Kelley Drye’s COVID-19 Response Resource Center.

FCC Continues COVID-19 Telehealth Program Approvals, Closes in on $200 Million Funding Cap

On July 1, 2020, the FCC’s Wireline Competition Bureau (“WCB”) approved 70 additional funding applications for the COVID-19 Telehealth Program. Under the latest funding round, $31.63 million will go to health care providers across 31 states and Washington D.C. This is the first set of approvals since the FCC’s June 25 announcement that it will no longer accept new applications for funding, noting that demand for funding exceeds currently-available Program funds. To date, the FCC has approved 514 funding applications in 46 states plus D.C. for a total of $189.27 million in funding, leaving just over $10 million to be allocated under the Program’s current $200 million funding cap.

FCC Announces Availability of Unused Funds for Rural Health Care

On June 30, 2020, the FCC’s WCB directed (DA 20-688) the Universal Service Administrative Company to carry over up to $197.98 million in unused funds from prior funding years to the extent necessary to satisfy funding year 2020 demand for the Rural Health Care Program. In 2018, the FCC adopted rules to adjust the Rural Health Care Program funding cap annually for inflation and allow unused funds from previous years to be carried forward into new funding years. FCC Chairman Pai highlighted this funding flexibility as critical to supporting COVID-19 telehealth measures.

FCC Announces Workshop on Libraries Amid COVID-19

On June 30, 2020, the FCC’s Digital Empowerment and Inclusion Working Group of the Advisory Committee on Diversity and Digital Empowerment and the Media Bureau announced via Public Notice (DA 20-698) a virtual workshop to examine the role of U.S. libraries as community hubs to drive digital adoption and literacy. The workshop, which is scheduled for August 3 from 10:00 am to 1:30 pm, will address the impact of COVID-19 on advancing digital inclusion, as well as the impact of various local, state, and federal actions. The workshop will be available to the public via live feed from the FCC’s web page at www.fcc.gov/live.

If you have any urgent questions, please contact your usual Kelley Drye attorney or any member of the Communications Practice Group. For more information on other aspects of the federal and state response to the COVID-19 pandemic, as well as labor and employment and other issues, please visit Kelley Drye’s COVID-19 Response Resource Center.

FCC Eases Lifeline Enrollment Financial Requirements

On April 29, 2020, the FCC’s Wireline Competition Bureau (“WCB”) temporarily waived until June 30th the requirement that persons seeking to qualify for the Lifeline program based on financial hardship provide at least three consecutive months on income documentation. The waiver recognizes that newly-unemployed individuals may not be able to provide such documentation because their unemployment (and related decrease in income) began so recently. Under the waiver, the FCC will allow individuals to submit an “official document,” such as a notice of unemployment benefits, to demonstrate their income-based eligibility for Lifeline. The waiver directs USAC to develop and issue guidance on the types of acceptable official documentation. WCB also extended its previous waivers of the Lifeline recertification, reverification, usage, and general de-enrollment requirements until June 30th, finding the circumstances necessitating the earlier waivers during the pandemic have not changed.

FCC Approves Latest Set of COVID-19 Telehealth Program Applications

On April 29, 2020, WCB approved an additional 13 funding applications for the COVID-19 Telehealth Program. Under the latest funding round, over $4.2 million will go to health care providers in Colorado, New York, Washington, and other hard-hit states. To date, the COVID-19 Telehealth Program has funded 30 health care providers in 16 states for a total of $13.7 million. Congress appropriated $200 million for the COVID-19 Telehealth Program and the FCC continues to evaluate applications and distribute funding on a rolling basis. While a significant amount of funding remains, the size and pace of disbursements under the COVID-19 Telehealth Program continues to increase and providers should take action now to assess their interest and ability to participate in the Program.

Chairman Pai Extends 'Keep Americans Connected' Pledge Through June 30

On April 30, 2020, Chairman Pai announced the extension of his Keep Americans Connected Pledge until June 30, 2020. The pledge involves service providers committing for 60 days to not terminate service and waive late fees for residential and small business customers who cannot pay during the pandemic and make their Wi-Fi hotspots available to any American who needs them. Since launching the pledge, more than 700 broadband and telephone service providers have signed on at some point. Before the announcement, Pai held calls with major providers to relay the extension request. While the FCC encourages all providers that signed the pledge previously to extend their commitments, the announcement noted that “some providers, particularly those in small markets and rural areas, may not be able to do so as a result of financial challenges,” and asked such providers to contact the FCC directly to opt out. The Chairman’s comment recognizes the challenges providers face in continuing key services to customers while confronting their own challenges as the pandemic and associated stay-at-home orders persist.

Commissioner Suggests Making Temporary Spectrum Access Assignments Permanent

On April 28, 2020, Commissioner Brendan Carr said during a Forum Europe webinar that the FCC should consider making permanent temporary spectrum assignments it approved in reaction to COVID-19. “I’m really happy with the quick action the FCC staff took to put more spectrum out there and I’d love to see it stay out there in the commercial marketplace,” Carr said: “We need to make sure that everybody has a fair shot at potentially getting access.” The FCC has repeatedly granted special temporary authority requests and taken other actions to allow the use otherwise fallow spectrum to improve communications and broadband services during the pandemic. Most recently, the FCC granted limited waivers of agency rules to TerreStar to support wireless medical telemetry services and to MIT to sell an indoor health monitoring device. Commissioner Carr’s statement is just one example of the flexible approach the FCC is taking during the pandemic on telehealth spectrum needs.

Advisory Committee Discusses COVID-19 Plan at First Meeting

On April 28, 2020, the FCC’s Advisory Committee on Diversity and Digital Empowerment's working groups outlined their plans to address issues related to COVID-19. In the first meeting under its new charter, working groups discussed how the pandemic is affecting minority and disadvantaged communities. The groups focused on increasing diversity among communications companies, funding for libraries, and a possible “a connectivity stimulus” to ensure students have access to broadband, among other plans. While the working groups’ plans are just the first step towards potential FCC action, they show that COVID-19 will continue to influence agency policymaking long after the pandemic abates.

If you have any urgent questions, please contact your usual Kelley Drye attorney or any member of the Communications Practice Group. For more information on other aspects of the federal and state response to the COVID-19 pandemic, as well as labor and employment and other issues, please visit Kelley Drye’s COVID-19 Response Resource Center.

FCC Establishes the COVID-19 Telehealth Program

On April 2, 2020, the FCC issued a Report and Order (FCC-20-44) establishing the COVID-19 Telehealth Program. The COVID-19 Telehealth Program will provide $200 million in funding, appropriated by Congress as part of the CARES Act, to help health care providers provide connected care services to patients at their homes or mobile locations. The COVID-19 Telehealth Program will provide immediate support to eligible health care providers responding to the COVID-19 pandemic by fully funding telecommunications services, information services, and devices purchased on or after March 13, 2020 until the program’s funds have been expended or the COVID-19 pandemic has ended. The COVID-19 Telehealth Program represents the FCC’s most significant action yet to ensure telehealth services remain affordable and available during the crisis.

On April 8, 2020, the Wireline Competition Bureau (“WCB”) released guidance on the COVID-19 Telehealth applications process. The barriers to funding are relatively low. There are three steps interested providers should take immediately to prepare to apply for the COVID-19 Telehealth Program: (1) obtain an eligibility determination from the Universal Service Administrative Company (“USAC”); (2) obtain an FCC Registration Number (“FRN”); and (3) register with the System for Award Management. The WCB recommends that potential applicants undertake these steps now to apply for the early stages of funding.

On April 10, 2020, the WCB announced via Public Notice (DA 20-403) that it will begin to accept applications for the COVID-19 Telehealth Program beginning today, April 13, 2020 at 12:00 PM ET. Applications for the program may be filed through a dedicated application portal, available on the COVID-19 Telehealth Program page: www.fcc.gov/covid19telehealth. The WCB will accept applications on a rolling basis. To assist applicants in preparing their applications, the WCB will hold a webinar today, April 13, 2020 at 11:00 AM ET, which also will be available on the COVID-19 Telehealth Program page: www.fcc.gov/covid19telehealth. The presentation will assist interested parties in navigating the application portal and provide answers to frequently asked questions regarding the COVID-19 Telehealth Program’s application process. The webinar will remain publicly available for viewing.

FCC Adopts Connected Care Pilot Program

On April 2, 2020, in the same Report and Order (FCC 20-44) establishing the COVID-19 Telehealth program, the FCC adopted the Connected Care Pilot program. This three-year Pilot Program will provide universal service support to help defray certain health care provider costs incurred in delivering connected care services, with a primary focus on services aimed at low-income or veteran patients. The FCC will support selected pilot projects to help health care providers improve health outcomes and reduce health care costs, thereby supporting efforts to advance connected care initiatives. The Pilot Program also would study how connected care could become a permanent part of the Universal Service Fund. All eligible nonprofit and public health care providers that fall within the statutory categories under section 254(h)(7)(B) of the Communications Act, regardless of whether they are non-rural or rural, can apply for funding under the Pilot Program.

FCC Extends E-Rate Program Deadlines

On April 1, 2020, the WCB granted extensions of key deadlines for participants in the Schools and Libraries (or E-Rate) program (DA 20-364). Specifically, the Bureau waived the service implementation deadline for special construction projects for all funding year 2019 applicants and extended the deadline for funding year 2020 applicants by one year (from June 30, 2020 to June 30, 2021). Under the FCC’s rules, applicants normally must complete special construction projects and the network must be in use by June 30th of the applicable funding year. With schools and libraries closed for lengthy periods of time, the Bureau recognized that service providers may not be allowed on the premises and may experience significant challenges in meeting this construction deadline. The Bureau also (1) extended the service delivery deadline for nonrecurring services for funding year 2019 by one year (from September 30, 2020 to September 30, 2021); (2) granted schools and libraries an automatic 60-day extension to file requests for review or waiver of decisions by USAC; (3) provided applicants and service providers an automatic 120-day extension of the invoice filing deadline; and (4) gave all program participants an additional 30-day extension to respond to certain information requests from USAC.

FCC, FTC Demand Gateway Providers Cut Off Robocallers

On April 3, 2020, the FCC and the Federal Trade Commission (“FTC”) demanded that service providers take action to stop coronavirus-related scam robocalls from bombarding American consumers. They specifically warned three gateway communications providers allegedly facilitating COVID-19-related scam robocalls originating overseas that they must take action to stop carrying these calls or face serious consequences. Specifically, if the providers do not take action to address the scam robocalls, the FCC will allow other providers to block all traffic from these gateway providers’ networks. The FCC and FTC have been working closely with the Department of Justice (“DOJ”) on this first-of-its-kind effort to stop scammers from reaching American consumers. The warning shows that the FCC, FTC, and other agencies plan to aggressively address consumer protection-related issues during the crisis. Click here to read more about the FCC and FTC actions.

Chairman Pai Announces More Keep Americans Connected Signatories

On March 25, 2020, Chairman Pai announced that additional service providers have signed the Keep Americans Connected Pledge (see our coverage of the pledge here). Under the pledge, service providers agree to forgo service terminations due to inability to pay, waive late fees, and open Wi-Fi hotspots for those who need them for a 60-day period. There are now 626 service providers and 14 trade associations that have signed the Chairman’s pledge.

FCC Enables Rural Broadband Providers to Waive Certain Consumer Fees

On April 1, 2020, the WCB approved waiver requests from the National Exchange Carrier Association (“NECA”) and John Staurulakis, Inc. (“JSI”) to allow the two organizations to quickly implement tariff changes to ensure that NECA and JSI participant companies have the flexibility to meet the Keep Americans Connected pledge during the COVID-19 pandemic. The WCB’s action immediately permitted waivers of late payment penalties as well as installation and early cancellation fees that the providers normally would be required to assess in accordance with their tariffs. The WCB’s waiver deserves close attention by tariffed service providers and signals the agency’s openness to regulatory relief benefitting consumers.

FCC Waives Restrictions on Hiring Contractors for ASL Interpretation Services

On April 3, 2020, the Consumer and Government Affairs Bureau granted a temporary, limited waiver of the Commission’s rule restricting providers of video relay service (“VRS”) from contracting for video interpretation services with an entity that is not itself an eligible provider (DA 20-378). With increased VRS traffic levels and employee absences due to health concerns, school closures, and other restrictions imposed by state and local authorities, VRS providers continue to face a shortage of interpreters able to work as communications assistants. By allowing VRS providers additional flexibility to contract for qualified American Sign Language (“ASL”) interpreting from other entities, such as providers of video remote interpreting, the FCC hopes to alleviate this shortage.

FCC Postponing 3.5 GHz Auction on Account of COVID-19

On March 25, 2020, the FCC announced a one-month postponement of the 3.5 GHz auction (3550-3650 GHz) in the Citizen’s Broadband Radio Service (“CBRS”), a.k.a. Auction 105 (DA 20-330). The Commission cited the need to protect the health and safety of Commission staff during the auction and the ancillary benefit that parties would have additional time to prepare to participate. FCC Chairman Ajit Pai reiterated the agency’s commitment to hold the auction this summer. The auction is the first in the so-called mid-band, a range of spectrum seen as critical to the rollout of 5G wireless applications. Commissioner Michael O’Rielly tweeted that a further delay would be unlikely absent absolutely compelling circumstances. The start of the auction has been postponed to July 23, 2020 (from June 25, 2020), and the new short-form application filing window is April 23 through May 7, 2020. For more information on the postponement and the auction, please see our blog post.

Wireline Competition Bureau Extends Mozilla Remand Comment Cycle

On March 25, 2020, in response to a March 11, 2020, petition asking for a 30-day extension, the WCB issued a Public Notice (DA 20-331) granting a 21-day extension of the comment and reply comment cycle for the proceeding in the wake of the D.C. Circuit’s remand in Mozilla v. FCC (2018). Comments are due on April 20, 2020 (from March 30, 2020), and reply comments are due on May 20, 2020 (from April 29, 2020).

In issuing the extension, the WCB agreed with the petitioners’ argument that individuals, organizations, and state and local governments whose work is dedicated to public safety are increasingly focused on managing the COVID-19 pandemic and may be unable to submit comments on the public safety issues discussed in the remand proceeding. However, the FCC cited the need for expediency in remand proceedings as the reason for granting a 21-day extension instead of the petition’s request for a 30-day extension.

In addition, the FCC took the following actions in response to the pandemic:

• On March 25, 2020, the Office of Engineering and Technology issued a Public Notice (DA 20-334) granting a 21-day extension of the reply comment deadline in the 5.9 GHz proceeding. Reply comments are now due on April 27, 2020 (from April 6, 2020). Initial comments were due on March 9, 2020. The entire 75 megahertz of the 5.850-5.925 GHz Band is allocated for connected car intelligent transportation systems using dedicated short-range communications ("DSRC") technology. Under pressure to allocate more spectrum for Wi-Fi operations and dissatisfied with the pace of DSRC development and deployment, the Commission has proposed reallocating 45 megahertz of the Band for unlicensed use and 20 megahertz to cellular vehicle-to-everything intelligent transportation system technology, while preserving only 10 megahertz for DSRC.
• On April 10, 2020, the FCC’s Office of Economics and Analytics (“OEA”) extended via Public Notice (DA 20-401) the comment and reply comment deadlines for its Public Notice, released on February 27, 2020, which sought input on the state of the communications marketplace to inform the Commission’s required assessment of competition within the communications industry in its second Communications Marketplace Report to Congress. The Report provides an opportunity for stakeholders to evaluate competitive barriers to wireless and fixed broadband deployment, as well as international services. With this extension, comments are now due April 27, 2020 and reply comments are due May 28, 2020.
• On April 1, 2020, the Wireless Telecommunications Bureau (“WTB”) announced (DA 20-365) a compilation of instructions for filing Special Temporary Authority (“STA”) and waiver requests in response to the declaration of national emergency due to COVID-19 issued on March 13, 2020. The WTB STA and Wavier Filing Guide can be found online here. On April 10, 2020, the Public Safety and Homeland Security Bureau provided guidance to public safety entities on requesting STA and waivers (DA 20-404). All providers should consider whether an STA is appropriate to provide additional flexibility and improve service.
• ​On March 27, 2020, the FCC granted​ STA for 33 wireless Internet service providers (“WISPs”) to use the lower 45 megahertz in the 5.850-5.925 GHz Band for 60 days to address the increase in consumer demand because of the COVID-19 pandemic. Participating WISPs are required to file FCC Form 601 (application for an STA) within 10 days to access the full 60-day STA, and are required to operate in the band on a secondary, non-interference basis so as not to interrupt existing DSRC and federal radiolocation operations.
• ​On March 26, 2020, the FCC's WTB granted AT&T Special Temporary Authority (“STA”) to utilize additional spectrum in Puerto Rico and the U.S. Virgin Islands for 60 days to handle increased network traffic as a result of the COVID-19 pandemic. On March 30, 2020, the WTB granted A:shiwi College & Career Readiness Center an STA to utilize unassigned Educational Broadband Service(“EBS”) spectrum for 60 days in the eligible rural tribal land on the Zuni Reservation in New Mexico for similar reasons. These STAs are in addition to the ones previously granted by the Commission. ​
• On April 10, 2020, the FCC’s WTB enabled AT&T to deploy two cell sites in Wisconsin to support wireless service for a critical medical facility. That facility is being constructed by the U.S. Army Corps of Engineers at the Wisconsin State Fair Park in Milwaukee, Wisconsin to care for COVID-19 patients. The WTB granted AT&T’s request to expedite environmental review of the two proposed wireless tower sites, which will also serve first responders as part of AT&T’s FirstNet public safety broadband network. It is likely that the FCC will grant similar requests to expand communications infrastructure during the crisis.
• On April 2, 2020, the Public Safety and Homeland Security Bureau released a Public Notice (DA 20-367) reminding authorized alert originators, including state and local governments, that the Wireless Emergency Alert (“WEA”) system is available as a tool to provide life-saving information to the public during the coronavirus COVID-19 pandemic. In recent years, the FCC, together with the Federal Emergency Management Agency (“FEMA”) and participating wireless service providers, have taken important measures to promote the effectiveness of WEA, and to make such messages more accessible, including the capability to send more detailed alerts of up to 360 characters for 4G-LTE networks, the option to convey recommended actions for saving lives or property for use in connection with Imminent Threat Messages, and the ability to send alerts in Spanish.
• On March 26, 2020, the WCB waived a number of rules in its Rural Healthcare Program affecting existing users of the support programs. Most importantly, the Bureau’s order (DA 20-345) permits RHC applicants to extend existing evergreen arrangements with service providers by one year, without conducting an additional competitive bidding process, thereby ensuring continuity of service during the crisis. This builds on the Commission's previous waiver of rules for both the Rural Healthcare Program and the E-Rate program.
• On March 30, 2020, the FCC's WCB issued an order (DA 20-354) waiving certain rules requiring involuntary de-enrollment of Lifeline subscribers, including for non-usage of the service, until May 29, 2020. The Bureau also extended the previous waivers​ of the annual recertification and National Verifier reverification process de-enrollments to May 29 so that all of the waivers will expire at the same time.

If you have any questions, please contact your usual Kelley Drye attorney or any member of the Communications Practice Group. For more information on labor, advertising, and other issues, visit Kelley Drye’s COVID-19 Response Resource Center.

Over 500 Service Providers Pledge to “Keep Americans Connected”

On March 13, 2020, FCC Chairman Ajit Pai called on broadband and telephone service providers to forgo service terminations due to inability to pay, waive late fees, and open Wi-Fi hotspots for those who need them for the next 60 days. As of March 31, 2020, the FCC’s Keep Americans Connected page lists 550 participating service providers and 10 trade associations. The providers that have taken the pledge have agreed to, for the next 60 days: (1) not terminate service to any residential or small business customers because of their inability to pay their bills due to the disruptions caused by the coronavirus pandemic; (2) waive any late fees that residential or small business customers incur because of their economic circumstances related to the coronavirus pandemic; and (3) open their Wi-Fi hotspots to any American who needs them.

The Pledge applies only to residential and small business customers. “Small business” is not defined in the Pledge and may be subject to some variation depending upon the service provider. The Pledge does not apply to enterprise customers.

Additional Voluntary Actions for Low-Income Consumers

Chairman Pai also asked providers to expand or implement programs for low-income Americans, and to relax data cap policies in appropriate circumstances. Several carriers have already rolled out modified service offerings aimed at providing Internet access for free or at a reduced cost to low-income individuals and households, as well as K-12 households. Consumers and small businesses should review the list of service providers to determine if additional offerings are available in your area.

FCC Pauses Most Lifeline De-Enrollments for 60 Days

The FCC also has taken actions designed to protect customers of the FCC’s Universal Service Program providing wireless service to low-income customers. On March 17, 2020, the Wireline Competition Bureau issued an order (DA 20-285) waiving the Lifeline program’s recertification and reverification requirements (sections 54.405(e)(4) and 54.410(f) of the Commission’s rules) until May 16, 2020. This FCC order follows several state orders and decisions prohibiting or discouraging public utilities from disconnecting a consumer’s communications services. The FCC order also postpones the March 26, 2020 effective date of the requirement under section 54.406(a) of the Commission’s rules that eligible telecommunications carriers must require their enrollment representatives to register with USAC to May 25, 2020. On March 30, 2020, the FCC also waived the de-enrollment requirement for non-usage of the Lifeline service until May 29, 2020 and extended the previous waivers to May 29 as well so that all of the waivers would expire at the same time.

FCC Eases Rules for Providers of Video Relay Services for the Deaf and Hearing Impaired

On March 16, 2020, the Consumer and Government Affairs Bureau issued an order (DA 20-281) waiving several telecommunications relay services ("TRS") rules and at-home Video Relay Service ("VRS") pilot program requirements in response to increased demand for communications assistants ("CAs") and an anticipated reduction in the number of CAs able to work from call centers. Under the order, rules that limit the number of at-home minutes a CA can handle, that require CAs to have at least three years of experience, and multiple other rules designed to protect against fraud by CAs are waived for 60 days. In addition, the waiver permits a VRS CA to handle international calls (otherwise prohibited under the pilot program) and, in the traditional TRS program, waives the speed-of-answer call requirements. The applicable provisions of the Commission’s rules are waived through May 15, 2020. These actions should enable TRS and VRS providers to keep up with increased demand and to better utilize workforces that are unable to report to a traditional call center during the COVID-19 outbreak.

FCC Temporarily Grants Wireless Carriers Access to Additional Spectrum

The FCC has taken several actions designed to expand the ability of wireless service providers to handle the anticipated increase in demand from remote workers and distance learning in schools. On March 15, 2020, the FCC began granting Special Temporary Authority to several U.S. carriers, allowing them access to additional spectrum for the next 60 days in order to handle the increase in network traffic because of social distancing and stay-at-home orders issued in response to the COVID-19 pandemic. T-Mobile, Verizon (also here), U.S. Cellular, AT&T, rural wireless ISPs, and a tribal service provider in New Mexico have all received permission to utilize additional spectrum. Commissioner Jessica Rosenworcel, in a tweet, questioned whether U.S. networks can handle increased traffic and called on the FCC to utilize the disaster reporting system for COVID-19 and expand reporting requirements beyond telephone service to reflect the “broadband age.”

FCC Actions to Promote Service to Schools, Libraries, and Rural Healthcare Providers

Recognizing the likely increase in distance learning and telehealth services, the FCC has taken multiple actions designed to ease its rules applicable to existing FCC subsidies and is planning to accelerate new programs to support telehealth applications. Schools, libraries, and rural healthcare providers should review these actions carefully to determine their impact on their current operations.

The FCC’s primary actions are as follows:

On March 18, 2020, the Wireline Competition Bureau released an order (DA 20-290) waiving gift rules in the Rural Health Care and E-Rate programs to “enable service providers to offer, and RHC and E-Rate program participants to solicit and accept, improved broadband connections or equipment for telehealth or remote learning.” The order is intended to allow schools, libraries, and rural healthcare providers to meet anticipated short-term demands outside of the restrictions of the programs. By waiving the gift rules, applicants are free to accept – and service providers are free to offer – arrangements that would otherwise qualify as gifts. For example, a service provider might make significantly discounted service available, might waive data caps, or might provide free (or loaner) equipment to meet additional demand, all of which might have disqualified the service provider from future E-Rate or RHC bidding. Under the order, the gift rules (47 C.F.R. sections 54.503(d)(1), 54.603(b), 54.611(b)(2), 54.622(h)(1), 54.623(a)(1)(vi), 54.627(c)(3)(ii)(H), and 54.627(d)(1)(ii)(F)) will be waived through September 30, 2020.

On March 26, 2020, the Wireline Competition Bureau waived a number of rules in its Rural Healthcare Program affecting existing users of the support programs. Most importantly, the Bureau’s order (DA 20-345) permits RHC applicants to extend existing evergreen arrangements with service providers by one year, without conducting an additional competitive bidding process, thereby ensuring continuity of service during the crisis.

On March 30, 2020, the FCC announced that the Commission would consider two actions providing up to $300 million in new support for telehealth services. The Commission first will consider an order implementing a $100 million Telehealth Pilot Program first proposed in 2019. In addition, the Commission will consider an order that implements the recently-passed CARES Act, which provided $200 million to support telehealth applications. The $200 million may be used by healthcare providers for telecommunications services, information services, and devices to support telehealth and will be allocated via streamlined applications for the duration of the crisis. The news release does not specify timing for these actions, but they likely would be voted upon by the Commissioners soon.

FCC Clarifies that the TCPA Does Not Restrict Hospital, Healthcare Provider, and Government COVID-Related Communications

Finally, the FCC’s Consumer and Governmental Affairs Bureau issued an order that will enable many enterprises and small businesses to send certain emergency related communications under the Telephone Consumers Protection Act’s ("TCPA’s") “emergency purposes” exception. On March 20, 2020, the Bureau released a Declaratory Ruling (DA 20-318) regarding the TCPA’s “Emergency Purposes” exception to the consent requirement. The Bureau order declares that COVID-19 constitutes an emergency under the TCPA’s exception, thus allowing communications (voice calls and texts) related to the emergency without consent. The order specifically permits calls/texts where (1) the communication is made by a hospital, healthcare official, state, local or federal government official, or a person or entity acting on their behalf; and (2) the communication is informational, directly related to the COVID-19 pandemic, and related to the imminent health or safety risk of the pandemic. The order provides several non-exhaustive examples of communications that would fall within the emergency purposes exception. The Bureau made clear, however, that marketing messages may not be included in the communications. Indeed, on the same day, the Bureau released a warning identifying several COVID-related scams that had arisen.

It is important to note that this clarification applies to both voice calls and text messages that are sent by the designated entities (so long as the content is related to the COVID-19 crisis). The order is designed to ensure that time-sensitive messages are delivered promptly and are not impeded by the TCPA’s consent requirements. For entities not identified in the Bureau’s clarification, we recommend that you obtain the advice of counsel to determine how the TCPA applies to the proposed call or message. On March 30, 2020, a group of banking interests petitioned the FCC to extend its declaratory ruling to COVID-related communications from banks and financial institutions.

The 11th Annual Update will address the following, among other topics:

• The Rural Digital Opportunity Fund ("RDOF");
• Significant modifications to the Rural Healthcare and Lifeline programs;
• The proposal by the state members of the Joint Board to modify the contributions mechanism; and
• The FCC’s proposed new suspension and debarment rules.

CLE credit is available for this webinar.