News Update - January 2022

January 31, 2022 Tony Veach

Rural Digital Opportunity Fund: FCC Ready To Authorize $1.2 Billion In RDOF Support For 5,254 Winning Bids

January 28, 2022 – 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 5,254 Rural Digital Opportunity Fund (RDOF) Phase I auction winning bids. This is the sixth group of RDOF winning bids that is ready to be authorized – $1.2 billion in ten-year RDOF support for 23 broadband service providers to serve over 1 million locations in 32 states.

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. Attachment B contains a list of default bids. These are bids that RDOF winners or their assignees have notified the FCC that they do not intend to pursue. RDOF support will not be authorized for those bids, and the winning bidders and assignees are in default and may be subject to forfeiture penalties.

For this sixth set of ready-to-be-authorized RDOF winning bids, FCC staff reviewed the long-form applications associated with the winning bids, 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 February 11, 2022. The FCC will continue to review RDOF long-form applications on a rolling basis, and will announce other approvals of long-forms in future public notices. Additional information on broadband service providers set to receive RDOF Phase I auction support and RDOF funding amounts by state are available from the FCC’s RDOF auction website: https://www.fcc.gov/auction/904.

FCC’s New Rural Broadband Accountability Plan Will Increase USF High-Cost Audits & Promote Transparency Of High-Cost Support Programs

January 28, 2022 – The Federal Communications Commission (FCC) has announced the creation of the Rural Broadband Accountability Plan, which is a new FCC effort to ensure compliance with FCC rules for the universal service fund’s (USF) high-cost program. The FCC has released a Fact Sheet containing limited details on the new oversight plan.

Under the Rural Broadband Accountability Plan, the number of USF audits performed by the Universal Service Administrative Company (USAC) in 2022 will double, as compared to 2021. Audits will include on-site audits, audits and verifications based upon random selection, and increased verifications prior to a program’s first required deployment milestone. Service providers that receive a large amount of USF support “will be subject to an on-site audit in at least one state.” Service providers that are considered higher-risk recipients “will be subject to additional audits and verifications.” Also, in an effort to increase transparency within the high-cost support programs, the results of verifications, audits, and speed and latency performance testing will be made available to the public on USAC’s website.

The new Rural Broadband Accountability Plan efforts will apply to the FCC programs that distribute USF high-cost support, such as: Connect America Fund (CAF) Phase II Model; Alternative Connect America Cost Model (Original A-CAM) and Revised ACAM; ACAM II; Connect America Fund Broadband Loop Support (CAF BLS); Rural Broadband Experiments (RBE); Alaska Plan; CAF Phase II Auction; and Rural Digital Opportunity Fund (RDOF).

FCC Releases Tentative Agenda For February 18 Open Meeting

January 28, 2022 – Federal Communications Commission Chair Jessica Rosenworcel has announced the following tentative agenda for the FCC’s February 18, 2022 open meeting:

Promoting Telehealth in Rural America – The Commission will consider a Further Notice of Proposed Rulemaking that would seek comment on reforms to the urban and rural rates determination process for the Rural Health Care Program’s Telecommunications Program, revisions to Rural Health Care Program rules governing the internal funding cap on upfront payments and multi-year contracts, and modifications to the Rural Health Care Program invoicing procedures. (WC Docket No. 17-310)

Aureon Refund Data Order – The Commission will consider an Order requiring Iowa Network Access Division (d/b/a Aureon) to file cost and demand data to enable Commission staff to calculate appropriate refunds due to Aureon’s customers after two investigations into Aureon’s tariffed switched transport rate. (WC Docket No. 18-60)

Updating Technical Rules for Radio Broadcasters – The Commission will consider a Report and Order to eliminate or amend outmoded or unnecessary broadcast technical rules. (MB Docket No. 21-263)

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

Comments On FCC Proposal To Create E-Rate Bidding Portal Due March 28, 2022

January 27, 2022 – Comments on the FCC’s proposal to require E-Rate bids be submitted to centralized portal are due on or before March 28, 2022. Reply comments are due on or before April 27, 2022. In a December 16, 2021 Notice of Proposed Rulemaking, the FCC proposed to create a central document repository – an online bidding portal – through which communications service providers would be required to submit bids to the E-Rate program administrator, the Universal Service Administrative Company (USAC), instead of directly to E-Rate applicants. The FCC also requested public comment on requiring USAC to temporarily withhold submitted bids from applicants for a stated minimum period of time; whether to revise the FCC’s rules to require applicants to submit competitive bidding documentation that is not captured in the online bidding portal; and whether there are any potential benefits and burdens that the adoption and implementation of a bidding portal and these associated changes would have on E-Rate program participants and the public, as well as any required rule modifications needed to effectuate the proposed changes.

FCC NPRM Proposes Requiring Broadband Consumer Labels

January 27, 2022 – The Federal Communications Commission (FCC) has issued a Notice of Proposed Rulemaking (NPRM) that proposes to “require that broadband Internet access service providers (ISPs) display, at the point of sale, labels to disclose to consumers certain information about prices, introductory rates, data allowances, broadband speeds, and management practices, among other things.” Comments are due on or before 30 days after the date the NPRM is published in the Federal Register. Reply comments are due 45 days after Federal Register publication. The FCC has created the following docket for the proceeding: Empowering Broadband Consumers Through Transparency, CG Docket No. 22-2.

The November 2021 Infrastructure Investment and Jobs Act directs the FCC “to promulgate regulations to require the display of broadband consumer labels…to disclose to consumers information regarding broadband Internet access service plans.” The labels must “include information regarding whether the offered price is an introductory rate and, if so, the price the consumer will be required to pay following the introductory period.” As a starting point, the FCC’s NPRM includes broadband consumer labels for both fixed and mobile broadband that were approved by the FCC’s Consumer and Governmental Affairs, Wireline Competition, and Wireless Telecommunications Bureaus in a 2016 Public Notice.

In the NPRM, the FCC seeks comment on the following issues:

In order to allow sufficient time for providers to implement the measures necessary to
comply with these requirements, the FCC proposes to make these rules effective six months following publication in the Federal Register of the Office of Management and Budget’s (OMB’s) approval of the adopted rules. Is six months sufficient for both large and smaller providers?
Should the FCC adopt a different implementation timeline or temporary exemption for smaller providers to allow them more time to come into compliance with the labels’ requirements, and does the FCC have the discretion to do so?
Are there alternative ways, other than different implementation timeframes, to minimize the economic impact on smaller service providers while achieving the FCC’s transparency objectives?
Have broadband service offerings and consumers’ use of broadband services changed sufficiently since the release of the 2016 labels to necessitate modifications to the labels’ content and/or format, or are there any other reasons to change the content or format of the labels?
Where should the labels be displayed to best inform consumers?
Are there enforcement issues related to the label requirement, including how the FCC should ensure the accuracy of label content?
Are there any implementation issues, including the time by which broadband providers should be required to display the labels?
What is needed to ensure that any required labels are accessible to persons with disabilities and that any broadband consumer label advances equity in the provision of and access to digital communications services and products for all people of the United States, without discrimination on the basis of race, color, religion, national origin, sex, or disability?

Montana Hires LightBox To Create State Broadband Serviceable Location Map

January 24, 2020 – The state of Montana has entered into a contract with LightBox for the creation of a broadband serviceable location map for Montana. LightBox is “a leading information and technology platform for the commercial real estate and location-based analytics industry.” To create the map, LightBox will utilize its recently released SmartFabric product, which integrates data such as “parcel, building footprint, address file, and geocoding with points of interest, cell phone location, and tax assessor details” to produce “a proprietary and flexible modeled fabric.” As described by LightBox’s CEO, the company’s SmartFabric software product “is a commercial off-the-shelf solution that states that can license to meet their serviceable location mapping goals in a timely manner.” LightBox also will handle the collection, cleansing, and geospatial mapping of data submitted by internet service providers in Montana. Two other states – Georgia and Alabama – have previously engaged LightBox to create serviceable location maps detailing the availability of broadband services throughout their states.

FCC Releases Affordable Connectivity Program Rules

January 21, 2022 – The Federal Communications Commission (FCC) has released a Report And Order And Further Notice Of Proposed Rulemaking containing final rules for the new Affordable Connectivity Program. As part of the Infrastructure Investment and Jobs Act, Congress allocated $14.2 billion to create the ACP, which builds on the Emergency Broadband Benefit Program and is intended to be a longer-term broadband affordability program. The new Affordable Connectivity Program rules address provider eligibility, household eligibility, services and devices covered by the program, the reimbursement process, consumer protection, outreach, data reporting, transition of EBB households, audits, enforcement, and program administration. They are set out in a new Subpart R to Part 54 of the FCC’s rules. In the FNPRM, the FCC seeks comment on other aspects of the Infrastructure Act and proposals for increasing awareness of and participation in the Affordable Connectivity Program.

FCC Final Agenda For January 27th Open Meeting

January 20, 2022 – The Federal Communications Commission has released the following final agenda for the FCC’s January open meeting scheduled for 10:30 am on Thursday, January 27, 2022:

Empowering Broadband Consumers Through Transparency – The Commission will consider a Notice of Proposed Rulemaking that would propose to require that broadband internet access service providers display, at the point of sale, labels to disclose to consumers certain information about their prices, introductory rates, data allowances, broadband speeds, and management practices, among other things. (CG Docket No. 22-2)

Connecting Tribal Libraries – The Commission will consider a Report and Order that would amend the definition of library in the Commission’s rules to clarify that Tribal libraries are eligible for support through the E-Rate Program. (CC Docket No. 02-6)

Updating Outmoded Political Programming and Record-Keeping Rules – The Commission will consider a Report and Order to update outmoded political programming rules. (MB Docket No. 21-293)

Facilitating Better Use of ‘White Space’ Spectrum – The Commission will consider a Second Order on Reconsideration and Order resolving pending issues associated with white space devices and the white spaces databases, enabling unlicensed white space devices to continue operating efficiently while protecting other spectrum users. (ET Docket Nos. 04-186, 14-165, 20-36; GN Docket No. 12-268)

Updating Equipment Authorization Rules – The Commission will consider a Notice of Proposed Rulemaking that would propose to update existing equipment authorization rules to reflect more recent versions of the technical standards that are incorporated by reference and incorporate by reference a new technical standard so that our equipment authorization system can continue to keep pace with technology developments. (ET Docket Nos. 21-363, 19-48)

Restricted Adjudicatory Matter – The Commission will consider a restricted adjudicatory matter.

National Security Matter – The Commission will consider a national security matter.

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

Hawaiian Telecom Completes CAF Phase II Broadband Deployment

January 19, 2022 – Hawaiian Telecom, Inc. has filed a letter notifying the Federal Communications Commission that it has completed 100 percent of its Connect America Fund (CAF) Phase II broadband deployment obligations. Hawaiian Telcom accepted CAF Phase II support to deploy broadband service to 11,081 locations within CAF II eligible census blocks in the state of Hawaii. Pursuant to a June 2021 waiver, however, Hawaiian Telcom’s total CAF II deployment obligation was reduced from 11,081 to 10,711 locations.

FTC & DOJ Seeking Public Input On Revising Merger Guidelines

January 18, 2022 – The Federal Trade Commission (FTC) and the U.S. Department of Justice’s Antitrust Division have announced they are seeking public input “on ways to modernize federal merger guidelines to better detect and prevent illegal, anticompetitive deals in today’s modern markets.” The agencies’ public inquiry covers both horizontal and vertical merger.

Rural Digital Opportunity Fund: FCC Authorizes RDOF Support For 2,521 Winning Bids (5th RDOF Authorization)

January 14, 2022 – The FCC’s Wireline Competition Bureau has announced it has authorized Rural Digital Opportunity Fund (RDOF) Phase I auction support for 2,521 winning bids. This is the fifth Public Notice authorizing RDOF support. A list of the authorized winning bids is available as Attachment A to the Bureau’s Public Notice. Many of the winning bids authorized for support belong to Windstream. The authorizations were granted after the Bureau reviewed long-form application information for each authorized winning bidder, including letters of credit and Bankruptcy Code opinion letters, and concluded the submissions were acceptable. Consequently, the Bureau has directed and authorized the Universal Service Administrative Company to obligate and disburse Universal Service Fund support to each winning bidder. Support will be disbursed in 120 monthly payments, beginning at the end of January 2022.

FCC Announces Results Of Auction 110: $22.4 Billion In Net Bids – 23 Bidders Won 4,041 Spectrum Licenses

January 14, 2022 – The FCC’s Office of Economics and Analytics and Wireless Telecommunications Bureau have announced that bidding in Auction 110 has concluded, resulting in a total of $22,418,284,236 in net bids and $22,513,601,811 in gross bids, with 23 bidders winning a total of 4,041 licenses.

Auction 110 offered 4,060 new flexible‐use licenses for spectrum in the 3.45-3.55 GHz band. The 100 megahertz of spectrum will be licensed on an unpaired basis divided into ten 10-megahertz blocks in partial economic areas (PEAs) located in the contiguous 48 states and the District of Columbia.

Of the 23 winning bidders, 13 qualified as small businesses or as entities serving rural communities, and over one-third of the top 100 markets have at least four winning bidders. Together, AT&T and DISH won 2,856 of the 4,041 licenses (just over 70 percent). Attachment A to the Public Notice summarizes auction results for each bidder. Attachment B lists information about each bidder’s upfront payment and post-auction payments or refund. The biggest winners in terms of total licenses won are:

AT&T: 1,624 Licenses Won (406 PEAs)
Weminuche L.L.C. (DISH): 1,232 Licenses Won (406 PEAs)
U.S. Cellular: 380 Licenses Won (104 PEAs)
Cherry Wireless, LLC: 319 Licenses Won (144 PEAs)
T-Mobile: 199 Licenses Won (79 PEAs)
Skylake Wireless II, LLC: 57 Licenses Won (33 PEAs)

FCC Releases 2021 Universal Service Monitoring Report

January 14, 2022 – The Federal Communications Commission (FCC) has released the 2021 Universal Service Monitoring Report which details universal service fund (USF) information available as of September 2021. It was compiled using data from numerous sources, including the National Exchange Carrier Association (NECA), the Universal Service Administrative Company (USAC), USF contributors, and recipients. Section 1 provides an update on revenues, universal service program funding requirements, and contribution factors. Sections 2 through 5 provide the latest data on the low-income, high-cost, schools and libraries, and rural health care support mechanisms. Section 6 presents recent Census and Bureau of Labor Statistics data on voice telephony subscribership and expenses taken from the Current Population Survey, the American Community Survey and the Consumer Expenditure Survey as well as data on telephone subscribership by income by state. It also includes data on residential Internet subscribership and expenses. Section 7 includes updated Consumer Price Index data.

CenturyLink & Frontier Tell FCC They Have Met Their CAF II Broadband Deployment Obligations

January 14, 2022 –CenturyLink and Frontier have filed letters with the Federal Communications Commission stating they have met their Connect America Fund (CAF) Phase II broadband deployment obligations in the states in which they elected to receive support.

According to CenturyLink’s filing, preliminary year-end data shows that CenturyLink has used CAF II support to deploy broadband service at speeds of at least 10/1 Mbps and voice service to approximately 1.2 million customer locations in CAF II Census Blocks in 33 states. CenturyLink will provide, by March 1, 2022, requisite year-end 2021 status data to the Universal Service Administrative Company’s (USAC) High Cost Universal Broadband (HUBB) portal.

In its letter, Frontier says year-end data shows that it deployed broadband facilities to more than 740,000 of its 733,627 target homes and met or exceeded the CAF II program’s December 31, 2021, final broadband deployment milestone in 24 of the 25 states it serves and for which it received CAF II funding. In Arizona, data shows Frontier “reached 98% of the 22,768 locations in the state as of December 31, 2021,” and Frontier may elect the FCC’s flexibility option there which permits carriers to deploy to more than 95% but less than 100% of locations.

FCC Considering New CPNI Data Breach Rules

January 12, 2022 – Federal Communications Commission (FCC) Chair Jessica Rosenworcel has circulated a Notice of Proposed Rulemaking (NPRM) that would revise the FCC’s rules for
notifying customers and federal law enforcement of breaches of customer proprietary network
information (CPNI). According to the FCC’s News Release, the new rules are intended to “better align the FCC’s rules with recent developments in federal and state data breach laws covering other sectors.” The NPRM proposes the following revisions to current FCC rules (47 CFR Subpart U - Customer Proprietary Network Information) on telecommunications carriers’ breach notification requirements:

Eliminating the current seven business day mandatory waiting period for notifying
customers of a breach;
Expanding customer protections by requiring notification of inadvertent breaches; and
Requiring carriers to notify the FCC of all reportable breaches in addition to the FBI and U.S. Secret Service.

NTIA Requests Public Comment On Broadband Funding Programs Authorized By Infrastructure Investment And Jobs Act

January 10, 2022 – The National Telecommunications and Information Administration (NTIA) has released a Request For Comment Notice which seeks public input on new broadband grant programs authorized and funded by the Infrastructure Investment and Jobs Act of 2021. The Infrastructure Act directs NTIA to distribute over $48 billion in funding through the Broadband Equity, Access, and Deployment Program, the Enabling Middle Mile Broadband Infrastructure Program, and the State Digital Equity Planning Grant Program.

NTIA is seeking public comment on 36 specific topics related to the three broadband funding programs, which can be found in NTIA’s Request For Comment Notice that was published in the Federal Register. Written comments may be submitted on or before 5 p.m. Eastern Standard Time on February 4, 2022. All comments may be submitted through the Federal e-Rulemaking Portal at http://www.regulations.gov.

FCC To Consider Requiring Broadband “Nutrition Labels”

January 6, 2022 – During its January 27th open meeting, the Federal Communications Commission (FCC) will consider a Notice of Proposed Rulemaking (NPRM) that proposes to “require that broadband Internet access service providers (ISPs) display, at the point of sale, labels to disclose to consumers certain information about prices, introductory rates, data allowances, broadband speeds, and management practices.” The November 2021 Infrastructure Investment and Jobs Act directs the FCC “to promulgate regulations to require the display of broadband consumer labels,” within a year. As a starting point, the FCC’s NPRM includes broadband consumer labels for both fixed and mobile broadband that were approved by the FCC’s Consumer and Governmental Affairs, Wireline Competition, and Wireless Telecommunications Bureaus in a 2016 Public Notice. The FCC also seeks comment on the following related issues:

Have broadband service offerings and consumers’ use of broadband services changed sufficiently since the release of the 2016 labels to necessitate modifications to the labels’ content and/or format, or are there any other reasons to change the content or format of the labels;

Where should the labels be displayed to best inform consumers;
Are there enforcement issues related to the label requirement, including how the FCC should ensure the accuracy of label content;
Are there any implementation issues, including the time by which broadband providers should be required to display the labels; and
What is needed to ensure that any required labels are accessible to persons with disabilities and that any broadband consumer label advances equity in the provision of and access to digital communications services and products for all people of the United States, without discrimination on the basis of race, color, religion, national origin, sex, or disability.

FCC Announces Tentative Agenda For January 27th Open Meeting

January 6, 2022 – Federal Communications Commission Chairwoman Jessica Rosenworcel has announced the following tentative agenda for the FCC’s January open meeting scheduled for Thursday, January 27, 2022:

Updating Outmoded Political Programming and Record-Keeping Rules – The Commission will consider a Report and Order to update outmoded political programming rules. (MB Docket No. 21-293)

Restricted Adjudicatory Matter – The Commission will consider a restricted adjudicatory matter.

National Security Matter – The Commission will consider a national security matter.

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

Consumers’ Research Files Legal Challenge To USF Contribution Factor

January 5, 2022 – Consumers’ Research, Cause Based Commerce, Inc., and 11 individuals have filed a Petition For Review with the U.S. Court Of Appeals For The Fifth Circuit challenging the FCC’s approval of the universal service fund contribution factor for the first quarter of 2022. They want the Court to declare the FCC’s action and the 1Q USF contribution factor unlawful, and set them aside. This same group filed comments and objections to the USF contribution factor with the FCC before and after the contribution factor was formally adopted by the FCC. The group also filed a Petition for Review with the Sixth Circuit challenging the FCC’s approval of the proposed fourth quarter 2021 USF contribution factor. In its most recent challenge, Consumers’ Research et al. claims the FCC’s approval of the 1Q USF contribution factor and the contribution factor itself “exceed the FCC’s statutory authority and violate the Constitution and other federal laws,” in the following ways:

(1) Congress’s standardless delegation to the FCC of legislative authority to raise and spend nearly unlimited money via the Universal Service Fund violates Article I, section 1 of the U.S. Constitution.

(2) To the extent Congress permitted the FCC to re-delegate (or de facto re-delegate) to a private company the authority to raise and spend nearly unlimited money via the Universal Service Fund, Congress unconstitutionally delegated its legislative power to a private entity—the Universal Service Administrative Company (“USAC”)—in contravention of Article I, section 1 of the Constitution.

(3) The revenues raised for the Universal Service Fund pursuant to 47 U.S.C. § 254 are taxes and therefore Congress’s standardless delegation to the FCC of authority to raise and spend nearly unlimited taxes violates Article I, section 8 of the U.S. Constitution.

(4) To the extent Congress permitted the FCC to re-delegate (or de facto re-delegate) to USAC the authority to raise and spend nearly unlimited taxes for FCC-defined “universal service,” Congress unconstitutionally delegated its taxing power to a private entity in contravention of Article I, section 8 of the Constitution.

(5) To the extent Congress did not to permit the FCC to delegate to a private company the authority to raise and spend nearly unlimited money for FCC-defined “universal service,” the FCC’s subsequent re-delegation to USAC is beyond the FCC’s lawful statutory authority, regardless of whether the charges are deemed to be “taxes.”

(6) If USAC is determined not to be a private entity, and to the extent Congress permitted the FCC Chair to appoint USAC board directors, Congress violated the Constitution’s Appointments Clause.

(7) To the extent Congress did not statutorily permit the FCC Chair to appoint USAC board directors, the FCC has acted in excess of its statutory authority in doing so.

(8) The USF Tax Factor is a binding legislative rule, but the FCC did not comply with the APA’s requirements for rulemaking, nor with the Federal Register Act’s requirements for publication.

(9) The FCC’s action and inaction are otherwise contrary to law.

FCC Extends Comment Deadlines For Notice Of Inquiry On The Future Of The Universal Service Fund

January 4, 2022 – The FCC’s Wireline Competition Bureau has extended the comment and reply comment deadlines by 30 and 45 days, respectively, for the FCC’s Notice Of Inquiry (NOI) on the future of the Universal Service Fund (USF). Accordingly, comments are due on or before February 17, 2022, and reply comments are due March 17, 2022.

In the NOI, the FCC seeks comment on issues related to the future of the USF “in light of the broadband investments in the Infrastructure Investment and Jobs Act,” which provides “the largest ever federal investment in broadband, totaling approximately $65 billion.” The Infrastructure Investment and Jobs Act directed the FCC to: (1) report to Congress on the FCC’s options for improving its effectiveness in achieving universal service goals for broadband; and (2) commence a proceeding to evaluate the implications of the Jobs Act on how the FCC should achieve broadband universal service goals.

First, the FCC is seeking comment on the Infrastructure Investment and Jobs Act impact on: (1) the FCC’s existing universal service programs; (2) the FCC’s universal service goals; and (3) other federal broadband programs.

Second, the FCC is seeking comment on: (1) potential recommendations for future FCC action related to the USF programs (High-Cost, Lifeline and The Affordable Connectivity Program, E-Rate and The Emergency Connectivity Fund Program, and Rural Health Care); and (2) sustaining the USF programs.

Third, the FCC is seeking comment on potential FCC recommendations for future congressional action related to universal service.

FCC Provides Temporary Waiver Of Broadband Performance Testing Requirements

January 3, 2022 – The FCC’s Wireline Competition Bureau has provided a set of limited waivers of the broadband performance testing requirements for certain broadband providers receiving universal service support. The Bureau’s Order grants in part, and denies in part, NTCA–The Rural Broadband Association’s waiver request; extends a similar waiver to additional broadband support programs; and grants a petition for waiver filed by Reserve Communications and Computer, L.L.C.

Under the FCC’s Connect America Fund regime, broadband providers that receive high-cost universal service support must offer broadband service that meets certain basic performance requirements – speed and latency – in the areas where they receive that support. Testing is conducted from the premises of active subscribers to a remote test server located at, or reached by passing through, an FCC-designated Internet exchange point. Broadband providers undergo a pre-testing period prior to the actual testing start date in order to familiarize themselves with the process. During actual testing, providers whose broadband service fails to meet the minimum requirements will have universal service support withheld and be subject to additional reporting requirements.

In December 2021, NTCA–The Rural Broadband Association filed a petition requesting the FCC extend, by six months, the relief granted in the Wireline Competition Bureau’s December 2020 waiver Order, which allowed broadband providers that receive Alternative Connect America Cost Model I (A-CAM I) support, Rural Broadband Experiment (RBE) support, and Alaska Plan support to pre-test only 70% of their random sample of subscribers during the four quarters of pre-testing in 2021. To support its request, NTCA explained that broadband provides continue to face challenges to deploying new testing compatible equipment at user locations due to the COVID-19 pandemic and supply chain disruptions continue to interfere with providers’ abilities to source and purchase equipment needed to carry out performance testing.

In the January 2022 waiver Order, the Bureau has granted in part NTCA’s petition for waiver of broadband performance testing requirements for recipients of A-CAM I support, RBE support, and Alaska Plan support. These broadband providers must only test 70% of their USAC-selected samples during the first two quarters of 2022.

Second, on its own motion, the Bureau has extended similar relief to broadband providers that receive universal service support from the following programs: Alternative Connect America Cost Model II (A-CAM II), Connect America Fund Broadband Loop Support (CAF BLS), and Connect America Fund (CAF) II Auction. Accordingly, these broadband providers are only required to pre-test 70% of their required sample size for the first two quarters of 2022.

Third, the Bureau has denied NTCA’s requests to adopt a simplified waiver process and to extend the pre-testing period for A-CAM I, RBE, and Alaska Plan support recipients.

Finally, the Bureau has granted a petition for waiver filed by Reserve Communications and Computer, L.L.C., which provides relief from the pre-testing requirements for the first quarter of 2022.

Filing Requirement Update: High Cost Universal Broadband – HUBB – Portal Filings Due By March 1, 2022

January 3, 2022 – Broadband service providers that receive universal service support and have defined broadband buildout obligations have until March 1, 2022, to file broadband deployment data with the Universal Service Administrative Company’s (USAC) High Cost Universal Broadband (HUBB) portal. The filings must show where (by latitude and longitude) broadband providers have built out “mass-market, high-speed Internet service” during calendar year 2021. The submitted data will be used in the Connect America Fund (CAF) Map, and will be the “starting point” for the FCC’s Broadband Performance Testing framework. Additional information is available on the HUBB resource page.

Broadband service providers receiving support from the following funding programs are required to file data by March 1, 2022, for broadband service deployed to all locations using CAF support in 2021 or certify that they have no locations to upload in the HUBB:

Connect America Fund (CAF) Phase II Model
Alternative Connect America Cost Model (Original A-CAM) & Revised ACAM
ACAM II
Connect America Fund Broadband Loop Support (CAF BLS)
Rural Broadband Experiments (RBE)
Alaska Plan (other than carriers with individualized performance plans that only require them to maintain service at existing levels)
CAF Phase II Auction
Rural Digital Opportunity Fund (RDOF)

Filing Requirement: Lifeline Providers Must File FCC Form 555 By January 31, 2022

January 3, 2022 – All service providers that participate in the FCC’s Lifeline program are required to file FCC Form 555, the “Annual Lifeline Eligible Telecommunications Carrier Certification Form,” by January 31, 2022. FCC Form 555 is used by Lifeline providers to report the results of the annual recertification process and includes data accuracy certifications that must be completed. Lifeline service providers must submit one FCC Form 555 per study area code (SAC) in which they provide Lifeline service. The form must be filed online using the Universal Service Administrative Company’s (USAC) One Portal. Lifeline providers may file bulk uploads using the FCC Form 555 Bulk Upload Template. Additionally, Lifeline service providers must file a copy of their Form 555 with the FCC in WC Docket No. 14-171, and with their state regulatory commissions and relevant Tribal governments.

Cox Communications Claims Sony Plaintiffs Lied About Evidence To Obtain $1 Billion DMCA Copyright Infringement Verdict

January 1, 2022 – Cox Communications has filed a motion For Relief From Judgment in the U.S. District Court for the Eastern District Of Virginia, which claims the $1 billion judgment against it for copyright infringement in Sony Music Entertainment, et al. v. Cox Communications “was based on evidence that was created years after the alleged infringement occurred.” Cox claims the Sony plaintiffs lied to the court and this helped secure victory:

The bottom line is that Plaintiffs lied. They lied to Cox; they lied to the Court; and they lied to the jury. And they rode those lies to a $1 billion judgment.

In July 2018, Cox was sued by a group of recording companies who claimed Cox “knowingly contributed to, and reaped substantial profits from,” massive copyright infringement committed by thousands of its broadband subscribers. They claimed Cox “deliberately refused to take reasonable measures to curb its customers from using its Internet services to infringe on others’ copyrights – even once Cox became aware of particular customers engaging in specific, repeated acts of infringement.” Cox was sued for both contributory and vicarious copyright infringement. The recording companies sought statutory damages in an amount of up to $150,000 with respect to each work infringed. The jury ultimately returned a guilty verdict on both counts, with total damages of $1 billion awarded to plaintiffs.

Cox Communications filed its Motion For Relief From Judgment after reviewing new evidence produced in a similar copyright lawsuit against another ISP, (Warner Records, Inc. et al. v. Charter Communications, Inc., Case No. 1:19-cv-00874-RBJ-MEH (U.S. District Court For The District Of Colorado)). In general, Cox claims Sony used MarkMonitor to surveil peer-to-peer filesharing networks to identify potentially infringing audio files, download those files, and then generate and send DMCA infringement notices to Cox broadband subscribers that allegedly copied the files. During the trial, Sony presented this data – spreadsheets and a hard drive – as evidence of copyright infringement by Cox subscribers. At trial, Cox challenged “the authenticity, foundation, and provenance of this evidence,” but the Sony plaintiffs “successfully persuaded the Court and the jury that the exhibits were what they were represented to be: an integrated and contemporaneous whole created during or before the 2013–2014 Claims Period.” Now, Cox claims this key piece of evidence was false:

Evidence produced in Charter has revealed that the audio files on the Hard Drive were downloaded by MarkMonitor and subjected to Audible Magic verification years after the notices were sent. Thus, the files on the Hard Drive are not the same files used to generate the infringement notices, and the Audible Magic verifications documented in the MarkMonitor Spreadsheet were not of the files on the Hard Drive. In other words, Plaintiffs’ evidence constituted two mismatched halves created years apart from one another—not the integrated and contemporaneous whole they represented it to be.

Cox is asking the District Court to enter an indicative ruling under Federal Rule of Civil Procedure 62.1 stating that it is inclined to grant Cox’s motion for relief from the judgment, or – at a minimum – that Cox’s motion raises a substantial issue that warrants further consideration by the Court. Upon receipt of such a ruling, Cox will move in the Court of Appeals for the Fourth Circuit for a limited remand to the District Court to resolve Cox’s motion.