News Update - March 2023
FCC Tentative Agenda For April 20 Open Meeting
March 30, 2023 – Federal Communications Commission Chairwoman Jessica Rosenworcel has announced the following tentative agenda for the FCC’s next open meeting, scheduled for Thursday, April 20, 2023:
Promoting Efficient Use of Spectrum and Opportunities for New Services – The Commission will consider a Policy Statement intended to help guide Commission decision-making and stakeholder action to promote efficient co-existence between incumbent and new services. The Policy Statement promotes a balanced and comprehensive approach to spectrum management that holistically considers both transmitter and receiver components of wireless systems. (ET Docket No. 23-122)
Review of International Section 214 Authorizations to Assess Evolving Risks – The Commission will consider an Order and Notice of Proposed Rulemaking that would take another important step to protect the nation’s telecommunications infrastructure from threats in an evolving national security and law enforcement landscape by proposing comprehensive changes to the Commission’s rules that allow carriers to provide international telecommunications service pursuant to section 214 of the Communications Act of 1934, as amended (Act). (IB Docket No. 23-119)
Facilitating Satellite Broadband Competition – The Commission will consider a Report and Order and Further Notice of Proposed Rulemaking that would revise rules for spectrum sharing among new satellite broadband constellations. The rule revisions would clarify protection obligations between non-geostationary satellite orbit, fixed-satellite service systems to facilitate the deployment of these next generation systems, including new competitors. (IB Docket No. 21-456)
Updating the Frequency Allocation Table – The Commission will consider an Order to make updates to the International Allocation Table to reflect the International Telecommunication Union Radio Regulations (Edition of 2020) and make other non-substantive, editorial revisions. The Commission will also consider a Notice of Proposed Rulemaking that would seek comment on implementing certain of the remaining radiofrequency allocation decisions from the 2015 World Radiocommunication Conference. The NPRM would propose allocation changes and related updates to service rules. (OET Docket Nos. 23-121 and 23-120)
Improving Wireless Emergency Alerts – The Commission will consider a Further Notice of Proposed Rulemaking that would increase the accessibility, performance, and functionality of Wireless Emergency Alerts, including greater accessibility for people with disabilities and through multilingual alerting. (PS Docket Nos. 15-91, 15-94)
Updating the Intercarrier Compensation Regime to Eliminate Access Arbitrage – The Commission will consider a Second Report and Order, which would modify its Access Stimulation Rules to close a perceived loophole exploited by opportunistic access-stimulating entities to continue to inflate access charges paid by interexchange carriers. The Order would make this inefficient practice less attractive to arbitrageurs and help prevent interexchange carriers’ end-user customers from bearing costs for services they may not even use. (WC Docket No. 18-155)
Removing Obsolete Analog-Era Provisions from Part 74 Rules – The Commission will consider an Order that would amend its Part 74 rules for low-power television and television translators to remove obsolete rules for analog TV operations. (MB Docket No. 03-185)
Fifth Circuit Completely Rejects Consumers’ Research Non-Delegation Challenge To Universal Service Fund
March 24, 2023 – A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit has issued an unanimous opinion in Consumers’ Research v. FCC, denying a non-delegation doctrine challenge to the universal service fund (USF) and the way it is funded and administered.
In its petition for review, Consumers’ Research challenged: (1) the constitutionality of Congress’s delegation of administration of the USF to the Federal Communications Commission (FCC); and (2) the FCC’s subsequent reliance on the Universal Service Administrative Company (USAC), a private entity, for ministerial support. Ultimately, the Fifth Circuit found “there are no nondelegation doctrine violations,” and denied the petition.
Consumers’ Research primarily argued that Section 254 of the Communications Act, the statute creating the US, violates the nondelegation doctrine because: (1) Congress failed to provide the FCC with an intelligible principle; and (2) to the extent Congress provided intelligible principles, they are merely aspirational and place no objective limits on the FCC in its administration of the USF. The Court found that Section 254(b) requires the FCC to base USF policies on various enumerated principles, which means the FCC does not operate the USF without guidance from Congress. After finding that Congress supplied the FCC with intelligible principles, the Court concluded these principles properly limit the FCC and are not merely aspirational.
Last, the Court addressed Consumers’ Research’s argument “that the FCC violated the private nondelegation doctrine when it redelegated its authority over the USF to USAC, a private entity.” The Court concluded “the FCC has not violated the private nondelegation doctrine because it wholly subordinates USAC” for the following reasons: First, federal statutory law expressly subordinates USAC to the FCC; Second, USAC does not enjoy sweeping rulemaking power – instead it makes a series of proposals to the FCC based off expert analysis, which are not binding on carriers until the FCC approves them; Third, the FCC permits telecommunications carriers to challenge USAC proposals directly to the agency and often grants relief to those challenges; and Fourth, the FCC dictates how USAC calculates the USF contribution factor and subsequently reviews the calculation method after USAC makes a proposal.
FCC Chairwoman Issues Update On FCC Broadband Map
March 23, 2023 – FCC Chairwoman Jessica Rosenworcel has authored a blog post which provides an update on the FCC’s broadband availability map. An initial version of the map was released online in November 2022. It shows where fixed and mobile internet services are available throughout the U.S., as of June 30, 2022. The FCC broadband availability map contains two datasets: locations and availability. The locations dataset consists of the Broadband Serviceable Location Fabric, which is a common dataset of all locations in the U.S. where fixed broadband internet access service could be installed. The availability dataset is derived from information submitted by broadband service providers through the FCC’s Broadband Data Collection (BDC), and shows what broadband services, if any, are actually available at the Fabric locations.
According to Chairwoman Rosenworcel’s blog post, the version of the Fabric identified over 113 million locations where fixed broadband could be installed. The Fabric now shows “over 114 million broadband-serviceable locations, a net increase of 1.04 million.” This number was derived by adding 2.96 million new broadband-serviceable locations, and removing 1.92 million locations from the first version. Finally, Chairwoman Rosenworcel affirmed that the FCC will release a new broadband availability map that reflects the updated data in the Spring of 2023, as required by the Broadband DATA Act.
FAIR Contributions Act Reintroduced In Senate; Would Require FCC To Examine Collecting USF Contributions From Internet Edge Providers
March 16, 2023 – U.S. Senators Roger Wicker (R-MS), Ben Ray Luján (D-NM), Todd Young (R-IN) and Mark Kelly (D-AZ) have reintroduced the Funding Affordable Internet with Reliable (FAIR) Contributions Act. If passed, the FAIR Contributions Act would require “the FCC to issue a Notice of Inquiry seeking public comment on the feasibility of collecting USF contributions from internet edge providers, and issue a final report on the matter within 180 days.” Also, the proposed legislation would require the FCC to consider the following:
Possible sources of Big Tech revenue, such as digital advertising and user fees;
The fairness of the current system and a system under which contributions could be assessed on Big Tech firms;
The feasibility of assessing contributions on such a broad category of firms that do not currently register with the FCC;
The effects such a change would have on Tribal, low-income, and elderly consumers; and
The changes to current law necessary to implement this system.
USF Contribution Factor For Second Quarter Of 2023: 29 Percent
March 14, 2023 – The FCC’s Office of Managing Director (OMD) has announced that the proposed universal service fund (USF) contribution factor for the second quarter of 2023 will be 29.0 percent. If the FCC takes no action on the proposed USF contribution factor within 14 days, it will be declared approved. For what it’s worth, the 29 percent 2Q 2023 USF contribution factor is a slight decrease from the 32.6 percent contribution factor used for the first quarter of 2023.
For the second quarter of 2023, the Universal Service Administrative Company (USAC) projects $8.761743 billion in total interstate and international end-user telecommunications revenues will be collected ($8.749750 billion was collected for 1Q 2023). USAC estimates that $1.951900 billion is needed to cover the total demand and expenses for all Federal universal service support mechanisms (revenue requirement) in the second quarter of 2023 (the 1Q 2023 demand was $2.130060 billion).
Total second quarter 2023 demand includes projected program support, administrative expenses, and true-ups and adjustments, which breaks out among the USF support mechanisms as follows:
E-Rate Schools & Libraries: $609.15 million (1Q 2023 was $697.13 million)
Rural Health Care: $159.36 million (1Q 2023 was $70.79 million)
High-Cost: $972.91 million (1Q 2023 was $1.15243 billion)
Lifeline: $202.05 million (1Q 2023 was $201.21 million)
Connected Care: $8.43 million (1Q 2023 was $8.50 million)
Final Agenda For FCC Open Meeting On March 16, 2023
March 9, 2023 – The Federal Communications Commission has released a final agenda for its open meeting on Thursday, March 16, 2023:
Single Network Future: Supplemental Coverage from Space – The Commission will consider a Notice of Proposed Rulemaking that would propose a new regulatory framework for supplemental coverage from space. Through this proposed framework, satellite operators collaborating with terrestrial providers would be able to operate space stations on currently licensed, flexible-use spectrum to expand coverage to the terrestrial provider’s subscribers. (GN Docket No. 23-65, IB Docket 22-271)
Ensuring Just and Reasonable Rates for Incarcerated People – The Commission will consider a Notice of Proposed Rulemaking and Order, which would begin the Commission’s implementation of the Martha Wright-Reed Just and Reasonable Communications Act of 2022. The Notice of Proposed Rulemaking seeks comment on how the Commission should interpret that Act’s language to ensure just and reasonable rates and charges for incarcerated people’s audio and video communications services. The Order will delegate authority to the Wireline Competition Bureau and the Office of Economics and Analytics to update and restructure their most recent data collection as appropriate to fulfill the requirements of the new statute. (WC Docket Nos. 23-62, 12-375)
Enhancing Protections Against Illegal Robocalls – The Commission will consider a Report and Order and Further Notice of Proposed Rulemaking that would close a critical gap in the STIR/SHAKEN caller ID authentication regime, expand robocall mitigation requirements for all providers, adopt more robust enforcement tools, and seek comment on additional steps to further enhance the effectiveness of the STIR/SHAKEN framework. (WC Docket No. 17-97)
Protecting Consumers with Robotext Blocking – The Commission will consider a Report and Order which would require that providers block texts purporting to be from numbers on a reasonable Do-Not-Originate list; and make available a single point of contact for text message blocking complaints. The Commission will also consider a Further Notice of Proposed Rulemaking which would propose to require further blocking of illegal robotexts; expand Do-Not-Call protections to robotexts; and protect consumers from getting robotexts and robocalls from multiple, unexpected callers when they provide their consent on websites for comparison shopping. (CG Docket Nos. 21-402, 02-278)
Updating Equipment Testing Standards – The Commission will consider a Report and Order which would incorporate standards that are to be used in the testing of equipment to ensure compliance with FCC rules. Two are updates to existing standards and two are new standards that would allow in addition to standards referenced in our existing rules. (ET Docket No. 21-363)
Audio Description DMA Expansion – The Commission will consider a Further Notice of Proposed Rulemaking which would propose to expand support for individuals who are blind or visually impaired by expanding audio description requirements to additional market areas. The proposal would help ensure that a greater number of individuals who are blind or visually impaired can be connected, informed, and entertained by television programming. (MB Docket No. 11-43)
Enforcement Bureau Action – The Commission will consider an enforcement action.
Enforcement Bureau Action – The Commission will consider an enforcement action.
Biden Administration Releases Details On National Cybersecurity Strategy
March 2, 2023 – The White House has released its National Cybersecurity Strategy which is intended “to secure the full benefits of a safe and secure digital ecosystem for all Americans.” In the document, the Biden Administration calls for “fundamental shifts in how the United States allocates roles, responsibilities, and resources in cyberspace.” Among other things, the National Cybersecurity Strategy favors regulation over industry-adopted voluntary measures to combat cyber threats:
Regulation Instead Of Voluntary Measures: While voluntary approaches to critical infrastructure cybersecurity have produced meaningful improvements, the lack of mandatory requirements has resulted in inadequate and inconsistent outcomes. Today’s marketplace insufficiently rewards—and often disadvantages the owners and operators of critical infrastructure who invest in proactive measures to prevent or mitigate the effects of cyber incidents. Regulation can level the playing field, enabling healthy competition without sacrificing cybersecurity or operational resilience.
Forward-Looking Regulations: Regulations should be performance-based, leverage existing cybersecurity frameworks, voluntary consensus standards, and guidance—including the Cybersecurity and Infrastructure Security Agency (CISA)’s Cybersecurity Performance Goals and the National Institute of Standards and Technology (NIST) Framework for Improving Critical Infrastructure Cybersecurity— and be agile enough to adapt as adversaries increase their capabilities and change their tactics. In setting cybersecurity regulations for critical infrastructure, regulators are encouraged to drive the adoption of secure-by-design principles, prioritize the availability of essential services, and ensure that systems are designed to fail safely and recover quickly. Regulations will define minimum expected cybersecurity practices or outcomes, but the Administration encourages and will support further efforts by entities to exceed these requirements.
Closing Cybersecurity Gaps In Cloud-Based Services: Cloud-based services enable better and more economical cybersecurity practices at scale, but they are also essential to operational resilience across many critical infrastructure sectors. The Administration will identify gaps in authorities to drive better cybersecurity practices in the cloud computing industry and for other essential third-party services, and work with industry, Congress, and regulators to close them.
USAC Files Data On 2nd Quarter 2023 USF Contribution Base: $8,761,742,607
March 2, 2023 – The Universal Service Administrative Company (USAC) has filed projected universal service fund (USF) contribution base data which will be used to determine the USF contribution factor for the second quarter of calendar year 2023. USAC has determined that the total projected collected interstate and international end user revenue base to be used in determining the contribution factor for the Universal Service support mechanisms for the first quarter of 2023 is $8,761,742,607. This is an increase in the USF base from the first quarter of 2023 ($8,749,749,511). The contribution base data was calculated using projected revenue amounts for April through June 2023 reported by telecommunications service providers on their FCC Forms 499-Q which were due February 1, 2023. To provide a historical comparison, USAC’s total projected USF contribution base amounts for the past 13 quarters were as follows:
First Quarter 2023 – $8,749,749,511
Fourth Quarter 2022 – $8,624,083,282
Third Quarter 2022 – $8,285,056,307
Second Quarter 2022 – $8,751,403,396
First Quarter 2022 – $9,235,845,776
Fourth Quarter 2021 – $9,517,295,012
Third Quarter 2021 – $9,665,944,070
Second Quarter 2021 – $9,905,669,690
First Quarter 2021 – $10,068,712,553
Fourth Quarter 2020 – $10,428,377,862
Third Quarter 2020 – $10,219,123,520
Second Quarter 2020 – $10,865,131,593
First Quarter 2020 – $11,129,976,956
For the second quarter of 2023, USAC received projected revenue data from 3,276 USF contributors who filed the February 2023 Form 499-Q. USAC estimated revenue data for 181 non-de minimis service providers that had previously submitted Form 499-Q information to USAC, but failed to make the latest filing. After the Federal Communications Commission (FCC) approves the total USF contribution base, the quarterly funding requirements for USF support mechanisms, and projected USF administrative costs, the FCC will establish a USF contribution factor for the second quarter of 2023. The new contribution factor will be announced by an FCC Public Notice. USAC will then bill USF contributors on a monthly basis for their individual obligations based on the approved contribution factor.
