If you have any urgent questions, please contact your usual Kelley Drye attorney or any member of the Communications Practice Group. For more information on other aspects of the federal and state response to the COVID-19 pandemic, as well as labor and employment and other issues, please visit Kelley Drye’s COVID-19 Response Resource Center.

FCC Approves Final Set of COVID-19 Telehealth Program Applications

On July 8, 2020, the FCC’s Wireline Competition Bureau approved 25 additional funding applications for the COVID-19 Telehealth Program. Under the latest funding round, $10.73 million will go to health care providers across 19 states and Guam. Since the start of Program funding on April 16, the FCC approved 539 applications in 47 states plus Washington, D.C. and Guam for a total of $200 million in funding — the amount of money appropriated by Congress for the Program in the CARES Act. There are no immediate plans to provide additional funding for the Program.

FCC Grants Section 106 Emergency Authorization for AT&T

On July 10, 2020, the FCC’s Wireless Telecommunications Bureau (“WTB”) granted via email AT&T’s request for an emergency Section 106 authorization. Section 106 of the National Historic Preservation Act requires the FCC to account for the effect of any proposed “undertakings” on historic properties, including construction or collocation of wireless communications facilities. On June 25, 2020, the WTB issued a Public Notice (DA 20-668) announcing an electronic process for FCC licensees to apply for expedited Section 106 review or for emergency Section 106 authorization to resume standard review for qualifying critical infrastructure projects. On July 6, 2020, AT&T requested an emergency authorization under this process for seven priority public safety projects.

Groups Ask Congress to Extend Rural Tribal Priority Window

On July 7, 2020, more than a dozen groups sent a letter urging Congress to extend the 2.5 GHz band rural tribal priority application window until February 1, 2021, citing the “significant impact the COVID-19 crisis has had on American Indian Tribes.” The Rural Tribal Priority Window allows Tribes in rural areas to directly access unassigned spectrum in the 2.5 GHz band, subject to buildout requirements. The Window opened Monday, February 3, 2020, and currently is scheduled to close on Monday, August 3, 2020. Public Knowledge, the National Hispanic Media Coalition, the Benton Institute for Broadband and Society, and New America’s Open Technology Institute were among the groups asking Congress to require the FCC to extend this deadline for 180 days until February 1, 2021.

If you have any urgent questions, please contact your usual Kelley Drye attorney or any member of the Communications Practice Group. For more information on other aspects of the federal and state response to the COVID-19 pandemic, as well as labor and employment and other issues, please visit Kelley Drye’s COVID-19 Response Resource Center.

FCC Approves Twelfth Set of COVID-19 Telehealth Program Applications, Closes Filing Window

On June 25, 2020, the FCC’s Wireline Competition Bureau (“WCB”) announced via Public Notice (DA 20-667) that it will no longer accept new applications for funding from the COVID-19 Telehealth Program, noting that demand for funding exceeds available Program funds based on applications received. This announcement comes after the June 24 approval of 77 additional applications and $29.41 million in funding. To date, the FCC has approved 444 funding applications in 46 states plus Washington, D.C. for a total of $157.64 million in funding. Congress appropriated $200 million for the Program in the CARES Act.

The FCC also released a report on the CARES Act spending plan in accordance with section 15011(b)(1)(B) of the legislation, which requires the agency to submit a plan describing how it will use the covered funds.

FCC Further Extends Temporary Waivers of Relay Services Rules

On June 22, 2020, the FCC’s Consumer and Governmental Affairs Bureau extended temporary waivers (DA 20-650) through August 31, 2020 for Telecommunications Relay Service (“TRS”) providers to ensure relay services remain available for individuals who are deaf, hard of hearing, deafblind, or have a speech disability. These waivers extend actions previously taken to grant TRS providers flexibility.

FCC Further Extends Inteliquent Access Stimulation Waiver

On June 23, 2020, the WCB granted (DA 20-655) Inteliquent’s request for renewal of its temporary waiver of certain access stimulation rules until September 1, 2020. Inteliquent requested a limited renewal of the temporary waiver, with respect to traffic it terminates in six urban areas to preexisting customers on the basis that its terminating-to-originating traffic ratios in those areas continue to be particularly unbalanced as a result of the “unprecedented amounts of conference platform traffic that Inteliquent is terminating for pre-existing customers Zoom and Cisco Webex to facilitate remote work and other forms of social distancing.”

The WCB originally granted Onvoy d/b/a Inteliquent a temporary and limited waiver of the FCC’s rules that treat competitive local exchange carriers with an interstate terminating-to-originating traffic ratio of at least 6:1 as engaging in access stimulation.

FCC Resolves CAF Phase II, Rural Broadband Petitions

On June 26, 2020, the WCB, Rural Broadband Auctions Task Force, and Office of Economics and Analytics, resolved petitions (DA 20-677) filed by the Connect America Fund (“CAF”) Phase II Coalition and Skybeam, LLC (“Skybeam”) seeking waiver of the letter of credit rules for the CAF Phase II auction (“Auction 903”) and Rural Broadband Experiments. Petitioners requested that the FCC allow them to comply with the recently adopted letter of credit rules for the Rural Digital Opportunity Fund instead. The FCC found good cause to grant a limited waiver to all Auction 903 and Rural Broadband Experiments funding recipients until December 31, 2021, because of the increased consumer demand for robust broadband services and severe financial hardship on the companies imposed by the COVID-19 pandemic.

FCC Announces Section 106 Emergency Authorizations

On June 25, 2020, the FCC’s Wireless Telecommunications Bureau issued a Public Notice (DA 20-668) announcing an electronic process for FCC licensees to apply for expedited Section 106 review or for emergency authorization to resume standard review for qualifying critical infrastructure projects. Section 106 of the National Historic Preservation Act requires the FCC to account for the effect of any proposed “undertakings” on historic properties, including construction or collocation of wireless communications facilities.

Section 106 of the National Historic Preservation Act (“NHPA”) requires the FCC to account for the effect of any proposed “undertakings” on historic properties, including collocation of wireless communications facilities. Where undertakings are not exempt, parties must comply with detailed NHPA procedures, including consultation, information collection, and review requirements.

For towers constructed between 2001 and 2005, there was considerable regulatory uncertainty about the specific procedures tower owners were supposed to follow for purposes of compliance with historic preservation requirements. To resolve this issue, the FCC proposes to exempt Twilight Towers from historic preservation review requirements and refrain from taking enforcement action against entities that deployed Twilight Towers in good faith despite lack of clear regulatory guidance.

The proposal would exempt mounting new antennas on Twilight Towers from routine historic review requirements subject to the following limitations:

• Tower Size Increase Restrictions: The newly mounted antenna cannot increase the tower’s height by more than either ten percent or the height of another antenna array within twenty feet, whichever is greater.
• New Equipment Installation Restrictions: The newly mounted antenna cannot require installing more than four new equipment cabinets or more than one new equipment shelter.
• Protruding Components Restrictions: The newly mounted antenna cannot add components that protrude from the tower by more than either twenty feet or the width of the tower structure at the level of the protruding element, whichever is greater.
• Excavation Restrictions: The newly mounted antenna cannot require excavation outside the tower site, defined as the current boundaries of the property surrounding the tower and any access or utility easements currently related to the site.
• Prior Adverse Determination Exception: New antennas cannot be mounted to towers that the FCC has determined have an adverse effect on one or more historic properties if that effect has not been avoided or mitigated.
• Pending Review Exception: New antennas cannot be mounted to towers that are the subject of a pending environmental review or related proceeding before the FCC involving compliance with Section 106 of the NHPA.
• Prior Complaints Exception: New antennas cannot be mounted to a tower if the collocation licensee or tower owner has been notified that the FCC received a written complaint that the collocation has an adverse effect on one or more historic properties. Any such complaint must be “in writing and supported by substantial evidence describing how the effect from the collocation is adverse to the attributes that qualify any affected historic property for eligibility or potential eligibility for the National Register.”

Comments on the Commission’s proposal will be due 30 days (and Reply Comments 45 days) after publication in the Federal Register.

The National Historic Preservation Act (“NHPA”) requires the FCC to account for the effect of any proposed “undertakings” on historic properties, including the siting of poles, including replacement poles, for communications facilities. Where undertakings are not exempt, parties must comply with detailed NHPA procedures, including consultation, information collection, and review requirements. The FCC previously exempted some pole replacements from these obligations, but it limited the exception to “towers” originally constructed for the sole or primary purpose of supporting communications antennas. By contrast, replacements for poles constructed for other purposes, such as for electric utility lines, required full NHPA review. Carriers and pole owners criticized the distinction between towers and other poles, noting that no such distinction exists for pole replacements on federal lands. However, some state historic preservation officers and Tribal authorities warned that unchecked pole construction could disturb archeological resources and other protected sites.

The new rule exempts additional pole replacements from NHPA review if they meet certain criteria:

• Not a Tower: The pole being replaced can hold utility, communications, or related transmission lines but was not originally constructed for the sole or primary purpose of supporting communications antenna.
• Proximity to Original Pole: The replacement pole must be located no more than ten feet away from the original pole. This represents a relaxation of the FCC’s original proposal, which would have required the replacement pole to be inserted in the same hole as the original pole. However, Commissioner O’Rielly explained that a replacement pole often must be constructed near the original pole while it still stands so that electric wires and other attachments can be transferred safely.
• Prohibiting New Disturbances: The replacement pole must not cause any new “ground disturbance,” although the item recognizes that most rights-of-way will have been disturbed previously by the construction of the original pole or other infrastructure.
• Restricting Extensions: The replacement pole may exceed the height of the original pole by no more than five feet or ten percent of the original pole’s height, whichever is greater.
• Preserving Aesthetics: The replacement pole must be “consistent” with the quality and appearance of the original pole. The FCC initially indicated that the replacement pole must use the same material as the original pole, but it now will allow a change in material (e.g., replacing a wooden pole with a metal pole) so long as the replacement does not result in a significant aesthetic change. The exemption also does not apply when the original pole is itself a historic property.

The FCC anticipates that the additional exemption will not affect historical properties but will spur network densification with small cell facilities to meet rising consumer demand for wireless data and support next-generation 5G services. However, the FCC also recognized that significant reforms to pole siting requirements and coordination with affected stakeholders like Tribal authorities is still necessary to accelerate deployment. As a result, it remains to be seen whether the bipartisan front shown by the FCC here will hold in the face of future, more controversial, wireless infrastructure reforms to come out of the Commission’s infrastructure proceedings.

The new pole replacement exemption will take effect within 30 days of the Report and Order’s publication in the Federal Register.