Telecom groups said the FCC should narrow its definition of "continuing violations" of rules to exclude four types of infractions. Noting a petition to reconsider a decision setting treble damages for rule violations on payments to USF and other funding programs, CTIA, Incompas, NCTA and USTelecom said the agency's definition "is inconsistent with the one-year statute of limitations for non-broadcast Notices of Apparent Liability ('NALs') contained in the Communications Act" and with court precedent. The one-year statute of limitations "is intended to create 'repose' and does not continue because the violation either has not been 'cured' or has continuing effects," said their filing Wednesday in docket 16-330 on a meeting with Enforcement Bureau Chief Rosemary Harold and other staffers. They said continuing violations shouldn't include: "(1) failure to make (or timely make) a required regulatory filing; (2) the inclusion of incorrect information in a regulatory filing; (3) failure to make (or timely make) a required [USF] or other regulatory payment; and (4) failure to return improperly received funds to the USF or other FCC funds." They noted then-Commissioner Ajit Pai voiced views "consistent with our position" in NAL dissents after their petition.

Chairman Ajit Pai proposed an NPRM on flexible rules for spectrum above 95 GHz, what the FCC calls “the outermost edge of usable spectrum,” for a vote at the Feb. 22 commissioners' meeting. That and other items on a tentative agenda Thursday were expected (see 1801310065). Pai blogged that February is “innovation month” at the agency. It would also examine rules implementing Section 7 of the Communications Act, which requires the FCC to respond to petitions or applications proposing new technologies and services within a year, and resolve petitions to reconsider USF Mobility Fund rules. Three other draft items aim to roll back "outdated and unnecessary regulations" on broadcasters, cable companies and payphone service providers, Pai said.

Cable and wireless companies cautioned the Nebraska Public Service Commission to tread carefully as it implements connections-based contribution to state USF. CTIA earlier sued the PSC in the Nebraska Court of Appeals over its decision to move to a connection-based USF contribution at an unspecified date, with CTIA’s brief due to the court Feb. 20 (see 1801170030). In Wednesday comments in docket NUSF-111 on rate design, CTIA said it’s concerned the PSC can implement an equitable, nondiscriminatory mechanism and urged Nebraska first write a strategic plan for USF before deciding the structure. Charter urged the PSC to step gradually and cautiously because possible problems with a connections-based mechanism “are still largely unknown,” saying that “the transition the Commission contemplates appears to conflict with federal law respecting the state's authority to assess VoIP and other Internet-protocol enabled services on anything other than a revenue basis.” CenturyLink urged the PSC to keep rate design simple and ensure surcharge calculations are transparent: “There is no need to create a complicated rate design with different surcharges for residential or business customers, wireless or wireline, or size of customer.” So large businesses aren't disproportionately burdened, cap the number of connections on which a businesses is assessed, it said. Securus said a contributions-based USF would exclude the inmate calling service company because it doesn't provide access lines or charge customers on an access-line or connection basis. The commission should exempt or provide an alternative method for companies like it. A coalition of rural LECs urged a hybrid approach to contributions. If the commission can't apply a connections-based method to a certain company due to technological or other barriers, require that provider to continue contributing on a revenue basis, they said.

The FCC issued an order Wednesday setting final rules for a Connect America Fund auction of USF subsidies for fixed broadband and video services in areas traditionally served by major telcos. The 48-page text resolving petitions for reconsideration was adopted 5-0 by commissioners Tuesday. They also approved 5-0 a public notice on procedures for the reverse auction scheduled to start July 24 (see 1801300032).

Sandwich Isles Communications said the FCC used "red herring arguments that fail to rebut" the carrier's mandamus request for urgent court relief ordering agency disbursement of withheld USF subsidies. Government opposition "ignores the facts and exigent circumstances that compelled" SIC's petition "and which the FCC seeks to sweep under the rug," said a company reply (in Pacer) Tuesday to the U.S. Court of Appeals for the D.C. Circuit (In re: Sandwich Isles, No. 17-1248). "The FCC seeks to confuse the Court with irrelevancies and fundamentally mischaracterizes" the relief sought, "misrepresents" commission proceedings and "ignores significant facts" on the USF amount at issue. Sandwich Isles said it wants the court to require the FCC to direct the Universal Service Administrative Co. to determine the USF amount the carrier is owed and disburse it within seven days, without which SIC "will run out of money to pay its employees, jeopardizing" telecom service for Hawaiian Home Lands native people. The FCC/DOJ urged the court to dismiss the petition as unwarranted given the commission's "ample" legal discretion to deny USF subsidies "to companies like SIC that engage in fraud, waste or abuse" (see 1801250018).

FCC Commissioners Mignon Clyburn and Mike O'Rielly jointly proposed a list of expenses that rate-of-return telcos would be excluded from recovering through USF subsidy mechanisms and their consumer rate base. They hope such personal and other nonbusiness items will be included in a pending rate-of-return draft order (see 1801160040). Two rural telco groups involved in discussion with the commissioners back the effort and hope "consensus" action will clear the way for advancing broader USF goals.

Democratic Commissioners Mignon Clyburn and Jessica Rosenworcel dissented Tuesday on an order creating a new Office of Economics and Analytics (OEA) within the FCC, which was approved 3-2 (see 1801230066). Commissioner Mike O’Rielly said the order was strengthened since it was circulated to ensure the office plays a major role in policy formation. Officials told reporters after the meeting the office likely would have under 100 staffers.

AT&T said the FCC should increase transparency in the rural telehealth USF program and take other steps to combat abuse before considering increasing a $400 million annual funding cap. The agency should make applicant funding requests public, as it does in the E-rate program, and target support to "mileage based services to address" a statutory "reasonable comparability requirement," said the telco's filing posted Friday in docket 17-310 on a meeting with Wireline Bureau staff. AT&T "also discussed extending E-rate 'best practices' to the Rural Health Care (RHC) Program, including E-rate gift rules, bid evaluation criteria, eliminating discounts for voice service," and "allowing beneficiaries to be reimbursed directly" by the Universal Service Administrative Co. But Alaska's Sitka Counseling said the current funding is "inadequate to enable rural communities" to use the program to improve healthcare and lower overall costs. "The FCC should increase the budget for the rural health care support mechanisms to reflect inflation over the past two decades and increases in the level of support available from those mechanisms, as well as increased technology and telecommunications demands due to our [Health Insurance Portability and Accountability Act] legal obligations, advances in telemedicine capabilities, changes in patient expectations and standards of care, and new demands from skilled nursing facilities," said a Sitka filing posted Monday.

An appeals court won't hold oral argument on a Consolidated Communications challenge to an FCC order that denied SureWest Telephone a waiver from a federally mandated USF state certification deadline the company missed in 2012. A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said in a brief order (in Pacer) Friday it will dispose of the petition based on briefs and other filings in Consolidated Communications v. FCC, No. 16-1431. The government argued the commission reasonably denied the request because SureWest confusion leading to a filing error wasn't a "special circumstance" (see 1705110036). Consolidated took over SureWest.

Lifeline USF resellers challenged tribal support restrictions in an FCC order that commissioners adopted 3-2 in November with an NPRM to begin overhauling the low-income subsidy program (see 1711160021). "Petitioners seek relief from portions of the Order that will (1) limit enhanced Tribal Lifeline support to 'facilities-based' service and (2) limit Lifeline support to 'rural' Tribal areas pursuant to a newly established FCC definition," said the National Lifeline Association, Assist Wireless, Boomerang Wireless (enTouch) and Easy Telephone Services in a petition (in Pacer) to the U.S. Court of Appeals for the D.C. Circuit that surfaced Friday in National Lifeline Association v. FCC, No. 18-1026. NLA is a trade group representing Lifeline providers and vendors. The companies said the actions were arbitrary and capricious, an abuse of discretion, exceeded FCC authority and violated the Administrative Procedure Act. Meanwhile, Chairman Ajit Pai said the FCC had resolved seven notices of apparent liability from 2013 and 2014 against Lifeline providers (see 1712290032), and "expects to resolve two more soon"; three others remained with the agency's Office of Inspector General. The FCC has an enforcement action on its agenda for tomorrow's commissioners' meeting but hasn't identified what it involves. Pai was responding to a Dec. 1 letter from Senate Homeland Security and Government Affairs Committee ranking member Claire McCaskill, D-Mo. She asked for details on commission steps to recover $89.5 million in proposed fines against 12 Lifeline providers for alleged program violations (only one case had been resolved at that time). McCaskill's office didn't comment Monday.