News Update - March 2024
CISA Announces Cyber Incident Reporting for Critical Infrastructure Act Rulemaking Will Begin April 4, 2024
March 27, 2024 – The U.S. Department Of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) has announced it will publish a Notice of Proposed Rulemaking (NPRM) to implement the Cyber Incident Reporting for Critical Infrastructure Act (CIRCIA) on April 4, 2024. CIRCIA, signed into law in 2022, requires covered entities in the critical infrastructure sector to report covered cyber incidents and ransom payments to CISA within prescribed timeframes. CISA has released a 447-page draft version of the NPRM and proposed rules that is available online. Once the proposed rules are officially published in the Federal Register, responsive comments and related material will be due within 60 days. CIRCIA requires CISA to adopt final rules within 18 months of publishing the NPRM.
FCC Fines Jefferson County Cable TV Inc. $10,000 For Fraudulent Broadband Deployment Reporting In Ohio
March 15, 2024 – The FCC’s Enforcement Bureau has entered into a Consent Decree with Jefferson County Cable TV Inc. which resolves an investigation into whether the company reported false broadband deployment data to the FCC. Jefferson County Cable will pay a $10,000 civil penalty to the U.S. Treasury and implement a compliance plan to ensure it follows the FCC’s Broadband Data Collection rules. The Enforcement Bureau’s investigation concerned Jefferson County Cable’s two Broadband Data Collection submissions showing broadband service availability in 2022:
In an August 2022 broadband data filing showing deployment as of June 30, 2022, Jefferson County Cable reported 8,178 addresses to the FCC’s Broadband Data Collection; and
In a March 2023 broadband data filing showing deployment as of December 31, 2022, Jefferson County Cable reported 6,605 addresses to the FCC’s Broadband Data Collection.
The Enforcement Bureau began investigating after “an individual challenged Jefferson County Cable about its claim that it could provide broadband service at a location in Bergholz, Ohio.” Ultimately, Jefferson County Cable corrected its submissions covering 2022 deployment data by removing approximately 1,500 locations. In a response to the Bureau’s first letter of inquiry, the company stated it “could not provide broadband service at or connect those locations within 10 business days of a request for service, as required by the Broadband Data Collection Rules.”
According to online technology publication Ars Technica, a Jefferson County Cable executive, in an email response to the individual that challenged the deployment data, admitted that the company was making false claims about service availability to block potential broadband funding being allocated in the area. The individual that made the challenge operates Smart Way Communications, a wireless Internet service provider:
Jefferson County Cable's false claim came to light thanks to Ryan Grewell, who runs a small wireless Internet service provider called Smart Way Communications. He heard about the false claims from his own customers and used the FCC's map system to file challenges at specific addresses.
One of Grewell's challenges at an address in Bergholz, Ohio, led to the cable company admitting its false claims. Last week's FCC order said this address was one of the 1,500 incorrectly claimed locations.
As we reported, Grewell got a response from a Jefferson County Cable executive who mistakenly thought Grewell was a potential customer instead of a competitor. The email said that Jefferson County Cable didn't serve the area yet, but wanted to prevent potential competitors from getting deployment grants.
"You challenged that we do not have service at your residence and indeed we don't today," said the January 2023 email from Jefferson County Cable executive Bob Loveridge. "With our huge investment in upgrading our service to provide xgpon we reported to the BDC [Broadband Data Collection] that we have service at your residence so that they would not allocate addition [sic] broadband expansion money over [the] top of our private investment in our plant."
FCC Redefines Broadband As 100/200 Mbps In Latest Broadband Deployment Report
March 14, 2024 – The Federal Communications Commission (FCC or Commission) has approved its latest annual Broadband Deployment Report which shows the status of fixed and mobile broadband service in the U.S. The report was approved on a 3-2 vote (FCC Chairwoman Rosenworcel, Commissioners Starks and Gomez approving, and Commissioners Carr and Simington dissenting). Most notably, the report “raises the Commission’s benchmark for high-speed fixed broadband to download speeds of 100 megabits per second and upload speeds of 20 megabits per second – a four-fold increase from the 25/3 Mbps benchmark set by the Commission in 2015.” Ultimately, the FCC concludes in the report that “advanced telecommunications capability is not being deployed in a reasonable and timely fashion based on the total number of Americans, Americans in rural areas, and people living on Tribal lands who lack access to such capability, and the fact that these gaps in deployment are not closing rapidly enough.”
Section 706(b) of the Telecommunications Act of 1996, directs the FCC to annually inquire whether advanced telecommunications capability (broadband) is being deployed to all Americans in a reasonable and timely fashion. Advanced telecommunications capability is described as high-speed, switched, broadband telecommunications capability that enables users to originate and receive high-quality voice, data, graphics, and video telecommunications using any technology. If the FCC determines that broadband is not being deployed in a timely manner, Section 706(b) requires the FCC to take immediate action to accelerate broadband deployment by removing barriers to infrastructure investment and promoting competition.
One other key item in the report is a new 1 Gbps/500 Mbps long-term goal for broadband speeds to give “a better, faster, more robust system of communication for American consumers. According to the FCC’s News Release announcing the approval, the report shows that, as of December 2022:
Fixed terrestrial broadband service (excluding satellite) has not been physically deployed to approximately 24 million Americans, including almost 28% of Americans in rural areas, and more than 23% of people living on Tribal lands;
Mobile 5G-NR coverage has not been physically deployed at minimum speeds of 35/3 Mbps to roughly 9% of all Americans, to almost 36% of Americans in rural areas, and to more than 20% of people living on Tribal lands;
45 million Americans lack access to both 100/20 Mbps fixed service and 35/3 Mbps mobile 5G-NR service; and
Based on the new 1 Gbps per 1,000 students and staff short-term benchmark for schools and classrooms, 74% of school districts meet this goal.
FCC Approves New All-In Pricing Rules For Cable And Satellite TV
March 14, 2024 – The Federal Communications Commission (FCC or Commission) has approved a Report And Order that applies new “all-in” pricing rules to cable operators and direct broadcast satellite (DBS) providers. The new rules were passed by a 3-2 vote, with Chairwoman Rosenworcel, Commissioners Starks and Gomez approving, and Commissioners Carr and Simington dissenting. The FCC News Release announcing the action describes the new rules as follows:
These new rules require cable operators and direct broadcast satellite (DBS) providers to state the total cost of video programming service clearly and prominently, including broadcast retransmission consent, regional sports programming, and other programming-related fees, as a prominent single line item on subscribers’ bills and in promotional materials. The record demonstrates that charges and fees for video programming provided by cable and DBS providers are often obscured in misleading promotional materials and bills, which causes significant and costly confusion for consumers.
USF Contribution Factor Dips To 32.8 Percent For Second Quarter Of 2024
March 14, 2024 – The FCC’s Office of Managing Director (OMD) has announced that the proposed universal service fund (USF) contribution factor for the Second quarter of 2024 will be 32.8 percent. If the FCC takes no action on the proposed USF contribution factor within 14 days, it will be declared approved. The 32.8 percent contribution factor for 2Q 2024 is a slight decrease from the 34.6 percent USF contribution factor that was used for 1Q 2024, and which is the all-time record high. Historical information on quarterly universal service fund contribution factors is available online from the FCC.
For the second quarter of 2024, the Universal Service Administrative Company (USAC) projects $8.555642 billion in total interstate and international end-user telecommunications revenues will be collected ($8.313338 billion was projected for 1Q 2024). USAC estimates that $2.092510 billion is needed to cover the total demand and expenses for all Federal universal service support mechanisms (revenue requirement) in the second quarter of 2024 (the 1Q 2024 demand was estimated at $2.118730 billion). Total second quarter 2024 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: $652.36 million (1Q 2024 was $634.96 million)
Rural Health Care: $170.03 million (1Q 2024 was $168.60 million)
High-Cost: $1.10091 billion (1Q 2024 was $1.09021 billion)
Lifeline: $169.21 million (1Q 2024 was $225.47 million)
Senator Cruz Releases Paper On Universal Service Fund Reform
March 6, 2024 – Senator Ted Cruz (R-TX), ranking member of the U.S. Senate Committee On Commerce, Science, And Transportation, has released a document titled “Protecting Americans From Hidden FCC Tax Hikes: A Blueprint For Universal Service Fund Reform.” The paper focuses on USF contributions and the USF’s four support mechanisms: E-Rate, Lifeline, Rural Health Care, and High Cost. Ultimately, Senator Cruz argues that “Congress must reform the USF’s structural problems, re-evaluate its component programs, and get the FCC’s spending under control.” This reform effort, according to Senator Cruz, should be guided by the following eight principles:
Put Congress back in the driver’s seat (Congress should define universal service and decide where funding goes);
Move social welfare spending on-budget (the High Cost fund should stay within the USF, but the other programs should be subject to direct congressional appropriations);
Eliminate program duplication (duplicative USF spending should be eliminated);
Stop subsidizing networks that face unsubsidized competition (companies should not receive USF support for areas served by an unsubsidized competitor);
Do not subsidize Infrastructure Investment And Jobs Act funded networks’ ongoing operational costs (ongoing support for Infrastructure Act-funded networks should not be available except in case-by-case, exceptional circumstances);
Target low-income subsidies to those who truly need them (Lifeline and ACP should at least be combined, and clear performance metrics should be develop to track the effectiveness of support);
Ensure E-Rate is truly improving education and not aggravating kids’ screen addictions (E-Rate authority is explicitly confined to classrooms, and support should truly benefit pedagogical objectives); and
Establish better controls to stop waste, fraud, and abuse (the FCC should follow GAO and IG recommendations and implement better safeguards).
Sixth Circuit To Consider Legal Challenges To New FCC Data Breach Reporting Rules
March 4, 2024 – The Judicial Panel on Multidistrict Litigation has randomly selected the U.S. Court of Appeals For The Sixth Circuit in which to consolidate two petitions for review of the FCC’s new data breach reporting rules. One petition for review was filed by the Texas Association of Business in the Fifth Circuit and one petition for review was filed by the Ohio Telecom Association in the Sixth Circuit. The petitions for review are nearly identical, and both seek judicial review of the FCC’s data breach Order on the grounds that it “exceeds the FCC’s statutory authority; is arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq.; and is otherwise contrary to law.”
Communications Infrastructure Companies File Legal Challenge To FCC’s Digital Discrimination Rules
March 1, 2024 – The Wireless Infrastructure Association, the Power & Communications Contractors Association, and NATE: The Communications Infrastructure Contractors Association have filed a petition for review of the FCC’s Order adopting digital discrimination rules. The group is challenging the digital discrimination Order by claiming it exceeds the FCC’s statutory authority, is arbitrary, capricious, and an abuse of discretion, and is otherwise contrary to law. The group filed their petition in the U.S. Court Of Appeals For The District Of Columbia Circuit, but have notified the court that the petition should be transferred to the Eight Circuit. Numerous petitions for review of the FCC’s digital discrimination rules were already filed in multiple circuits, resulting in the U.S. Judicial Panel on Multidistrict Litigation randomly selecting the U.S. Court of Appeals for the Eighth Circuit to hear the case.
NTIA Releases Limited Build America, Buy America Waiver For BEAD Program Covering Non-Optic Glass Inputs On Fiber And Certain Construction Materials
March 1, 2024 – The National Telecommunications and Information Administration (NTIA) has published a final limited waiver of the Build America, Buy America rules that will be available for the entirety of the Broadband Equity, Access and Deployment (BEAD) program. NTIA’s Buy America waiver covers non-optic glass inputs on fiber and certain construction materials. NTIA declined to adopt a waiver covering the entire optical fiber production process or a blanket waiver for non-U.S. country-of-origin fiber. NTIA found that non-optic glass inputs make up a minor element of the overall cost of a finished fiber optic cable, and the waiver will help ensure the availability of a secure, diverse supply of optical fiber and fiber optic cable for the duration of the BEAD program.
