News Update - October 2021
President Biden Appoints Jessica Rosenworcel As FCC Chair; Nominates Gigi Sohn As FCC Commissioner
October 26, 2021 – President Joe Biden has announced his intent to nominate Jessica Rosenworcel and Gigi Sohn for Commissioners of the Federal Communications Commission. President Biden has designated Jessica Rosenworcel as FCC Chair, making her the first woman in history to serve in this capacity. The announcement includes the following information on the two nominees:
Jessica Rosenworcel presently serves as Chair of the Federal Communications Commission, where she previously served as a Commissioner since 2012. During her time at the agency, she has worked to promote greater opportunity, accessibility, and affordability in our communications services in order to ensure that all Americans get a fair shot at 21st century success. From fighting to protect an open internet, to ensuring broadband access for students caught in the Homework Gap through the FCC’s Emergency Connectivity Fund, to making sure that households struggling to afford internet service stay connected through the Emergency Broadband Benefit program, she has been a champion for connectivity for all. She is a leader in spectrum policy, developing new ways to support wireless services from Wi-Fi to video and the Internet of Things. She has fought to combat illegal robocalls and enhance consumer protections in our telecommunications policies.
Prior to joining the agency, she served as Senior Communications Counsel for the United States Senate Committee on Commerce, Science, and Transportation, under the leadership of Senator John D. Rockefeller IV and Senator Daniel Inouye. Before entering public service, Jessica practiced communications law. She is a native of Hartford, Connecticut and a graduate of Wesleyan University and New York University School of Law. She lives with her family in Washington, DC.
Gigi B. Sohn is a Distinguished Fellow at the Georgetown Law Institute for Technology Law & Policy and a Benton Senior Fellow and Public Advocate. Gigi is one of the nation’s leading public advocates for open, affordable, and democratic communications networks. For over thirty years, Gigi has worked to defend and preserve the fundamental competition and innovation policies that have made broadband Internet access more ubiquitous, competitive, affordable, open, and protective of user privacy. If she is confirmed, Gigi would be the first openly LGBTIQ+ Commissioner in the history of the FCC.
From 2013-2016, Gigi served as Counselor to Former FCC Chairman Tom Wheeler, and from 2001-2013 was Co-Founder and CEO of Public Knowledge, a leading communications and technology policy advocacy organization serving the interests of consumers. She was previously a Project Specialist in the Ford Foundation’s Media, Arts and Culture unit and Executive Director of the Media Access Project, a communications public interest law firm. Gigi holds a B.S. in Broadcasting and Film, Summa Cum Laude, from the Boston University College of Communication and a J.D. from the University of Pennsylvania Law School. She resides with her family in Washington, DC.
Verizon Announces Collaboration With Amazon’s Project Kuiper Satellite Network
October 26, 2021 – Verizon Communications Inc. has announced a “strategic collaboration” with Amazon’s Project Kuiper low Earth orbit (LEO) satellite network “to develop connectivity solutions for unserved and underserved communities.” The new partnership will allow the two companies “to design and deploy new connectivity solutions across a range of domestic and global industries, from agriculture and energy to manufacturing and transportation.” The press release provides the following information:
The partnership seeks to expand coverage and deliver new customer-focused connectivity solutions that combine Amazon’s advanced LEO satellite system and Verizon’s world-class wireless technology and infrastructure. To begin, Amazon and Verizon will focus on expanding Verizon data networks using cellular backhaul solutions from Project Kuiper. The integration will leverage antenna development already in progress from the Project Kuiper team, and both engineering teams are now working together to define technical requirements to help extend fixed wireless coverage to rural and remote communities across the United States.
RUS Releases ReConnect Program Funding Opportunity Announcement – Application Window Opens November 24th & Closes February 22, 2022
October 25, 2021 – The U.S. Department of Agriculture’s Rural Utilities Service (RUS) has released a Funding Opportunity Announcement (FOA) for the Rural eConnectivity Program (the ReConnect Program). RUS will accept applications for the fiscal year 2022 ReConnect Program beginning on November 24, 2021, until 11:59 a.m. Eastern on February 22, 2022. Applications can be submitted through the RUS ReConnect Program on-line application portal. For FY 22, loans, the ReConnect Program will award loans, grants, and loan/grant combinations for the costs of construction, improvement, or acquisition of facilities and equipment needed to facilitate broadband deployment in rural areas. Details of the FOA include the following:
Eligible Areas: For a proposed funded service area (PFSA) to be eligible for funding, at least 90 percent of the households in the PFSA must lack sufficient access to broadband. Sufficient access to broadband means any rural area in which households have access to fixed, terrestrial broadband service of at least 100 Mbps downstream and 20 Mbps upstream. Applicants must submit evidence that sufficient access to broadband does not exist for 90 percent of the households in the PFSA, identify all existing providers in the PFSA, and indicate what level of service is being provided. If these areas are found to have sufficient service, the application will be rejected.
Funding Obligations: Facilities proposed to be constructed with award funds must be capable of delivering 100 Mbps symmetrical service to every premise in the PFSA. Capable of delivering 100 Mbps symmetrical service to every premise means that all premises in the PFSA must be able to receive this service at the same time.
100 Percent Grant Funding: Applicants for 100 percent grant funding must provide a matching contribution equal to at least 25 percent of the cost of the overall project. This matching contribution requirement applies only to the 100 percent grant funding category.
USDA will prioritize projects that will serve low-density rural areas with locations lacking internet access services at speeds of at least 25/3Mbps. USDA will also consider, among other things, the economic needs of the community to be served; the extent which a provider will offer affordable service options; a project’s commitment to strong labor standards; and whether a project is serving tribal lands or is submitted by a local government, Tribal Government, non-profit or cooperative. The entire FOA is available online.
USDA To Begin Accepting ReConnect Applications On November 24th
October 22, 2021 – U.S. Department of Agriculture (USDA) Secretary Tom Vilsack has announced that USDA will begin accepting applications for up to $1.15 billion in ReConnect Program loans and grants on November 24, 2021. Funding will awarded to expand the availability of broadband internet access service in rural areas.
To be eligible for ReConnect Program funding, an applicant must serve an area without broadband service at speeds of 100 Mbps download and 20 Mbps upload, and commit to building facilities capable of providing broadband service at speeds of 100 Mbps, download and upload, to every location in its proposed service area. USDA will prioritize projects that will serve low-density rural areas with locations lacking internet access services at speeds of at least 25/3Mbps. USDA will also consider, among other things, the economic needs of the community to be served; the extent which a provider will offer affordable service options; a project’s commitment to strong labor standards; and whether a project is serving tribal lands or is submitted by a local government, Tribal Government, non-profit or cooperative.
FTC Report Says Largest ISPs Collect Too Much Data About Customers
October 21, 2021 – The Federal Trade Commission has released a report titled “A Look At What ISPs Know About You: Examining the Privacy Practices of Six Major Internet Service Providers” that “highlights the ISP industry’s data surveillance and privacy practices.” In the report, FTC staff finds that the six largest internet service providers (ISPs) “collect and share far more data about their customers than many consumers may expect – including access to all of their Internet traffic and real-time location data – while failing to offer consumers meaningful choices about how this data can be used.” The six ISPs, which make up about 98 percent of the mobile internet access market, identified in the report are:
AT&T Mobility LLC;
Cellco Partnership, which does business as Verizon Wireless;
Charter Communications Operating LLC;
Comcast Cable Communications, which does business as Xfinity;
T-Mobile US Inc.; and
Google Fiber Inc.
FCC Denies LTD Broadband ETC Waiver Request; LTD Stripped Of RDOF Support In Iowa, Nebraska, & North Dakota
October 20, 2021 – The FCC’s Wireline Competition Bureau has released an Order partially denying a petition filed by LTD Broadband LLC seeking waiver of a Rural Digital Opportunity Fund (RDOF) Phase I auction long-form requirement.
LTD Broadband sought waiver of the FCC’s June 7, 2021 deadline requiring each RDOF long form applicant “to demonstrate, with appropriate documentation, that it has been designated as an eligible telecommunications carrier (ETC) in each of the geographic areas for which it seeks to be authorized for [RDOF] support.” LTD Broadband requested the waiver for eight states where it won support. The Wireline Competition Bureau, in a decision issued in July 2021, denied the waiver with respect to California, Kansas, and Oklahoma. It will rule on the merits of LTD’s waiver with respect to South Dakota and Texas in a future decision.
In this Order, the Bureau has denied “LTD’s request to waive the deadline to submit documentation of its ETC designations in Iowa, Nebraska, and North Dakota.” As for its reasoning, the Bureau “note[d] that LTD did not file its ETC applications in any of these three states within the 30-day ‘good faith presumption’ window,” and concluded that LTD Broadband failed to demonstrate good cause justifying waiver of the June 7th ETC documentation deadline. As a consequence of the decision, LTD Broadband is in default of its winning bids in Iowa, Nebraska, and North Dakota. Accordingly, LTD will lose the following support amounts it was awarded from the RDOF auction:
Iowa – $23,184,786.30 in ten-year support to serve 12,916 locations
Nebraska – $33,228,644.00 in ten-year support to serve 28,729 locations
North Dakota – $ 8,574,318.00 in ten-year support to serve 831 locations
FCC Denies NW Fiber LLC Waiver Request; Strips Company Of $7 Million In RDOF Support In Washington
October 20, 2021 – The FCC’s Wireline Competition Bureau has released an Order denying a petition filed by NW Fiber, LLC seeking waiver of the Rural Digital Opportunity Fund (RDOF) Phase I auction long-form requirement.
NW Fiber, an ISP headquartered in Colfax, Washington, participated in the RDOF auction as part of a two-entity consortium with St. John Telephone, Inc., a rural local exchange carrier that provides services in and around St. John, Washington. The consortium was the winning bidder in 14 census block groups in Washington, all of which were subsequently assigned to NW Fiber. Specifically, the company was awarded $7,116,876.00 in ten-year support to serve 1,057 locations. However, as explained in its waiver petition, NW Fiber was unaware of the RDOF auction’s long-form requirement because it “had relied upon St. John for the consortium’s FCC filings and compliance.” NW Fiber learned of the January 29, 2021 long-form filing deadline on February 8, 2021, after the FCC contacted St. John to inquire about the missing long-form. NW Fiber then requested a waiver of the deadline with respect to 14 census block groups in Washington where it won support.
The Bureau has denied NW Fiber’s waiver request, concluding NW Fiber “has not established special circumstances to warrant a waiver of the January 29 deadline.” To explain its decision, the Bureau explained that “[i]t is well established that a lack of familiarity with or ignorance of the Commission’s rules and procedures does not constitute special circumstances that justify granting a waiver.” Also, the Bureau noted that even after NW Fiber filed its waiver petition, the company “has continued to miss required deadlines and failed to complete the requirements of the program established by the Commission.” To drive the point home, the Bureau then said it doubted NW Fiber’s ability to follow through on the RDOF program’s obligations:
Given the company’s continued failure to meet the Auction 904 long-form requirements and deadlines, we have significant concerns about its ability to fulfill the ongoing deployment and reporting requirements that all Auction 904 support recipients must satisfy.
The Bureau will release a public notice in the near future finding NW Fiber in default on its bids in Washington.
Rural Digital Opportunity Fund: FCC Ready To Authorize Support For 1774 Winning Bids
October 20, 2021 – The FCC’s Rural Broadband Auctions Task Force, Wireline Competition Bureau, and Office of Economics and Analytics have announced they are ready to authorize support for 1774 Rural Digital Opportunity Fund (RDOF) Phase I auction winning bids. A list showing each winning bid ready to be authorized, the corresponding long-form applicant, each winning bid’s total amount of 10-year support, and other details is available as Attachment A to the Public Notice.
The FCC reviewed the long-form applications associated with each winning bid, and determined they met all legal, financial, and technical requirements. To be authorized to receive the listed support amounts, however, each RDOF winning bidder must submit acceptable irrevocable stand-by letters of credit and Bankruptcy Code opinion letters for each state where they have winning bids that are ready to be authorized prior to 6:00 p.m. ET on November 3, 2021.
FCC staff are reviewing RDOF long-form applications on a rolling basis, and will announce other approvals of long-forms in future public notices.
Final Agenda For FCC’s October 26th Open Meeting
October 19, 2021 – The Federal Communications Commission has released the final agenda for its open meeting scheduled for 10:30 am on Tuesday October 26, 2021:
National Security Matter – The Commission will consider a national security matter.
Updating Digital Television Table of Allotments – The Commission will consider an Order that will update the digital television Table of Allotments, and delete or revise rules rendered obsolete by the broadcast incentive auction and the digital television transition. (GN Docket No. 12-268)
Selecting Third Round of Applicants for Connected Care Pilot Program – The Commission will consider a Public Notice announcing the third round of selections for the Commission’s Connected Care Pilot Program to provide Universal Service Fund support for health care providers making connected care services available directly to patients. (WC Docket No. 18-213)
Disaster Communications Field Hearing – The Commission will conduct a virtual field hearing on communications recovery and resiliency during disasters. The Commission will hear testimony about communications issues during and following Hurricane Ida and other recent disasters.
Rural Digital Opportunity Fund: FCC Ready To Authorize Support For 484 Winning Bids
October 7, 2021 – The FCC’s Rural Broadband Auctions Task Force, Wireline Competition Bureau, and Office of Economics and Analytics have announced they are ready to authorize support for 484 Rural Digital Opportunity Fund (RDOF) Phase I auction winning bids. A list showing each winning bid ready to be authorized, the corresponding long-form applicant, each winning bid’s total amount of 10-year support, and other details is available as Attachment A to the Public Notice. However, the support amounts listed in Attachment A are subject to change. According to the FCC’s News Release, “[i]n this funding wave, 42 broadband providers will bring fiber-to-the-home gigabit broadband to approximately 65,000 locations in 21 states over the next 10 years.”
The FCC reviewed the long-form applications associated with each winning bid, and determined they met all legal, financial, and technical requirements. To be authorized to receive the listed support amounts, however, each RDOF winning bidder must submit acceptable irrevocable stand-by letters of credit and Bankruptcy Code opinion letters for each state where they have winning bids that are ready to be authorized prior to 6:00 p.m. ET on October 22, 2021. FCC staff are reviewing long-form applications on a rolling basis, and will announce other approvals of long-forms in future public notices.
Rural Digital Opportunity Fund: 85 Winning Bidders Reject RDOF Support In 5,089 Census Blocks
October 7, 2021 – The FCC’s Rural Broadband Auctions Task Force, Wireline Competition Bureau, and Office of Economics and Analytics have released a preliminary list of areas where Rural Digital Opportunity Fund (RDOF) Phase I auction winning bidders have notified the FCC that they do not intend to pursue RDOF support.
In July 2021, the FCC sent letters notifying 197 RDOF winning bidders that some census blocks where they won support are already served or raise concerns about wasteful spending. Specifically, these problematic census blocks are “already served by one or more service providers that offer 25/3 Mbps broadband service or otherwise raise significant concerns about wasteful spending” because they contain parking lots, international airports, or otherwise do not contain residential or business locations. Each letter contained a list of the specific census blocks for each RDOF winner. In the letter, the FCC directed the RDOF winner “to conduct due diligence” by assessing whether existing broadband service in the identified census blocks will affect their ability to meet RDOF requirements and deployment milestones.
According to the FCC, “85 winning bidders have chosen not to pursue buildout in 5,089 census blocks in response to letters the FCC sent asking applicants to review their bids in areas where there was evidence of existing service or questions of potential waste.” The preliminary list of the identified areas where letter recipients indicated they will no longer pursue funding is available on the FCC’s RDOF – Auction 904 website under the “Results” tab.
FCC Releases Tentative Agenda For October 26th Open Meeting
October 5, 2021 – Acting Federal Communications Commission Chair Jessica Rosenworcel has released the following tentative agenda for the FCC’s next open meeting scheduled for Tuesday October 26, 2021:
National Security Matter – The Commission will consider a national security matter.
Updating Digital Television Table of Allotments – The Commission will consider an Order that will update the digital television Table of Allotments, and delete or revise rules rendered obsolete by the broadcast incentive auction and the digital television transition. (GN Docket No. 12-268)
Selecting Third Round of Applicants for Connected Care Pilot Program – The Commission will consider a Public Notice announcing the third round of selections for the Commission’s Connected Care Pilot Program to provide Universal Service Fund support for health care providers making connected care services available directly to patients. (WC Docket No. 18-213)
Disaster Communications Field Hearing – The Commission will conduct a virtual field hearing on communications recovery and resiliency during disasters. The Commission will hear testimony about communications issues during and following Hurricane Ida and other recent disasters.
NTIA Releases Proposed Service Areas Of Broadband Infrastructure Program Applications – Providers May Submit Challenges By October 19th
October 4, 2021 – The U.S. Department of Commerce’s National Telecommunications and Information Administration (NTIA) has released the proposed service areas of all applications for funding through NTIA’s Broadband Infrastructure Program. Broadband service providers now have 15 days to submit challenge information about existing broadband services offered in any of the proposed service areas.
Challengers can download an excel spreadsheet showing each applicant and their proposed service areas, census blocks, and State or Territory associated with each application. Instructions for submitting challenges is also available online.
NTIA received over 230 applications seeking more than $2.5 billion in funding across 49 states and territories for its Broadband Infrastructure Program. NTIA will award BIP grants to “covered partnerships” for “covered broadband projects.” Covered partnership means a partnership between: (1) a State, or one or more political subdivisions of a State; and (2) a provider of fixed broadband service. Covered broadband project means a competitively and technologically neutral project for the deployment of fixed broadband service that provides qualifying broadband service (25/3 Mbps and low latency) in an eligible service area. The term eligible service area means a census block in which broadband service is not available at one or more households or businesses in the census block.
NTIA expects the award process will be highly competitive. Funding priority will be given to applications with proposed broadband projects that: (1) are designed to provide broadband service to the greatest number of households in an eligible service area; (2) will provide broadband service to rural areas (an eligible service area that is wholly within any area other than: (i) a county, city, or town that has a population of more than 50,000 inhabitants; and (ii) the urbanized area contiguous and adjacent to a city or town of more than 50,000 inhabitants); (3) are the most cost-effective, prioritizing such projects in areas that are the most rural; and (4) are designed to provide broadband service with speeds of at least 100/20 Mbps.
NTIA expects to complete its selection of award by November 15, 2021, and begin announcing winners no earlier than November 29, 2021.
Court Dismisses Texas City’s Lawsuit Seeking Franchise Fees From Netflix & Hulu
October 1, 2021 – The U.S. District Court for the Eastern District Of Texas, Texarkana Division, has dismissed the City of New Boston’s class action lawsuit filed against Netflix, Inc. and Hulu, LLC. In its complaint, the City of New Boston, Texas, claimed video streaming service providers Netflix and Hulu violated Texas law by failing to pay video service franchise fees to Texas municipalities. Netflix and Hulu sought dismissal of the suit, arguing the law “does not apply to them because they are not holders of a state-issued certificate of franchise authority.” The court agreed, finding the statutory language clearly requires only a holder of a state-issued certificate of franchise authority to pay the franchise fee. While Netflix and Hulu may be video service providers, the court concluded it is undisputed that they do not have state-issued certificates of franchise authority. Further, the court shot down the City’s request for declaratory relief, explaining that it “does not have the authority to issue the certificates of franchise underpinning this case for franchise fees.”
Mergers & Acquisitions: Verizon Wireless Buying Chariton Valley’s LTE Network & Various Spectrum Licenses
October 1, 2021 – Verizon Wireless has entered into an agreement to purchase Chariton Valley Communications Corporation’s LTE wireless network and various FCC spectrum licenses in Missouri. The Description Of Transaction And Public Interest Statement accompanying the application filed with the FCC by Chariton Valley contains the following information on the transaction:
The proposed transaction includes the assignment of the identified licenses and the LTE operating network, including LTE network assets and facilities, associated with the Licenses in two CMAs in Missouri covered by the Licenses. Verizon Wireless does not currently offer wireless service within either of the CMAs in this transaction. The proposed transaction will expand Verizon Wireless’s coverage and service into markets that Verizon Wireless does not currently serve. The proposed transaction also will provide Verizon Wireless with additional spectrum capacity, which will help it to meet future demands of its customers for broadband wireless services in the Markets.
Chariton Valley’s customers will be given advance notice of the proposed transaction. Chariton Valley will advise its approximately 7,300 customers of the sale to Verizon Wireless in the affected markets and release its customers from their service contracts. Customers will be informed they may obtain service from Verizon Wireless or other available wireless service providers. Specifically, Chariton Valley will advise its customers via both a letter to the customer’s address of record and updates to Chariton Valley’s website of the sale to Verizon Wireless.
Mergers & Acquisitions: Great Plains Communications Acquires USA Communications
October 1, 2021 – Great Plains Communications has announced it has acquired USA Communications. The deal is Great Plains’ fourth acquisition in the past five years. Great Plains is a “telecommunications provider with a growing, privately-owned 13,500+ mile fiber network touching 13 states,” and is subsidiary of Grain Management, LLC. USA Communications provides fiber-based communications services in Nebraska and Colorado. According to the press release, the two companies entered into a definitive agreement in the third quarter of 2021, and the acquisition was completed on September 30, 2021. Terms were not disclosed.
Cyber Incident Reporting Act Would Require Critical Infrastructure To Report Cyber Attacks
October 1, 2021 – The Cyber Incident Reporting Act of 2021 has been introduced in the U.S. Senate. If passed, it would “require critical infrastructure owners and operators to report to the Cybersecurity and Infrastructure Security Agency (CISA) if they experience a cyber-attack, and most entities to report if they make a ransomware payment.” The full text of the bill is available here.
