RDOF Winners File ETC Petitions With FCC

April 13, 2021 – The FCC’s Wireline Competition Bureau is seeking comment on several petitions for designation as an Eligible Telecommunications Carrier (ETC) filed by winning bidders, or those assigned winning bids, in the FCC’s Rural Digital Opportunity Fund (RDOF) auction. Comments are due on or before May 13, 2021, and reply comments are due May 28, 2021. The Petitioners are seeking ETC designation in areas where they won RDOF support, as well as areas outside of RDOF-eligible census blocks where a petitioner may receive Lifeline-only designation. All comments must reference WC Docket No. 09-197, and may be filed using the FCC’s Electronic Comment Filing System (ECFS). All FCC ETC designations of RDOF support recipients will be conditioned upon successful completion of the RDOF long-form application process.

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FCC Promotes Its Broadband Speed Test App

April 12, 2021 – The Federal Communications Commission (FCC) is encouraging fixed and mobile broadband users to download and use the FCC’s Speed Test app. It is available for download on Apple iOS devices and Android. In addition to measuring a broadband connection’s speed, the app will collect speed test data as part of the FCC’s Measuring Broadband America program and Broadband Data Collection effort. Data collected through the app by the FCC and consumers are expected to be used to challenge broadband availability maps submitted by service providers when the FCC’s Broadband Data Collection systems become available.

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RDOF Winner GeoLinks Offers Input On RDOF Long-Form Review

April 12, 2021 – California Internet, L.P. dba GeoLinks recently met with the wireline legal advisor for Acting Federal Communications Commission Chair Jessica Rosenworcel, regarding the FCC’s Rural Digital Opportunity Fund (RDOF) Phase I auction. During the meeting, GeoLinks discussed its hybrid broadband service offerings; its Connect America Fund (CAF) Phase II Auction and RDOF award areas; and the Commission’s review of RDOF long form applications. GeoLinks was awarded the fifth largest amount of CAF II funding, a total of nearly $87.8 million, with $83 million being awarded in California. GeoLinks was awarded approximately $235 million in RDOF funding to provide broadband service to 128,297 total locations in California, Nevada, and Arizona. GeoLinks also covered the following key RDOF issues during its ex parte:

• GeoLinks is concerned about inexperienced providers seeking to provide Gigabit Tier services

• The results of the Phase I auction suggest that many RDOF bidders lacked this experience with wireless broadband and submitted bids that are not realistically feasible.

• GeoLinks supports rigorous review of RDOF Long-Form Applications.

• Review must be for both technical and financial adequacy.

• The Commission should require strict compliance with the Letter of Credit requirements, with limited exceptions.

• The Commission should schedule a re-auction for all census blocks that were awarded in the Phase I auction to an applicant that subsequently defaulted as quickly as possible.

• Re-Auction bidders should be required to provide additional financial assurances to the Commission.

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Mergers & Acquisitions: Zayo Holdings Purchasing Indiana Fiber Network

April 9, 2021 – The FCC’s Wireline Competition Bureau is seeking comment on a Section 214 application filed by Indiana Fiber Network, LLC d/b/a Intelligent Fiber Network and Zayo Group Holdings, Inc. requesting consent to transfer direct control of Indiana Fiber Network to Zayo. Comments are due on or before April 23, 2021, and reply comments are due April 30, 2021. Indiana Fiber Network is an Indiana LLC that provides competitive fiber-based services in Indiana and between Indiana and points in Illinois, Michigan, and Ohio. Zayo Holdings is a Delaware privately-held corporation that wholly owns U.S.-based operating subsidiaries that are authorized to provide competitive local exchange carrier and other services in the District of Columbia and every state except Alaska.

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FTC Examining Dark Patterns

April 9, 2021 – The Federal Trade Commission is seeking comment on topics related to the use of digital “dark patterns,” which the FTC describes as a range of potentially deceptive or unfair user interface designs used on websites and mobile apps. Comment is being sought ahead of an April 29, 2021 workshop titled Bringing Dark Patterns to Light, which “will explore the ways in which user interfaces can have the effect, intentionally or unintentionally, of obscuring, subverting, or impairing consumer autonomy, decision-making, or choice.” The FTC is asking for input on the following topics that will be discussed at the workshop:

• The definition of dark patterns;

• The prevalence of dark patterns in the marketplace;

• The use of artificial intelligence and machine learning to design and deliver dark patterns;

• The effectiveness of dark patterns at influencing consumer choice, decision-making, or behavior;

• The harms dark patterns pose to consumers or competition; and

• Ways to prevent, mitigate, and remediate the harmful effects of dark patterns.

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FCC Releases Updated Form 477 Broadband Deployment Data

April 9, 2021 – The FCC’s Office of Economics and Analytics, Wireline Competition Bureau, and Wireless Telecommunications Bureau have released updated FCC Form 477 data on fixed broadband deployment, and mobile voice and broadband deployment as of June 30, 2020. The fixed broadband data include revisions made by filers through March 26, 2021, while the mobile deployment data include revisions made by filers through December 29, 2020. Fixed broadband data is available for download online, and will be made available on the National Broadband Map. Mobile broadband data also is available online.

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FCC Asks About Updating The Twenty-First Century Communications And Video Accessibility Act

April 7, 2021 – The FCC’s Consumer And Governmental Affairs, Media, And Wireless Telecommunications Bureaus has requested input from stakeholders on updating the Twenty-First Century Communications And Video Accessibility Act of 2010 (CVAA). For video programming, the FCC adopted CVAA “rules supporting access to audio description, closed captioning of Internet-protocol (IP) delivered video programming, accessible emergency information, and accessible user interfaces (making functions such as captioning and audio description settings accessible and usable to individuals with disabilities), and video programming guides and menus.” The FCC also adopted CVAA rules regarding access to advanced communications services, the National Deaf-Blind Equipment Distribution Program, and accessible internet browsers on mobile phones. In the Public Notice, the Bureaus are seeking comment on whether there is a need to update the CVAA rules, and responses to the following:

All stakeholders, including operators and consumer groups, are invited to provide input on aspects of the FCC’s CVAA implementation that are working well, on specific areas in which commenters believe improvements are needed, and on requirements that may not be serving their intended purpose or have been overtaken by new technologies.

Should the FCC take additional actions – and if so, what measures should be proposed or taken – in furtherance of the stated purpose and spirit of the CVAA to make communications services more accessible for persons with disabilities.

Parties are invited to suggest other initiatives the FCC could undertake to improve access to video programming and communications services through other existing sources of statutory authority under the Communications Act of 1934, such as the Television Decoder Circuitry Act of 1990.

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Supreme Court Justice Clarence Thomas Considers Twitter’s Impact On “Free Speech,” Foreshadows Crack Down On Dominant Tech Platforms

April 5, 2021 – Conservative Supreme Court Justice Clarence Thomas has issued a statement “on the threat to free speech by dominant tech platforms” that was attached to a recent grant of a petition for cert in Biden v. Knight First Amendment Institute. The issue in the case was whether the First Amendment of the U.S. Constitution deprives a government official of his right to control his personal Twitter account by blocking third-party accounts if he uses that personal account in part to announce official actions and policies. The petition for a writ of certiorari was granted; the judgment was vacated, and the case was remanded to the U.S. Court of Appeals for the 2nd Circuit with instructions to dismiss the case as moot. Justice Thomas, however, issued a concurring statement “to note that this petition highlights the principal legal difficulty that surrounds digital platforms–namely, that applying old doctrines to new digital platforms is rarely straightforward.” Justice Thomas’s statement acknowledges the growing power of social media platforms like Twitter and Facebook; questions where dominant tech platforms land in the definition of public forum; and perhaps foreshadows future action from SCOTUS:

Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties. We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.

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Vermont PUC – Classifying VoIP Services As Telecommunications Services Under Federal Law Would Conflict With FCC Policy Of Targeted VoIP Regulation

April 5, 2021 – The Vermont Public Utility Commission has issued an Order which grants a request by Comcast to modify a 2018 PUC order that found that VoIP service was a telecommunications service under both state and federal law. In 2007, the Vermont PUC initiated a proceeding to examine the regulation of VoIP services, including jurisdictional issues, and concluded in 2010 that fixed VoIP service is a telecommunications service under Vermont law. That order was upheld by the Vermont Supreme Court, but it was also remanded back to the PUC “to decide whether VoIP service was also a telecommunications service under federal law.” The PUC then concluded that under federal law, fixed VoIP service is a telecommunications service, but did not determine how VoIP services should be regulated. Comcast requested the PUC alter or amend its conclusions. Upon review of the record and after considering two decisions that occurred after the PUC’s order – the FCC’s Restoring Internet Freedom decision, and Charter Advanced Services (MN), LLC v. Lange – the Vermont PUC was persuaded to reconsider. While the PUC noted it did not find any error in its analysis of Comcast’s VoIP service under existing FCC precedent, it nevertheless concluded “that a determination that VoIP services are telecommunications services under federal law would conflict with the FCC policy of targeted VoIP regulation.” Finally, the PUC noted, however, it “is not precluded from investigating the extent of Vermont’s authority to regulate VoIP services that are permitted by the FCC’s existing regulations.”

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SCOTUS Narrows TCPA’s Definition Of Automatic Telephone Dialing System

April 1, 2021 – The Supreme Court of the United States has issued an opinion in Facebook v. Duguid which narrows the Telephone Consumer Protection Act’s definition of automatic telephone dialing system. The decision is expected to have an immediate impact on the amount of viable TCPA lawsuits. Over five years ago, Mr. Duguid claimed Facebook violated the TCPA by maintaining a database of phone numbers and programming equipment to send automated login-notification text messages. Facebook argued it did not send text messages to numbers that were randomly or sequentially generated, and thus the TCPA did not apply. The Ninth Circuit held that the TCPA’s autodialer definition applies to Facebook’s notification system because it “has the capacity to dial automatically stored numbers.” SCOTUS disagreed and reversed the Ninth Circuit decision. Relying heavily on statutory construction, SCOTUS concluded:

To qualify as an “automatic telephone dialing system” under the TCPA, a device must have the capacity either to store a telephone number using a random or sequential number generator, or to produce a telephone number using a random or sequential number generator.

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Emergency Broadband Benefit Program: 319 Broadband Providers Have Enrolled So Far

April 1, 2021 – The Federal Communications Commission (FCC) has announced that it has accepted 319 broadband providers into the Emergency Broadband Benefit Program. These 319 providers offer broadband service in all 50 states, the District of Columbia, and half of U.S. territories. A full list of the broadband providers is available online at https://www.fcc.gov/ebb-providers-state. The FCC’s Emergency Broadband Benefit Program will provide eligible households with discounts of up to $50 a month for broadband service, as well as a one-time discount of up to $100 on a computer or tablet.

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FCC Tentative Agenda For April 22nd Open Meeting

April 1, 2021 – Acting Federal Communications Commission Chair Jessica Rosenworcel has announced the following tentative agenda for the FCC’s April 22, 2021, open meeting:

Text-to-988 – The Commission will consider a Further Notice of Proposed Rulemaking to increase the effectiveness of the National Suicide Prevention Lifeline by proposing to require covered text providers to support text messaging to 988. (WC Docket No. 18-336)

Commercial Space Launch Operations – The Commission will consider a Report and Order and Further Notice of Proposed Rulemaking that would adopt a new spectrum allocation for commercial space launch operations and seek comment on additional allocations and service rules.  (ET Docket No. 13-115)

Wireless Microphones – The Commission will consider a Notice of Proposed Rulemaking that proposes to revise the technical rules for Part 74 low-power auxiliary station (LPAS) devices to permit a recently developed, and more efficient, type of wireless microphone system. (RM-11821; ET Docket No. 21-115)

Improving 911 Reliability – The Commission will consider a Third Notice of Proposed Rulemaking to promote public safety by ensuring that 911 call centers and consumers receive timely and useful notifications of disruptions to 911 service. (PS Docket Nos. 13-75, 15-80; ET Docket No. 04-35)

Concluding the 800 MHz Band Reconfiguration – The Commission will consider an Order to conclude its 800 MHz re-banding program due to the successful fulfillment of this public safety mandate. (WT Docket No. 02-55)

Enhancing Transparency of Foreign Government-Sponsored Programming – The Commission will consider a Report and Order to require clear disclosures for broadcast programming that is sponsored, paid for, or furnished by a foreign government or its representative. (MB Docket No. 20-299)

Imposing Application Cap in Upcoming NCE FM Filing Window – The Commission will consider a Public Notice to impose a limit of ten applications filed by any party in the upcoming 2021 filing window for new noncommercial educational FM stations. (MB Docket No. 20-343)

Enforcement Bureau Action – The Commission will consider an enforcement action.

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FCC To Co-Lead Workshop On Securing U.S. Communications Supply Chain

April 1, 2021 – Acting Federal Communications Commission Chair Jessica Rosenworcel has announced that the FCC will co-lead an April 26, 2021, workshop on securing the nation’s communications supply chain. The National Counterintelligence and Security Center (NCSC) in the Office of the Director of National Intelligence will co-lead with the FCC. During the workshop, expert panels will “explore initiatives to promote the supply chain integrity of small and medium-sized businesses and efforts to protect the software supply chain.” Additional information is available from the DNI’s website.

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