Spectrum Frontiers Auctions: The FCC issued a draft Public Notice in its ongoing Spectrum Frontiers proceeding establishing application and bidding procedures to auction 850 MHz of spectrum in the 28 GHz band and 700 MHz of spectrum in the 24 GHz band. The spectrum would be made available for flexible wireless use to support 5G technologies. The FCC plans to start the 28 GHz band auction by mid-November 2018, with the 24 GHz band auction following soon afterward. The agency would apply its standard auction rules to each proceeding to facilitate participation in both auctions. In addition, the FCC released a draft proposed rulemaking seeking comment on service rule changes for the 39 GHz band, which along with the upper 37 GHz band, represents the largest amount of contiguous spectrum available for flexible use in the millimeter wave bands. The FCC anticipates freeing up this spectrum through an incentive auction tentatively planned for 2019. Comments will be due September 17, 2018 and replies on October 8, 2018.

One-Touch Make-Ready: A draft Order and Declaratory Ruling would allow the “vast majority” of pole attachments to follow a one-touch make-ready process, in which new attachers may elect to perform all of the work to prepare a pole to hold new facilities without relying on the pole owner. The FCC also plans to codify its existing precedent regarding the “overlashing” of new facilities to current attachments, while eliminating disparities between the pole attachment rates paid by incumbent telecommunications carriers versus cable and other telecommunications attachers. In addition, the draft would clarify that state and local moratoria on telecommunications services and facilities deployments are preempted under federal law.

$100 Million Connected Care Pilot Program: The FCC plans to adopt a Notice of Inquiry (“NOI”) seeking input on a proposed $100 million “Connected Care Pilot Program” to support telehealth services delivered to low-income Americans. The proposed program would draw money from the Universal Service Fund, potentially lowering the funds available to other programs (it notes the reduced spending on the Lifeline Program), and the FCC is looking for comments on the appropriate application procedures, supported services and equipment, support amounts, eligibility criteria, and duration for the pilot program. The NOI asks a lot of open questions, but also seeks comment on restricting the pilot program to projects that would involve new or upgraded deployments or upgrades to existing facilities and whether to only partner with facilities-based eligible telecommunications carriers (“ETCs”), which would be consistent with the agency’s proposal in late 2017 to limit the Lifeline Program to facilities-based ETCs. Comments will be due 30 days after the NOI is released and reply comments are due 60 days after release.

The NPRM was published this morning in the Federal Register, establishing the comment deadline at May 17, 2017 with reply comments due by June 1, 2017. International telecommunications providers subject to the reporting requirements should review the NPRM and consider whether to participate in the comment cycle to ensure their views are heard.

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

Comments are due to the Bureau by June 22, 2016. The Commission will use these comments to inform tentative findings, which will then be open for another round of public comment. The report to Congress is due by October 8, 2016.

Section 255 governs accessibility requirements for telecommunications and interconnected VoIP service providers and equipment manufacturers. Section 716 applies to non-interconnected VoIP services, advanced communications services (e.g., electronic messaging services and interoperable video conferencing services), and the manufacturers of devices for these services. Section 718 requires Internet browsers on mobile phones to be accessible to the blind and visually impaired. Section 717 contains recordkeeping and enforcement obligations applied to entities covered by sections 255, 716, and 718.

In addition to telecommunications, advanced communications services, and Internet browser technologies, the Commission seeks comment on accessibility barriers to “new communications technologies,” that are both within and outside the scope of the Act. The 2012 CVAA Report expressed an expectation that many accessibility barriers to new communications technologies would likely be addressed by compliance with the requirements under section 716 and 718, and the Commission now seeks comment on the extent to which that expectation has been met, and what barriers remain.

In its Petition, Twilio argues that "messaging services"—i.e., Short Message Service (SMS) messages, Multimedia Messaging Service (MMS) messages, and short-code based services, that are interconnected with the public switched telephone network (PSTN) and/or utilize North American Number Plan (NANP) numbers—should be classified as telecommunications services for three reasons. First, Twilio asserts that under the D.C. Circuit’s Verizon decision vacating, in part, the Commission’s 2010 Open Internet Order, “the Commission cannot subject messaging services to Title II in certain respects [e.g., its Telephone Consumer Protection Act rules] without classifying messaging services as telecommunications services.” Second, Twilio argues that “messaging services are telecommunications services subject to Title II under the Communications Act and the Commission’s Open Internet framework” because “the only offering the wireless carriers make to the public with respect to messaging services is the ability of consumers to send and receive messages of the consumers' design and choosing.” Third, Twilio contends that messaging services are independently subject to Title II as “commercial mobile services because they are interconnected with the public switched telephone network.”

This proceeding is important for several reasons. As an initial matter, if the FCC were to grant the petition, it would represent a further expansion of FCC authority into previously lightly regulated communications services, following closely on the heels of the 2015 Open Internet Order, which reclassified broadband Internet access services (BIAS) as telecommunications services under Title II. Indeed, while the Commission has asserted jurisdiction over text messages in limited contexts, it has declined, for years, to formally classify messaging services under the Communications Act. Moreover, if the Commission were to classify messaging services as Title II telecommunications services, it would need to address the panoply of Title II regulations that attach to common carriers, including privacy and other obligations. Further, this proceeding could open the door for the Commission to consider the regulatory status of non-interconnected over-the-top (OTT) messaging and video communications platforms. Notably, the Commission already has begun to think more broadly about its role in the OTT messaging ecosystem in the context of its accessibility rules and text-to-911.

Comments are due on November 20, 2015, and replies are due December 21, 2015. Should you have any questions about this proceeding and what it means for your business, feel free to contact a member of Kelley Drye’s Communications practice.

In its petition, TextMe requests that the Commission: (1) clarify the meaning of the term "capacity" as used in the TCPA’s definition of "automatic telephone dialing system" ("ATDS") and (2) clarify that users of TextMe’s service, instead of TextMe itself, make or send calls or text messages for purposes of the TCPA. Alternatively, TextMe requests that the Commission clarify that third-party consent obtained through an intermediary satisfies the TCPA’s “prior express consent” requirement for calls and texts to wireless numbers.

This petition marks the latest effort from entities seeking clarification on the definition of an ATDS. And while the Commission has begun to address some of the nearly two dozen TCPA petitions remaining on its docket, it has yet to resolve many critical questions that could provide much needed clarity for telemarketers and class action plaintiffs alike. One such question is the applicability of the TCPA to text messaging. FCC Commissioner Michael O’Rielly recently expressed hesitation in applying the TCPA to text messaging, since Congress enacted the TCPA before the first text message was ever sent. The TextMe case provides the Commission with an opportunity to consider the issue anew, so interested parties may consider addressing it in their comments.

Comments are due May 7, 2014, while replies are due May 22, 2014.