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Bringing to a close the process initiated with the adoption of the Secure and Trusted Communications Act of 2019, the FCC’s Public Safety and Homeland Security Bureau released its list of communications equipment and services that it has deemed to pose an unacceptable risk to U.S. national security. U.S.-based service providers are prohibited from receiving federal subsidies for purchasing the listed communications equipment or services (Covered List), and service providers will be given an opportunity to receive federal funds to subsidize the removal and replacement of the communications equipment and services included on the Covered List.

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Today, the deadline was established for filing comments in response to a Notice of Proposed Rulemaking (NPRM) pertaining to the marketing, sale and importation of radiofrequency (RF) devices that have not yet obtained equipment authorization.  Specifically, the NPRM proposes to allow manufacturers to make conditional sales of pre-authorization devices directly to consumers, and would also permit the importation of a limited number of pre-authorization RF devices for new types of pre-sale activities.  Last month, the FCC unanimously voted to approve the NPRM in response to a Petition for Rulemaking filed by the Consumer Technology Association (CTA).

Section 302 of the Communications Act empowers the FCC to create rules governing the interference potential of devices capable of emitting radio frequency energy and which can cause harm to consumers or other radio communications.  This authority covers multitudes of everyday consumer objects, from toaster ovens to the most advanced mobile communication devices. To keep pace with the speed of innovation and consumer demand, the FCC regularly updates its equipment authorization rules for such devices.  In its petition, CTA argued that the FCC’s existing rules act as a “speed bump” in the race to develop and deploy new products and do not reflect the current direct-to-consumer online marketplace. Continue reading →

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The Continuing Appropriations Act, 2021 and Other Extensions Act, a $2.3 trillion COVID-19 relief and omnibus government funding package, contains several noteworthy communications-related measures, including $7 billion in funding for broadband initiatives and expanded television and radio station eligibility for the Paycheck Protection Program administered by the Small Business Administration (SBA).

$7 Billion in Broadband Funding

The legislation’s broadband provisions target funding to both new and existing programs, responding to immediate broadband access and affordability challenges intensified by the pandemic, while also addressing longer-term broadband deployment and network security issues. Specifically, the legislation will provide additional funding for telehealth, create an emergency broadband subsidy program for eligible low-income households, fund increased broadband deployment on Tribal lands and in unserved areas, and support the removal and replacement of communications network equipment and services that pose risks to national security. An overview of these provisions is included below.
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October 1, 2020 is the deadline for TV stations to (1) upload to their online Public Inspection Files their must-carry/retransmission consent carriage election statements for the three-year cycle covering January 1, 2021 to December 31, 2023, and (2) notify MVPDs of any changes to their election status.

As we previewed in May, the upcoming October 1 deadline marks the first under the FCC’s new electronic notice system, which replaces the previous requirement that eligible broadcasters mail paper notices to cable and satellite providers regarding carriage elections by October 1 every three years. This year, the FCC’s new procedures simplify this notification process.

Under the new approach, commercial TV stations must place statements electing either must-carry or retransmission consent in their online Public Inspection File by October 1 every third year.  A separate notice to MVPDs is only required when the station wishes to change the status it elected in the prior three-year cycle.  Similar to the obligation imposed on broadcasters (discussed in more detail here), the new rules require cable providers to maintain up-to-date contact information for carriage-related issues in the FCC’s Cable Operations and Licensing System (COALS) database (which the FCC makes available in the online Public Inspection Files of cable providers).  Satellite providers must place such information directly in their online Public Inspection File, making it easier for broadcasters to identify the appropriate contact for election notices.

To that end, stations opting to change their election with respect to any MVPD must send notice of the change to the e-mail address provided by the relevant MVPD, with a copy to the FCC at ElectionNotices@FCC.gov, and attach a copy of the election change notice to the election statement uploaded to the station’s online Public Inspection File.  In response, MVPDs are supposed to confirm receipt of the change notice.  The FCC has said that if broadcasters fail to receive such confirmation, and are unable to reach anyone at the phone number provided by the MVPD, the change notice will still be considered timely if placed in the station’s Public Inspection File, and the proper FCC e-mail address copied, by the October 1 deadline.

Similarly, the FCC simplified the election process for noncommercial educational (“NCE”) stations by eliminating the triennial election notice requirement after October 1, 2020.  As a result, once NCE stations place their election statements requesting carriage in their online Public Inspection File by the October 1, 2020 deadline, no further triennial notices will be required.  While separate carriage notification procedures were adopted for low power television stations and NCE translator stations that qualify for must-carry status, but which do not have a Public Inspection File, the FCC yesterday waived the carriage notice requirement with regard to NCE educational translators.  In doing so, it noted the unique challenges sending such notices would pose for these stations, as they merely rebroadcast rather than originate programming.

For veterans of the cumbersome certified mail approach previously used for many years, the new approach seems almost too easy.  If only that were true of all FCC rule changes.

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On July 30, 2020, the FCC released a Public Notice and Final Cost Category Schedule for the C-Band Relocation, and established August 31, 2020 as the deadline for C-Band earth station licensees to submit their lump sum election notices.  We discussed the Public Notice and Schedule here.

In response to a request from the Society of Broadcast Engineers, the FCC announced today that the deadline for submitting election notices will be extended until September 14, 2020.  The FCC still has under review a separate request by ACA Connects to stay the deadline entirely while the FCC reviews an Application for Review filed by that organization.

In the meantime, C-Band earth station licensees have an additional two weeks to consider their options.

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On Monday, August 17, 2020, the Department of Justice, the Federal Aviation Administration, the Department of Homeland Security, and the Federal Communications Commission released a joint advisory on the acquisition and use of counter-drone equipment by non-federal public and private entities. In the Advisory, the agencies highlight federal criminal laws and other federal statutes and regulations that may be implicated by the use of such technology, specifically for drone detection and mitigation.

The Advisory comes at a time when the United States is seeing a significant uptick in the use of drones or unmanned aircraft systems (UAS). Last week, the FAA noted that more than 1.6 million commercial and recreational drones are registered with the agency, and that it has certified more than 188,000 remote aircraft pilots. This widespread adoption of drones has heightened security concerns over the risk that they could present to the public, particularly at widely attended outdoor events such as sporting events or concerts. In addition to the use of drones in warfare, high-profile domestic incidents, including this week’s close call between a drone and Air Force One over the Washington area, present a case for the need for effective and widely available counter-UAS measures. As tech companies race to develop solutions, federal agencies are cautioning the public to be mindful of the possible legal restrictions of selling and operating counter-UAS technology.

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The FCC took another significant step in the C-Band reallocation process, releasing its Final Cost Category Schedule for Relocation Expenses of C-Band (3.7-4.2 GHz) satellite licensees. The Public Notice accompanying the cost schedule also established August 31, 2020 as the deadline for C-Band earth station licensees to elect whether they wish to receive a lump sum reallocation payment.

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On April 2, 2020, the FCC established the COVID-19 Telehealth Program (Program), which will guide the disbursement of $200 million to health care providers for connected care services to their patients. We published our summary of the Program on April 3, 2020, and followed up with a discussion of the FCC’s application procedures on April 9, 2020, and a review of the first wave of proposals granted on April 16, 2020.

With the fourth tranche of proposals approved on April 29, 2020, the FCC has now granted 30 funding proposals in 16 states. The FCC has pledged to review and grant eligible proposals on a rolling basis until either the FCC runs out of funds or the national pandemic ends.

As discussed in our prior alerts, the CARES Act of 2020 provided $200 million for the FCC to distribute to eligible parties with proposals to provide connected care services in response to the COVID-19 pandemic. The funds could be used for (i) telecommunications services and broadband connectivity services, (ii) data and information services, and (iii) internet-connected devices and equipment.

While the FCC has not released for public review most of the approved proposals, based on the public notices that have been released, it is clear that the FCC is willing to provide funding for proposals to implement connected care services and devices. Most of the approved proposals requested funding for a combination of:

  • Remote patient monitoring;
  • Portable equipment for screening at remote centers and nursing homes;
  • Video services including patient visits; and
  • Connected devices (tablets) for staff and high-risk patients.

On May 1, 2020, the FCC announced that, as of May 3, 2020, all applicants must submit their applications through the online portal.

Recently, there has been a push by groups to expand the pool of eligible entities. The American Hospital Association requested that the FCC reconsider its decision to only provide funding for nonprofit applicants. Other organizations like HCA Healthcare and the American Dental Association supported the expansion of eligible entities, arguing that the COVID-19 pandemic has affected all health care providers (including dentists) and that the CARES Act did not require the nonprofit limitation. The U.S. Chamber of Commerce also supported the expansion of funding opportunities, noting that 20 percent of the nation’s hospitals are prevented from filing proposals for COVID-19 funds.

It is unclear whether the FCC will adjust its eligibility standards to include for-profit hospitals and medical practices, especially in light of the availability of funds that have yet to be allocated. We will continue to monitor the program’s progress and report any changes in the FCC’s rules.

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On March 31, 2020, the FCC adopted a Report and Order to implement the COVID-19 Telehealth Program.  The Program was established in the CARES Act, and the FCC was appropriated $200 million to provide to eligible medical facilities to provide telehealth services to their patients.

A more detailed discussion of the FCC’s Report and Order creating the Program, and a discussion of the procedures to apply for funding, can be found here and here.  The Program’s intended purpose is to provide emergency funding for expenses arising from the COVID-19 pandemic that fall outside of the normal procurement process.  Under the new program, non-profit hospitals, teaching hospitals, rural health clinics and skilled nursing facilities can apply for funds from the FCC to be used for voice and internet service, remote patient monitoring platforms, and Internet-connected devices and equipment.

The window for submitting applications opened on Monday, April 13th, and the FCC announced today that the first wave of applications had been granted.  Below is a summary of each approved funding proposal:

  • Grady Memorial Hospital in Atlanta, Georgia, was awarded $727,747 to implement telehealth video visits, virtual check-ins, remote patient monitoring, and e-visits to patient’s hospital rooms, which it said would enable it to continue to provide high quality patient care, keep patients safe in their homes, and reduce the use of personal protective equipment during the COVID-19 pandemic.
  • Hudson River HealthCare, Inc., in Peekskill, New York, was awarded $753,367 for telehealth services to expand its COVID-19 testing and treatment programs serving a large volume of low-income, uninsured, and/or underinsured patients throughout southeastern New York State, encompassing the Hudson Valley, New York City, and Long Island.
  • Mount Sinai Health System, in New York City, was awarded $312,500 to provide telehealth devices and services to geriatric and palliative patients who are at high risk for COVID-19 throughout New York City’s five boroughs.
  • Neighborhood Health Care, Inc., in Cleveland, Ohio, was awarded $244,282 to provide telemedicine, connected devices, and remote patient monitoring to patients and families impacted by COVID-19 in Cleveland’s West Side neighborhoods, targeting low-income patients with chronic conditions.
  • Ochsner Clinic Foundation, in New Orleans, Louisiana, was awarded $1,000,000 for telehealth services and devices to serve high-risk patients and vulnerable populations in Louisiana and Mississippi, to treat COVID-19 patients, and to slow the spread of the virus to others.
  • UPMC Children’s Hospital of Pittsburgh was awarded $192,500 to provide telehealth services to children who have received organ transplants and are thus immune-compromised and at high risk for COVID-19.

The FCC will continue to process applications until the earlier of (i) granting proposals for the full $200 million budgeted; or (ii) the end of the national emergency.

Even though the FCC stated that it would likely not grant proposals for more than $1 million, considering the rapid processing and approval of the first seven applications, interested parties will want to move quickly to submit their applications.

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The FCC announced the opening of a new filing window to modify pending applications proposing new digital Low Power TV and TV translator service in rural areas.  This filing window will permit applicants with long-pending applications who have subsequently been displaced by the Incentive Auction and the repacking process to submit amended proposals, subject to certain conditions.

In June 2009, the FCC announced a filing window for new digital LPTV and TV translator stations to serve rural areas.  The window opened on August 25, 2009, and the plan was for the FCC to permit similar new, non-rural proposals to be filed starting on January 25, 2010.  However, at the same time that the FCC was accepting applications for new rural LPTV and TV translator stations, it was also considering the adoption of the National Broadband Plan, which, inter alia, proposed to re-purpose a portion of the UHF television spectrum.  The FCC first delayed, and then cancelled, the “non-rural” filing window, and imposed a freeze on the filing and processing of the rural proposals.

As a result, there are now a significant number of pending applications for new LPTV and TV translator stations to serve rural areas that have been frozen since 2010.  The new filing window, which will be open between December 2, 2019 and January 31, 2020, will permit applicants to submit amendments that (i) specify a new digital channel in the revised TV band and/or (ii) propose a change in transmitter site of 48 kilometers or less.  The amendments must protect full-power, Class A television and LPTV/translator stations that have been licensed or that hold valid construction permits, along with any previously-filed applications for those services.  Moreover, any amendment must continue to qualify as a rural service proposal.

After the window closes on January 31, 2020, the FCC will provide mutually-exclusive applicants the opportunity to resolve conflicting proposals through settlement or engineering amendments.  If an engineering conflict cannot be resolved, the FCC will conduct an auction.  The FCC will dismiss all pending applications that do not submit an in-core amendment during the filing window.

Given the holiday season and the short turnaround on filing amendments, applicants with long-pending applications should move quickly to find a new channel and/or tower site that will permit the FCC to process their application.