CommLaw Monitor https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor News and analysis from Kelley Drye’s communications practice group Wed, 03 Jul 2024 03:39:38 -0400 60 hourly 1 COVID-19: What Communications Service Providers Need to Know – June 22, 2020 https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/covid-19-what-communications-service-providers-need-to-know-june-22-2020 https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/covid-19-what-communications-service-providers-need-to-know-june-22-2020 Mon, 22 Jun 2020 17:01:35 -0400 As the COVID-19 pandemic rapidly unfolds, the Federal Communications Commission (“FCC”) has been active to keep communications services available through various waivers, extensions, and other regulatory relief. Kelley Drye’s Communications Practice Group is tracking these actions and what they mean for communications service providers and their customers. CommLaw Monitor will provide regular updates to its analysis of the latest regulatory and legislative actions impacting your business and the communications industry. Click on the “COVID-19” blog category for previous updates.

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 Continues COVID-19 Telehealth Program Approvals

On June 17, the FCC’s Wireline Competition Bureau approved 62 additional funding applications for the COVID-19 Telehealth Program. Under the latest funding round, $23.25 million will go to health care providers across 29 states. With this latest set of approvals, the FCC’s COVID-19 Telehealth Program has approved 367 applications in 45 states, plus D.C., for a total of $128.23 million in funding awarded so far. Congress appropriated $200 million for the Program and the FCC continues to evaluate applications and distribute funding on a rolling basis. As the funding awarded nears the Program’s current $200 million cap, providers should take action now to assess their interest and ability to participate in the Program, if they have not already done so.

For a complete list of applications granted in the COVID-19 Telehealth Program, with breakdowns by round number and state, check out our chart here.

FCC Plans to End Keep Americans Connected Pledge, Seeks Support for Small Providers and Consumers

The FCC plans to let the Keep Americans Connected Pledge expire as scheduled on June 30, but urged providers not to disconnect consumers and small businesses who remain behind on their bills in July. Specifically, Chairman Pai asked providers to adopt consumer-friendly steps like payment plans, waiving a portion of unpaid balances, and working with customers individually to meet their needs based on hardship post-Pledge. On June 19, FCC Chairman Pai sent a letter to Congress seeking legislation to help consumers and small businesses stay connected after the expiration of the Pledge by further streamlining deployments and increasing funding for telehealth and other communications programs. The FCC launched the Keep Americans Connected Pledge on March 13, and later extended the voluntary initiative to June 30. The Pledge required service providers to commit to not terminate service, to waive late fees for residential and small business customers who could not pay during the pandemic, and to make their Wi-Fi hotspots available to any American who needs them. Many providers plan to continue at least some of these initiatives after the Pledge’s expiration.

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COVID-19: What Communications Service Providers Need to Know – May 18, 2020 https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/covid-19-what-communications-service-providers-need-to-know-may-18-2020 https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/covid-19-what-communications-service-providers-need-to-know-may-18-2020 Mon, 18 May 2020 17:10:07 -0400 As the COVID-19 pandemic rapidly unfolds, the Federal Communications Commission (“FCC”) has been active to keep communications services available through various waivers, extensions, and other regulatory relief. Kelley Drye’s Communications Practice Group is tracking these actions and what they mean for communications service providers and their customers. CommLaw Monitor will provide regular updates to its analysis of the latest regulatory and legislative actions impacting your business and the communications industry. Click on the “COVID-19” blog category for previous updates.

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 Latest Set of COVID-19 Telehealth Program Applications, Bringing Approvals to $33 million

On May 13, 2020, the FCC’s Wireline Competition Bureau (“WCB”) approved 33 funding applications for the COVID-19 Telehealth Program. Under the latest funding round, $8.36 million will go to health care providers across 18 states for telehealth services during the pandemic. With this latest set of application, the FCC’s COVID-19 Telehealth Program has approved and funded 82 health care providers in 30 states for a total of $33.26 million in funding. Congress authorized up to $200 million in funding for the program.

Over 750 Providers Extend Keep Americans Connected Pledge

On May 14, 2020, the FCC announced that 774 broadband and telephone service providers have taken the Keep Americans Connected Pledge and extended that commitment through June 30, 2020. On April 30, 2020, Chairman Pai announced he was extending the Pledge, originally set to expire on May 12, to June 30. Since Pai’s announcement, the number of companies covered by the Pledge has increased, as more companies have signed onto the Pledge for the first time than declined to extend it. The pledge involves service providers committing to not terminate service, to waive late fees for residential and small business customers who cannot pay during the pandemic, and to make their Wi-Fi hotspots available to any American who needs them.

In the latest episode of Kelley Drye's Full Spectrum podcast, we discuss the unique issues the Keep Americans Connected Pledge creates in a bankruptcy proceeding involving an affected customer. Click here to listen.

Consumer and Government Affairs Bureau Extends Temporary Waivers for Relay Services Rules

On May 14, 2020, FCC’s Consumer and Governmental Affairs Bureau extended temporary waivers (DA 20-517) through June 30, 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.

WTB Permits More WISPs to Use 5.9 GHz Spectrum on a Temporary Basis

Last week, the FCC’s Wireless Telecommunications Bureau (“WTB”) granted requests by United Wireless Communications, Inc. and Comcell, Inc. for emergency Special Temporary Authority (“STA”) to operate in the 5850-5895 MHz band to provide relief during the pandemic. The grants are for a period of 60 days, provided the applicant files a complete FCC Form 601 application within 10 days. These actions are part of the FCC’s continued effort to improve communications and broadband service in rural and other hard-to-serve areas during the pandemic.

WTB Grants GE Healthcare Waiver to Expedite Medical Equipment from New Suppliers

On May 11, 2020, the WTB granted GE Healthcare’s request for a waiver (DA 20-489) to allow the importation, marketing, and operation of certain GE medical devices, including wearable patient monitors, diagnostic testing systems, and portable x-rays. The action will enable GE Healthcare to overcome disruptions in the medical device supply chain. Without the waiver, many of GE’s devices that are sourced from new suppliers or that contain new components would have required prior FCC equipment certification.

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Podcast: COVID-19 Related Bankruptcies and How to Prepare https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/podcast-covid-19-related-bankruptcies-and-how-to-prepare https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/podcast-covid-19-related-bankruptcies-and-how-to-prepare Fri, 08 May 2020 10:51:18 -0400 With the COVID-19 economic disruptions and Chairman Pai’s Keep Americans Connected Pledge, planning for the possibility of telecom customers filing for bankruptcy takes on increased importance. In this episode of Kelley Drye’s Full Spectrum podcast, we provide an overview of the bankruptcy process and the rights and responsibilities of communications service providers when their customers enter into bankruptcy protection. Communications Partner Steve Augustino is joined by Partner Jason Adams and Associate Meaghan McLoughlin from Kelley Drye’s Bankruptcy practice group to give service providers the essential information they need to know to protect themselves before a bankruptcy petition is filed. In addition, they discuss the unique issues the Keep Americans Connected Pledge creates in a bankruptcy proceeding involving an affected customer.

Click here to listen and subscribe.

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COVID-19: What Communications Service Providers Need to Know – May 4, 2020 https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/covid-19-what-communications-service-providers-need-to-know-may-4-2020 https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/covid-19-what-communications-service-providers-need-to-know-may-4-2020 Mon, 04 May 2020 19:35:56 -0400 As the COVID-19 pandemic rapidly unfolds, the Federal Communications Commission (“FCC”) has been active to keep communications services available through various waivers, extensions, and other regulatory relief. Kelley Drye’s Communications Practice Group is tracking these actions and what they mean for communications service providers and their customers. CommLaw Monitor will provide regular updates to its analysis of the latest regulatory and legislative actions impacting your business and the communications industry. Click on the “COVID-19” blog category for previous updates.

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 Eases Lifeline Enrollment Financial Requirements

On April 29, 2020, the FCC’s Wireline Competition Bureau (“WCB”) temporarily waived until June 30th the requirement that persons seeking to qualify for the Lifeline program based on financial hardship provide at least three consecutive months on income documentation. The waiver recognizes that newly-unemployed individuals may not be able to provide such documentation because their unemployment (and related decrease in income) began so recently. Under the waiver, the FCC will allow individuals to submit an “official document,” such as a notice of unemployment benefits, to demonstrate their income-based eligibility for Lifeline. The waiver directs USAC to develop and issue guidance on the types of acceptable official documentation. WCB also extended its previous waivers of the Lifeline recertification, reverification, usage, and general de-enrollment requirements until June 30th, finding the circumstances necessitating the earlier waivers during the pandemic have not changed.

FCC Approves Latest Set of COVID-19 Telehealth Program Applications

On April 29, 2020, WCB approved an additional 13 funding applications for the COVID-19 Telehealth Program. Under the latest funding round, over $4.2 million will go to health care providers in Colorado, New York, Washington, and other hard-hit states. To date, the COVID-19 Telehealth Program has funded 30 health care providers in 16 states for a total of $13.7 million. Congress appropriated $200 million for the COVID-19 Telehealth Program and the FCC continues to evaluate applications and distribute funding on a rolling basis. While a significant amount of funding remains, the size and pace of disbursements under the COVID-19 Telehealth Program continues to increase and providers should take action now to assess their interest and ability to participate in the Program.

Chairman Pai Extends 'Keep Americans Connected' Pledge Through June 30

On April 30, 2020, Chairman Pai announced the extension of his Keep Americans Connected Pledge until June 30, 2020. The pledge involves service providers committing for 60 days to not terminate service and waive late fees for residential and small business customers who cannot pay during the pandemic and make their Wi-Fi hotspots available to any American who needs them. Since launching the pledge, more than 700 broadband and telephone service providers have signed on at some point. Before the announcement, Pai held calls with major providers to relay the extension request. While the FCC encourages all providers that signed the pledge previously to extend their commitments, the announcement noted that “some providers, particularly those in small markets and rural areas, may not be able to do so as a result of financial challenges,” and asked such providers to contact the FCC directly to opt out. The Chairman’s comment recognizes the challenges providers face in continuing key services to customers while confronting their own challenges as the pandemic and associated stay-at-home orders persist.

Commissioner Suggests Making Temporary Spectrum Access Assignments Permanent

On April 28, 2020, Commissioner Brendan Carr said during a Forum Europe webinar that the FCC should consider making permanent temporary spectrum assignments it approved in reaction to COVID-19. “I’m really happy with the quick action the FCC staff took to put more spectrum out there and I’d love to see it stay out there in the commercial marketplace,” Carr said: “We need to make sure that everybody has a fair shot at potentially getting access.” The FCC has repeatedly granted special temporary authority requests and taken other actions to allow the use otherwise fallow spectrum to improve communications and broadband services during the pandemic. Most recently, the FCC granted limited waivers of agency rules to TerreStar to support wireless medical telemetry services and to MIT to sell an indoor health monitoring device. Commissioner Carr’s statement is just one example of the flexible approach the FCC is taking during the pandemic on telehealth spectrum needs.

Advisory Committee Discusses COVID-19 Plan at First Meeting

On April 28, 2020, the FCC’s Advisory Committee on Diversity and Digital Empowerment's working groups outlined their plans to address issues related to COVID-19. In the first meeting under its new charter, working groups discussed how the pandemic is affecting minority and disadvantaged communities. The groups focused on increasing diversity among communications companies, funding for libraries, and a possible “a connectivity stimulus” to ensure students have access to broadband, among other plans. While the working groups’ plans are just the first step towards potential FCC action, they show that COVID-19 will continue to influence agency policymaking long after the pandemic abates.

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COVID-19: What Enterprise and Small Business Customers Need to Know https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/covid-19-what-enterprise-and-small-business-customers-need-to-know https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/covid-19-what-enterprise-and-small-business-customers-need-to-know Tue, 31 Mar 2020 11:15:04 -0400 In response to the COVID-19 pandemic, the FCC has been active to keep communications services available through various waivers and actions. Kelley Drye’s Communications practice group is tracking these actions and provides this overview of the key actions impacting enterprise and small business customers of communications services. For additional information on these and other FCC actions, follow Kelley Drye’s CommLaw Monitor, where we post regular updates of the latest regulatory and legislative actions impacting the communications industry.

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.

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