You will find more details about these items on the May meeting agenda after the break.

Reducing Interstate Rates and Charges for Incarcerated People – The Third Report and Order, Order on Reconsideration, and Fifth FNPRM all have different purposes related to reducing the telephone service rates for inmate phone calls. The Third Report and Order would lower the interstate interim rate caps to $0.12 per minute for prisons and $0.14 per minute for jails with populations of 1,000 or more. It would permit an additional allowance of $0.02 for negotiated site commission payments, and eliminate the separate interstate collect calling rate cap. The Report and Order would cap international calling rates, change ancillary service charge rules for third-party financial transaction fees, and adopt a new mandatory data collection to gather data and set permanent rates. The Report and Order would also reaffirm providers’ obligations regarding access for incarcerated people with disabilities. The Order on Reconsideration would reaffirm the FCC’s findings in the 2020 Inmate Calling Services Order that the jurisdictional nature of a telephone call for purposes of charging consumers depends on the physical location of the originating and terminating endpoints of the call. The FNPRM seeks comment on the provision of communications services to incarcerated individuals with disabilities, permanent interstate and international rate caps, and reforms to site commission payments and rules regarding ancillary service charges.

Strengthening Support for Video Relay Service – The NPRM suggests a continued use of a tiered rate structure for the next VRS compensation plan. It also seeks comment on whether to adjust tiered rate levels, bring average provider compensation closer to allowable costs, or defer rate changes for two years while waiting for a resolution of uncertainty about post-pandemic changes in VRS costs and demands. The Order would extend current VRS compensation rates through December 31, 2021, or the effective date of compensation rates adopted by the NPRM, whichever is earlier.

Shortening STIR/SHAKEN Extension for Small Providers Likely to Originate Robocalls – The Third FNPRM proposes to shorten the extension for small voice service providers that are most likely to originate illegal robocalls. These small providers would have to implement STIR/SHAKEN in the IP portions of their networks by June 30, 2022—shortening the extension by one year. The FNPRM seeks comment regarding the best methods to identify and define the small voice service providers that are at a heightened risk or originating an especially large amount of illegal robocall traffic. It proposes three measures to identify such providers that would be subject to a shortened implementation deadline:

• small voice service providers that originate more than 500 calls per day for any single line in the normal course of business;
• small voice service providers that receive more than half their revenue from customers purchasing services that are not mass market services; or
• small voice service providers that offer certain service features to customers commonly used for unlawful robocalls, such as the ability to display any number in the called party’s caller ID, or to upload and broadcast a prerecorded message.

Section 214 Petition for Partial Reconsideration for Mixed USF Support Companies – The Order on Reconsideration addresses a request related to a transaction involving a Section 214 transfer of control. The Order would grant the petition and exclude the petitioner from the mixed support condition because the cost shifting harm that the mixed support condition was designated to address is not present in the current case. The Order would also reaffirm the FCC’s delegation of authority to the Wireline Competition Bureau to continue applying the mixed merger condition where it is deemed necessary to remedy a potential public interest harm.

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.

You will find more details on the significant May meeting items after the break:

China Mobile Authorization Denial: The draft Order would reject China Mobile USA’s application for authority to provide telecommunications services between the United States and foreign points. The FCC would find that, while foreign government control of a carrier is not (by itself) grounds for denial, the Chinese government’s ultimate control of China Mobile USA could result in covert monitoring and disruption of U.S. communications networks. The FCC also would note prior challenges with prosecuting Chinese-owned companies for violations, even when such entities are incorporated under U.S. law. Unlike prior grants of authority involving foreign-owned carriers, the FCC would conclude that the pervasiveness of Chinese government control over China Mobile USA undermines any potential mitigation measures the company could implement to address its national security concerns.

Shared Use of the 1675-1680 MHz Band: The draft Notice of Proposed Rulemaking (“NPRM”) would request input on permitting fixed/mobile wireless services (except aeronautical mobile services) to share the 1675-1680 MHz band on a co-primary basis with incumbent federal weather monitoring operations. The item appears to be a response to language in President Trump’s proposed 2020 budget that would effectively require the Commission to act on a petition filed by Ligado Networks by requiring the FCC to auction this spectrum for wireless broadband use subject to sharing arrangements with Federal weather satellites. Satellite and weather data stakeholders have previously opposed Ligado’s use of the 1675-1680 MHz band because of concerns that its use would result in harmful interference to meteorological satellites that provide real-time weather and related environmental information. Non-federal operators would be required to comply with power limits and other restrictions designed to protect federal users in the band from harmful interference. The FCC would propose licensing the spectrum in unpaired five-megahertz blocks on a partial economic area basis through competitive bidding. The spectrum auction likely would take place in 2020.

Toll Free Number Auction: The draft Public Notice would set the stage for the auction of over 17,000 numbers in the recently-opened 833 toll free code. While the FCC traditionally assigned toll free numbers on a first-come, first served basis, it adopted rules last year to allow for auctions to improve efficiency and fairness in the toll free number assignment process. The Public Notice would request comment on the application, bidding, assignment, and payment procedures for the auction. Under the FCC’s plan, government entities and non-profit health/safety organizations could petition the agency to set aside specific 833 toll free numbers for their use. The auction would consist of a single round overseen by Somos, Inc., the Toll Free Numbering Administrator. Winning bidders would be able to sell the rights to their toll free numbers through secondary market transactions following the auction. The FCC has not indicated when it expects the auction to occur.

VRS Reform: The draft Order and Further NPRM would facilitate direct video calling between VRS users and customer support call centers by allowing such centers to list their videophones in the VRS numbering directory. To address potential program fraud, the item would require per-call validation of VRS user registrations and force VRS providers to register enterprise and publicly-available videophones. In addition, the FCC would prohibit VRS providers from offering non-VRS-related inducements to encourage customers to sign up for their services. The draft item also would request input on whether the FCC should make permanent a pilot program allowing VRS calls to be handled by at-home interpreters. The item would further ask whether the FCC should allow VRS providers to offer service to new users pending identity verification and require users to “log-in” before using enterprise and publicly-available videophones.

2019 Regulatory Fee Assessment: The draft NPRM would seek comment on the FCC’s proposed collection of $339,000,000 in regulatory fees for fiscal year 2019. The fees would be due in September 2019 and generally would follow the methodology used in past collections. Nearly all service categories would see at least a slight increase to their regulatory fees in order to cover the $16 million projected increase to the agency’s budget and operators should review the NPRM’s proposed fee schedule for the expected impact to their services.

You will find more details on the significant January meeting items after the break:

Expanding Anti-Spoofing Enforcement: The draft Notice of Proposed Rulemaking would seek comment on adopting anti-spoofing reforms mandated by the RAY BAUM’s Act passed last year. Specifically, the FCC plans to extend its authority to punish anti-spoofing violations for communications originating from foreign points to recipients within the United States. The FCC would argue that its existing authority, which is limited to communications initiated within the country, has hampered enforcement efforts against foreign operations that generate consumer complaints. The FCC also would seek comment on amending its anti-spoofing rules to cover some of the most widely-used forms of text messaging as well as all voice services that connect to the public switched telephone network. The FCC’s proposal would maintain the exemption for IP-enabled messaging services, such as the popular iMessage, Google Hangouts, WhatsApp, and Skype, which do not rely on the traditional telephone network. Finally, the FCC would ask what other changes it should adopt to better prevent the transmission of inaccurate or misleading caller ID information.

IP CTS User Registration and 911 Calling: The draft Report and Order, Further Notice of Proposed Rulemaking, and Order would require IP CTS providers to submit user data to the FCC’s database currently used to register users of the similar Video Relay Service. The draft argues such action is necessary to reduce waste, fraud, and abuse in the program, which has seen exponential growth in spending. Over a six-month period, all IP CTS providers (there currently are five) would be required to collect and submit user information like name, address, unique IP CTS equipment identifier, last four digits of social security number, and other data. The database would conduct an identity verification check and IP CTS providers would only be able to seek compensation for providing service to verified users. The FCC also would seek comment on streamlining the transmission of 911 calls made through IP CTS by reducing the information collection requirements currently imposed on service providers. Instead of having to provide detailed caller information to the relevant public safety answering point, service providers would instead connect the 911 call, provide a callback number for the user, and ensure the user receives captions on any callback. The FCC plans to waive the caller detail requirements for IP CTS service providers while it considers the proposed rule changes.

CAF Phase-Down and Transition: The draft Report and Order would establish a schedule to end CAF Phase I support for price cap carriers and competitive carriers that provided service to fixed locations under the old “identical support rule,” transitioning such support to the winners of the CAF Phase II auction that concluded in August 2018. Phase I support currently received by price cap carriers would be eliminated beginning on the first day of the month following another provider’s authorization to receive Phase II support in an area. If the existing price cap carrier was the winning bidder in the Phase II auction, its support would be converted to Phase II support once the FCC’s Wireline Competition Bureau authorizes support distribution for the area. Meanwhile, Phase I support currently received by the competitive carriers would be phased down over the course of two years. For the first 12 months following the authorization of a new CAF Phase II service provider for the area, the carrier would receive two-thirds of its current support. The following 12 months, the carrier would receive one-third of its current support. The support then would terminate. The FCC would continue to provide Phase I support to existing service providers in areas that did not receive any winning bids in the CAF Phase II auction. The FCC would offer legacy support recipients the option to decline further support, freeing them from many (but not all) of their existing high-cost service obligations.

Note that the FCC may revise its meeting agenda to add or remove items – or reschedule the meeting entirely – depending on how long the shutdown lasts. The shutdown prevents stakeholders from meeting with FCC staff about the proposed items and, while the FCC’s comment system remains open to accept new filings, the dockets will not be updated until after the agency resumes normal operations.