June 1, 2017–The FCC tentatively plans to consider at its June 22 meeting three public safety items dealing with the First Responder Network Authority (FirstNet), a new Emergency Alert System (EAS) notification, and the agency’s caller ID rules to help authorities investigate threatening calls. Also on the eight-item tentative agenda released today are items dealing with granting a company access to the U.S. market for a satellite broadband network, facilitating greater consumer choice for broadband deployment in multiple tenant environments, eliminating payphone regulations, and clarifying information that cable providers must provide subscribers. Commissioners also are tentatively scheduled to consider an enforcement action.

In the FirstNet report and order in PS docket 16-269, the Commission tentatively plans to establish procedures for reviewing alternative plans filed by states that want to “opt out” and contract to build their own radio access networks (RANs) rather than have FirstNet’s partner, AT&T, Inc., build them. “The FCC’s Report and Order is an important step in the state plans process and FirstNet looks forward to reviewing the draft,” a FirstNet spokesperson said today.

Under the Middle Class Tax Relief and Job Creation Act of 2012, which established FirstNet, governors have 90 days after receiving the FirstNet state plan to notify the government that they want to opt out of having FirstNet’s partner build a RAN in their states.

According to the law, within 180 days after that, states must complete a request for proposals (RFP) and submit an alternative plan for approval by the FCC, which is charged with reviewing whether plans would comply with minimum technical interoperability requirements. If the FCC approves a state plan, the state has to apply to the National Telecommunications and Information Administration for authority to secure a spectrum capacity lease agreement with FirstNet. States seeking to build their own RANs may also apply to NTIA for grant funds to help cover those costs. “If the FCC disapproves the plan, the state must accept FirstNet’s plan, but may appeal to the U.S. District Court for the District of Columbia,” the FCC noted in a fact sheet on its draft order.

FirstNet, more than a half-dozen states, vendors, and groups weighed in last year (TR Daily, Oct. 24, 2016) on a notice of proposed rulemaking released by the FCC seeking comments on the rules it should it adopt to evaluate alternative plans (TR Daily, Aug. 26, 2016).

Among the issues debated were whether a state must have a contract in place with a vendor before it submits an alternative plan or only have issued an RFP and whether it has 180 days to do that, whether states should be permitted to amend or refile plans, and whether the Commission should establish a shot clock for acting on alternative plans. FirstNet has said it plans to deliver draft state plans this month and final plans by the end of September.

In the draft order, the FCC says that the 90-day period for a state to provide opt-out notification should begin when it is notified by FirstNet of its state plan. The FCC asked FirstNet to notify the Public Safety and Homeland Security Bureau when that notice is provided. “With respect to the process for states to submit opt-out notifications to the Commission, we require that either the Governor or the Governor’s duly authorized designee provide notification of the Governor’s decision,” it says. “While the statute clearly assigns sole responsibility to the Governor for the decision whether to opt in or opt out, we do not believe Congress intended for the Governor to be responsible for the purely ministerial act of transmitting notice of the decision to the Commission. Moreover, we do not believe Congress intended to override the Governor’s ability to delegate assessment and evaluation of the state plan, so long as the Governor remains accountable for the ultimate decision.”

The FCC also says that “we believe that it is appropriate to require states to ‘develop and complete’ RFPs within this [180-day] time period by (1) issuing an RFP providing for full deployment of the state RAN (i.e., the RFP must cover the actual network build, not merely development of a plan) and (2) receiving firm commitment bids on the RFP; and (3) selecting a winning bidder. Different bidders may respond to RFPs with different designs, and these differences may lead to amendments to the RFP or refinements in the final project or otherwise prove to be significant for the interoperability plan required to be submitted for Commission review.

“With respect to the timing of submission of state alternative plans, we conclude that states should have some additional time beyond the 180-day RFP completion period to assess RFP bids and finalize their alternative plans for Commission consideration,” the order says, adding that “we believe it reasonable to afford states that have developed and completed RFPs an additional 60-day period to submit alternative state plans to the Commission.”

The draft order also would adopt a tentative conclusion in the NPRM concerning what alternative plans must address. “Plans filed with the Commission must, at a minimum, (1) address the four general subject areas identified in the Act (construction, maintenance, operation, and improvements of the state RAN), (2) address the two interoperability requirements set forth in Sections 6302(e)(3)(C)(i)(I) and (II) of the Act, and (3) specifically address all of the requirements of the Technical Advisory Board for First Responder Interoperability,” it says. “In finding that the 180-day ‘develop and complete’ requirement is also a threshold determination for Commission consideration of an alternative plan, we also determine that a state alternative plan must certify and provide evidence that the 180-day timeframe was met.”

As to the treatment of alternative plans, the FCC says, “In light of the state-specific nature of the opt-out process, we will treat each state opt-out application as a separate restricted proceeding under our rules. In this respect, we note that these proceedings are similar in nature to specific spectrum license applications or adjudicatory proceedings, rather than rulemakings, so it is appropriate to initially limit immediate participation to those directly impacted. The parties to these proceedings will initially include the state filing the application, FirstNet, and NTIA.”

“At the conclusion of the opt-out notification period, the Bureau will issue a Public Notice identifying the states that have filed opt-out notifications with the Commission and establishing individual dockets for each opt-out proceeding,” the item added. “Other persons or entities seeking to participate in a proceeding may petition the Commission for leave to intervene based on a demonstrated showing of interest. Such a petition must be filed within 30 days of the Public Notice, identify the specific docket in which the filer wishes to participate, and clearly detail the filer’s interest in the proceeding. The petition must include an explanation of the filer’s interest in the outcome of the particular state’s application, as well as an explanation of how the filer’s interests are not otherwise represented by the state, FirstNet, or NTIA or how its participation would otherwise aid the Commission in a full evaluation of the facts.” The FCC says its rules on the treatment of confidential information are adequate to protect any proprietary information in alternative state plans.

The draft order also addresses a shot clock. “While there is no requirement that the Commission place a shot clock on itself for action, we find it appropriate to establish a 90-day aspirational shot clock for Commission action, which will start upon issuance of the ‘accepted for filing’ public notice for each alternative plan,” the FCC says. “The 90-day shot clock will establish clear expectations for the Commission and for the parties involved to encourage prompt action and avoid delay. We do not agree with the suggestion that the Commission establish a much shorter shot clock that would require a decision within 10 business days. This underestimates the potential complexity of these technical filings, could inhibit the Commission’s ability to evaluate fully all material relevant to a decision, and would clearly impede the ability of the Commission, NTIA, and FirstNet to consider the application and for the state to respond to any concerns.”

The FCC also adopted “the proposal set out in the NPRM and will confine our review to the RAN elements of state alternative plans, which we define as all the cell site equipment, antennas, and backhaul equipment, based on commercial standards, that are required to enable wireless communications with devices using the public safety broadband spectrum including standard E-UTRAN elements (e.g., the eNodeB) and including, but not limited to, backhaul to FirstNet designated consolidation points. Thus, we will not examine plan elements pertaining to equipment or applications, or issues related to coverage/financing, etc. These elements are more appropriately the focus of NTIA’s subsequent review of the plan as directed by the Act. We also agree with commenters that if the Commission disapproves an alternative plan, there is no opportunity to refile with the Commission. The statutory remedy of appeal to the U.S. District Court for the District of Columbia is the only remedy available at that point.”

“We adopt the proposal the Commission made in the NPRM and will confine our review of a state alternative plan’s compliance with the second prong of the statutory test solely to compliance with those RAN-related network requirements specified by FirstNet in its forthcoming network policies that are necessary to ensure interoperability with the FirstNet network,” the FCC also says. “Our review will be a purely technical review, consisting of a snapshot evaluation based on the application. We find the best means of conducting our review within the terms of the statute is to require a ‘paper’ compliance showing only. Therefore, we will not require states to demonstrate interoperability in the field, which would be overly prescriptive and unachievable in the timeframes given. We also affirm our view stated in the NPRM that state plans that would require FirstNet to alter its network by definition do not meet the second interoperability prong of the statutory test. To find otherwise creates opportunities for delay and increased costs.”

The FCC also says it would “require states to include a self-certification by the Governor or their designee confirming the state’s adherence to FirstNet network policies identified by FirstNet as relating to technical interoperability. We expect the certification to be supported where appropriate with specific references to the RFP and/or bid responses supporting the requirement identified. However, we will not require third party review of certifications.”

The item also says that “[t]he full Commission will issue a separate Order for each opt-out request. Each order will provide a brief explanation of the Commission’s decision based on the statutory criteria as applied to the information submitted in the record. In addition, if any decision relies on confidential information, we will redact the public order as necessary. We believe this approach will provide a sufficient basis for judicial review under the narrow scope provided by Section 6302(h).”

The Commission also tentatively plans to consider a notice of proposed rulemaking that proposes to amend the agency’s EAS rules to add the event code “BLU” for Blue Alerts. The new alert would enable the dissemination of information when law enforcement officers have been killed or seriously injured, are in imminent danger, or are missing.

At an event last month held at the Justice Department to announce the launch of the National Blue Alert Network, FCC Chairman Ajit Pai announced the circulation of the NPRM for consideration at the June 22 meeting (TR Daily, May 19).

A fact sheet on the draft item in PS docket 15-94 says it would also (1) “[s]eek comment on whether the EAS is an effective means of delivering Blue Alerts”; (2) “[s]eek comment on whether a dedicated Blue Alert EAS event code would facilitate the implementation of Blue Alerts in a compatible and uniform manner nationwide”; (3) “[s]eek comment on whether existing EAS event codes are sufficient to convey Blue Alert information”; (4) “[s]eek comment on whether, and if so how, adopting a Blue Alert EAS event code would impact Wireless Emergency Alerts”; and (5) “[s]eek comment on whether a dedicated Blue Alert EAS event code would increase public recognition of Blue Alerts.”

Comments on the NPRM would be due 30 days after “Federal Register” publication and replies 30 days after that.

Rounding out the public safety–related items on the tentative agenda released today is a draft NPRM in CG docket 91-281 that would seek input on rule changes to allow the disclosure of blocked caller ID information “to aid law enforcement in investigating threatening calls.” It also would leave in place a waiver that is currently in effect for Jewish Community Centers, pending rule changes.

Earlier this year, the FCC’s Consumer and Governmental Affairs Bureau granted JCCs and carriers that serve them an emergency, temporary waiver of the Commission’s prohibition on terminating carriers’ providing the called party with the number from which an interstate call originated if the caller has invoked caller ID blocking for the call or the line (TR Daily, March 3).

The bureau’s action followed a request by Senate Minority Leader Charles Schumer (D., N.Y.) for Mr. Pai to do “everything” in the agency’s power to address recent bomb threats made against JCCs in New York “and across the country” from phones with caller ID information blocked, which has stymied local law enforcement investigations (TRDaily, March 1).

At the time, the bureau also sought comment on whether to make the waiver permanent.

FCC rules that have been in place for more than 20 years require carriers generally to pass calling party number (CPN) on interstate calls that use Signaling System 7 — the SIP (session initiation protocol) of the pre-Internet world. However, in section 64.1601(b) of its rules, the agency prohibited carriers from passing CPN to the called party when the caller has requested privacy, recognizing, among other things, the potential for personal safety risk to law enforcement, domestic abuse victims, and others.

The draft caller ID NPRM proposes amending the agency’s rules to allow disclosure with the need for a waiver in situations involving threatening calls. “In so doing, we recognize the privacy interests of legitimate callers who may have valid reasons to block their telephone numbers. We limit our proposed exemption to our current rule to those situations that involve threatening calls of a serious and imminent nature. Only law enforcement personnel and others responsible for the safety and security of the threatened party will have access to otherwise protected Caller ID information in the case of threatening calls,” the draft NPRM says.

It would “seek comment on how evaluations should be made to determine whether a threat meets our proposed definition of a threatening call, including who should make that evaluation” and on “any additional options that might aid law enforcement and threatened parties in obtaining the information they need to identify threatening callers. In addition, we seek comment on how to facilitate the provision of CPN to threatened entities in a manner that minimizes administrative burdens on carriers while ensuring that such information is provided to the threatened party and law enforcement in a timely manner.”

Regarding the privacy interests of calling parties, the draft NPRM asks “whether we should require anyone reporting a threatening call for purposes of obtaining otherwise restricted CPN to do so in conjunction with a law enforcement agency, so as to provide some assurance that the called party is not attempting to circumvent the privacy obligations of the rule by reporting a false threat. Should access to restricted CPN be limited only to law enforcement authorities? Would the risk of abuse be further reduced by limiting application of this exemption only to non-residential entities such as schools, religious organizations, and other public and private business and governmental entities?”

The draft caller ID NPRM also says, “In addition, we determine that the temporary waiver of section 64.1601(b) of the Commission’s rules previously granted to Jewish Community Centers (JCCs) and any carriers that serve JCCs remains in place until the Commission determines whether to amend its rules as described above. The record provides good cause to maintain that waiver because of the large number of recent threatening calls targeting these facilities, as well as the substantial disruption and fear caused as a result.”

Comments on the draft caller ID NPRM would be due 30 days after publication in the “Federal Register.”  Replies would be due 30 days after the comments.

Commissioners also are tentatively scheduled to consider an order and declaratory ruling in SAT-LOI-20160428-0041 granting a request from WorldVu Satellites Limited (d/b/a OneWeb) for access to the U.S. market for its proposed non-geostationary satellite (NGSO) fixed-satellite service (FSS) constellation. The company says the United Kingdom-based 720-satellite constellation will allow it to offer global broadband connectivity.

“The operations proposed will be in the 10.7-12.7 GHz, 14-14.5 GHz, 17.8-18.6 GHz, 18.8-19.3 GHz, 27.5-29.1 GHz, and 29.5-30 GHz frequency bands. In granting this request, we address concerns expressed by commenters seeking various conditions on the grant and partially deny two Petitions to Deny,” says the draft item. “With this grant — the first of its kind for a new generation of large, non-geostationary-satellite orbit, fixed-satellite service (NGSO FSS) systems — the Commission facilitates OneWeb’s goal ‘to provide high-speed, affordable broadband connectivity to anyone, anywhere’ in the United States and thereby advances the Commission’s mandate ‘to make available, so far as possible, to all the people of the United States . . . rapid, efficient, Nation-wide, and world-wide’ communication services.”

OneWeb’s petition for declaratory ruling drew opposition from parties in comments filed last year (TR Daily, Aug. 16, 2016). A fact sheet on the draft item notes that it includes “conditions intended to protect or accommodate other operations …” For example, (1) “OneWeb operations will protect GSO operations by meeting equivalent power-flux density limits”; (2) “OneWeb operations will comply with the avoidance of inline interference spectrum sharing method specified in 47 CFR § 25.261(b)-(d) with respect to any NGSO system licensed or granted U.S. market access pursuant to the processing round initiated in Public Notice, DA 16-804”; (3) “OneWeb will protect terrestrial operations by meeting power-flux density (PFD) limits”; (4) “OneWeb operations will protect UMFUS [upper microwave flexible use service] operations in the 27.5-28.35 GHz frequency band in accordance with the rules adopted in FCC 16-89”; (5) “OneWeb operations will be authorized in [the 17.8-18.6 GHz band] only on a non-interference, non-protected basis”; and (6) the item would “[r]equire modification of OneWeb operations to bring them into accordance with any future rules or policies adopted by the Commission.”

Also on the tentative agenda is a draft notice of inquiry in GN docket 17-142 to seek input on “ways to facilitate greater consumer choice and enhance broadband deployment in multiple tenant environments (MTEs),” including addressing state and local regulations that inhibit broadband deployment and competition in MTEs and various contractual arrangements between MTE owners and broadband providers, such as exclusive marketing rights, bulk billing services, revenue sharing, and exclusive wiring access.

The draft NOI notes 2016 complaints by Incompas and ITTA about contractual arrangements that pose obstacles for new entrants, as well as a recent request by the Multifamily Broadband Council for the FCC “to preempt a San Francisco, California ordinance requiring MTE owners to permit competing broadband providers to use existing wiring in the MTE upon request from an occupant” (TR Daily, Feb. 27).

Comments on the draft MTE NOI would be due 30 days after publication in the “Federal Register,” and replies would be due 30 days after initial comments.

Chairman Pai also plans to seek a vote on a draft NPRM and order in WC dockets 17-141 and 16-132 and CC docket 96-128 that would propose eliminating an annual audit and reporting requirement for carriers that complete calls from pay phones and that would waive the audit and reporting requirement pending an FCC decision whether to eliminate the requirement.

The requirement was adopted in 2003 to ensure compliance with the pay phone call compensation mandate in the 1996 Telecommunications Act and FCC rules implementing the statutory mandate.  In April, however, Sprint Corp. and Cincinnati Bell both requested waivers from the requirement, citing “the tremendous decline in payphone calling, the lack of a similar decline in the cost of the annual audit, and the companies’ consistent compliance with the Commission’s payphone compensation rules.”

The draft pay phone NPRM seeks input on such issues as whether “the precipitous decline in payphone usage supports modernizing our compensation compliance regime by eliminating the annual audit requirement,” on the costs of compliance, and on “on the amount of payphone compensation that Completing Carriers pay relative to the cost of compliance.”  It notes that Cincinnati Bell says that “the annual audit cost is currently five times the amount of payphone compensation it pays annually.”

Also teed up for a June 22 vote is a draft declaratory ruling that would clarify that cable operators may comply with the “written” subscriber-notification requirement in section 76.1602(b) of the FCC’s rules “by distributing the annual notices via e-mail to a verified e-mail address that includes a mechanism for customers to opt out of e-mail delivery and continue to receive paper notices.”

The tentative agenda also includes a vote on an Enforcement Bureau action.  Unlike the other items, for legal reasons the FCC does not release the draft text of enforcement actions prior to adoption, to protect parties that have not yet been found liable or apparently liable for violations of the agency’s rules. —Paul Kirby, paul.kirby@wolterskluwer.com, and Lynn Stanton, lynn.stanton@wolterskluwer.com

Courtesy TRDaily