Articles Posted in Telecommunications

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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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Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others.  This month’s issue includes:

  • Louisiana FM Radio Stations’ Late Filings Lead to $3,000 Proposed Fines
  • Telemarketer Fined $9.9 Million for Thousands of Spoofed Robocalls
  • Wi-Fi Device Manufacturer’s Equipment Marketing Violations End with Consent Decree and $250,000 Penalty

Late Filings Come at a Cost: FCC Proposes $3,000 Fines Against Louisiana FM Stations Over Late License Renewal Applications

Earlier this month, the Media Bureau issued Notices of Apparent Liability for Forfeiture (NAL) against two Louisiana FM radio licensees – one a supermax prison and the other a religious noncommercial broadcaster – for filing their respective license renewal applications late.  The FCC proposed a $3,000 fine for each of the late filings.

Section 73.3539(a) of the FCC’s Rules requires broadcast station license renewal applications to be filed four months prior to the license expiration date.  The prison station’s renewal application was due February 3, 2020 (the first business day following the February 1 deadline), but was not filed until May 29, 2020, mere days before its June 1 license expiration.  Similarly, the noncommercial broadcaster’s station, also subject to the February 3 deadline, did not file its renewal application until May 22.

Section 1.80(b) sets a base fine of $3,000 for failure to file a required form, which the FCC can adjust upward or downward depending on the circumstances of the situation, such as the nature, extent, and gravity of the violation.  In these cases, the FCC noted that neither licensee provided an explanation for their untimely filing, and ultimately proposed the full $3,000 fine for each late application.

Each NAL instructs the licensee to respond within 30 days by either: (1) paying the fine, or (2) providing a written statement seeking a reduction or cancellation of the fine along with any relevant supporting documentation.

Neither NAL, however, impacted the FCC’s review of the stations’ license renewal applications themselves.  According to the FCC, the late filings did not constitute “serious violations” and the FCC found no other evidence of a pattern of abuse.  As such, the Commission stated that it would approve each station’s renewal application in a separate proceeding assuming no other issues are uncovered that would preclude grant of a license renewal.

Thousands of Spoofed Political Robocalls End with $9.9 Million Fine

The FCC recently issued a Forfeiture Order, affirming a $9.9 million fine against a California telemarketer for violations of the Communications Act and the FCC’s rules regarding the use of spoofed phone numbers.

Section 227(e) of the Communications Act prohibits using a telephone caller ID service to “knowingly transmit misleading or inaccurate caller identification information with the intent to defraud, cause harm, or wrongfully obtain anything of value[.]”  Moreover, the Telephone Consumer Protection Act (TCPA) also protects consumers from unwanted calls by imposing numerous restrictions on robocalls.  Such restrictions include requiring the called party’s prior express consent for certain pre-recorded calls to wireless phones and, for pre-recorded messages to wireless or wireline phones, requiring the calling party to identify itself at the beginning of the message and provide a callback number.  Continue reading →

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Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month’s issue includes:

  • Wireless Internet Provider Hit With $25,000 Proposed Fine for Interference Caused by Network Equipment
  • Unauthorized License Transfers Lead to Consent Decree and $70,000 Civil Penalty
  • FCC Issues Notice of Violation to AM Daytimer Operating Past Sunset

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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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On April 4, 2020, the White House issued an Executive Order creating the Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector (the “Committee”). The Committee, chaired by the Attorney General, includes the Secretaries of Homeland Security and Defense, and any other executive department head so designated by the President, is seen as an attempt to formalize the long-standing “Team Telecom” review process that began in the 1990s. The Committee’s stated goal is similar to Team Telecom’s, i.e., to assist the Federal Communications Commission (“FCC”) in its public interest review of national security and law enforcement concerns that may be triggered by foreign investment in the US telecommunications sector. But there may be some notable differences. Continue reading →

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Twelve large telecom companies and the attorneys general of 50 states and the District of Columbia announced yesterday an agreement on eight voluntary principles that the companies will adopt to combat illegal and unwanted robocalls.  The announcement comes as regulators, telecom companies, and legislators continue to grapple with a worsening robocall problem that has become a significant concern for consumers, generating more complaints at the Federal Communications Commission and the Federal Trade Commission than any other topic.

Both the Senate and House have passed robocall bills that have yet to be reconciled to produce a bill both houses of Congress can agree upon.  In the meantime, the states are attempting to take the lead by working with telecom companies to establish what are effectively best practices.  These include:

  1. Making available free call-blocking and labeling tools to customers, and implementing free call blocking at the network level (network-level call blocking does not require any action from the consumer).
  2. Implementing STIR/SHAKEN, a technology used to provide authentication that calls are coming from a valid source.
  3. Monitoring network traffic for patterns consistent with robocalls.
  4. Investigating suspicious calls and calling patterns by, for example, initiating a traceback investigation or verifying that the commercial customer owns or is authorized to use the Caller ID number.
  5. Confirming the identity of new commercial VoIP customers by collecting information such as physical location.
  6. Requiring other telephone companies with which they contract to cooperate in identifying the source of suspected illegal robocalls.
  7. Working with law enforcement to trace robocalls by identifying a single point of contact for traceback requests, and responding to such requests as soon as possible.
  8. Communicating with state attorneys general to keep them apprised of trends in illegal robocalling and potential additional solutions to combat such robocalls.

For context and information on other recent actions taken to combat illegal and unwanted robocalls, read our post from June, where we discussed the FCC’s decision to permit voice service providers to implement call-blocking programs for subscribers on an opt-out basis.  Robocalling finally appears to have achieved the status of Public Enemy Number One, with Congress, states, and federal agencies all working to block the flood of calls inundating the public.

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The availability of broadband Internet service in apartment buildings, condominiums, and office buildings, or what the FCC calls multiple tenant environments (MTE), was the subject of a Notice of Proposed Rulemaking (NPRM) and Declaratory Ruling released on Friday of last week. Prior FCC decisions have attempted to strike a balance between promoting competitive access to tenants and preserving adequate incentives for the initial service providers to deploy, maintain, and upgrade infrastructure. For example, the Commission prohibits cable providers and telecommunications carriers from entering into contracts with MTEs that grant a single provider exclusive access to the MTE, but permits exclusive marketing agreements.

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For many consumers, answering a phone call from an unknown number has effectively turned into a gamble. Is it a potential new client? A medical emergency? Or, more likely, is it an incredible offer-to-stay-at-a-Caribbean-resort-of-your-choosing-please-hold-for-a-representative?

Not surprisingly, no issue generates more complaints at the Federal Communications Commission (FCC) and the Federal Trade Commission than robocalls – according to one estimate there were 47 billion illegal and unwanted calls in 2018. In response, the FCC last week released a Declaratory Ruling and Third Further Notice of Proposed Rulemaking (CG Docket No. 17-59, WC Docket No. 17-97) clarifying that voice service providers may offer consumers call-blocking tools through an opt-out process rather than an opt-in basis, as is typically done today. The FCC issued this clarification to address concerns that the majority of consumers are not requesting available call-blocking services.

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Originally intended as an “innovation band” for the testing of new wireless broadband services, the Citizen Broadband Radio Service (CBRS) was created in 2015 to permit commercial and federal spectrum users to operate in the same spectrum band. By utilizing smaller geographic areas for licenses, and short-term authorizations lacking an expectation of renewal, the CBRS was seen as a test bed for a variety of different wireless broadband services, including those of rural wireless broadband service providers.

To that end, the FCC created two new classes of licenses, Priority Access Licenses (PALs) and General Authorized Access Licenses (GAAs).  GAAs are permitted to operate anywhere within the CBRS band, so long as incumbent licensees and PALs are protected. PALs are required to protect the incumbent licensees, and will receive protection from GAAs. A key component of the CBRS licensing scheme is the implementation of a central database, the Spectrum Access System (SAS) (had enough acronyms yet?), maintained by third parties who will coordinate among licensees to prevent interference.

At its October meeting, the FCC revised its rules for the service with the stated goal of further encouraging the rapid development of 5G technologies.  The revised rules were adopted in response to petitions filed by CTIA and T-Mobile in 2017 which proposed several changes to the original 2015 rules.  The FCC sought comment on those proposals, which suggested several changes to the Priority Access Licenses, including adjusting the size of the geographic license, expanding the initial and renewal terms for licenses, and adopting performance standards. Although the FCC did not fully adopt the proposals, the revised rules make significant changes before the FCC has even issued the first CBRS authorization.

License Area: Under the 2015 rules, PALs were to be issued based on census tracts. The intent was to encourage local broadband development, especially in rural areas that may not receive service by nationwide carriers. By highlighting the difficulty of managing the licensing and build-out of service in 74,000 separate census tracts, CTIA, T-Mobile and several other parties argued that the FCC should expand the PAL geographic area to the more-manageable Partial Economic Areas. Ultimately, the FCC rejected that proposal, but instead expanded the PAL geographic area to county-based authorizations.

License Terms: In 2015, the FCC was concerned about the warehousing of spectrum, so it limited the license term of PALs in a particular geographic area to two sequential three-year periods, with no option for renewal. Several parties filed comments arguing that the three-year limit for licenses would serve as a roadblock to robust investment by wireless companies. The FCC has now agreed and extended the initial term to ten years. The FCC also modified its rules to permit licensees to renew their PAL authorizations.

Performance Standards: In light of its decision to extend the license term and permit renewals, the FCC imposed a “substantial service” performance standard for services operating in the CBRS band. For mobile and point-to-multipoint services, a licensee must demonstrate that it provides service to at least 50 percent of the licensed service area. For point-to-point service, a licensee must demonstrate that it provides at least four links in areas with a service population of 134,000 people or less, and at least one link per 33,500 people in service areas with a population greater than 134,000 people. This showing will be required when the licensee files its license renewal application.

Competitive Bidding: Finally, the FCC decided to grant PALs in accordance with its competitive bidding auction rules, permitting applicants to claim bidding credits as “small” or “very small business” entities, as a rural service provider, and/or if they propose to serve qualifying Tribal lands.

Support for the proposed rule changes was first signaled by then-Commissioner Pai and Commissioner O’Rielly in their concurring statements when the original rules were adopted in 2015. Because the FCC is still working on approval of the various SAS database proposals, and because there was a change in FCC leadership in January 2017, it was possible for the petitioning parties to seek revision of the 2015 rules before the FCC issued its first CBRS authorization. To date, the FCC has not issued authorizations for PALs or GAAs, but it is possible that new authorizations could be issued in 2019. Thus, while the rule changes will not impact any existing PAL or GAA licensees, these changes will have a significant impact on the operation of the CBRS band in the future.