News Update - May 2022
Supreme Court Halts Enforcement Of Texas Social Media Law
May 31, 2022 – The Supreme Court of the United States has granted an application filed by NetChoice, LLC and the Computer & Communications Industry Association (CCIA) to vacate a decision by the U.S. Court of Appeals for the Fifth Circuit which removed an injunction preventing enforcement of Texas’ new social media law. The Court’s shadow docket decision effectively reinstates the preliminary injunction pending disposition of the constitutional and other legal challenges to the law. It’s worth mentioning that this may not be the last time the Texas social media law finds itself before the Supreme Court.
The Texas law, HB20, regulates social media platforms with at least 50 million active U.S. users in a calendar month that enable users to communicate with other users for the primary purpose of posting information, comments, messages, or images. It prohibits such social media platforms from “censoring” users based on viewpoint; requires platforms to disclose certain information about their business practices, including an acceptable use policy and a biannual transparency report; and requires platforms to establish procedures by which users can appeal a platform’s decision to remove content posted by the user.
NetChoice and CCIA challenged HB20 in the U.S. District Court for the Western District of Texas, arguing the law is facially unconstitutional under the First Amendment, and seeking an injunction. The District Court granted a preliminarily injunction prohibiting enforcement of the law, which was appealed by the Texas Attorney General to the Fifth Circuit Court of Appeals. After a full briefing of the issues and oral argument, the Fifth Circuit issued a one-sentence order lifting the preliminary injunction. NetChoice and CCIA then filed an emergency application with the U.S. Supreme Court.
The Supreme Court’s 5-4 decision puts the injunction back in place while the Fifth Circuit resolves the appeal of the underlying legal issues. Justice Kagan dissented. Justices Thomas and Gorsuch joined Justice Alito’s dissenting opinion. In general, Justice Alito did not agree that NetChoice and CCIA have proven the first requirement for obtaining a temporary injunction – a “substantial likelihood of success on the merits.” He describes the Texas social media law, and social media platforms’ business models as “novel,” leading to the conclusion that “[i]t is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies.” Justice Alito suggested he found Texas’s arguments that the law is permissible under existing case law to be credible, or rather at least credible enough to support a finding that the legal showing needed for a preliminary injunction has not been met. Nevertheless, Justice Alito wrote that he has “not formed a definitive view on the novel legal questions that arise from Texas’s decision to address the ‘changing social and economic’ conditions it perceives.”
FCC Launches New Broadband Data Collection Help Center
May 31, 2022 – The FCC has announced the launch of an online help center and other new resources and video tutorials to assist broadband internet access service providers with preparation of their Broadband Data Collection (BDC) filings. The BDC help center is available at https://help.bdc.fcc.gov/hc/en-us. The new video tutorials explain the information and supporting data that filers must submit to the new BDC system. The help center tools and video tutorials can be accessed from the FCC’s BDC webpage at www.fcc.gov/BroadbandData.
The FCC will begin accepting broadband availability data filed pursuant to the FCC’s new BDC rules and procedures on June 30, 2022. All facilities-based providers of fixed and mobile broadband Internet access service must submit broadband availability data as of June 30, 2022, to the BDC online filing system no later than September 1, 2022.
Arkansas Electric Cooperatives Form Fiber-Based Diamond State Networks
May 26, 2022 – Thirteen electric cooperatives in Arkansas have announced the formation of Diamond State Networks, “a new wholesale broadband provider uniting the fiber-optic networks of member cooperatives throughout the state.” The 13 electric coops partnering to create the fiber network are: OzarksGo; Clay County Connect; Farmers Electric Cooperative; Petit Jean Fiber; Enlightened by Woodruff Electric; NEXT Powered by NAEC; Wave Rural Connect; Arkansas Fiber Network (AFN); Four States Fiber Internet; empower, Delivered by Craighead Electric; MCEC Fiber; South Central Connect; and Connect2First. The network will cover more than 64 percent of Arkansas’ land mass, consist of more than 50,000 miles of fiber lines, and provide access to 1.25 million rural Arkansans. According to the Press Release, the “13 electric cooperatives have invested, or are planning to invest, more than $1.66 billion in broadband communication infrastructure, exclusively in fiber-optic networks.”
Rural Digital Opportunity Fund: FCC Ready To Authorize 88 RDOF Winning Bids
May 25, 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 88 Rural Digital Opportunity Fund (RDOF) Phase I auction winning bids.
This is the tenth set of RDOF winning bids that are ready to be authorized. 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.
Also, Attachment B is a list of defaulted bids in Georgia (Trailwave Fiber Inc.), Iowa (Farmers Mutual Cooperative Telephone Company), Oklahoma (Terral Telephone Company), Tennessee (Newport Utilities), Texas (Valor Telecommunications of Texas, LLC dba Winds.), and West Virginia (GigaBeam Networks, LLC).
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 June 9, 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 providers set to receive RDOF Phase I auction support and RDOF funding amounts by state are available on the FCC’s RDOF auction website: https://www.fcc.gov/auction/904.
Meta Director Of Engineering Says 10-20 Millisecond Latency Needed For The Metaverse, More IXPs Needed In U.S.
May 25, 2022 – Dan Rampton, director of engineering for Meta Platforms Inc., the parent company of Facebook, Instagram, and WhatsApp, recently stated “that 10-20 millisecond (ms) latency will be necessary to support immersive metaverse experiences and that the telecom industry will need to build a significant amount of new digital infrastructure in order to make such experiences a reality.” The statement was made during Mr. Rampton’s keynote presentation at the Wireless Infrastructure Association's Connect (X) trade show, and reported by LightReading. In order to achieve the low latency needed for the metaverse, Mr. Rampton stated that an additional 30-40 Internet exchange points (IXPs) will need to be established in the U.S. An IXP is defined as “a physical location through which Internet infrastructure companies such as Internet Service Providers (ISPs) and CDNs connect with each other.”
Mergers & Acquisitions: Nex-Tech Acquiring Moundridge Telecom Companies
May 25, 2022 – The FCC’s Wireline Competition Bureau is seeking comment on a Section 214 application filed by Emmental, Inc., Moundridge Telephone Company, Moundridge Telecom, Inc., Mid-Kansas Cable Services, Inc. (the Moundridge Companies), and Rural Telephone Service Company, Inc. dba Nex-Tech, requesting approval for the transfer of control of the Moundridge Companies to Nex-Tech. Comments are due June 8, 2022. Reply comments are due June 15, 2022.
Emmental is a holding company that provides telecommunications services through its direct and
indirect wholly-owned subsidiaries, all Kansas corporations. Moundridge Telephone Company, founded in 1904, provides local exchange service and exchange access service as an incumbent local exchange carrier in the Moundridge and Goessel exchanges, which services approximately 2,100 access lines in portions of McPherson, Harvey, and Marion Counties in central Kansas. It wholly owns Moundridge Telecom, Inc., a long-distance toll service reseller providing telecommunications services in Moundridge’s local exchange service area. Mid-Kansas Cable Services, Inc. holds a certificate of convenience and authority from the Kansas Corporation Commission to provide competitive local exchange carrier services. Emmental is also the ultimate parent of two other entities that Nex-Tech “intends to acquire as part of the transaction,” but which are not FCC-regulated entities and hold no FCC authorizations or licenses.
Rural Telephone Service Company, Inc. dba Nex-Tech was organized as a cooperative in 1951, and is headquartered in Lenora, Kansas. It provides voice and broadband services, as well as cloud, managed T.T., security and surveillance, hardware and software, and backup services, itself and through subsidiaries in 39 exchanges. It also owns a 42.75% stake in Nex-Tech Wireless, LLC, a commercial mobile radio service provider.
The companies announced the transaction in April 2022. Pursuant to a stock purchase agreement, Nex-Tech will acquire all of the outstanding common stock of Emmental, making Emmental a direct, wholly-owned subsidiary of Nex-Tech, and the other companies indirect, wholly-owned subsidiaries of Next-Tech. Financial terms were not disclosed. The deal is expected to close in July 2022, subject to state and federal regulatory approval.
Blue Casa Requests Waiver Of Lifeline Biennial Audit Requirement
May 23, 2022 – The FCC’s Wireline Competition Bureau is seeking comment on a petition filed by Blue Casa Telephone, LLC (Blue Casa), which requests a waiver of the requirement for Lifeline Eligible Telecommunications Carriers (ETCs) to undergo a biennial audit. Comments are due May 31, 2022. Reply comments are due June 7, 2022. Pursuant to Section 54.420 of the FCC’s rules, Lifeline providers identified by the Universal Service Administrative Company (USAC) must obtain a third-party biennial audit of their compliance with the FCC’s Lifeline rules. Blue Casa was selected to undergo an audit for the 2019 calendar year, an undertaking that it estimates would cost it $20,000. Blue Casa argues that a waiver would allow it to avoid this undue hardship and inequity. In support of the request, Blue Casa maintains that its Lifeline service is already subject to stringent regulation and supervision by the California Public Utilities Commission (CPUC) and the CPUC’s third-party Lifeline program administrator.
Kansas Announces Broadband Acceleration Grant Awards
May 20, 2022 – Kansas Governor Laura Kelly has announced that 11 companies have received a total of $5 million in funding under Kansas’ Broadband Acceleration Grant program. The 11 companies contributed $5 million in matching funds, resulting in a total investment of $10 million to bring high-speed broadband service to 10 rural Kansas counties. Kansas’ Broadband Acceleration Grant program is a ten-year, $85 million program supporting the deployment of broadband service to Kansas communities. It is administered by the Kansas Office of Broadband Development, and funded through the Kansas Department of Transportation’s Eisenhower Legacy Transportation Program. In its two years of existence, the program has resulted in the investment of more than $70 million in broadband infrastructure. Details on the 11 awards are below:
FCC Announces Tentative Agenda For June 8th Open Meeting
May 18, 2022 – Federal Communications Commission Chairwoman Jessica Rosenworcel has announced the following tentative agenda for the FCC’s open meeting scheduled for Wednesday, June 8, 2022:
Facilitating Access to Spectrum for Offshore Uses and Operations – The Commission will consider a Notice of Inquiry seeking comment on whether changes in the Commission’s rules and policies are needed to facilitate the development of commercial and private wireless networks offshore. (WT Docket No. 22-204)
Improving Wireless 911 Call Routing – The Commission will consider a Public Notice to examine recent technological improvements to and deployments of location-based routing for wireless 911 calls, as well as steps the Commission could take to help reduce misrouted 911 calls. (PS Docket No. 18-64)
Preserving Local Radio Programming – The Commission will consider a Notice of Proposed Rulemaking regarding a proposal to allow certain channel 6 low power television stations to continue to provide FM radio service as ancillary or supplementary service under specified conditions. (MB Docket No. 03-185)
Enforcement Bureau Action – The Commission will consider an enforcement action.
34 States & Territories Submit Letters Of Intent To Participate In Broadband Equity, Access, And Deployment (BEAD) Program
May 18, 2022 – The U.S. Department of Commerce’s National Telecommunications and Information Administration (NTIA) has announced that 34 states and territories have submitted letters of intent to participate in the $42.45 billion Broadband Equity, Access, and Deployment (BEAD) Program. Letters of intent were submitted by the following states and territories: Alabama, Alaska, Arizona, Arkansas, American Samoa, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Mississippi, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Puerto Rico, Rhode Island, Tennessee, United States Virgin Islands, Utah, Vermont, West Virginia and Wisconsin.
Created as part of the Infrastructure Investment and Jobs Act of 2021, the BEAD Program will provide $42.45 billion in grants to expand high-speed internet access by funding planning, infrastructure deployment, and adoption programs in all 50 states and U.S. territories. States and territories (eligible entities) will receive BEAD Program funding, and then using a competitive process, will award BEAD funding to “subgrantees” for the construction of broadband networks and projects. Subgrantees will be required to deploy their planned broadband networks and begin providing services within their project areas not later than four years after the date on which they receive their BEAD Program grant a state or territory.
The BEAD Program will prioritize grant funding for the expansion of broadband internet access to unserved locations (no access to Reliable Broadband Service at speeds of at least 25/3 Mbps) and underserved locations (no access to Reliable Broadband Service at speeds of at least 100/20 Mbps). “Reliable Broadband Service” is defined as broadband service that the FCC Broadband DATA Maps show is accessible to a location via: (i) fiber-optic technology; (ii) Cable Modem/ Hybrid fiber-coaxial technology; (iii) digital subscriber line (DSL) technology; or (iv) terrestrial fixed wireless technology utilizing entirely licensed spectrum or using a hybrid of licensed and unlicensed spectrum. Locations served exclusively by satellite, services using entirely unlicensed spectrum, or a technology not specified by the FCC for purposes of the Broadband DATA Maps, do not meet the criteria for Reliable Broadband Service and will be considered “unserved” for BEAD Program purposes.
To participate in the BEAD Program, an eligible entity must submit a letter of intent no later than 11:59 p.m. EDT on July 18, 2022. Either with its letter of intent or afterwards, an eligible entity that is a U.S. state, the District of Columbia, or Puerto Rico may request up to $5,000,000 in initial planning funds. Requests for initial planning funds not sent with a letter of intent must be submitted to NTIA by 11:59 p.m. EDT on August 15, 2022. Eligible entities that receive initial planning funds must submit their five-year action plans to NTIA no later than 270 days after receipt of initial planning funds.
FCC Seeks Comment On Petition For Declaratory Ruling On Requirement That A Professional Engineer Must Certify Broadband Data Collection Maps
May 17, 2022 – The FCC’s Broadband Data Task Force is seeking comment on a Petition for Declaratory Ruling or Limited Waiver filed by the Competitive Carriers Association (CCA) concerning the FCC’s upcoming Broadband Data Collection (BDC) filings. Pursuant to the FCC’s BDC rules, fixed and mobile broadband providers must include a certification of the accuracy of their submissions by a qualified engineer. In its petition, CCA requests that the FCC issue a declaratory ruling to clarify that BDC filings “may be certified by a qualified professional engineer or an otherwise-qualified engineer that is not a licensed professional engineer accredited by a state licensure board.” In the alternative, CCA requests “a limited waiver of the requirement that BDC data be certified by a licensed professional engineer, and instead allow mobile providers to certify their data with an RF engineering professional with specified qualifications that are directly relevant to broadband availability assessment.” Comments on the petition, with respect to the rule’s impact on both fixed and mobile broadband service providers, are due 14 days after the Public Notice is published in the Federal Register. Reply comments are due 21 days after publication.
FCC Requests Comment On The State Of Competition In The Communications Marketplace
May 16, 2022 – The FCC’s Office Of Economics and Analytics has released a Public Notice which request public comment on the state of competition in the communications marketplace. Comments are due on or before July 1, 2022. Reply comments are due August 1, 2022. Pursuant to statute, in the last quarter of every even numbered year, the FCC must publish a communications Marketplace Report that, among other things, assesses the state of competition in the communications marketplace, including competition to deliver voice, video, audio, and data services among providers of telecommunications, providers of commercial mobile service, multichannel video programming distributors, broadcast stations, providers of satellite communications, Internet service providers, and other providers of communications services. The first Communications Marketplace Report, released in December 2018, reflects the state of the communications marketplace primarily as of year-end 2017, and the second report, released December 2020, reflects the state of the marketplace primarily as of year-end 2019. For this most recent report, the FCC seeks “data, information, and comment on a wide range of issues relevant to the state of competition in the communications marketplace as a whole.” Commenters should “submit information, data, and statistics for 2020 and 2021, as well as information on any notable trends and developments that have occurred during early 2022.”
NTIA Releases BEAD Program Notice Of Funding Opportunity
May 13, 2022 – The U.S. Department of Commerce’s National Telecommunications and Information Administration (NTIA) has released a Notice Of Funding Opportunity for the Broadband Equity, Access, and Deployment (BEAD) Program. Created as part of the Infrastructure Investment and Jobs Act of 2021, the BEAD Program will provide $42.45 billion in grants to expand high-speed broadband internet access by funding planning, infrastructure deployment, and adoption programs in all 50 U.S. states, Washington D.C., and U.S. territories. The NOFO describes the requirements under which NTIA will award BEAD Program broadband grants.
Each U.S. state, DC, and Puerto Rico will receive an initial allocation of $100 million to support planning efforts including building capacity in state broadband offices and outreach and coordination with local communities, while another $100 million will be divided among the remaining U.S. territories for the same purposes. Remaining BEAD Program funding will then eventually be distributed using a statutorily defined formula that considers the number of unserved and high-cost locations in a state, based on the Federal Communications Commission’s (FCC) new broadband availability maps (referred to as Broadband DATA Maps). States and territories will select and award BEAD Program funding to “subgrantees” for the deployment of broadband networks and projects. Subgrantees will be required to deploy their planned broadband networks and begin providing services within their project areas not later than four years after the date on which they receive their BEAD Program grant a state or territory.
The BEAD Program will prioritize grant funding for the expansion of broadband internet access to unserved locations (no access to Reliable Broadband Service at speeds of at least 25/3 Mbps) and underserved locations (no access to Reliable Broadband Service at speeds of at least 100/20 Mbps). The BEAD Program NOFO defines the term “Reliable Broadband Service” as broadband service that the FCC Broadband DATA Maps show is accessible to a location via: (i) fiber-optic technology; (ii) Cable Modem/ Hybrid fiber-coaxial technology; (iii) digital subscriber line (DSL) technology; or (iv) terrestrial fixed wireless technology utilizing entirely licensed spectrum or using a hybrid of licensed and unlicensed spectrum. Locations served exclusively by satellite, services using entirely unlicensed spectrum, or a technology not specified by the FCC for purposes of the Broadband DATA Maps, do not meet the criteria for Reliable Broadband Service and will be considered “unserved” for BEAD Program purposes.
Pursuant to the NOFO’s BEAD Program timeline, the application window opens on May 13, 2022; letters of intent are due July 18, 2022; and initial planning funds applications are due August 15, 2022. The BEAD Program application packet and further guidance on the application process is available from the NTIA Grants Portal.
NTIA Releases Notice Of Funding Opportunity For Enabling Middle Mile Broadband Infrastructure Program – Application Window Opens June 21, 2022
May 13, 2022 – The U.S. Department of Commerce’s National Telecommunications and Information Administration (NTIA) has released a Notice Of Funding Opportunity for the Enabling Middle Mile Broadband Infrastructure Program. Created as part of the Infrastructure Investment and Jobs Act of 2021, the Enabling Middle Mile Broadband Infrastructure Program will provide up to $1 billion in grant funding “for the construction, improvement, or acquisition of middle mile infrastructure.” The program is intended “to expand and extend middle mile infrastructure to reduce the cost of connecting areas that are unserved or underserved to the internet backbone.”
The NOFO lays out the requirements under which NTIA will award Middle Mile Program grants. Entities eligible for Middle Mile grant funding include the following: a State, political subdivision of a State, Tribal government, technology company, electric utility, utility cooperative, public utility district, telecommunications company, telecommunications cooperative, nonprofit foundation, nonprofit corporation, nonprofit institution, nonprofit association, regional planning council, Native entity, economic development authority, or any partnership of two or more of these entities. NTIA expects to make Middle Mile grant awards within the following range: $5 million to $100 million. However, the amount of any grant awarded through the program may not exceed 70 percent of the total project cost. The period of performance for grants issued under the program ends five years from the date on which the funds are made available to the eligible entity. Grantees will be subject to buildout benchmarks: grantees must complete the buildout of 40 percent of project miles by the end of the second year after the award date; 60 percent of project miles by the end of the third year; 80 percent of project miles by the end of the fourth year; and 100 percent of project miles by the end of the fifth year.
The program’s application window opens on June 21, 2022, and closes on September 30, 2022. NTIA expects to complete its review and selection of successful applicants by February 16, 2023. NTIA expects that the start date for awards under the NOFO will be no earlier than March 1, 2023. Program application packets and additional information are available on the NTIA Grants Portal.
Commerce Department Announces Launch Of Internet For All Initiative – The 2021 Infrastructure Act’s Broadband Funding Programs
May 13, 2022 – The U.S. Department of Commerce has announced the launch of the Biden-Harris Administration’s $45 billion Internet for All initiative, which will be administered and implemented by the National Telecommunications and Information Administration (NTIA). The Internet for All initiative is comprised of the following three broadband funding programs authorized by the Infrastructure Investment and Jobs Act of 2021:
Broadband Equity, Access, and Deployment (BEAD) Program ($42.5 billion);
Enabling Middle Mile Broadband Infrastructure Program ($1 billion); and,
State Digital Equity Act programs ($1.5 billion).
The BEAD Program will provide $42.45 billion in grants to expand high-speed internet access by funding planning, infrastructure deployment, and adoption programs in all 50 states, Washington D.C., and U.S. territories. States will receive an initial allocation of $100 million to support broadband planning efforts, and the remaining funding will be distributed using a statutorily defined formula that considers the number of unserved and high-cost locations in a state based on the FCC’s new broadband maps. States will then distribute BEAD Program grant funding to sub-grantees for the deployment of broadband infrastructure that prioritizes the expansion of internet access to unserved locations (no access to 25/3 Mbps broadband service) and underserved locations (no access to 100/20 Mbps broadband service), followed by the provision of 1/1 Gbps broadband service to community anchor institutions. Pursuant to the BEAD Program’s timeline, the application window opens on May 13, 2022; letters of intent are due July 18, 2022; and initial planning funds applications are due August 15, 2022.
The Middle Mile Grant Program will provide up to $1 billion in grant funding for the construction, improvement, or acquisition of middle mile infrastructure. The program’s expansion of middle mile broadband infrastructure will reduce the cost of connecting areas that are unserved or underserved to the internet backbone. Entities eligible for funding include the following: a State, political subdivision of a State, Tribal government, technology company, electric utility, utility cooperative, public utility district, telecommunications company, telecommunications cooperative, nonprofit foundation, nonprofit corporation, nonprofit institution, nonprofit association, regional planning council, Native entity, economic development authority, or any partnership of two or more of these entities. The program’s application window opens on June 21, 2022, and closes on September 30, 2022.
The State Digital Equity Act Programs consist of three grant programs that promote digital equity and inclusion, which are designed to ensure that all people and communities have the skills, technology, and capacity needed to reap the full benefits of the digital economy. The three grant programs are: the State Digital Equity Planning Grant Program (a $60 million grant program for states and territories to develop digital equity plans); the State Digital Equity Capacity Grant Program (a $1.44 billion program for states and territories to fund an annual grant program for five years in support of digital equity projects and the implementation of digital equity plans); and the Digital Equity Competitive Grant Program (a $1.25 billion program to fund annual grant programs for five years to implement digital equity projects). The State Digital Equity Planning Grant Program is currently open. The other two programs will open later on a later date. The State Digital Equity Planning Grant Program application window opened on May 13, 2022. Planning applications or letters of intent are due on July 12, 2022.
Rural Digital Opportunity Fund: FCC Authorizes RDOF Support For 830 Winning Bids (9th RDOF Authorization)
May 12, 2022 – The FCC’s Wireline Competition Bureau has announced it has authorized Rural Digital Opportunity Fund (RDOF) Phase I auction support for 830 winning bids. This is the ninth Public Notice authorizing RDOF support. A list of the authorized winning bids is available as Attachment A to the Bureau’s Public Notice. 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 May 2022. The first service obligation that must be met by the RDOF support recipients authorized by the Public Notice is the deployment of broadband service to 40% of locations in a state by December 31, 2025. The broadband service must meet the standards for which support was received (i.e., speed levels and latency). After that, these RDOF support recipients must achieve the following broadband service deployment obligations: 60% of locations in a state by December 31, 2026; 80% of locations in a state by December 31, 2027; and 100% of locations in a state by December 31, 2028.
FCC, USDA, NTIA, & Treasury Join Interagency Agreement To Share Information On U.S. Broadband Funding & Deployment
May 12, 2022 – The Federal Communications Commission (FCC), U.S. Department of Agriculture (USDA), National Telecommunications and Information Administration (NTIA), and U.S. Department of the Treasury (Treasury) have entered into a Memorandum Of Understanding to facilitate the interagency sharing of information about U.S. broadband funding and deployment. Pursuant to the MOU, each agency will share information on data collected from broadband programs it administers with the other agencies. The agencies also will share information about projects that will receive funding from federal sources. The agreement is effective as of May 11, 2022, and has a term of two years.
FCC Releases Final Agenda For May 19th Open Meeting
May 12, 2022 – The Federal Communications Commission has released the final agenda for its open meeting on Thursday, May 19, 2022:
Combatting Illegal Robocalls – The Commission will consider a Report and Order, Order on Reconsideration, and Further Notice of Proposed Rulemaking addressing foreign-originated and other illegal robocalls from multiple angles. (CG Docket No. 17-59; WC Docket No. 17-97)
Expanding Broadband Service Through the A-CAM Program – The Commission will consider a Notice of Proposed Rulemaking seeking comment on a proposal by the ACAM Broadband Coalition to achieve widespread deployment of 100/20 Mbps broadband service throughout the rural areas served by carriers currently receiving Alternative Connect America Model support, and proposing targeted modifications to the Commission’s rules to improve the efficiency and efficacy of the high-cost program. (WC Docket Nos. 10-90, 14-58, 09-197, 16-271, RM-11868)
Modernizing Priority Services for National Security and Emergency Response – The Commission will consider a Report and Order that would update and streamline its rules providing priority provision and restoration of service for national security and emergency response users. (PS Docket No. 20-187)
Updating FM Radio Directional Antenna Verification – The Commission will consider a Report and Order to allow applicants proposing directional FM antennas the option of verifying the directional antenna pattern through computer modeling. (MB Docket No. 21-422)
Enforcement Bureau Action – The Commission will consider an enforcement action.
FCC Waives Budget Control Mechanism For Rate-Of-Return Carriers That Receive High-Cost USF Support
May 10, 2022 – The Federal Communications Commission (FCC) has issued an Order which temporarily waives the application of the budget control mechanism for rate-of-return carriers that receive legacy high-cost universal service support. Pursuant to the waiver Order, a budget constraint of 0% will be in effect for the July 1, 2022 to June 30, 2023 tariff year. Broadband associations representing rate-of-return carriers – NTCA–The Rural Broadband Association and WTA–Advocates For Rural Broadband – consistently lobbied the FCC over the past few months in support of a waiver.
The budget control mechanism is used to ensure that annual rate-of-return high-cost support disbursements do not exceed a set budget by reducing High Cost Loop Support (HCLS) and Connect America Fund Broadband Loop Support (CAF BLS) claims as needed. Carriers receive pro rata support reductions, but no carrier’s support can be reduced below a certain minimum threshold level.
For the July 2022 to June 2023 tariff period, the projected budget control adjustment factor was calculated at 0.8571997, meaning projected total support would exceed the budget by approximately 14%. Among other things, the FCC determined its decision to waive the budget control mechanism for 2022-2023 serves the public interest “given the substantial reduction in support that would result from imposition of the budget constraint, as well as the unique and continued cash flow and other economic challenges carriers face as a result of the pandemic.” To simplify any necessary related calculations, the FCC also waived “the requirement that the budget control mechanism be adjusted effective January 1, 2023 to take into account the rural growth factor for the HCLS cap.”
Additionally, in the last two sentences of the waiver Order, the FCC reminded rate-of-return carriers receiving legacy high-cost USF support of their upcoming broadband buildout deadline and warned them that these may be changing in the future:
Finally, we note that providers receiving CAF BLS support are subject to mandatory buildout obligations to deploy broadband service of at least 25/3 Mbps to a carrier-specific number of locations by the end of 2023. We plan to consider CAF BLS deployment obligations in light of changing speed needs and funding necessary to support deployment that will apply beginning in 2024.
Schools, Health & Libraries Broadband Coalition Requests Pubic Interest Waiver Of Infrastructure Act’s Buy America Provisions
May 10, 2022 – The Schools, Health & Libraries Broadband (SHLB) Coalition has written a letter to U.S. Secretary of Commerce Gina Raimondo, formally requesting that the Department of Commerce “issue a waiver of the Infrastructure Investment and Jobs Act (IIJA) ‘Build America, Buy America’ (BABA) requirements for broadband network equipment and consumer devices.” The BABA provisions require Federal agencies to ensure that “none of the funds made available for a Federal financial assistance program for infrastructure, including each deficient program, may be obligated for a project unless all of the iron, steel, manufactured products, and construction materials used in the project are produced in the United States.”
In its public interest waiver request, the SHLB Coalition stresses that the overwhelming majority of broadband network equipment and consumer devices are not currently manufactured in the U.S., and “most of the component parts are derived from abroad.” The SHLB Coalition states that it wholly supports the goal of increasing U.S. manufacturing, but believes “the timeline of BABA’s implementation could blunt the impact of the IIJA’s historic broadband programs and make it much more difficult to close the digital divide.” Ultimately, the SHLB Coalitions makes the following waiver request and explains why it is needed:
We therefore ask the Department of Commerce to issue a targeted public interest waiver of general applicability for broadband network equipment and consumer devices until such time as companies can set up their manufacturing processes in the U.S.
Without a public interest waiver, sub-recipients are likely to submit hundreds of individual requests to waive the BABA requirements, which will require review by the Department of Commerce and potentially by the Office of Management and Budget as well. Furthermore, states are likely to implement different processes for determining whether projects satisfy the BABA requirements, which will create confusion and uncertainty. By issuing a general waiver ahead of time, the Department of Commerce could substantially reduce the administrative burden, cost increases and delay for sub-recipients who are trying to close the digital divide.
For its legal basis, the SHLB Coalition cites the recent memorandum that was issued by the Office of Management and Budget (OMB), in which OMB clarifies the BABA buying preferences and provides implementation guidance to Federal agencies on the provisions that apply to infrastructure funding programs. More importantly, the OMB memorandum states that “the head of a Federal agency may waive the application of a Buy America preference under an infrastructure program” when the head of the Federal agency finds any of the following:
applying the domestic content procurement preference would be inconsistent with the public interest (a “public interest waiver”);
types of iron, steel, manufactured products, or construction materials are not produced in the United States in sufficient and reasonably available quantities or of a satisfactory quality (a “nonavailability waiver”); or
the inclusion of iron, steel, manufactured products, or construction materials produced in the United States will increase the cost of the overall project by more than 25 percent (an “unreasonable cost waiver”).
Before issuing a waiver, however, the head of the applicable Federal agency must make publicly available on the agency’s website a detailed written explanation for the proposed determination to issue the waiver and provide at least 15 days for public comment on the proposed waiver, with general applicability waivers being subject to a minimum 30-day public comment period.
Minnesota Telecom Alliance Supplements Petition to Deny LTD Broadband’s RDOF Funding In Minnesota & Iowa
May 9, 2022 – The Minnesota Telecom Alliance (MTA) has filed a third supplement to the petition filed by it and the Iowa Communications Alliance seeking to deny LTD Broadband, LLC’s Rural Digital Opportunity Fund (RDOF) Phase I Auction long-form application. In their original Petition To Deny, filed in March 2021, the two groups’ contend that LTD Broadband simply does not have the experience, resources, and general wherewithal to meet its RDOF broadband network deployment obligations in Minnesota and Iowa. LTD Broadband won RDOF support to serve 102,005 locations in Minnesota ($311,877,936.40) and 12,916 locations in Iowa ($23,184,786.30).
The recent third supplement enters into the FCC’s record a petition filed by MTA and the Minnesota Electric Association with the Minnesota Public Utilities Commission (PUC) regarding LTD’s Eligible Telecommunications Carrier (ETC) status in Minnesota. Specifically, they request that the Minnesota PUC initiate a proceeding to revoke LTD’s expanded ETC designation and deny LTD’s funding certification for 2023. Arguments in their petition rely heavily on facts that have emerged out of a recent decision by the South Dakota PUC which denied an LTD request to expand its ETC designation to include 7,481 RDOF supported locations in South Dakota. The South Dakota Commission concluded LTD lacked the ability to build and operate the broadband network contemplated in its South Dakota RDOF bid. MTA and the Minnesota Electric Association claim “[n]ewly available facts will similarly show that LTD cannot meet the far more extensive commitments it made to qualify for RDOF funding for approximately 102,000 locations in Minnesota.”
FTC Punishes Frontier For Lying About Internet Speeds & Ripping Off Customers
May 5, 2022 – The Federal Trade Commission (FTC) and the State of California have released a proposed Stipulated Order For Permanent Injunction, Monetary Judgment, And Other Relief they will enter into with Frontier Communications regarding allegations that Frontier misled customers and charged broadband subscribers for Internet speeds it failed to deliver.
In a May 2021 complaint, the FTC and various state attorneys general sued Frontier alleging the broadband provider participated in deceptive and unfair acts or practices in violation of Section 5 of the FTC Act and state statutes, “in connection with the marketing and sale of residential digital subscriber line (DSL) Internet service and the billing, charging, or collecting for that DSL Internet service.” Frontier allegedly “failed to provide many consumers with the maximum speeds they were promised and the speeds they actually received often fell far short of what was touted in the plans they purchased.”
The Stipulated Order prohibits Frontier from continuing the alleged abuses, and requires Frontier to pay $8.5 million in civil penalties and costs to the Los Angeles County and Riverside County District Attorneys’ offices, as well as $250,000 that will be distributed to Frontier’s California customers harmed by Frontier’s actions. Additionally, it requires Frontier to take the following remedial actions:
Frontier must substantiate its Internet speed claims at a customer-by-customer level for new and complaining customers and notify customers when it is unable to do so;
Frontier must ensure it can provide the internet service speeds it advertises before signing up, upgrading, or billing new customers;
Frontier is prohibited from signing up new customers for its DSL internet service in areas where the high number of users sharing the same networking equipment causes congestion resulting in slower internet service; and
Frontier must notify existing customers who are receiving DSL Internet service at speeds lower than was advertised and allow those customers to change or cancel their service at no charge.
FCC Grants All Auction 110 Spectrum Licenses
May 4, 2022 – The FCC’s Wireless Telecommunications Bureau has announced the grant of 23 long-form applications and issuance of all 4,041 licenses won in Auction 110, the auction for spectrum licenses in the 3.45-3.55 GHz (3.45 GHz) band. Attachment A to the Public Notice contains a list of 3.45 GHz licenses sorted by licensee. Attachment B contains a list of 3.45 GHz licenses sorted by market.
Auction 110 concluded in January 2022, 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. 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.
Rural Digital Opportunity Fund: FCC Ready To Authorize $200 Million In RDOF Support For 2,324 Winning Bids
May 3, 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 2,324 Rural Digital Opportunity Fund (RDOF) Phase I auction winning bids. This is the ninth set of RDOF winning bids that are ready to be authorized – $199,336,695 to fund new broadband deployments in 26 states and the Northern Mariana Islands to over 230,000 locations. 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. According to the FCC, so far, the RDOF program “has committed over $5.2 billion for broadband deployment to 3 million locations in 47 states and the Northern Mariana Islands.”
Also, Attachment B to the Public Notice is a list of defaulted bids in Colorado, Georgia, Idaho, Massachusetts, Nevada, New Mexico, Texas, and Virginia. The census blocks containing the defaulted RDOF bids will potentially be eligible for other broadband funding programs.
For this ninth 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 May 17, 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 providers set to receive RDOF Phase I auction support and RDOF funding amounts by state are available on the FCC’s RDOF auction website: https://www.fcc.gov/auction/904.
FCC Fines LTD Broadband For Violating RDOF Auction Rules On Prohibited Communications
May 3, 2022 – The FCC has issued a Notice Of Apparent Liability For Forfeiture against LTD Broadband LLC for repeatedly engaging in prohibited communications of its bidding and bidding strategies during the FCC’s Rural Digital Opportunity Fund (RDOF) Phase I Auction, and its failure to timely report such prohibited communications. The FCC has proposed LTD pay a forfeiture of $100,000. LTD, a fixed wireless broadband service provider, was the single largest winner of universal service support in the RDOF Phase I auction. As explained in the NAL, the FCC alleges LTD apparently violated the FCC’s auction rules on prohibited communications by willfully and repeatedly engaging in prohibited communications of its bidding, bidding strategies, and bidding results to Cox Communications, Inc. via LTD’s investment agent, RJM & Company, LLC. Also, LTD apparently violated the FCC’s auction rules by failing to report these communications to the FCC within the required five-day reporting window. LTD has 30 calendar days to pay the forfeiture or submit a written statement seeking reduction or cancellation of the proposed forfeiture.
USAC Files Estimated 3Q 2022 Universal Service Funding Requirements
May 2, 2022 – The Universal Service Administrative Company (USAC) has filed the Federal Universal Service Support Mechanisms Fund Size Projections for the third quarter of 2022. The filing details the universal service fund’s (USF) total budget for 3Q 2022, which includes any costs that can be directly attributed to the High Cost, Low Income, Rural Health Care, and Schools and Libraries Support Mechanisms, as well as the Connected Care Pilot Program, and the projected administrative expenditures of each mechanism. USAC’s data shows the following total projected 3Q 2022 funding requirements for each USF support mechanism:
High Cost Support Mechanism – $992.51 million (the 2Q funding requirement was $880.14 million, and the 1Q 2022 funding requirement was $1.04452 billion). The 3Q 2022 total funding requirement for the High Cost Support Mechanism was initially projected at $1.03792 billion, but was adjusted as follows: decreased by prior period adjustments of $62.54 million and increased by administrative costs of $17.13 million; resulting in a total projected 2Q 2022 funding requirement of $992.51 million.
Low Income Support Mechanism – $269.22 million (the 2Q 2022 funding requirement was $220.47 million, and the 1Q 2022 funding requirement was $137.51million). The 3Q 2022 total funding requirement for the Low Income Support Mechanism was initially projected at $287.13 million, but was adjusted as follows: decreased by prior period adjustment of $34.03 million and increased for administrative costs of $16.12 million; resulting in a total projected 3Q 2022 funding requirement of $269.22 million.
Rural Health Care Support Mechanism – $159.25 million (the 2Q 2022 funding requirement was negative $7.62 million, and the 1Q 2022 funding requirement was $11.72 million). The initial 3Q 2022 collection requirement of $159.43 million was decreased by a prior period adjustment of $0.18 million, resulting in a total projected funding requirement of $159.25 million.
Connected Care Pilot Program – $8.34 million (the 2Q 2022 funding requirement was $7.81 million, and the 1Q 2022 funding requirement was $9.21 million). The initial 3Q 2022 Connected Care Pilot Program collection requirement of $8.33 million was adjusted as follows: decreased by prior period adjustment of $0.10 million and increased by $0.11 million for administrative expenses, resulting in a total projected funding requirement of $8.34 million.
E-Rate Schools and Libraries Support Mechanism – $606.99 million (the 2Q 2022 funding requirement was $563.22 million, and the 1Q 2022 funding requirement was $637.95 million). The initial 3Q 2022 funding requirement of $593.30 million was decreased by a prior period adjustment of $7.27 million and increased by $20.96 million for administrative expenses, which resulted in $606.99 million
For its own consolidated budget, USAC projects total administrative costs of $61.60 million for 3Q 2022. This breaks out to $32.38 million in direct costs for all four support mechanisms, and $29.22 million in joint and common costs which include costs associated with billing, collection, and disbursement of universal service funds. This is an increase in administrative costs from the last two quarters (USAC projected consolidated budgets of $58.09 million for 2Q 2022 and $55.57 million for 1Q 2022).
The FCC will use the of the quarterly funding requirements for the four USF Support Mechanisms, the projected administrative expenses, and the USF contribution base amount to establish a quarterly USF contribution factor. Copies of USAC’s historical USF filings are available on its website.
Mergers & Acquisitions: Nextlink Internet Acquires Illinois Fixed Wireless Broadband Provider CCAOnline, Inc.
May 2, 2022 – AMG Technology Investment Group LLC d/b/a Nextlink Internet has announced it has acquired CCAOnline, Inc. Terms of the deal were not announced.
Nextlink Internet is a fiber and fixed wireless service provider that delivers high-speed internet and voice services to homes, businesses, health care facilities, schools, and libraries in Texas, Oklahoma, Kansas, Nebraska, Iowa, and Illinois. Nextlink has been a broadband service provider for nearly a decade, beginning its operations in the fall of 2012 in Weatherford, Texas.
CCAOnline, Inc., based in Logan and Tazewell Counties, Illinois, is a fixed wireless broadband service provider that has been in business for over 25 years.
In the press release announcing the deal, Bill Baker, CEO of Nextlink Internet, provided the following statement on how Nextlink plans to incorporate and improve CCAOnline’s network:
“We will immediately begin upgrades to the legacy CCA network infrastructure that we’re acquiring today. These upgrades will bring download speeds to at least 100 Mbps across Logan County and in many areas, we will be offering up to 400 Mbps download speed plans. As the presumptive winner of over $4 million in Rural Digital Opportunity Funding (RDOF) for Logan County, we plan to significantly improve the broadband capabilities of Logan County residents.”
Federal Court Issues Injunction Requiring All U.S. ISPs To Block Access To Three Illegal Streaming Websites
May 1, 2022 – The U.S. District Court for the Southern District Of New York has issued three Default Judgments and Permanent Injunction Orders in three related copyright infringement lawsuits. The SDNY’s decision is noteworthy because the injunction purportedly applies to every Internet service provider located in the U.S. The Court’s decisions were first reported by torrentfreak.com and arstechnica.com.
The Plaintiffs in the lawsuits are owners of original works which they produce and stream on the internet and broadcast for television in Israel. According to the Default Judgments, the Defendants “have been rebroadcasting and streaming Plaintiffs' original content, broadcasting channels and TV services” illegally through websites, services, or applications. These illegal sites are located at or link to: www.Israeli-tv.com; www.Sdarot.tv; and www.Israel.TV. The Default Judgments find the Defendants “liable for direct, vicarious and contributory copyright infringement because the Website is rebroadcasting and streaming, in the United States, Hebrew-language television and online channels and content owned by Plaintiffs, and/or exclusively licensed for broadcasting and streaming in Israel, and because Defendants are circumventing technological measures that effectively control access to Plaintiffs’ Works.” It also finds the Defendants “liable for violating the anti-circumvention provision of the Digital Millennium Copyright Act (DMCA).”
Damages awarded to the Plaintiffs include statutory damages for each instance of copyright infringement and attorney fees. However, the noteworthy piece of the decision is the scope of the Court’s permanent injunction.
The SDNY’s injunction in each case orders all ISPs listed in Exhibit B to the order, and any other ISPs providing services in the United States, to block access to the Defendants’ websites at any domain address known today or to be used in the future by the Defendants by any technological means available on the ISPs’ systems.
All U.S. ISPs are required by the injunctions to divert their users’ attempts to access the Defendants’ sites to a landing page operated and controlled by the Plaintiffs. The landing page is can be reached at the following: Domain: zira-usa-11024.org; IP Address: 206.41.119.64.
Exhibit B contains nine pages listing 96 U.S. ISPs. However, as stated above, the Exhibit B is not exhaustive, as the Court claims the injunction applies to every U.S. ISP. Further, the injunction permanently prohibits third parties, such as web hosting providers, CDN providers, VPNs, payment processors, and others from providing services to the Defendants’ websites.
