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 Provides Invoicing Guidance for COVID-19 Telehealth Program Fund Recipients, Begins Approving Funding Requests

On April 17, 2020, the FCC’s Wireline Competition Bureau (“WCB”) and Office of Managing Director provided guidance (DA 20-425) for funding recipients on how to invoice the FCC for COVID-19 Telehealth Program-funded services and/or connected devices. Under the COVID-19 Telehealth Program, disbursements are issued directly to the participating health care providers, rather than to the service providers or vendors that have provided the eligible services and/or connected devices to participating health care providers. Participating health care providers therefore need to invoice the FCC to be reimbursed for the eligible services/connected devices they purchased under the program. Participating health care providers will need to submit a COVID-19 Telehealth Program Request for Reimbursement Form (found here) to the U.S. Department of the Treasury’s Bureau of the Fiscal Service Invoice Processing Platform (“IPP”) (located here). The guidance provides important details on how to fill out a reimbursement request as well as how to register and use the IPP.

On April 16, 2020, the WCB approved six funding applications for the COVID-19 Telehealth Program. The applications generally focused on diagnosis and preventing the spread of COVID-19 among vulnerable populations, such as low-income or elderly persons. Congress appropriated $200 million for the FCC to support health care providers’ use of telehealth services as part of the recently-enacted CARES Act. The FCC began accepting applications on Monday, April 13. It is continuing to evaluate applications and will distribute additional funding on a rolling basis. The FCC will disburse funding until the program’s funds have been expended or the COVID-19 pandemic has ended. Demand for COVID-19 Telehealth Program funding is expected to be high and stakeholders should take action now to prepare and submit funding applications.

FCC Tasks BDAC Working Group with Addressing COVID-19 Challenges

On April 16, 2020, Chairman Ajit Pai announced (DA 20-420) additional duties for the Disaster Response and Recovery Working Group of the Broadband Deployment Advisory Committee (“BDAC”). The BDAC makes recommendations to the FCC on how to accelerate the deployment of high-speed broadband access. The Working Group will assist the BDAC in documenting the strategies and solutions that stakeholders are developing and implementing in real time to address deployment-related challenges presented by COVID-19. It will also enable the BDAC to report on best practices and lessons learned from the response to COVID-19 to help with the ongoing response to the pandemic, and to assist stakeholders, including the FCC, in preparing for and responding to any comparable future crises. Nominations for new members of the Working Group should be submitted to the FCC no later than April 27, 2020.

FCC Grants Navajo Nation Request to Use Unassigned Spectrum

On April 17, 2020, the FCC’s Wireless Telecommunications Bureau (“WTB”) granted an emergency Special Temporary Authority (“STA”) request filed by the Navajo Nation to use unassigned spectrum in the 2.5 GHz band to provide wireless broadband service over its reservation as part of its emergency COVID-19 response. The Nation is located within parts of Arizona, New Mexico, and Utah. The STA is effective for 60 days. In addition to supporting emergency relief to meet increased broadband demands during the pandemic, the Commission continues to accept applications from eligible Tribal entities for licensed access to unassigned 2.5 GHz spectrum over their rural Tribal Lands in the Rural Tribal Priority Window, which closes August 3, 2020. The grant signals the FCC’s continued openness to STAs that allow service providers access to spectrum to improve communications and broadband service in rural and other hard-to-serve areas during the crisis.

FCC Extends Certain Wireless Construction Deadlines

On April 15, 2020, the WTB and Public Safety and Homeland Security Bureau released an Order (DA 20-414) granting all site-based and mobile-only wireless licensees with construction deadlines between March 15, 2020 and May 15, 2020 (“Licensees”) an additional 60 days to meet their existing deadlines. This Order addresses a March 27, 2020 Enterprise Wireless Alliance (“EWA”) petition for waiver of construction requirements for certain site-based and mobile-only wireless licenses in light of the disruptions caused by COVID-19. The FCC is continuing to monitor the situation and may consider further extensions. The action is just the latest example of the FCC waiving or postponing deadlines covering everything from network buildouts to comment submissions.

Senators Introduce Bill to Increase Seniors' Telehealth Access

On April 14, 2020, Senators Shelley Moore Capito (R-WV), Amy Klobuchar (D-MN), and Bob Casey (D-PA) introduced legislation to increase senior citizens’ access to telehealth during COVID-19. The Advancing Connectivity during the Coronavirus to Ensure Support for Seniors (“Access”) Act would authorize $50 million for the Department of Health and Human Services’ Telehealth Resource Center to assist nursing facilities receiving funding through Medicare or Medicaid in expanding their use of telehealth services.

Commissioners Call for Free ICS Calls, More Lifeline

On April 17, 2020, FCC Commissioners Jessica Rosenworcel and Geoffrey Starks said that the growing number of newly unemployed need access to broadband and voice services more than ever, during a MediaJustice online event. Commissioner Rosenworcel urged the FCC to bolster Lifeline benefits and enrollment, close the homework gap, and lower inmate calling service (“ICS”) rates, while Commissioner Starks backed the push to make ICS free for those in local and state jails and prisons, and not just federal facilities. On April 14, 2020, 27 Democratic Senators sent a letter to Congressional leadership calling on them to increase funding for Lifeline by at least $1 billion in any future coronavirus packages to increase reimbursement rates and the levels of service needed because “[s]ocial distancing, school closures, layoffs, and shelter-in-place rules have spurred a dramatic new reliance on telework, distance education, online employment, and telehealth.”

Currently, the entire 900 MHz band is designated for narrowband private land mobile radio communications and it has been primarily used for two-way dispatch radio communications by land transportation, utility, manufacturing, and petrochemical companies. The NPRM proposes to reconfigure the band to serve the commercial wireless broadband needs of similar business and industrial entities. The FCC’s goal with this item is to “create opportunities for robust broadband networks that fully support critical communication systems and that ensure the low latency and ultra-high reliability required by electric and other utilities” and other business and industrial users.

The main proposal would split the band, with one segment supporting the existing narrowband operations while the other segment would be designated for broadband solutions, conceptually proposing a realignment first championed by Enterprise Wireless Alliance (“EWA”) and pdvWireless, Inc. (“PDV”) in 2014. The broadband segment would use a paired 3/3 megahertz arrangement while two paired segments above and below the broadband designation, 1.5 and .5 megahertz, respectively, would be retained for conventional narrowband operations. Specifically, the draft NPRM proposes to designate 897.5-900.5 MHz/936.5-939.5 MHz as the broadband segment while leaving the two remaining segments— 896-897.5/935-936.5 MHz and 900.5-901/939.5-940 MHz— for Part 90 narrowband. The NPRM also proposes to tweak the co-primary Mobile allocation in the 900 MHz band by excepting Aeronautical Mobile Service to be more consistent with allocations in adjacent bands in the international frequency allocation table.

Rather than simply modify the current Part 90 Rules to create the framework for the proposed broadband service, the draft NPRM suggests the Commission may designate the 900 MHz broadband service as a Miscellaneous Wireless Communications Service governed by Part 27 of the Commission’s rules, which govern a variety of flexible carrier-type services, including the Wireless Communications Service, or WCS, in the S-Band and Advanced Wireless Services, or AWS, in the 1.7 and 2.1 GHz Bands. Conventional narrowband land mobile systems that remain in the band would continue to be governed by Part 90.

The draft NPRM recognizes that there may be alternatives to the realignment described above and seeks comment on such alternatives.

One of the most interesting aspects to the draft NPRM is its discussion of how the transition to a realigned band would take place and how broadband licenses would be issued. Due to the significant encumbrances as a result of existing narrowband licenses throughout the band, the draft NPRM would put forth for comment a transition plan whereby existing licensees would coordinate and mutually agree on a plan for relocating site-based systems and transitioning the band for broadband use. Acknowledging that this approach may not work in all geographic markets (or at all), the draft NPRM also would seek input on other transition methods that could be used effectively along with its voluntary exchange proposal. These include an overlay license auction or some form of incentive auction.

Since September 13, 2018, the FCC has not accepted applications for new or expanded 900 MHz operations to maintain a stable spectral landscape while the Commission determined how to proceed with respect to that spectrum. That suspension will ostensibly remain in place while the rulemaking plays out, albeit the Utilities Technology Council filed a petition for reconsideration or clarification of the decision to suspend such applications which remains pending.

UPDATE: On March 13, 2019, in advance of its open meeting, the FCC adopted the NPRM with no major revisions to the draft. However, the Commission expanded its discussion on several key items including the possibility of a market-driven mechanism for clearing the total of six megahertz for flexible use broadband. The NPRM was released on March 14, 2019. Comments and Reply Comments will be due 60 and 90 days, respectively, after Federal Register publication.