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 Approves Twelfth Set of COVID-19 Telehealth Program Applications, Closes Filing Window

On June 25, 2020, the FCC’s Wireline Competition Bureau (“WCB”) announced via Public Notice (DA 20-667) that it will no longer accept new applications for funding from the COVID-19 Telehealth Program, noting that demand for funding exceeds available Program funds based on applications received. This announcement comes after the June 24 approval of 77 additional applications and $29.41 million in funding. To date, the FCC has approved 444 funding applications in 46 states plus Washington, D.C. for a total of $157.64 million in funding. Congress appropriated $200 million for the Program in the CARES Act.

The FCC also released a report on the CARES Act spending plan in accordance with section 15011(b)(1)(B) of the legislation, which requires the agency to submit a plan describing how it will use the covered funds.

FCC Further Extends Temporary Waivers of Relay Services Rules

On June 22, 2020, the FCC’s Consumer and Governmental Affairs Bureau extended temporary waivers (DA 20-650) through August 31, 2020 for Telecommunications Relay Service (“TRS”) providers to ensure relay services remain available for individuals who are deaf, hard of hearing, deafblind, or have a speech disability. These waivers extend actions previously taken to grant TRS providers flexibility.

FCC Further Extends Inteliquent Access Stimulation Waiver

On June 23, 2020, the WCB granted (DA 20-655) Inteliquent’s request for renewal of its temporary waiver of certain access stimulation rules until September 1, 2020. Inteliquent requested a limited renewal of the temporary waiver, with respect to traffic it terminates in six urban areas to preexisting customers on the basis that its terminating-to-originating traffic ratios in those areas continue to be particularly unbalanced as a result of the “unprecedented amounts of conference platform traffic that Inteliquent is terminating for pre-existing customers Zoom and Cisco Webex to facilitate remote work and other forms of social distancing.”

The WCB originally granted Onvoy d/b/a Inteliquent a temporary and limited waiver of the FCC’s rules that treat competitive local exchange carriers with an interstate terminating-to-originating traffic ratio of at least 6:1 as engaging in access stimulation.

FCC Resolves CAF Phase II, Rural Broadband Petitions

On June 26, 2020, the WCB, Rural Broadband Auctions Task Force, and Office of Economics and Analytics, resolved petitions (DA 20-677) filed by the Connect America Fund (“CAF”) Phase II Coalition and Skybeam, LLC (“Skybeam”) seeking waiver of the letter of credit rules for the CAF Phase II auction (“Auction 903”) and Rural Broadband Experiments. Petitioners requested that the FCC allow them to comply with the recently adopted letter of credit rules for the Rural Digital Opportunity Fund instead. The FCC found good cause to grant a limited waiver to all Auction 903 and Rural Broadband Experiments funding recipients until December 31, 2021, because of the increased consumer demand for robust broadband services and severe financial hardship on the companies imposed by the COVID-19 pandemic.

FCC Announces Section 106 Emergency Authorizations

On June 25, 2020, the FCC’s Wireless Telecommunications Bureau issued a Public Notice (DA 20-668) announcing an electronic process for FCC licensees to apply for expedited Section 106 review or for emergency authorization to resume standard review for qualifying critical infrastructure projects. Section 106 of the National Historic Preservation Act requires the FCC to account for the effect of any proposed “undertakings” on historic properties, including construction or collocation of wireless communications facilities.

The waiver petition and its grant were both prompted by what the Bureau described as “the massive shift to telework and distance learning” that has “materially altered Inteliquent’s normal mix of originating and terminating traffic” as the response to COVID-19 has set in. Inteliquent’s conferencing customers include Zoom and Cisco WebEx. The grant is limited to Inteliquent assuming the “facially plausible” facts the company presented are accurate. Inteliquent, the Bureau emphasized, before its Petition, had traffic ratios that did not qualify it as an access-stimulating local exchange carrier.

The Bureau granted the waiver only through June 1, 2020, but noted that Inteliquent would be eligible for renewal for further periods as long as the public health crisis persists and Inteliquent’s circumstances remain fundamentally the same. Notably, the Bureau took the unusual step of inviting interested parties to seek reconsideration of the grant if they believed the facts Inteliquent presented in its petition were inaccurate or the Bureau’s “policy reasoning” was flawed.

Another point to note was that the waiver was limited to the treatment of the traffic of entities that were Inteliquent customers as of March 17, 2020, the date of its petition, meaning that only such traffic would be excluded from calculations of the Inteliquent terminating-originating traffic ratio.

The Bureau was wary about making the waiver a general one, finding that there is “no reason to believe that all local exchange carriers that provide service to conference calling platforms are similarly situated to Inteliquent” and citing concerns that a general waiver would create “an opportunity for existing access-stimulating local exchange carriers to continue the schemes the Commission sought to disrupt by adopting the [September 2019] Access Arbitrage Order.”

While the grant is Inteliquent-specific and despite the Bureau’s refraining from making the waiver grant a general one, the order leaves room for other waiver requests by other entities in the present circumstances provided they have a good story to tell linking their surge in terminating traffic putting them in danger of exceeding the threshold 6:1 ratio to the current public health crisis. Indeed, when adopting the current access stimulation definition, the Commission left open the potential for waivers. However, the Bureau signaled that carriers that already exceeded the ratio would face a very high and even insurmountable hurdle.

Since Inteliquent filed its petition for waiver, two other entities, Peerless Network, Inc., and Native American Telecom – Pine Ridge, LLC, have sought waivers. Both note that, prior to the current health crisis, they were not within the scope of the access stimulation definition. Both petitions remain pending.