News Update - April 2021

April 30, 2021 Tony Veach

FCC Releases Draft Rules For Emergency Connectivity Fund Program

April 30, 2021 – Acting Federal Communications Commission Chair Jessica Rosenworcel has released a public draft Report and Order that, if adopted by a majority of FCC Commissioners, will establish the $7.17 billion Emergency Connectivity Fund Program. By releasing the draft Report and Order, as well as draft rules for the program, the FCC expects to promulgate rules by the statutory deadline of May 10, 2021. The Emergency Connectivity Fund Program is expected to help the millions of students who lack home broadband connections and access to computers – those caught in the “Homework Gap.” It “will reimburse schools and libraries for the purchase, during the COVID-19 pandemic, of laptop and tablet computers, Wi-Fi hotspots and other eligible equipment as well as broadband connections for students, school staff, and library patrons who would otherwise lack access to connected devices and broadband service.”

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FCC Announces Tentative Agenda For May 20 Open Meeting

April 29, 2021 – Acting Federal Communications Commission Chair Jessica Rosenworcel has announced the following tentative agenda for the FCC’s May open meeting set for Thursday, May 20, 2021:

Reducing Interstate Rates and Charges for Incarcerated People – The Commission will consider a Third Report and Order, Order on Reconsideration, and Fifth Notice of Proposed Rulemaking that, among other actions, will lower interstate rates and charges for the vast majority of incarcerated people, limit international rates for the first time, and seek comment on further reforms to the Commission’s calling services rules, including for incarcerated people with disabilities. (WC Docket No. 12-375)

Strengthening Support for Video Relay Service – The Commission will consider a Notice of Proposed Rulemaking and Order to set Telecommunications Relay Services Fund compensation rates for video relay service. (CG Docket Nos. 03-123, 10-51)

Shortening STIR/SHAKEN Extension for Small Providers Likely to Originate Robocalls – The Commission will consider a Further Notice of Proposed Rulemaking to fight illegal robocalls by proposing to accelerate the date by which small voice service providers that originate an especially large amount of call traffic must implement the STIR/SHAKEN caller ID authentication framework. (WC Docket No. No 17-97)

Section 214 Petition for Partial Reconsideration for Mixed USF Support Companies – The Commission will consider an Order on Reconsideration to relieve certain affiliates of merging companies that receive model-based and rate-of-return universal service support from a “mixed support” merger condition cap. (WC Docket No. 20-389)

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

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FCC’s Emergency Broadband Benefit Program Will Launch May 12th

April 29, 2021 – The FCC’s Wireline Competition Bureau has announced that the Emergency Broadband Benefit (EBB) Program will officially launch on Wednesday May 12, 2021. The EBB Program is a $3.2 billion federal initiative that will provide eligible households with discounts of up to $50 a month for broadband service, discounts of up to $75 a month for broadband service on Tribal lands, and a one-time discount of up to $100 on a computer or tablet.

On May 12, 2021, broadband service providers participating in the EBB Program can begin enrolling eligible households into the program, and households can check their eligibility by using the National Lifeline Eligibility Verifier consumer portal available at www.GetEmergencyBroadband.org. A list of broadband providers participating in the EBB Program, by state, is available at https://www.fcc.gov/emergency-broadband-benefit-providers.

For participating providers’ reimbursement claims, the first snapshot date will be June 1, 2021. Participating providers must submit certified reimbursement claims by June 15, 2021 for service discounts provided in the month of May and discounted connected devices delivered on or between May 12, 2021 and May 31, 2021. The snapshot date for subsequent months will occur on the first day of the month. Additional information about the EBB Program is available from the FCC at www.fcc.gov/broadbandbenefit and from USAC at www.GetEmergencyBroadband.org.

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FCC Grants SpaceX License Modification, Subject To Conditions

April 27, 2021 – The Federal Communications Commission (FCC) has issued an Order and Authorization and Order on Reconsideration that grants, subject to conditions, the application of Space Exploration Holdings, LLC for modification of its license for a non-geostationary orbit (NGSO) fixed-satellite service (FSS) constellation using Ku- and Ka-band spectrum. Specifically, SpaceX’s license will be modified, subject to the following conditions:

The number of satellites will be reduced from 4,409 to 4,408;

The primary operational altitude specified for 2,814 satellites is modified, changing it from the 1,100-1,300 km range to the 540-570 km range; and

The minimum earth station elevation angle for both user beams and gateway beams is revised, and modified by including in the license authority to conduct launch and early orbit phase (LEOP) operations and payload testing during orbit-raising and deorbit of its satellites, consistent with parameters described in the SpaceX application and related materials.

By adopting the order, the FCC rejects petitions to deny or defer of Viasat, Inc., SES Americom, Inc. and O3B Limited, Kepler Communications, Inc., and Kuiper Systems LLC. (Amazon). Several other challenges to SpaceX’s modification request also were denied.

Finally, the FCC addressed concerns over the modification’s potential impact on the ongoing 12 GHz proceeding: “As with prior grants, we condition this grant, subject to any modification necessary to bring it into conformance with future actions in Commission rulemakings, including but not limited to the 12 GHz proceeding, which is expressly referenced in the ordering clauses below. Therefore, SpaceX proceeds at its own risk.”

The FCC believes the license modification “will allow SpaceX to implement safety-focused changes to the deployment of its satellite constellation to deliver broadband service throughout the United States, including to those who live in areas underserved or unserved by terrestrial systems.”

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LTD Broadband Says It Can Meet Its RDOF Broadband Obligations

April 26, 2021 – LTD Broadband, LLC recently conducted an ex parte meeting with the legal advisor to Acting Federal Communications Commission Chair Jessica Rosenworcel “to discuss LTD’s ability to meet its commitment to provide Gigabit Tier fiber service in the areas where it won Rural Digital Opportunity Fund (RDOF) Phase I support.” LTD provided the following background information on its existing broadband operations:

LTD currently has more than 150 employees and has built a reliable fixed broadband network using fixed wireless and fiber technologies.
LTD has experienced 40 percent customer growth in each of the past seven years, with more than 500 towers activated since January 2020.
LTD has deployed service to 70 percent of its Connect America Fund (CAF) locations and expects to complete its buildout well ahead of the required six‐year period.
LTD assisted consumers during the covid pandemic by taking the “Keep Americans Connected” pledge and is participating in the Emergency Broadband Benefit program.

With respect to review of RDOF long-form applications, LTD said it “trust[s] that the FCC will perform its duty to fairly and thoroughly process Long Form applications,” and fired back at stakeholders’ calling for public review RDOF winners’ long-form applications, stating “[t]here is no reason to believe that upset competitors will need to “help” the FCC do their due diligence and ensure RDOF program compliance.” Finally, LTD’s CEO, Corey Hauer, provided the following perspective on LTD’s success in the RDOF auction:

Hauer explained that, for RDOF, LTD elected to bid in areas proximate to its existing CAF‐supported and non‐supported areas of its network, and other rural areas where it had local knowledge of terrain, demographic and other features. He added that rural areas do not present the same challenges of deploying fiber because of the lack of in‐ground infrastructure such as gas lines, electric lines and sewer lines that can complicate and add cost to fiber trenching. Mr. Hauer indicated that LTD would be hiring and training hundreds of construction workers to build a labor force capable of meeting LTD’s RDOF buildout commitments, and would be supplementing RDOF support with significant capital investment.

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FCC Fines Tele Circuit Network $4.1 Million For Cramming And Slamming

April 23, 2021 – The Federal Communications Commission (FCC) has issued a Forfeiture Order against Tele Circuit Network Corporation for cramming and slamming. For willfully and repeatedly violating Sections 201(b) and 258 of the Communications Act, and Section 64.1120 of the FCC’s rules, Tele Circuit must pay a forfeiture of $4,145,000. The FCC’s order adopts the findings in a Notice of Apparent Liability issued in 2018, which includes the following:

Tele Circuit engaged in deceptive marketing

Tele Circuit switched consumers’ phone service without proper authorization

Tele Circuit placed unauthorized charges on consumers’ telephone bills

Tele Circuit violated a commission order by failing to respond fully to an Enforcement Bureau LOI

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Point Broadband Authorized To Receive Casair’s CAF II Funding In Michigan

April 23, 2021 – The FCC’s Wireline Competition Bureau has issued a Public Notice which recognizes Point Broadband Fiber Holdings, LLC’s authority to receive all Connect America Fund Phase II support awarded to Crystal Automation Systems, Inc d/b/a Casair not already disbursed as of September 2020. The voice and broadband service obligations are also subsumed by Point Broadband.

Casair was authorized to receive a total $27.2 million in CAF II support over ten years to provide broadband service in Michigan. Pursuant to an Asset Purchase Agreement, Point Broadband purchased Casair’s broadband network assets in West Central Michigan. including fiber infrastructure, microwave facilities and existing customer service agreements. Notably, this deal also included Casair’s CAF II benefits and obligations. Point Broadband and Casair filed a Section 214 application even though neither carrier is a telecommunications carrier – both are broadband and VoIP providers and the deal involved only those assets. The Bureau approved the transaction in September 2020.

Thereafter, the Bureau and the Universal Service Administrative Company reviewed Point Broadband’s letter of credit, Bankruptcy Code opinion letter, and financial and technical qualifications. The Bureau ultimately determined Point Broadband satisfies the criteria to be authorized to receive CAF II auction support. Of course, in exchange for funding, Point Broadband assumes Casair’s defined broadband deployment obligations and voice and broadband service obligations for the State of Michigan. Point Broadband must offer qualifying voice and broadband service to 17,610 qualifying locations as of December 31, 2025, and must comply with all other CAF II auction obligations and requirements.

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WTA Has Serious Concerns About The FCC’s RDOF Auction Results

April 20, 2021 – WTA – Advocates has filed a written ex parte with the FCC to express its concerns regarding the Rural Digital Opportunity Fund (RDOF) auction (Auction 904). WTA describes itself as a national trade association representing more than 350 rural telecommunications providers that offer voice, broadband, and video-related services in rural America. In the ex parte, WTA identified two main areas of concern: review of long-form applications; and long-term enforcement of RDOF rules.

First, WTA pressed the FCC to seek input from industry stakeholders, such as WTA members because they “possess a trove of relevant and useful information, including participation in the RDOF auction (both as winners and non-winners) as well as substantial experience in the construction and operation of high-speed rural broadband networks in areas similar to (and in some cases adjacent to) the RDOF areas.”

Second, WTA highlighted the fact that several RDOF auction winners must “construct and operate new stand-alone Gigabit-speed fiber optic broadband networks with RDOF support that is only 20-to-30 percent of the reserve prices for their areas.” In these instances, RDOF long-form applicants “should be required to meet a very detailed and stringent burden of proof regarding their concrete and verifiable technical, financial, staffing and operational resources.”

Third, WTA reiterated concerns regarding the capability of RDOF winners to provide Gigabit services over fixed wireless or satellite networks, noting these networks suffer from capacity and congestion issues. Finally, WTA warned the FCC that some RDOF winners may attempt to seek waivers of their service obligations and support amounts in a few years’ time. This strategy, WTA stressed, has the potential to “destroy the integrity and legitimacy” of the RDOF Phase I auction and future universal service auctions. To guard against this, WTA urged the FCC “to declare unequivocally that its existing RDOF I auction rules will be strictly enforced and that RDOF I auction winners will not be granted waivers or other retroactive changes from the build-out requirements, service obligations and/or support amounts that they agreed to accept as a condition of their ‘winning’ bids.”

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FCC’s Robocall Mitigation Database Opens; Deadline To Provide Certification Is June 30, 2021

April 20, 2021 – The FCC’s Wireline Competition Bureau has announced the opening of the Robocall Mitigation Database, and has announced the following deadlines:

Voice service providers must submit required certification information to the Robocall Mitigation Database no later than June 30, 2021.

Intermediate providers and terminating voice service providers will be prohibited from accepting traffic from voice service providers not listed in the Robocall Mitigation Database beginning September 28, 2021.

The Bureau’s Public Notice also provides instructions for voice service providers to file certifications regarding their efforts to stem the origination of illegal robocalls on their networks. Voice service providers’ certifications, identification information, and contact information must be submitted via a portal on the FCC’s website on or before June 30, 2021. Changes to a certification, identification information, or contact information must be updated within 10 business days of the change. Additional instructions for submitting a certification is available online. The new Robocall Mitigation Database will be publicly available online.

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Are You Tired Of Hearing Loud Commercials? FCC Considering Updates To CALM Act Rules

April 19, 2021 – The FCC’s Media Bureau is seeking comment from consumers and industry stakeholders on whether any updates are needed to the FCC’s rules implementing the Commercial Advertisement Loudness Mitigation (CALM) Act. Comments are due on or before June 3, 2021, and reply comments are due July 9, 2021. All comments must reference MB Docket No. 11-93. The CALM Act was enacted to protect viewers from excessively loud commercials. The FCC’s CALM Act rules require TV stations and multichannel video programming providers to ensure that all commercials are transmitted to consumers at the appropriate loudness level in accordance with the industry standard mandated by statute. In general, the Media Bureau is seeking comment on the following topics:

To what extent have the FCC’s rules been effective in preventing loud commercials?

What do consumers experience as they watch programming provided by television broadcasters and MVPDs?

Are the FCC’s CALM Act rules effectively serving their intended purpose?

Are there specific areas in which updates to rules are needed given improvements in technology or new industry practices?

Should the FCC take additional actions – and if so, what measures should be proposed or taken – in furtherance of the purpose of the CALM Act to prevent television stations and MVPDs from transmitting commercial advertisements at louder volumes than the program material they accompany?

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FCC Schedules Consumer Webinar On Emergency Broadband Benefit Program

April 16, 2021 – The Federal Communications Commission has announced it will hold a public webinar on Tuesday, April 27 at 3:00 p.m. EDT to provide information on the new Emergency Broadband Benefit (EBB) Program. The temporary $3.2 billion EBB Program will help lower the cost of high-speed broadband Internet access services for eligible households during the on-going COVID-19 pandemic by providing the following benefits: up to $50 per month discount on broadband services; up to $75 per month discount on broadband services for households on Tribal lands; and a one-time discount of up to $100 for a laptop, desktop computer, or tablet purchased through a participating provider. The benefit is limited to one monthly service discount and one device discount per eligible household. The April 27th webinar will provide consumers and outreach partners with an overview of the EBB program, eligibility information, and enrollment procedures, and an explanation of outreach materials for partners and the public to use to create awareness about the program. Webinar registration is not required. It can be viewed live online at www.fcc.gov/live.

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FCC Sets Procedures For 2021 Filing Of Annual Access Charge Tariffs And Tariff Review Plans

April 16, 2021 – The FCC’s Wireline Competition Bureau has released an Order which sets the procedures for the 2021 filing of annual access charge tariffs and Tariff Review Plans (TRPs). The Order applies to incumbent local exchange carriers (LECs) subject to price cap regulation, as well as rate-of-return LECs subject to Sections 61.38, 61.39, and 61.50 of the FCC’s rules. It sets an effective date of July 1, 2021 for annual access charge tariff filings made on both 15 and 7 days’ notice; establishes the dates for filing petitions to suspend or reject an incumbent LEC’s tariff filing and replies to such petitions; grants a limited waiver of Section 51.909(a)(4) of the FCC’s rules to the National Exchange Carrier Association for purposes of the 2021-22 annual access tariff filing period; and addresses service of the petitions and replies, as follows:

15-Day Tariff Filings

Filing Deadline: June 16, 2021
Effective Date: July 1, 2021
Petitions To Suspend Or Reject: June 23, 2021
Replies To Petitions: June 28, 2021 (noon Eastern Time)

7-Day Tariff Filings:

Filing Deadline: June 24, 2021
Effective Date: July 1, 2021
Petitions To Suspend Or Reject: June 28, 2021
Replies To Petitions: June 30, 2021 (noon Eastern Time)
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Final Agenda: FCC April 22nd Open Meeting

April 15, 2021 – The Federal Communications Commission has released the final agenda for the FCC’s April 22, 2021, open meeting:

National Suicide Hotline Improvement Act of 2018: 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)

Improving Public Safety Communications in the 800 MHz Band – 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)

Sponsorship Identification Requirements for Foreign Government-Provided 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 Releases Report On Transmitting 988 Calls With Dispatchable Location Information

April 15, 2021 – The FCC’s Wireline Competition Bureau has publicly released a report, which was previously submitted to Congress, on using 988 as the nationwide, 3-digit phone number for the National Suicide Prevention Lifeline. The report, “988 Geolocation Report —National Suicide Hotline Designation Act of 2020,” examines the benefits, technical feasibility, and potential costs of transmitting 988 calls with dispatchable location information. Ultimately, the Bureau concludes that transmitting geolocation information, including dispatchable location information, with 988 calls would have significant benefits. The Bureau recommends the establishment of a multi-stakeholder advisory committee tasked with developing recommendations on how to address challenges to transmitting dispatchable location with 988 calls, including: (1) legal and policy considerations regarding consumer privacy and legal authority with respect to mandating transmission of location information, including dispatchable location information, with 988 calls; (2) technical implementation standards for providers, including fixed, mobile, and over-the-top providers; and (3) cost recovery and funding requirements for providers, the Lifeline, the Veterans Crisis Line, and individual local crisis centers.

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FCC To Restore Security, Reliability, and Interoperability Council – CSRIC VIII Will Focus On 5G Network Security

April 15, 2021 – Acting Federal Communications Commission Chair Jessica Rosenworcel has announced that the FCC will re-establish the Communications Security, Reliability, and Interoperability Council (CSRIC) on or before June 30, 2021 for a period of two years. This will be the FCC’s eighth charter of CSRIC, which is expected to have its first meeting in September of 2021. In general, CSRIC VIII will provide advice and recommendations to the FCC to improve the security, reliability, and interoperability of the nation’s communications systems, but identifying 5G security issues will be a primary focus. Additionally, in light of the numerous security breaches that have impacted the communications sector, CSRIC VIII will review risks to service provider operations from attacks in software and cloud services stacks, and develop mitigation strategies. Nominations for CSRIC membership must be submitted to the FCC no later than Tuesday, June 1, 2021. Detailed information on the procedures for submitting nominations are set forth in the FCC’s Public Notice.

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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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FCC Investigating Mobile Wireless Providers’ Compliance With Vertical Location Information Requirements

April 2, 2021 – Federal Communications Commission acting chair Jessica Rosenworcel has announced that the FCC’s Enforcement Bureau is conducting an inquiry into several mobile wireless providers’ compliance with FCC rules that require them to start delivering 911 callers’ vertical location information by April 3, 2021. The FCC’s rules require nationwide mobile wireless providers to deploy dispatchable location or meet certain vertical location, or z-axis, accuracy requirements by April 3, 2021, and to certify to such deployment by June 2, 2021. According to the FCC News Release, the FCC’s Enforcement Bureau will review carriers’ past efforts to come into compliance with the FCC’s deadlines as well as the current capabilities of z-axis solutions.

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SCOTUS Clarifies 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)

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)

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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