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Trends in wireline and mobile services strongly suggest a refresh to the FCC Forms 499-A/Q is in order. For purposes of brevity, this entry focuses on the Form 499-A. While changes to the forms do not address the challenge of a declining USF revenue base and an accelerating contribution factor or answer long pending USAC requests for guidance to the Wireline Competition Bureau (“the Bureau”), a shift to fewer revenue buckets (categories) aligned with the major services currently provided to customers could reduce the time for services providers to prepare Forms 499-A and for USAC staff to review forms or conduct audits. Other incremental steps are also suggested.

Consumers increasingly purchase service in bundles:

  • Wireless bundles: Voice, text and data (Internet access service); occasionally, voice-only
  • Wireline bundles: Voice, data and video: data and video; or increasingly data-only

Voice services are assessable services. High speed Internet access and multi-channel video programming services are not. The FCC has declined to classify text messaging as telecommunications, a telecommunications service or an information service. Interconnected VoIP is rapidly displacing circuit switched wireline voice services. Switched access service revenues are approaching inconsequential status.

The all-distance bundles for wireline voice services may encompass unlimited domestic calls and unlimited or an allotment of international minutes to select countries with the overage billed on a per minute basis, as service to other countries, tracking closely mobile voice service pricing schemes. International calling card revenues remain cognizable. Payphone services revenues are not.. The same is true for Line 405 revenues (subscriber line charge and certain PICC charges). The latter can be added to the voice services bucket.

The utility of separate USF reporting categories for wireline voice services, depending on how they are priced, is not apparent. The same is true for mobile voice service revenues; distinguishing between prepaid and postpaid voice revenues is irrelevant for determining USF assessable revenues. The relevant USF considerations are (1) apportioning revenues between assessable voice services from the revenues from bundled non-assessable services and products and (2) determining the proper jurisdiction.

The revenues for wireline voice services (increasingly interconnected VoIP) provided to small businesses, many educational institutions, libraries and not-for-profits, and many local governments (collectively “SMB customers”) are principally wireline voice (intrastate, interstate, and international, both outbound and inbound (toll free)), and high speed Internet access service. These services are often priced separately, posing less of a revenue apportionment challenge.

Enterprise customers often obtain a broader mix of services that include

  • Voice services (local, outbound and inbound (toll free), increasingly interconnected VoIP), with multiple pricing options
  • Special access services
  • Private line services
  • Other non-Internet data services, such as MPLS-based services
  • High speed Internet access services

Enterprise customers, including the Federal government and many state governments, will have significant international revenues.

Enterprise voice services revenues would be added to a services provider’s voice services revenue category; for enterprise voice services, the principal USF consideration is assignment to the correct jurisdiction (intrastate, interstate, international or foreign). The same is true for special access and private line services. Special access services are sold to wireless carriers and, principally, to wireline services providers that resell the services to end users. Special access services should be reported separately from private line service, consistent with industry practice of offering and charging for these services separately.

Private line service should be reported on one line as the distinction between “local’ and “toll” private line services is both confusing and irrelevant. The critical issue for private line and special access services is determining the correct jurisdiction. For physically intrastate private lines and (almost all) special access circuits (having endpoint within a single state), services providers must consider the 10% de minimis rule to determine the jurisdiction of these services. The Bureau addressed several longstanding requests for review of USAC determinations involving the 10% de minimis rule in its 30 March 2017 Memorandum and Opinion and Order, but the decision is subject to applications for review.

An addressable issue raised in the 2012 USF Contribution Reform Further Notice of Proposed Rulemaking is the disparity between the “safe harbors” for interstate/international mobile service (37.1%) and interstate/international VoIP service (64.9%) on the one hand, and the noticeably lower reported values provided by the services providers (based on actual traffic or traffic studies) for these services on the other. A review of how the Commission set the mobile service safe harbor highlights the need for a refresh.

The Bureau could readily take the pragmatic step and conclude the process (or refresh the record) to align the safe harbors with services providers’ reported data either actual or based on traffic studies. This could reduce administrative burdens for services providers and for limited USAC staff resources.

Despite the trend in USF-support being extended increasingly to non-assessable high speed Internet access service, the instructions for Line 308 could be expanded to identify (i) all USF-supported programs, and (ii) the portions of providers’ revenues from supported services per program that should be reported as end-user revenues. This is preferable to reliance on abbreviated answers in USAC FAQs, particularly as more services providers are and will be receiving USF funds going forward as compared to 2015 and previous years.

Finally, a “Line 418.5” could be added to identify the revenues for high speed Internet access service provided within the United States. It merits reporting as it is such a large component of many services providers’ aggregate revenues.

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On January 30, President Trump signed an Executive Order on Reducing Regulation and Controlling Regulatory Costs. The Executive Order sets out a number of related concepts focused limiting Federal regulations, including a “Regulatory Cap” that is implemented through three inter-related provisions

  1. “Section 2(a): Unless prohibited by law, whenever an executive department or agency (agency) publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed.
  2. Section 2(b):. .  .  [T]he heads of all agencies are directed that the total incremental cost of all new regulations, including repealed regulations, to be finalized this year shall be no greater than zero, unless otherwise required by law or consistent with advice provided in writing by the Director of the Office of Management and Budget (Director).
  3. Section 2(c):. .  . [A]ny new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations.

During my years at the Federal Communication Commission, I worked on implementation of a one-for-one deregulation directive by the FCC Chairman that specified a new regulation could not be added unless an existing regulation was deleted. That initiative did not call for a comparison of costs of the proposed regulations and the proposed deletions; sometimes the outcome was the addition of a substantive and potentially burdensome new regulation “offset” by the elimination of an outdated or largely irrelevant regulation that no longer had significant impact and did not provide any real cost savings. Provision 2(c) of the Executive Order appears to call for a cost- based approach to deregulation.

An important legal distinction is that the FCC is not bound by the Executive Order because the FCC is an independent regulatory agency, rather than a part of the Executive Branch of the Federal Government. However, there is good reason to believe that the FCC may choose to emulate the Executive Order based on previous statements made by then minority Republican Commissioners Pai and O’Reilly in response to the adoption of new FCC rules, regulations and policies they viewed as either unwarranted or unduly burdensome.

In a December 2016 speech, prior to being named FCC Chairman, Commissioner Pai offered these comments: “In the months to come, we also need to remove outdated and unnecessary regulations.  As anyone who has attempted to take a quick spin through Part 47 of the Code of Federal Regulations could tell you, the regulatory underbrush at the FCC is thick.  We need to fire up the weed whacker and remove those rules that are holding back investment, innovation, and job creation.  Free State and others have already identified many that should go.  And one way the FCC can do this is through the biennial review, which we kicked off in early November.  Under section 11, Congress specifically directed the FCC to repeal unnecessary regulations.  We should follow that command.”

The biennial review referred to in then Commissioner Pai’s speech is underway in an FCC docket. The Public Notice issued in late December has a 57-page Appendix listing the rules adopted by the FCC 10 years ago and now due for review. Comments in that proceeding are due on or before May 4, 2017.  As part of the biennial review, Chairman Pai could direct that the FCC follow a substantially similar approach to the Executive Order.

The change in attitude toward regulation at the FCC by the new Chairman and majority makes this the ideal time for an entity to compile its wish list of FCC regulations to eliminate as unnecessary or streamline to make less burdensome or more cost effective. The alignment of the Executive Order, Chairman Pai’s deregulatory mindset, and the biennial review are an opportunity that should be seized and quickly.

The attorneys in the Telecommunications Practice Group at Keller and Heckman would welcome the opportunity to review your ideas on a courtesy basis and discuss how we can provide our assistance in presenting your proposals to the Commission.

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The nation watched President Trump take the oath of office last Friday.  On the same day, but to considerably less fanfare, it was widely reported that President Trump would appoint Commissioner Ajit Pai as Chairman of the FCC.  It became official on January 23, 2017.

Chairman Pai is joined by current Commissioners O’Reilly (a Republican) and Clyburn (a Democrat).  The Republican majority should make it easier for Chairman Pai to quickly act on his priorities.

What are his priorities?  To get a sense, we examine then-Commissioner Pai’s public statements in several high-profile – and sometimes contentious – FCC proceedings. Continue Reading FCC Priorities Under Republican Leadership

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There are familiar maxims in many sports, such as “Live by the 3-point shot, die by the 3-point shot” in basketball. The message being that high-risk tactics that bring temporary success often reverse and lead to ultimate defeat.

In recent years under Chairman Tom Wheeler, the FCC has decided many major decisions along bitterly divided 3-2 party line votes among the five Commissioners. The two Republican Commissioners have often accused the three Democratic Commissioners of ignoring the record before the FCC, ignoring past FCC precedent or the Communications Act, and refusing to consider other points of view or to reaching compromises across party lines.  As a general rule, the Republican Commissioners preferred approaches and policies grounded in technology or competition, rather than additional regulation.

This recent history is very unusual for the FCC. In prior administrations, most telecommunications policy-making at the FCC has been largely non-partisan. Policy differences between Democratic and Republican Commissioners were usually more differences of emphasis or priorities rather than on fundamentals, with both parties generally supporting a significant amount of deregulation and changes to introduce and support new technologies and services.

Historically, there has been a high degree of comity among the FCC Commissioners across party lines most of the time. Typically, negotiations between and among Commissioners’ offices tried to eliminate or reduce as much as possible strong disagreements on decisions.  There were exceptions of course, but they were exceptions not the normal course of business month in and month out.

The current FCC has operated very differently. At most of its monthly public meetings, major FCC decisions have been adopted by party-line 3-2 votes.  The divisions have been marked by strong dissents that attack both the substance and process of the FCC decision-making.  Moreover, there has been the same kind of unyielding disagreement between the majority Democratic Commissioners and the Republican Chairs of Congressional Committees and Subcommittees responsible for telecommunications in the House and Senate.

During calendar year 2015, these FCC decisions at public meetings are examples of the divided process:

  • January: 2015 Broadband Progress Report in which the FCC adopted 25 Mbps downstream and 3 Mbps upstream as the new benchmark for fixed broadband service.
  • February: Open Internet Order in which the FCC adopted a new regulatory framework for broadband and reclassified fixed and mobile broadband Internet Access Service as a telecommunications service, subject to Title II of the Communications Act. Though affirmed by the D.C. Circuit, a petition for rehearing en banc remains pending.
  • February: Declaratory Order pre-empting North Carolina and Tennessee laws limiting the service areas of municipal broadband providers to their municipal boundaries. The FCC decision was reversed on appeal.
  • June: Changes to the Lifeline Program.
  • July: Designated Entity Rules for Spectrum Auctions.
  • August: IP Technology Transition and Copper Loop Retirements.
  • August: Incentive Auction Bidding Procedures.
  • October: Inmate Calling Rates. The FCC was reversed on appeal but the matter is still pending.

This trend continued into 2016 as the FCC adopted its Broadband Consumer Privacy Rules. However, it appears that the current FCC leadership is now heeding the request of House and Senate Republicans to defer action on potentially controversial items, including several that had been placed on the agenda for the Commission’s November Open Meeting, one of which was special access service rate reform.

Because of the magnitude of the policy disagreements at the FCC between Democratic and Republican Commissioners, many FCC observers believe that a number of these recent decisions will be scaled-back or reversed once Republican Commissioners acquire a majority or as the Republican majorities in the House and Senate focus on telecommunications policy including a possible re-write of the Communications Act of 1934, as amended.

Soon after President-Elect Trump is sworn in, one of the two current Republican Commissioners will be named the Acting FCC Chairman. While this will not immediately change the majority-minority status of Democrats and Republicans at the FCC, it would be no surprise if then ex-Chairman Wheeler resigns rather than continue on as a Commissioner.  Democratic Commissioner Rosenworcel’s term expires as the current Congress ends, unless the Senate confirms her reappointment to another term.  These potential transitions in FCC leadership raise the possibility of a 2-1 Republican majority at the FCC until vacancies are filled.

Moreover, even if there is still a Democratic majority on the FCC, the Acting FCC Chairman will have authority to direct the agenda and the staff of the FCC. Some policies may change immediately under a Republican Acting Chairman, such as the very large forfeitures that have been imposed by the Enforcement Bureau during the past two years.  The Republican Commissioners argued that many of these forfeiture decisions lacked a sound basis or objective, but were, in fact, unauthorized policy-setting by the staff.

The most important question is whether there is reasonable hope that a less partisan decision-making process will return after what may well be a second exceptional period of divided decision-making under a new Republican majority at the FCC. The obvious value of a consensus-driven approach is that the telecommunications industry and public could rely on FCC decisions having long-term viability and not being subject to reversal whenever a new President takes up residency at the White House.

The serious risk is that after potentially two significant periods of highly politicized decision-making at the FCC, highly partisan decision-making becomes the new normal. In that case, the telecommunications industry will find itself on a policy roller coaster ride for many years to come and that is unlikely to sustainably advance the interests of either the industry or the public.

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This entry highlights the consequences of the FCC’s IP Transition orders for business customers and competitive carriers in terms of costs, changes in customer premises equipment (CPE), operational impacts and, for competitive carriers, interconnection agreements.

As noted in our 1st Entry in this two-part series, each ILEC sets its own plans and time lines for implementing its IP transition. There are no FCC mandated deadlines or due dates for initiating or completing the IP transition. Subject to the FCC’s rules and policies, the ILECs may implement their IP transitions locally, state-wide or throughout all of their service territories as they see fit. The same is true for copper loop retirements.

Business Customers

For business customers with locations having relatively modest voice and data requirements, such as many retail outlets, commercial and MDU property managers, and small government offices, the transition to IP voice services is the priority concern. For higher traffic locations, including major enterprise locations, call centers, hospitals, large government facilities and data centers, the transition to IP special access services may prove the most challenging.

Wireline Voice Services

1. The IP transition may disrupt (likely accelerate) enterprise planning for deploying IP-based CPE, including IP-PBXs, to implement VoIP and SIP trunking.

2. VoIP and SIP trunking customers must manage their CPE and business processes so that their end users can complete wireline 9 1 1 calls consistent with FCC rules and comply with state and, possibly, Federal versions of “Kari’s law” that require emergency calls be completed with three-digit “9 1 1” dialing and not “9 + 9 1 1” dialing. Compliance with local wireline “emergency phone service” regulations must also be addressed.

3. Wireline voice service rates should become more competitive for all business customers as VoIP services are not subject to federal or state legacy rate or tariff regulation and as the ILECs roll-out cloud-based VoIP service offerings.

a. Points of origination and termination for wireline voice pricing will be displaced by “all-distance” pricing comparable to mobile voice pricing, encompassing  local, intrastate, interstate and, increasingly, international voice communications.

b. Thus, business customers should become familiar with the pricing for VoIP services and SIP trunking in order to compare the rates for these services to the familiar pricing for circuit-switched voice services and PBX trunks

Special Access Services

1. The vast majority of end users acquire special access services (DS-1, DS-3, OCn and Ethernet equivalents) bundled with interexchange voice or data services provided by wide-area network (WAN) service providers (a/k/a interexchange carriers.)

2. The “reasonably comparable” standard of rates, terms and conditions for replacement Ethernet services adopted in the 2015 IP Transition Report and Order provides a reasonable measure of price stability. And, based on the latest Special Access Further Notice of Proposed Rulemaking, this standard should remain in place throughout the IP transition.

3. Except for very low latency applications, Ethernet special access service should be a functional equivalent to TDM dedicated access circuits.

4. The mechanics of converting to Ethernet service could prove challenging. Copper loops may support lower speed Ethernet services, but fiber or hybrid fiber-coax may be required for higher capacity services.

a. One point of reference as to what users might expect is the transition from one WAN service provider to another. This is probably the best case scenario.

b. The IP transition will be different from WAN service provider transitions (from incumbent to successor WAN service providers) in which customers and services providers share the objective of converting customer locations to the successor provider’s network in a timely manner. In the IP transition, the process will be driven by individual ILECs each transitioning to Ethernet service per its plans and timetable.

c. In theory, customer locations served by an ILEC affiliate of the WAN service provider should have a smoother transition, assuming closer coordination between the two affiliates.

Competitive Service Providers 

In many respects, the FCC’s IP Transition orders limit the ILECs’ discretion to do as they please. At this juncture, the rules governing the IP transition are set and the competitive service providers have limited opportunity to protest or delay the process—assuming the ILECs follow the rules. Competitive service providers must be prepared to act as the ILECs implement the transition to IP-based services.

Wireline Voice Services

1.  CLECs relying on ILEC copper loops and TDM-based wholesale platform services face the challenge of migrating to different facilities and technologies to operate in all-IP environments. The ILECs may transfer/sell their abandoned copper loops to requesting CLECs, but are not required to do so.

2. The status of local service interconnection remains an open question. CLECs will benefit from the FCC’s resolution of whether IP VoIP interconnection arrangements between ILECs and CLECs are voluntary commercial agreements or interconnection agreements subject to the Section 251/252 framework.

Special Access Services

1. WAN service providers (aka “interexchange carriers”) have either implemented or currently operate IP voice and data networks. Customer transitions to these interexchange IP services are ongoing. The IP transition poses the challenge of coordinating deployments of IP special access services to customer locations based on the ILECs’ timetables and schedules.

2. WAN service providers will benefit from the FCC’s requirement that ILECs’ Ethernet special access services be made available under rates, terms and conditions that are “reasonably comparable” to the corresponding ILEC TDM services.

The “reasonably comparable standard” likely will be retained as the FCC adopts its decision in the special access proceeding.

3. Competitive Access Providers that have deployed facilities in metro areas may offer more compelling IP special access services as compared to those of the ILECs.

The ongoing challenge/question is whether competitive access providers do or will extend their networks to an end-user’s location.

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For several years, the major incumbent local exchange carriers (ILECs) have been heralding the benefits of transitioning their networks to IP technology. The FCC has supported this transition. Agreeing that “less is often more” and reviewing related decisions in one entry may be helpful, this entry highlights the FCC’s recent decisions on policies and procedures for implementing the IP transition.

This is the 1st entry in a two part-series. Implications for end users and competitive carriers will be the focus of the 2nd entry.

The rules on copper loop retirements and the IP transition for retail voice services apply to price cap and rural rate-of-return ILECs with minor distinctions. The rules on wholesale services pertain principally to the price cap ILECs as these carriers offer the vast preponderance of special access and wholesale platform voice services. The FCC deserves a “tip-of-the-hat” on these decisions; the agency evaluated the merits of numerous positions and made reasonable decisions on countless issues.

An important caveat is that each ILEC sets its own plans and time lines for implementing its IP transition. There are no deadlines or due dates. Subject to the rules adopted in these FCC decisions, the ILECs may implement their IP transitions locally, state-wide or throughout all of their service territories. The same is true for copper loop retirements.

The procedural paths that include notices to customers or competitors vary.

Copper Loop Retirements. The FCC updated copper retirement rules that had been in effect for years.  Importantly, the copper replacements are subject to notice obligations, but not FCC approval. Two major changes are (1) the agency declined to allow oppositions or objections to notices of copper loop replacements, but imposed a “good faith communication requirement” on ILECs to provide additional information so that interconnecting services providers can implement changes in their networks without service disruptions, and (2) increased the notice period to just over 180 days.

Each ILEC is required to provide notice of a copper loop retirement to the Commission on the same date it provides notice “to each information service provider and telecommunications service provider that directly interconnects” to the ILEC’s network as well as changes in prices, terms or conditions associated with a copper loop retirement. The Commission then issues a Public Notice announcing the filing, effectively starting the 180-day period. Within 90 days of the date of this Public Notice, the ILEC must submit a certification that attests to timely notifications and other matters.

In addition, an ILEC must provide 180 days written notice (via mail or e-mail if authorized by the customer) of copper retirements being replaced by FTTP services to business customers and schools and libraries, and 90 days to residential customers. The FCC declined to require the ILECs to make available retired copper loops to CLECs, but encouraged ILECs to negotiate the sale of abandoned copper loops.

The rules are now in effect. Among others, Verizon and CenturyLink, are implementing copper loop retirements, identifying retirement projects by reference to affected wire centers.

Wholesale Services. In order to discontinue wholesale services (special access services and wholesale voice service platforms), each ILEC must file applications to discontinue service under Section 214 of the Communications Act. In addition, the FCC denied USTelecom’s Petition for Reconsideration of the declaratory ruling in which the FCC concluded that the term “service” in section 214(a) is defined functionally and not solely by service definitions in ILEC tariffs.

Broadly speaking, ILECs must establish that replacement IP wholesale services are “reasonably comparable” to the existing TDM services in terms of capacity, price and quality of service. For example, 100 Mbps Ethernet access service priced at market rates is not a reasonably comparable replacement for DS-1 special access service; substantially more bandwidth priced at a noticeably higher rate is not “reasonably comparable.” Importantly, “price-per-Mbps” and the net cost of the IP replacement special access service cannot be significantly higher than the pricing for the DS-1 or DS-3 service being replaced.

As a Section 214 discontinuance application is filed with the FCC, a copy must be served on the ILEC’s customers—CLECs, IXCs, wireless carriers and end users that acquire special access services directly from ILECs—as well as government offices specified under Section 214. Assuming the ILEC’s application meets the “reasonably comparable” standard, the FCC will “automatically grant” an ILEC’s Section 214 discontinuance application thirty (30) days after the application is placed on Public Notice.

This “reasonably comparable” standard is an interim rule, subject to the outcome of the FCC’s ongoing investigation into the price cap ILECs’ rates, terms and conditions for special access services—particularly DS-1 and DS-3 services. A final decision in the FCC’s multi-year special access investigation is expected this fall.

Rather than move forward under rules that will expire as the IP transition concludes, USTelecom filed a petition for review with the D.C. Circuit. Pet. for Review, United States Telecom Assoc. v. FCC, et al., Case No. 15-1414 (D.C. Cir., Nov. 12, 2015). USTelecom maintains that Section 214 does not require ILECs discontinuing wholesale TDM services to consider the impact on competitive carriers’ customers, the FCC’s Declaratory Ruling is inconsistent with Section 214 and applicable precedent, and the “reasonably comparable standard” should not apply pending the outcome of the FCC’s special access investigation.

Retail Voice Services. The FCC’s decision to facilitate the IP transition for retail wireline voice services also establishes a series of rules for “automatic grants” of ILEC Section 214 applications to discontinue TDM retail voice services. If the requisite showings are made, the ILECs may begin the transition to IP services 31 days after the applications are filed. In addition to customer notices (via mail or e-mail as authorized by a customer), the ILECs must engage in community outreach activities on the IP transition.

In support of this flexible approach, the FCC determined that the market interstate switched access services (which is tied to TDM technology) is competitive, noting the migration to wireless voice services and VoIP services have largely eroded the relevance of ILECs’ switched access services.

In addressing retail customers’ concerns, the FCC requires that replacement IP wireline voice services must (i) have substantially similar network performance metrics (latency of 100 ms or less for 95% of all peak period round trip measurements and data loss not worse than 1% for packet-based networks); (ii) maintain service availability at 99.99%; and (iii) cover the same geographic footprint as the discontinued TDM service. These criteria are intended to be technology neutral; thus, a fixed wireless replacement that meets these criteria is an acceptable replacement technology. Each ILEC must certify that each IP service “platform” meets these requirements; in order to do so, the ILEC must follow the FCC test procedures, except ILECs having 100,000 or fewer subscribers may use other test procedures.

The cost of the replacement IP service cannot be substantially more than the TDM voice service being discontinued. The IP replacement services must support critical applications such as 9 1 1 and access for persons with physical disabilities and must be interoperable with widely adopted low-speed modem devices, such as fax machines and point of sale terminals, through 2025.

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The FCC released a Public Notice on August 8 announcing an Amendment to the Nationwide Programmatic Agreement (NPA) for the Collocation of Wireless Antennas. The NPA Amendment was entered into by the FCC, the Advisory Council on Historic Preservation (ACHP) and the National Conference of State Historic Preservation Officers (NCSHPO). The original NPA was entered into in 2001 to address the collocation of wireless antennas and the obligations of the FCC and infrastructure installers under Section 106 of the National Historic Preservation Act (NHPA). At that time, the issues related primarily to collocation on traditional “macro” towers.

The Amendment establishes a series of new exclusions from the FCC’s National Historic Preservation Act review process for Distributed Antenna Systems (DAS) and small cell facilities, recognizing the limited potential of these facilities to affect adversely historic sites and properties. The Pubic Notice details a series of new Stipulations to the NPA that will exclude these facilities from routine review if specific conditions are met for the wireless equipment. For example, the Amendment excludes collocation of small wireless antennas and associated equipment (i) on buildings and non-tower structures that are outside of historic districts or that are not historic properties, (ii) small or minimally visible wireless antennas and associated equipment in historic districts or on historic properties, and (iii) installed as replacements of small wireless antennas and associated equipment. The Amendment spells out “volume limits” that the equipment must meet to qualify for these exclusions.

This is the latest Commission action to facilitate deployment of much-needed additional wireless infrastructure to support the burgeoning demand for wireless broadband throughout the U.S. It follows Federal legislation in 2012 and significant actions by the FCC to implement that legislation.  In its major rulemaking on the subject adopted last year, the FCC noted the need for additional relief from NHPA reviews for small cell wireless infrastructure but expressed a preference for implementing these changes through the program alternative process.

In the Public Notice, the FCC noted the importance of small wireless infrastructure in enabling “5G” wireless service. 5G is still in its definitional stage, but it is characterized by much greater throughput and ubiquitous availability of service, which will require substantially more wireless infrastructure.

Kudos to all parties involved in easing the unnecessary regulation impeding new deployments of wireless infrastructure.

On August 4, 2016, the Federal Communications Commission (FCC) released a Declaratory Ruling granting in part two separate petitions that were filed last year – one by the Edison Electric Institute and American Gas Association, and another by Blackboard, Inc. – regarding application of the Telephone Consumer Protection Act of 1991 (TCPA) to certain types of non-telemarketing, informational “robocalls” placed by energy utilities and schools, respectively.  The TCPA prohibits, among other things, robocalls (calls and texts that are placed using an autodialer or a prerecorded or artificial voice) to mobile numbers unless they are made for an “emergency purpose” or with “prior express consent.”

The Declaratory Ruling confirms that:

(1) Energy utilities are deemed to have the requisite “prior express consent” to place robocalls regarding matters “closely related to the utility service” (namely, calls regarding planned or unplanned service outages or service restoration, calls regarding meter work, tree trimming, or other field work, calls regarding payment or other problems that threaten service curtailment, and calls about potential brown-outs due to heavy energy use) if placed to numbers provided by customers; and

(2) Schools can lawfully place certain types of robocalls to members of the school communities pursuant to the “emergency purpose” exception in the TCPA (namely, calls concerning weather closures, incidents of threats and/or imminent danger due to fires, dangerous persons, or health risks, and unexcused absences), and schools are deemed to have the requisite “prior express consent” to place other types of robocalls that are “closely related to the school’s mission” (namely, notifications of upcoming teacher conferences and general school activities) if placed to numbers provided by the recipients.

For a more detailed summary of the Declaratory Ruling, click here.

While the FCC largely granted the relief requested by the petitioners regarding the type of consent that is required to place “robocalls,” the agency reminded businesses of their obligation to comply with other TCPA requirements when placing robocalls, such as the opt-out requirements and ceasing robocalls to numbers that have been reassigned to new subscribers.  TCPA litigation is on the rise, and the FCC has adopted stringent requirements for automated calls and texts, so all businesses should ensure that they understand their obligations when using these technologies to communicate with current and former customers, employees, and others.

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On July 14, 2016, the Federal Communications Commission released a Report Order and Further Notice of Proposed Rulemaking issuing service rules for four spectrum bands above 24 GHz. These bands are intended to be the future home for 5G wireless services and technologies currently being developed. The FCC’s new rules authorize mobile operations on a licensed basis in the 27.5-28.35 GHz, 38.6-40 GHz, and 37-38.6 GHz bands. The FCC also allocated the 64-71 GHz band for Part 15 use, which, when combined with the Part 15 57-64 GHz band will result in 14 GHz of spectrum for unlicensed operations such as WiGig service – approximately 15 times the amount of unlicensed spectrum available in all of the lower bands combined.

The massive amount of spectrum the FCC made available is newsworthy by itself. But perhaps just as important is the speed with which the FCC moved on its 5G spectrum item. Only 21 months ago the FCC commenced the 5G regulatory process by releasing a Notice of Inquiry seeking initial feedback on the future of 5G services. A year later, it issued a Notice of Proposed Rulemaking proposing to allocate spectrum and followed that in nine months with last week’s Report and Order. It was a very quick conclusion to a proceeding many initially projected would take several years. Because of its speed, the FCC established the United States as a world leader in spectrum availability for 5G services. To top it off, initial reactions to the Report and Order are overwhelmingly positive with both the wireless industry and consumer-focused public interest groups praising the FCC’s mix of licensed and unlicensed service rules.

In the Further Notice, the FCC sought comment on authorizing fixed and mobile service in several additional bands: 24.25-24.45 GHz, 24.75-25.25 GHz, 31.8-33 GHz, 42-42.5 GHz, the 47.2-50.2 GHz, 50.4-52.6 GHz, and the 71-76 GHz band together with the 81-86 GHz bands (70/80 GHz bands) and the bands above 95 GHz. The FCC proposed a three-tiered approach to licensing in the 70/80 GHz band similar to the rules recently adopted for the 3.5 GHz band. The proposed tiers are (1) Incumbent Access users, which would receive the highest level of protection; (2) Priority Access Licensees (PALs); and (3) General Authorized Access (GAA) users. Comments are due September 30 and Reply Comments are due October 31.

Commercial 5G services are not yet available. And, for its part, the FCC did not define what will constitute 5G. But the FCC has now established a sandbox within which industry can innovate. We’ll see what the future will bring.

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Last week, the FCC released a Fact Sheet outlining a draft Report and Order and Further Notice of Proposed Rulemaking the Commission will vote on in July.  The proposal would make additional licensed spectrum available in the 28, 37 and 39 GHz bands.  It also would make 7 GHz of spectrum available for unlicensed use in the 64-71 GHz band.  Finally, the item proposes shared use of the 37-37.6 GHz band between commercial and federal users.  The Further Notice will consider additional rule changes that could increase access to various bands above 24 GHz, including 70 GHz (71-76 GHz) and 80 GHz (81-86 GHz) bands.  For more information, please contact Wes Wright (wright@khlaw.com; 202.434.4239).