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.

If the proposals in the NPRM are eventually adopted, the FCC envisions that qualifying smallsat systems will be able to save significant time and money. In particular, qualifying smallsat systems would not have to go through the often time-consuming and paperwork-intensive processing rounds normally associated with the licensing or market entry approval of non-geostationary orbit (“NGSO”) satellite systems. Furthermore, qualifying smallsat systems would only have to pay the proposed satellite application fee of $30,000 (as opposed to the $454,705 satellite application fee under the standard Part 25 approval process). Last but not least, qualifying smallsat systems that deploy at least half of their satellites within one year and thirty days of FCC approval would be able to forego filing surety bonds with the Commission. That’s not a small alteration, as these bonds can cost anywhere from one to five million dollars per system.

Per the NPRM, to qualify for streamlined approval, smallsat systems are those that have:

• A maximum mass of 180 kg per satellite
  • NASA previously identified 180 kg as the maximum mass for small satellites. The FCC believes this upper mass limit is sufficient to include typical small satellite designs, while allowing for flexibility to accommodate evolving satellite designs. But the Commission solicits views that another maximum mass limit, such as 500 kg, may be appropriate or that some other criterion, rather than mass, such as a zero reentry casualty risk criterion, may be more appropriate. Parties that are considering larger smallsats can be expected to weigh in on this tentative upper limit. (There is a proposed lower size limit of 10 cm in each dimension.)

• Ten or fewer satellites per authorization
  • The FCC anticipates that many smallsat applicants only intend to launch one or a few total satellites. The NPRM states that the streamlined process is intended for a limited group of applicants whose operations are small enough in scope that it would not serve the public interest to apply standard Part 25 procedures. Accordingly, the FCC seeks comment on whether it should limit the number of smallsats under a single license and also whether to limit the total number of smallsat applications that can be filed by an individual operator under the streamlined process.

• Total on-orbit lifetime of five years or less
  • As is stated in the NPRM, the ITU has previously found that the typical operational lifetime of nanosatellites is anywhere between one and three years. The FCC requests comment on a longer lifespan of five years to qualify smallsats in recognition of the fact that (1) some satellites might be launched at different times under a license in order to factor in time for the satellites to deorbit, and (2) satellites should be left ample time to deorbit.

• Either orbital altitudes below 400 km or propulsion systems
  • Naturally, the FCC wants to prevent in-orbit collisions, an issue that increases as the number of satellite proliferates. Indeed, recently, the Commission has asked some NGSO-applicants with large constellations to coordinate with others on collision avoidance. The International Space Station (“ISS”) currently operates at an altitude of approximately 400 km. Hence, the Commission proposes either a certification that the satellites will operate in a sub-400 km orbit, or, where that is not the case, that the satellites have built-in collision avoidance capabilities such as propulsion systems. The NPRM seeks comment on these issues and any other factors parties believe the FCC should consider in specifying criteria related to smallsat orbits.

• A relatively low risk profile regarding orbital debris
  • Along similar lines, the Commission tentatively concludes that it will limit the streamlined process to satellites that release no operational debris in a planned manner during their mission lifetime. Per the NPRM proposal, applicants will have to certify that each satellite has a risk of collision with large objects that is less than 0.001 probability over its lifetime, which is consistent with technical guidance developed by NASA for its space missions.

• Zero risk of human casualties
  • The NPRM proposes that any smallsat applicant seeking streamlined approval must certify that it has conducted a casualty risk assessment using the NASA Debris Assessment Software (“DAS”) or another higher fidelity model, and that the assessment resulted in a human casualty risk of zero. The Commission plans to require zero risk (but seeks comment on this tentative conclusion) because any casualty risk could result in a future claim being presented to the U.S. for liability for damage caused by space objects pursuant to the UN’s Outer Space Treaty.

• Ability to cease transmissions on command
  • Both international radio regulations and FCC rules require that space stations be equipped with devices that are capable of immediately ceasing radio emissions. The NPRM tentatively concludes that applicants for smallsats must certify that each satellite has the ability to receive command signals and cease transmissions as a result of a command. As part of this approach, the FCC seeks comment on whether it should require that satellites employ a “passively safe” system (i.e., the satellite cannot transmit unless it is actively commanded to transmit via a command, and will cease transmission unless within view of a ground station).

• A unique telemetry marker
  • The FCC proposes to have applicants certify that the smallsats will include a unique telemetry marker allowing it to be readily distinguished from other satellites or space objects. The Commission believes such certifications would help ensure that satellite operators can assist entities that track space objects to identify and distinguish between the smallsats and other space objects. It seeks comment on any alternative methods to achieve the same purpose.

In the NPRM, the FCC identifies the 137-138, 148-150.05, and 1610.6-1613.8 MHz bands for consideration as potential bands for smallsat systems, reflecting what the Commission expects to be low data rate links for at least some smallsats. The FCC also proposes to allow smallsats to operate inter-satellite links in the 1615-1617.75, 1618.725-1626.5, and 2483.5-2495 MHz bands.

The NPRM proposes to apply the existing Part 25 technical rules to smallsat systems qualifying for streamlined approval, but seeks comment on what other frequency band-specific adjustments should be made to accommodate smallsats.

Comments will be due 45 days and reply comments will be due 75 days after publication of the NPRM in the Federal Register. Publication has not yet occurred.