The Rafael Ramos and Wenjian Liu National Blue Alert Act of 2015 encourages states and localities to develop plans for how to distribute information about when a law enforcement officer is seriously injured, killed, or missing in the line of duty. To facilitate that effort, the law directs the Attorney General to establish a national Blue Alert communications network within the Department of Justice and coordinate with the FCC to executive its directive. Based on recommendations from the DOJ COPs Office, the FCC issued a notice of proposed rulemaking in June proposing to revise the existing emergency alert system (“EAS”) to include a new event code (BLU) for the transmission of Blue Alerts to the public.

The EAS is a national public warning system that requires TV and radio broadcasters, cable television systems, wireless cable systems, satellite digital audio radio service providers, direct broadcast satellite service providers and wireline video service providers to deliver important emergency information during national or local emergencies. In the Order, the FCC concludes that the EAS is an effective and technically feasible mechanism for distributing Blue Alerts. The FCC amends section 11.31(e) of its rules on EAS to adopt a new dedicated BLU event code to be used when there is actionable information about a missing or injured law enforcement officer. The FCC also allows for Blue Alerts to be sent via the Wireless Emergency Alert (“WEA”) system, a separate public safety system that allows wireless customers with certain devices to receive geographically-targeted text-like alerts of threats. The FCC found that an incident that would qualify for an imminent threat alert via WEA would also qualify for a Blue Alert.

There were concerns raised by both Commissioners Rosenworcel, who partially dissented from the Order, and O’Rielly about the cost-benefit analysis undertaken by the FCC. In the Order, the FCC found that implementing the BLU alert outweighed the potential costs, which mostly relate to software updates that would have to be made outside of the normal course of planned upgrades. However, in assessing the benefits of the proposal, the FCC put a numerical value on the lives that would potentially be saved by the rule change. According to Rosenworcel, “this cold calculus is neither needed nor smart” because “[t]here is a way to do cost-benefit analysis thoughtfully and with dignity for [officers.]” Commissioner O’Rielly, who voted in favor of the Order, expressed skepticism at the impact the Order would have and the idea of using the value of a “statistical life” in the analysis.

The Order provides an implementation period of 12 months from the effective date of the Order to enable the delivery of Blue Alerts over EAS, and an additional 6 months from the effective date to be able to deliver these alerts over WEA.

Each agenda item is summarized below. Note: these brief summaries are based on draft items, which may differ from the final items released following the Open Meeting. Please check with Kelley Drye after the meeting for more information on the items below.

“Blue Alerts” Notice of Proposed Rulemaking (NPRM)

Chairman Pai has set forth a proposal to amend the Commission’s Emergency Alert System (EAS) rules to add a dedicated event code, “BLU,” for “Blue Alerts.” This is modelled on the highly successful Amber Alerts used during instances of child abduction. Blue Alerts would notify the public when there is actionable information related to a law enforcement officer who is missing, seriously injured or killed in the line of duty, or if there is an imminent and credible threat to an officer. The Department of Justice has previously identified the need for a dedicated Blue Alert EAS code. The Commission is proposing that any required technical changes to equipment be made within 6 months of the effective date of the rules.

The Commission seeks comment on several issues, including the effectiveness of the EAS to deliver Blue Alerts, whether Blue Alerts can be sufficiently geographically targeted, how Blue Alerts can be incorporated into states’ existing Blue Alert plans, the proposed alerts’ costs and benefits, and how the public will likely respond to Blue Alerts.

Report and Order on FirstNet Opt-Out Plans

Under the Middle Class Tax Relief and Job Creation Act of 2012, states that are opting out of the First Responder Network Authority’s (FirstNet’s) national plan are required to obtain FCC approval for their own radio access network (RAN) plan. The FCC will determine if the plan meets interoperability requirements. If the FCC rejects a state’s alternative plan, the state must accept FirstNet’s plan.

The draft Report and Order gives states 90 days following receipt of FirstNet’s plan to notify the Commission, FirstNet, and the National Telecommunications and Information Administration (NTIA) of their decision to opt-out of FirstNet’s plan. After notifying all parties of its decision, a state has 180 days to conduct an RFP process (including picking a winner), and then an additional 60 days to further develop the alternative plan it must submit to the FCC.

States’ alternative plans must address the RAN construction, maintenance, operation, and improvements on the existing state RAN. They must also address interoperability requirements, and all requirements of the Technical Advisory Board for First Responder Interoperability. The FCC establishes for itself an “aspirational” 90-day shot clock to review states’ alternative plans. This review will solely focus on the RAN elements, and will not include elements related to user equipment, or issues related to coverage or financing. The Commission believes these other factors will be adequately addressed by NTIA’s subsequent review.

NPRM on Law Enforcement Accessing Caller ID Information

This NPRM would allow law enforcement and interested parties to have quick access to blocked caller information in cases of threatening phone calls. The Commission argues that threatening callers have no legitimate privacy interest. The Commission has previously found public interest reasons to waive the rules, such as calls to 911, a poison control line, or other public emergency lines.

The rules propose to define a “threatening call” as any call that includes a threat of serious and imminent unlawful action posing a substantial risk to property, life, safety, or health. The Commission seeks comment on whether it should require anyone reporting a threatening call do so in conjunction with a law enforcement agency, to prevent individuals from circumventing existing caller ID privacy protections. The Commission also asks what requirements it should impose on recipients of caller information to safeguard it.

This NPRM follows an earlier waiver of the rules following a series of bomb threats against Jewish community centers across the country.

Order and Declaratory Ruling on WorldVu Satellites Limited, d/b/a OneWeb’s Request to Launch an NGSO Constellation for Broadband Service

In a draft Order and Declaratory Ruling, the Commission proposes to grant OneWeb access to the U.S. market with a proposed Ku- and Ka-band non-geostationary-satellite orbit (NGSO) constellation in the fixed-satellite service (FSS) to provide broadband service. This would be the first Commission approval of an anticipated new generation of NGSO constellations that seek to provide low latency broadband connectivity across the United States and enhance prospects for rural broadband access. Eleven other applications were filed in November 2016 in response to the processing round initiated when the FCC put the OneWeb petition for U.S. market access on public notice in July 2016. Those applications remain pending and would not be affected by adoption of the draft Order, although ten of the eleven applications were accepted for filing on May 26, 2017.

The proposed grant to OneWeb of U.S. market access would be conditioned on, among other things, ITU coordination, power limits, avoidance of in-line interference, orbital debris mitigation, the outcome of pending and future rulemakings, and satisfaction of bond and milestone requirements.

The draft Order would grant OneWeb several waivers. OneWeb seeks waivers to operate on a non-interference, secondary basis in the 17.8-18.3 GHz band (not allocated for FSS operations) and the 18.3-18.6 GHz band (allocated for FSS operations, but not NGSO systems). OneWeb also seeks a waiver allowing shared operations between OneWeb and other NGSO constellations in the 17.8-18.6 GHz, 27.5-28.6 GHz, and 29.5-30 GHz bands via in-line interference avoidance procedures rather than the existing band-splitting requirements.

Notice of Inquiry (NOI) Broadband Deployment in Multitenant Buildings

The Commission will consider a Notice of Inquiry seeking comment on ways to facilitate greater consumer choice and broadband deployment in multitenant environments (e.g., apartment buildings, condominium facilities, shopping malls)(MTEs).

In 2000, the FCC prohibited common carriers from entering into contracts that restrict owners and managers of commercial multitenant buildings from permitting access to competing carriers, and in 2007 expanded those rules to apply to multichannel video programming distributors (MVPDs).

In this NOI, the Commission asks whether there are any state and local regulations that may inhibit broadband deployment and competition in MTEs and whether the Commission should revisit an earlier decision not to prohibit MVPDs from entering into exclusive marketing and bulk billing arrangements. The FCC also seeks comment on several issues about revenue sharing agreements and exclusive wiring arrangements. The Commission also invites comment on its legal authority to address the issues raised in the NOI.

NPRM and Order to Modernize Payphone Compensation Rules

Chairman Pai circulated a Notice of Proposed Rulemaking and Order that would begin the process of eliminating the payphone call tracking system annual audit requirement and associated reporting requirement. Given the decline in payphone usage, the NPRM and Order is intended to eliminate requirements that are no longer necessary. The Commission also waives the 2017 audit and associated reporting requirement for the interim period while it considers the NPRM.

Enforcement Bureau Order

The Commission will consider an Enforcement Bureau order, which will remain confidential until the day of the meeting.

Deleted Item:

On Monday, June 19^th, the Commission adopted and removed the following item from its agenda. The final text of the item was not available at the time this advisory was published.

Declaratory Ruling on Delivery of Cable Operators’ Annual Notice

The Commission adopted a Declaratory Ruling granting a 2016 petition by the National Cable & Telecommunications Association and the American Cable Association to clarify that the “written information” that cable operators must annually provide to their subscribers under FCC rules can be provided via e-mail.

All parties in the record agreed that e-mail delivery would satisfy this obligation. Under the text of the public draft, the Commission will require that the cable operator use a “verified” email address, which must satisfy one of the following criteria: (1) an e-mail address that the customer has provided to the cable operator (and not vice versa) for purposes of receiving communication, (2) an e-mail address that the customer regularly uses to communicate with the cable operator, or (3) an e-mail address that has been confirmed by the customer as an appropriate vehicle for the delivery of notices. If no verified e-mail contact information is available for a particular customer, cable operators must continue to deliver the annual notices via paper copies.

The FCC declines to allow cable operators to meet this obligation by providing a link to a publicly available website within a customer’s bill.