Commissioner Mike O’Rielly isn’t hopeful the FCC will provide much additional clarity soon on the Telephone Consumer Protection Act, he said Tuesday during a Federalist Society teleconference on the aftermath of Barr v. American Association of Political Consultants. The case was argued before the Supreme Court this month, with justices indicating they're unlikely to overturn the entire robocalling law (see 2005060051). O’Rielly and then-Commissioner Ajit Pai criticized a 2015 declaratory ruling on how the law should be interpreted (see 1506180046). Now-Chairman Pai “has done yeoman work to try to get at the illegal robocall issue,” O’Rielly said in response to our question. But O’Rielly isn’t “optimistic near term that we’re going to get any resolution.” FCC staff works hard, but COVID-19 makes some work more difficult, he said. What qualifies as an automatic telephone dialing system (ATDS) under the TCPA is “already a mess,” he said: “That’s something that’s been our fault for lack of clarity. It’s an overreach from past commissions.” He has "been very protective of good robocalls because there’s so many that benefit society,” O’Rielly said. People want robocalls from their pharmacy saying a prescription is ready or from a school telling them to pick up their kids, he said. Numerous petitions before the FCC deal “with good robocalls” and need to be addressed, he said. The FCC has “spent too much time going after legitimate calls” and not enough on illegal calls, he said: “Just recently, we’ve done a better job of fixing that direction.” If the FCC isn’t going to act on the larger “big ticket” TCPA questions, it needs to at least address the petitions, he said. “The list keeps growing” and “the majority by far” are by companies that want to make robocalls that will benefit the public, he said. O’Rielly said the FCC should act on a petition by the American Bankers Association and other financial groups seeking clarity that banks, credit unions and customer-facing financial service providers can use ATDS, prerecorded messages and artificial voice for calls involving COVID-19 without violating the TCPA (see 2005220035). O’Rielly said he hasn’t received a single complaint from a March ruling allowing public health authorities to make COVID-related calls (see 2003200074). O’Rielly said he listened to the oral argument in the Supreme Court case, which was streamed. Only part of the TCPA is likely in play, he noted: a 4th U.S. Circuit Court of Appeals ruling that declared a 2015 government debt collection exemption unconstitutional and severed the provision from the remainder of the TCPA.
NTIA is joining various aeronautical, satellite and GPS interests (see 2005210043) in asking the FCC to reconsider its Ligado terrestrial wireless plan approval. NTIA, in a reconsideration petition to be posted in docket 11-109, said the commission's approval had numerous procedural and substantive flaws. It said the approval went against the FCC's "long and respectful history" of deferring to NTIA and federal agencies on GPS and national security and was an "unexplained break from the healthy respect." It said the FCC should acknowledge more technical studies and testing are needed to guarantee Ligado's terrestrial network won't cause harmful interference and that none of the company's mitigation proposals or conditions has been tested or evaluated by an independent party. At the very least, Ligado approval should be modified with different downlink power levels and removal of requirements on agencies to work with or share information with Ligado or to identify affected GPS receivers. Ligado should have a dedicated telephone number and email address for federal agencies to report suspected interference to a Ligado network operations center. NTIA said its petition is focused on DOD-related issues, but the FCC "failed to consider the major economic impact its decision will have on civilian GPS users and the American economy." NTIA also asked for a stay to stop L-band deployment by Ligado until its petition is addressed and interference issues resolved. Before deployment, the FCC should "meaningfully test its new and unproven harmful interference metric and overhaul unworkable grant conditions," NTIA said. The FCC said it "appreciate[d] the support that our Ligado Order has received from high-ranking Executive Branch officials like Secretary of State Mike Pompeo and Attorney General William Barr."
Net neutrality stakeholders didn't budge on three remanded issues (see 1910010018), in replies to the FCC posted through Thursday in dockets including 17-287. "Concerns noted by the Mozilla court on three discrete issues do not justify abandoning the Commission’s decision to return to [Communications Act] Title I classification as the benefits of the regulatory framework ... vastly outweigh any potential costs," USTelecom said. Common Cause, Public Knowledge and New America’s Open Technology Institute want the FCC to retain Title II common carrier authority over broadband and "restore legal certainty for the Lifeline program, empower the Commission to protect public safety during the COVID-19 pandemic." The Greenlining Institute wants the FCC to "acknowledge the lessons of the COVID-19 pandemic and the importance strong net neutrality protections" have for public safety. CTIA said "concerns regarding paid prioritization’s impact on public safety are theoretical, have not materialized." The Alarm Industry Communications Committee said "state and local laws often impose service standards that alarm companies may not be able to meet without adequate protection of their use of broadband networks." Verizon said there's ample evidence to find "no reason to revisit its decision to restore the information service classification for broadband." NCTA wants the FCC to conclude its current regime "is fully warranted from the perspective of public safety, pole access, and the Lifeline program." Incompas countered claims there have been no major net neutrality violations since the repeal: "In addition to the fact that there is no longer a federal 'cop on the beat' ... there very well could be violations occurring that customers do not realize." AT&T said the FCC "has ample ancillary authority to extend section 224 rights to standalone broadband providers if it concludes that doing so is necessary for competitive parity in non-certifying states, just as it has ancillary authority to extend Lifeline support to standalone broadband services." ACA Connects said the FCC "cannot and should not upend its entire regulatory framework for broadband merely to cater to the interests of broadband-only providers in invoking" one-touch, make-ready pole attachment rules. The Wireless ISP Association wants the FCC to use its statutory authority to eliminate practices that slow down broadband deployment, such as discriminatory infrastructure access. Other replies came from the Broadband Institute of California at the Santa Clara University School of Law (here), Center for Democracy and Technology (here) Free Press (here) and the California Public Utilities Commission (here), which unsuccessfully sought a longer deadline extension due to the pandemic (see 2005200013). Initial comments came in last month (see 2004210019).
The Commerce Department Bureau of Industry and Security is preparing to issue additional export controls over emerging technologies and is finalizing a long-awaited advance NPRM for foundational technologies, BIS officials said. The upcoming rules will include controls agreed to at the Australia Group, a multilateral export control body, said Matt Borman, Commerce deputy assistant secretary-export administration. Speaking during the first meeting of the Emerging Technology Technical Advisory Committee Tuesday, he said BIS is preparing controls on six emerging technologies agreed to during the 2019 Wassenaar Arrangement. The ANPRM, part of a broader effort that has proved “intellectually challenging” for Commerce officials, is in the “last stages of review within the bureau,” said Rich Ashooh, Commerce-assistant secretary for export administration. Commerce officials expected to release a series of emerging technology controls last year but had delays (see 2004010034). The agency’s first ETTAC meeting was delayed twice as security clearances for members took longer than expected (see 2002250041).
The California Public Utilities Commission believes providers "should not be expected to choose" during a pandemic "between allocating resources to maintaining their networks at the highest levels of service" and competing for USF support in a reverse auction as complex as that for the upcoming Rural Digital Opportunity Fund, the CPUC emailed us. In March, the CPUC asked for a delay of the auction's start date of 120 days or more. Tuesday, a draft auction procedures notice suggested a weeklong delay of the Phase I auction to Oct. 29 (see 2005190058). "The FCC’s proposal to delay the auction by one week does nothing to allay" CPUC concerns, it said Tuesday. "On top of that, the FCC’s challenge process allows no time for the CPUC to rebut challenges from incumbent providers. CPUC staffers estimate the challenges in California equate to hundreds of thousands of housing units, potentially reducing needed federal broadband dollars for our state by hundreds of millions." When asked about the weeklong delay in the draft public notice, an FCC spokesperson emailed that in seeking comment, the commission expected bidding to start Oct. 22 "but noted additional details and dates would be announced in the procedures public notice. If adopted, the procedures public notice has set Oct. 29 for an auction to begin."
FCC commissioners past and present touted the benefits of TV white spaces in helping confront the digital divide and asked stakeholders to keep pressure on the agency to rule on making the spectrum available for broadband soon. Commissioners Mike O'Rielly and Jessica Rosenworcel plus ex-member Mignon Clyburn spoke at a webinar Tuesday. "It can happen this year," O'Rielly said of an FCC TVWS vote. He said the issue has the support of his colleagues but with all the other items on the agenda, it's a matter of priority. Having a statutory deadline helps, said Rosenworcel. O'Rielly preferred to defer to Congress, saying such guidance could be an impetus. Commissioners 5-0 approved an NPRM in February seeking comment on proposals to allow devices to operate with higher power in less-congested areas (see 2002280055). The FCC declined to comment now. Morgan Reed, president of webinar host ACT|The App Association, said Congress should give the FCC the resources it needs to make this possible: "I'm never a fan of unfunded mandates." "We need every type of broadband infrastructure at our disposal" to ensure the U.S. can be connected affordably, Clyburn said. Economies of scale support fiber infrastructure in urban areas, Clyburn said, "but we have a crazy big country, and a lot of it is not dense in population." She acknowledged that "whatever's decided is not going to be perfect." The FCC must be mindful of harmful interference and do what it can to promote flexibility, she said: Regulatory certainty could help encourage equipment manufacturers "to do what they promised." She wants the agency to expedite the tough decisions needed. "We don't have funding mechanisms for some of these investments" in precision agriculture or telehealth, said Nicol Turner Lee, Brookings Institution Center for Technology Innovation senior fellow. Instead of going to current government programs, she said, "maybe we should move past some of these patchworks to fund these smaller projects."
The FCC “pushed the deadline back” for developing a replacement for its electronic comment filing system (see 1909160019), GAO said in an April report released Monday. GAO included the FCC in a survey of Regulations.gov and other agencies’ electronic comment systems. FCC officials informed GAO in February that they expected “the new system to be completed” by April but by that time “could not provide updated time frames for completion,” the report said. As of February, “they had developed system requirements and were obtaining leadership approval for them.” After a discovery phase in which the FCC would identify “system requirements that will help [the agency] improve the security and functionality of the platform,” the commission planned to “move to an implementation phase” that “will include awarding a contract for the project, developing and implementing the new system, and going live with the new system,” GAO said. Three ECFS user groups said “they generally find the platform easy to access and use for submitting comments on proposed rules” but said “the search function is challenging to use and does not provide relevant or targeted results,” the report said. ECFS “allows users to focus searches to particular categories of documents," but "officials from two of these user groups said that it is not always clear what some of these categories mean because they are not defined which can make it challenging to determine how best to search for materials,” the report said. The FCC didn't comment. GAO said last month the FCC has made progress addressing ECFS security vulnerabilities after the disruptions during the 2017 net neutrality comment period, but needs to do more (see 2004240029).
The FCC is an interested party in Intelsat's Chapter 11 bankruptcy (see 2005140028), DOJ said in a notice of appearance (in Pacer, case 20-32299) Friday in U.S. Bankruptcy Court in Richmond. The commission didn't comment.
The earth stations in motion order approved at Wednesday's FCC meeting (see 2005130057) and released Thursday (see here) includes a Further NPRM with more questions about potential ESIM out-of-band emission (OOBE) interference into the adjacent 28.35-28.6 GHz band used by upper microwave flexible use service (UMFUS), according to our side-by-side comparison of it and the draft. Verizon and U.S. Cellular raised concerns about such potential interference (see 2005050034). The order said the agency will still take and process ESIM applications using the 28.4-28.6 GHz band to avoid holding up potential ESIM operations, but approval will be conditioned on compliance with future determinations in the proceeding. The FNPRM asks if such steps as a guard band provide adequate protection if there's excessive interference with UMFUS. The approved order deferred consideration of allowing ESIMs operate in the 28.35-28.4 GHz band while the FCC studies the potential for ESIM OOBE interference in the adjacent 27.5-28.35 GHz band.
New satellites and other C-band clearing expenses -- an estimated $1.2 billion worth through the end of 2021 and $1.6 billion in total -- helped prompt Intelsat to file for Chapter 11 bankruptcy Wednesday, said in its application with U.S. Bankruptcy Court in Richmond. Chief Financial Officer David Tolley said in a declaration (in Pacer, case 20-32299) the company intends to clear the lowest 120 MHz of the band by the Dec. 21, 2021, deadline to be eligible for $4.87 billion in accelerated clearing payments. Tolley said Intelsat has close to $15 billion in debt, but "business prospects remain healthy." He said it also has "materially lower revenues" due to COVID-19's effect on such key customers as airlines and cruise ships, and on its business carrying broadcast signals of sports and other live events. Tolley said the company has a commitment for financing that needs court approval but would give it enough working capital to clear the C band, fund the bankruptcy case and let Intelsat operate. An accompanying motion asked for permission to incur obligations for the clearing. It said its three-part clearance plan involves building and launching multiple satellites over the next 30 months to replace the capacity lost from the C-band compression upgrades and relocating teleport sites from urban to rural locations to mitigate 5G interference. The company asked the court to authorize it to implement the clearance on an accelerated schedule. The FCC emailed Thursday that it "appreciates Intelsat's statement that '[o]ne of the primary catalysts' for its voluntary filing for bankruptcy is a 'desire to participate in the accelerated clearing of C-band spectrum.' We will continue to move forward with the C-band auction process and look forward to working with satellite operators, wireless companies, and others toward that goal." Senate Appropriations Financial Services Subcommittee Chairman John Kennedy, R-La., said Intelsat’s bankruptcy announcement “reveals what many suspected all along: Intelsat had no intention of accepting the FCC’s deal” on the C-band auction. The FCC “should withdraw its offer, take control of America’s spectrum and save taxpayers billions of dollars instead of shelling out that money to foreign companies,” Kennedy said. He has repeatedly raised concerns about the FCC’s C-band auction plan, including its proposal for $9.7 billion in incentive payments to Intelsat and other satellite incumbents (see 2003100022). SES also said it plans to make the accelerated C-band clearing deadlines (see 2005140055).