The August agenda items impact all corners of the telecommunications industry. You will find more details on some of the most significant August meeting items after the break:

RDOF Funding and Procedures: The draft Notice of Proposed Rulemaking (“NPRM”) seeks comment on the budget, auction procedures, application processes, and deployment obligations for the RDOF. The FCC plans to target $20.4 billion in support to areas that lack access to 25/3 Mbps broadband service, which represents the agency’s current benchmark for fixed advanced communications services and an increase over the 10/1 Mbps minimum performance tier under the CAF. The FCC would award RDOF support through an auction in two phases, with the first phase targeting wholly-unserved census blocks and the second phase focusing on partially-unserved census blocks. Like the CAF auction, the FCC anticipates weighing RDOF auction bids based on performance, with higher-speed, lower-latency services preferred. RDOF bidders would be subject to similar application procedures, deployment milestones, and reporting obligations as CAF auction participants.

RDOF Data Collection: The draft Report and Order and Further NPRM would require all fixed broadband providers to submit coverage polygons depicting the areas where they provide service as well as information on the speed and technology used in providing such service. Service provider coverage claims would be subject to challenge by government entities and the public, with the FCC seeking comment in the further NPRM on how it should gather and apply this “crowdsourced” information. For now, the RDOF data collection would be in addition to the deployment data already collected by the FCC from service providers through the Form 477. The new data collection would only apply to fixed broadband providers at first, but the FCC would seek comment on the parameters for incorporating mobile broadband coverage data into the RDOF in the future. In addition, the FCC would seek input on whether to require even more precise deployment data based on user location and who should bear the burden of such data collection.

Rural Health Care Program (“RHCP”) Reform: The draft Report and Order would adopt reforms to the FCC’s RHCP, which provides financial support to rural health care providers to obtain broadband and other communications offerings at discounted rates to facilitate telehealth services. The FCC plans to revamp the RHCP’s Telecom Program that subsidizes the difference between urban and rural service rates by, among other things, requiring the RHCP Administrator to create a database of rates that health care providers would use to determine the amount of support they can receive. The FCC would prioritize RHCP funding in the event support requests exceed the cap (which was $581 million in 2018) based on the rurality of the area and whether the area faces a shortage of medical personnel. The FCC would caution that it intends to enforce limits on RHCP spending consistent with its current review of overall universal service budgets. In addition, the FCC anticipates tightening up its RHCP competitive bidding and consultant rules following a number of high-profile enforcement actions.

Streamlining Smallsat Licensing: The draft Report and Order would revise the FCC’s current one-size-fits-all satellite licensing regime and create a tailor-made path for licensing smallsats. Smallsat applicants would be subject to lower application fees, easier application processes, and quicker agency reviews, including an exemption from the agency’s processing round procedure that often delays approvals as competing satellite systems file challenges. To qualify for streamlined processing, smallsat applications must meet certain requirements, including: (1) a maximum mass of 180 kg for any single satellite; (2) no more than 10 satellites under a single authorization; (3) total on-orbit satellite lifetime of five years or less; (4) propulsion capabilities or deployment below 400 km altitude; (5) ability to share frequencies with current operations without precluding future entrants; and (6) relatively low risk from orbital debris.

Toll-Free Number Auction: The draft Public Notice would establish procedures for the auction of over 17,000 toll-free numbers in the “833” code, with applications due by October 18, 2019 and bidding set to begin on December 17, 2019. The auction would be the first time the FCC has used competitive bidding to distribute numbering resources. The auction would be run by Somos, which currently is the designated administrator of the toll free database. Parties may apply to participate in the auction individually or through a Responsible Organization, which can bid on behalf of multiple parties as long as the parties do not want the same numbers. Parties would be subject to application, anti-collusion, and default provisions similar to those used in the FCC’s recent spectrum auctions. Winning bidders would be allowed to sell the toll-free numbers obtained through the auction on the secondary market and would report such secondary market transactions to Somos.

MLTS 911 Requirements: The draft Report and Order would implement recent legislation by prohibiting the manufacture, import, sale, or lease of an MLTS unless it is pre-configured so that a user may initiate an emergency call by dialing 911 without first having to dial “9” or take other action to access an outside line. Similarly, anyone installing, managing, or operating an MLTS would not be allowed to do so unless the MLTS is pre-configured to allow 911 direct dialing. If possible, MLTS managers also must configure the MLTS to provide a notification when a 911 call is made to a central location (e.g., front desk, security office) in order to facilitate emergency response efforts. The FCC plans to adopt an assumption that an MLTS manager is responsible for any failure to comply with the 911 direct dialing or notification rules. The new rules would apply to any MLTS manufactured, imported, sold, leased, or installed after February 16, 2020. In addition, the FCC would impose “dispatchable location” requirements on MLTS and other 911-capable services, which would require the transmission of a caller’s street address and additional information such as room number, floor number, or other data to help identify the caller’s location.

Anti-Spoofing Expansion: The draft Report and Order would expand the reach of FCC enforcement against the manipulation of caller ID information for malicious purposes (otherwise known as “spoofing”) under new authority granted by legislation adopted last year. Specifically, the FCC would extend its authority to punish spoofing violations for communications originating from foreign points to recipients within the United States. The FCC also would expand the scope of communications covered by its anti-spoofing rules to include some of the most widely-used forms of text messaging as well as alternative voice services, such as one-way VoIP services. The draft item follows in the wake of numerous enforcement actions imposing large fines for malicious spoofing in 2018.

Cable Franchise Fee Restrictions: The draft Report and Order would address concerns raised by a federal appeals court regarding the fees imposed by local franchising authorities (“LFAs”) on cable operators. The Communications Act places a five percent cap on such fees, but cable operators allege that LFAs frequently seek additional benefits as part of the franchise process. The draft item would treat most in-kind contributions required by LFAs from cable operators as fees subject to the five percent cap. Moreover, the FCC would prohibit LFAs from using their franchising authority to regulate most non-cable services, including broadband services offered over cable systems. LFAs also would be prohibited from requiring cable operators to secure additional franchises or other authorizations to provide non-cable services through their cable systems.

Currently, the Commission’s unlicensed rules permit operations in the 6 GHz Band for wideband systems (e.g., sensor/tag systems used to locate objects) and ultra-wideband operations. In general, the draft NPRM would allow other unlicensed devices to be introduced to the 6 GHz Band by splitting the spectrum into four sub-bands that pair technical and operational parameters with certain 5 GHz U-NII sub-bands, while incorporating features designed to protect incumbent licensees in those sub-bands. The Commission hopes that by mirroring the operational and technical parameters that already exist for unlicensed devices in the 5 GHz Band, it will “create an enhanced ecosystem of unlicensed use in the 6 GHz band and the nearby U-NII bands” (which are spread over 580 megahertz within the 5150-5850 MHz range).

5.925-6.425 and 6.525-6.875 GHz: Automated Frequency Control

The draft item notes that the U-NII-5 and U-NII-7 sub-bands are home to point-to-point microwave links that support public safety, railroad, oil and gas pipeline, utilities, and wireless and wireline communications service, as well as some fixed satellite services. As the fixed service incumbents are at known, fixed locations, the FCC believes the AFC system could be a “simple database” which is automatically queried to determine which frequencies are available for an unlicensed device to use at a given location and time. The FCC seeks comment on numerous aspects of possible approaches to the AFC system concept, thereby highlighting the many technical and other issues that will need to be resolved. These include what are the basic eligibility requirements to be an AFC system operator; whether there should be more than one AFC system; whether the FCC’s ULS system is or can be made sufficiently reliable as the basis for AFC system operation and determination of available frequencies; whether and how AFC systems (assuming there are more than one) will need to exchange data; whether the AFC system(s) should be centralized or de-centralized; whether unlicensed devices will need to register with the AFC system(s) and will need to identify themselves to incumbents; how the location and height of an unlicensed 6 GHz Band device will be determined before frequencies are selected; what security needs to be in place to ensure proper operation of the AFC system(s); whether 6 GHz Band unlicensed devices might cause aggregate harmful interference to satellite space station receivers and, if so, how to mitigate that interference; how often unlicensed devices would need to check the AFC system to confirm the availability of the frequencies they are using; and whether and how AFC system operators can charge access fees. The FCC also requests input on the nature of and metrics for the appropriate interference standard to protect incumbent licensees, ensuring that unlicensed devices in the U-NII-5 and U-NII-7 sub-bands cannot operate co-channel to any fixed link within that link’s defined exclusion zone. In this area, the Commission faces a number of “real-world” challenges, such as properly allowing for multipath fading when an AFC system determines that a frequency is available, with the goal of maximizing spectrum utilization by licensed and unlicensed devices.

6.425-6.525 and 6.875-7.125 GHz: Low-Power, Indoor Operation

Interference Mitigation

As set forth in notes buried in the Code of Federal Regulations, these rules were not effective pending approval by OMB, to be followed by notice from the FCC of that approval. The Commission’s publications in the Federal Register on August 26 and August 27, 2013, now make these rule provisions immediately effective and enforceable.

As a practical matter, many industry participants may have proceeded as though these rules were already in effect or may have had analogous contractual obligations, but the rules’ formal effectiveness gives them teeth backed by potential enforcement before or by the Commission. Recent changes to the FCC pole attachment rate formulas that were upheld earlier this year brought the attachment rates for telecommunications carriers closer to those of cable operators under certain conditions, but in many circumstances there can still be a considerable difference in the two rates. For this reason, the National Cable and Telecommunications Association ("NCTA") brought a petition for reconsideration, which is still pending, in an attempt to bring the telecommunications carrier rate down to the cable operator rate in virtually all situations. Until that happens, if ever, where a cable operator is also providing telecommunications it will often be relevant whether the offering meets the definition of “telecommunications services,” both with regard to the rate paid and whether notice to the pole owner is required. Many cable operators may already be under a contractual obligation to notify pole owners when they begin to provide telecommunications services, but the Commission’s August 27 announcement now makes notice an effective obligation under the rules with attendant potential enforcement ramifications.

Similarly, this week’s Federal Register notices make formally effective rules not only regarding the content of complaints regarding pole attachments and access to other rights of way, which parties have been using as a guideline for more than a decade, but also the regulatory obligation of pole owners to make available information, upon request, regarding rates, terms, and conditions. More to the point, the now effective third sentence of Rule 1.1404(j) provides that a utility, within 30 days of receiving a request, must supply a cable television operator or telecommunications carrier information the utility relied upon to establish a rate, term, or condition for attachment to or occupation of the utility’s pole, conduit, duct, or other right-of-way. On its face, this obligation extends not only to annual attachment or conduit fees but charges for make ready and other non-recurring activities.

Again, as a practical matter many utilities have been in the practice of providing information to attachers regarding their annual attachments fees, but the now formally effective rule may prove another arrow in the quiver of existing and would be attachers questioning the level of any of a utility’s charges.

The Second Streamlining Order does impose requirements on some new classes of providers. It extends the requirement to file the Traffic and Revenue Report to providers of both international interconnected Voice over Internet Protocol (“VoIP”) service and international “one-way” VoIP services. One-way VoIP services are those VoIP providers that permit users either to receive calls from or place calls to the public switched telephone network, but not both. The Second Streamlining Order also requires for the first time a Circuit Status report from all submarine cable licensees, not just licensees that are common carriers, as well as for international common carrier terrestrial and satellite circuits of facilities-based common carriers and the non-common carrier circuits of satellite operators.

The Annual International Reports will retain their current separate filing deadlines -- March 31 for the Circuit Status Report and July 31 of the Traffic and Revenue Report. The effective date of the rule changes is currently unknown; it is at present unclear if the requirements will go into effect in time for the filing of either of the International Reports this year. The Office of Management and Budget must first approve the reporting and filing changes. The FCC expressly directed parties in the Second Streamlining Order to continue filing the Annual International Reports pursuant to its existing rules until it announces the new reporting requirements have become effective.

A host of other changes were made to the Traffic and Revenue reporting requirements, including, among others, use of specific Commission-created filing schedules; a requirement to disaggregate world-total international calling services (“ICS”) traffic and revenue data for specific customer categories and routing arrangements (for example, residential and mass market, reoriginated foreign traffic, and U.S. resellers); a requirement to report circuit and revenue data for private line service provided over resold circuits only on a world-total basis; a requirement to report on international private line services only in terms of total 64 kbps-equivalents; and a requirement to disaggregate data, for minutes and settlement payments, between calls terminated on fixed line networks and those terminated on mobile networks when the termination rates are different. Under the new rules, filers will be required to file any revisions or corrections to their Traffic and Revenue reports by October 31 in the filing year for any values with errors exceeding one percent (1%). Those U.S. International Service Providers that do not provide facilities-based ICS and have less than $5 million in revenues from ICS resale will not be required to include resale-ICS on their annual Traffic and Revenue Report.

The Second Streamlining Order extended the Circuit Status reporting requirements beyond common carriers. Under the new rules, the international common carrier terrestrial and satellite circuits of facilities-based common carriers and the non-common carrier circuits of satellite operators must be reported. At the same time, the Commission also streamlined the Circuit Status reporting obligations for affected parties by eliminating the requirements to report on the destination of circuits or the number of idle circuits. International terrestrial and satellite circuit providers that must file will now need to report only world totals of aggregate active 64 kbps terrestrial and satellite circuits.

The Second Streamlining Order made changes that will require Circuit Status reports to be filed for all submarine cable capacity, not just capacity used for common carrier services. Consequently, all cable landing licensees (both common carrier and non-common carrier licensees) and those common carriers with capacity on international submarine cables will be required to report on both available and planned capacity on all such circuits.