CommLaw Monitor

FCC Meets Statutory Deadline, Adopts Report and Order Establishing Emergency Connectivity Fund Program Rules

Wed, 12 May 2021 11:01:23 -0400

On May 10, 2021, the FCC unanimously adopted final rules in a Report and Order to implement the $7.17 billion Emergency Connectivity Fund Program (“ECF Program”). The ECF Program is a fund that enables “schools and libraries to purchase laptop and tablet computers, Wi-Fi hotspots, and broadband connectivity for students, school staff, and library patrons in need during the COVID-19 pandemic.” The ECF Program was funded by the American Rescue Plan Act of 2021 signed by President Biden in early March. Along with the Emergency Broadband Benefit Program (“EBB Program”), the ECF provides significant, pandemic-related expenditures addressing the digital divide, funded outside of the existing federal Universal Service Fund programs.

With these rules, the FCC sets in motion a process for schools and libraries to receive funding for 100% of purchases to provide remote learning and remote library services during the pandemic. This fund will be a significant one-time opportunity for applicants and service providers and is expected to see high demand for funding.

The Report and Order adopted by the FCC establishes the rules and policies that govern the ECP Fund. The FCC designated the Universal Service Administrative Company (“USAC”) as the program administrator. Schools and libraries that are eligible for support under the E-Rate Program are also eligible to request and receive support through the ECF Program.

Funding Window for School Year 2021-22 Purchases Prioritized

In a change from the draft order previously released by the Commission, the Report and Order prioritizes purchases to be used for providing remote learning and remote library services in the next school year (starting July 1). USAC will open a 45-day ECF Program filing window for purchases for the upcoming year. A date for this window has not been set, but FCC Chairwoman Jessica Rosenworcel said she expects it to open in early June.

The filing window will be available for purchases for use during the period from July 1, 2021 through June 30, 2022. Due to the emergency nature of this program, the FCC does not require competitive bidding for eligible purchases (like is required under the E-Rate program). However, it sets a cap for eligible equipment reimbursement of $400 for laptops and connected devices and $250 for Wi-Fi hotspots. For other eligible equipment (modems, routers and devices that combine the two), the FCC did not set a maximum reimbursement but delegated to the Wireline Bureau to provide guidance on reasonable expenses. The FCC similarly did not set a maximum reimbursement for “advanced communications services” but tasked the Bureau and USAC to identify “outliers” beyond an expected $10 to $25 monthly cost per month. The ECF will not fund self-provisioning or the construction of new networks, except in the case where it is demonstrated that no commercial service is available to the area.

Moreover, the FCC sets per-location and per-user limitations on the availability of funding. Reimbursement may be sought only for one fixed broadband service per location, one connected device per user and one Wi-Fi hotspot per user. In addition, the FCC clarified that Wi-Fi hotspots on school buses and bookmobiles are eligible for reimbursement under the ECF.

Funding is limited to uses made primarily for “educational purposes.” To ensure that devices and services are used primarily for educational purposes, the FCC requires schools and libraries to restrict access to users with appropriate credentials (i.e., a student ID or library card). Schools will be required to certify that they are only that they are only seeking support for eligible equipment provided to students and school staff who lacked access to connected devices sufficient to engage in remote learning. The FCC will also require schools to certify that they are only seeking support for eligible services provided to students and school staff who lacked broadband services sufficient to engage in remote learning. “Staff” includes only those staff members engaging in remote teaching or otherwise providing educational services to students (and would otherwise lack access to connected devices and broadband connections).

Prior Purchases

If funding is available after the initial filing window for 2021-22 purchases, the FCC will open a window for funding of purchase already made by schools or libraries to provide remote connectivity. Specifically, this filing window would cover purchases made by applicants between March 1, 2020 (when most jurisdictions closed schools during the pandemic) and June 30, 2021. USAC and the Bureau will announce when this window will open (assuming funding remains available).

As previously mentioned, the application window has not been announced, but we will monitor and relay updates on the ECF Program as they arise.

FCC Sets Start Date for Emergency Broadband Benefit Program

Thu, 29 Apr 2021 17:05:59 -0400

After nearly four months of work, the FCC announced today that the Emergency Broadband Benefit Program (“EBBP”) will launch on Wednesday, May 12, 2021. Providers participating in the EBBP can begin enrolling eligible households into the program to receive supported service. Nearly 750 providers are qualified to offer EBB-supported services, with service discount reimbursements of up to $50 per subscriber ($75 in tribal areas) and equipment discount reimbursements of up to $100 available. The FCC recently conducted a webinar for consumer groups and outreach partners about the program, and USAC has been testing connectivity with eligible providers since April 19. USAC will also host a pre-launch webinar and an office hour session the week of May 3.

Click here to read the April issue of our USF Tracker for more information on the EBBP and related programs.

Biden Signs Stimulus Package: FCC Set to Establish a $7 Billon Emergency Connectivity Fund to Assist with Virtual Learning

Mon, 15 Mar 2021 17:05:33 -0400

On March 10, 2021, President Biden signed the American Rescue Plan Act, the COVID-19 stimulus bill recently enacted by Congress. The Act allocates $1.9 trillion to provide relief to businesses and individuals that are struggling due to COVID-19. Importantly, it appropriates $7.17 billion for emergency support for remote learning and remote library services. This stimulus follows $3.2 billion appropriated for an Emergency Broadband Benefit for low-income consumers and caps over $13 billion in broadband funding provided in addition to the traditional Universal Service Fund programs.

The new Emergency Connectivity Fund (“ECF”) will reimburse schools and libraries for internet access and connected devices for students and teachers for remote learning and remote library services. The passage of this legislation has been welcomed by the FCC, with Chairwoman Rosenworcel stating, “the American Rescue Plan provides the FCC with new tools to support the millions of students locked out of the digital classroom.”

The legislation requires the FCC to issue rules within 60 days of enactment to provide funding to eligible schools and libraries. Here’s a look at what to expect in the new fund.

Emergency Connectivity Fund Overview

The ECF provides support for the purchase during the COVID-19 emergency of “eligible equipment or advanced telecommunications or information services (or both)” to provide:

For schools, for use by schools, students and staff outside the school building; and
For libraries, for use by patrons outside the library location.

Eligible equipment includes: Wi-Fi hotspots, modems, routers, devices combining a modem and router, and connected devices. A connected device is defined as a “laptop computer, tablet computer or similar end-user device that is capable of connecting to advanced telecommunications and information services.”

The Act provides funding for 100% of costs associated with the eligible equipment, as well as telecommunications and information services. However, funding may not exceed an amount that the FCC determines to be reasonable. Notably, funding is in addition to, and separate from, funding under the FCC’s E-rate program. The Commission received comment in February on three proposals to permit use of E-rate funds to provide off-campus broadband services, but those proposals likely have been usurped by the ECF.

Funding is available during the COVID-19 emergency, and until the June 30th following the date on which the federal government lifts the COVID-19 emergency declaration.

The FCC is required to issue regulations within 60 days of enactment to provide funding to eligible schools and libraries. We expect a public notice to be issued in the coming days. We will, of course, continue to follow development in this important new program.

FCC Implements $50/Month Broadband Subsidy For Low-Income Households

Tue, 09 Mar 2021 17:35:19 -0500

As required by the Consolidated Appropriations Act, 2021 (“CAA”), on February 25, 2021, the FCC adopted a Report and Order to officially establish the Emergency Broadband Benefit (“EBB”) Program. Since the COVID-19 pandemic has led to a rise in virtual services and learning, access to broadband services has now become essential for most households. With this in mind, the program is designed to provide broadband services to help low-income households in particular stay connected. We have summarized the program and noted some key provisions and next steps for the FCC and potential participating providers. The program is temporary, and will expire when funds have been exhausted or 6 months after the Health and Human Services Secretary declares the end of the nationwide COVID-19 health emergency.

EBB Program Overview

The EBB Program was authorized by Section 904 of the CAA, which was designed to provide affordable broadband services to low-income households on an emergency basis. Congress allocated $3.2 billion to the EBB Program to reimburse participating providers for providing discounts on qualifying internet service offerings to qualifying low-income households. The EBB Program will provide discounts of up to $50 per month ($75 for residents of Tribal lands) to subsidize broadband services for eligible households. Eligible consumers can also receive a one-time discount of up to $100 for a desktop or laptop computer, or tablet (no smartphones) supplied by a participating provider. The EBB benefit is limited to one monthly service discount and one device discount per eligible household. To qualify for the EBB program, households must prove that at least one member of their household meets one of the following criteria:

qualifies for the FCC’s Lifeline program (including those who are receiving Medicaid or SNAP benefits);
approved for the free or reduced-price school lunch program (including through the USDA Community Eligibility Provision);
experienced substantial and documented loss of income since February 29, 2020 and the household had a total income in 2020 below $99,000 for single filers and $198,000 for joint filers;
received a federal Pell Grant in the current award year; or
qualifies for a participating provider’s existing low-income or COVID relief program (subject to FCC approval of that provider’s eligibility process).

All participating providers will need to enroll applicants using the National Lifeline Eligibility Database (“NLAD”), will be subject to a modified the Lifeline Claims System (“LCS”) process and must register all enrollment representatives in the Representative Accountability Database (“RAD”). Verifying household eligibility can be done by submitting the applicant’s information to the existing Lifeline National Verifier or using an alternative verification process that is approved by the FCC. Providers can also verify household eligibility through schools and the discounted meal programs. One of the more ambiguous eligibility criteria is loss of income and the metric by which this will be measured. In order to confirm that providers are complying with the applicable rules, this program will be subject to regular audits and the FCC’s traditional enforcement powers, and the Commission will apply the its Universal Service Fund suspension and debarment rules. However, there is a statutory safe harbor for participating providers relying on eligibility determinations made by the National Verifier or other approved verification methods as well as other information relied on in good faith.

Next Steps

The Order includes many specifics for the implementation of the EBB Program, but also delegates liberally to the Wireline Competition Bureau (“Bureau”) for additional details and processes. On Thursday, March 4, the Bureau issued additional guidance on the timeline for participating provider elections and applications. ETCs are automatically eligible as participating providers in the EBB Program and therefore need only submit an election to participate. The inbox for election notices will open on March 11, 2021. Non-ETC broadband providers that had existing low-income support programs as of April 1, 2020 can apply to be participating providers and will be automatically approved by providing certain information. Non-ETCs without such programs can also apply to be participating providers, but must submit an application to the Bureau for approval before they can elect to participate. The application window opened on March 8, 2021 and all application submitted by March 22, 2021 will be reviewed and acted on by the EBB service commencement date. Applications submitted after March 22 will be reviewed on a rolling basis.

For service providers to be eligible, they must file an election notice to the Universal Service Administrative Company (“USAC”), and non-ETCs must submit an application for either automatic or expedited approval by the Bureau.

Existing ETCs:

Existing ETCs need only submit an election notice to USAC. The following information must be included in election notices:

a list of states in which the provider plans to participate in the EBB Program;
a statement that, in each of the listed states, the provider is a “broadband provider” as of December 1, 2020;
a statement identifying where the provider is an existing ETC;
a statement identifying where the provider received FCC approval to participate in the EBB Program (this is primarily for providers that are seeking approvals outside of states where they are existing ETCs);
a statement confirming whether the provider intends to distribute connected devices under the EBB Program; and
a description and documentation of the Internet service offerings for which the provider plans to seek reimbursement from the EBB Program in each state.

Non-ETCs:

Non-ETCs must file an application with the Wireline Competition Bureau (“Bureau”) that must be approved to participate in the EBB Program. Non-ETCs with an existing low-income support program must file an application describing:

the jurisdictions in which it plans to participate,
the service areas in which the provider has the authority, if needed, to operate in each state, and
a description, supported by documentation, of the established program with which the provider seeks to qualify for automatic admission to the EBB Program.

Such applicants will receive automatic approval upon filing once the Bureau confirms that all required information was submitted.

Non-ETCs without pre-existing low-income support programs must first submit an application for Bureau approval describing:

the states in which it plans to participate,
the service areas in which the provider has the authority, if needed, to operate in each state but has not been designated as an ETC, and
documentation of the provider’s plan to combat waste, fraud, and abuse.

Such applicants will not receive automatic approval, but the FCC has committed to expedited review and applications filed by March 22, 2021 will be reviewed in time for the EBB service commencement date. Non-ETCs must also submit an election notice as discussed above to participate.

The FCC has set the expectation that the EBB Program will begin within 60 days of the adoption of the Order. Therefore, participation providers should start providing EBB discounted services by the end of April. For more information on the EBB and related programs, join us on March 22, 2021 for Kelley Drye’s annual webinar discussing the state of the federal Universal Service Fund ("USF"). This year will feature segments on how the ongoing pandemic has influenced the importance of the USF and related policy decisions.

FCC Tees Up Broadband and Telehealth Updates for First Meeting under Acting Chairwoman Rosenworcel

Tue, 02 Feb 2021 19:23:38 -0500

The FCC released the agenda for its next Open Meeting, scheduled for February 17, 2021, which will be the first with Acting Chairwoman Jessica Rosenworcel at the helm. The FCC plans to kick off the meeting with three presentations detailing the Commission’s progress in implementing programs designed to support broadband access and deployment. First, the FCC will hear a presentation on the creation of the Emergency Broadband Benefit Program, which will allow low-income consumers to receive discounted broadband services and devices. Second, the FCC will hear a presentation covering the agency’s next steps for its COVID-19 Telehealth program, which provides funding to health care providers to offer telehealth and connected care services to patients. Third, the FCC will hear a presentation on the agency’s efforts to improve its broadband mapping data, including through the Digital Opportunity Data Collection. Rounding out the meeting agenda, the FCC will consider proposed rulemakings that would modify the agency’s supply chain security rules and address 911 fee diversion in line with recent legislation.

The February meeting begins what is expected to be a busy 2021 for the FCC’s agenda. You will find more information about the meeting items after the break.

Emergency Broadband Benefit Program: On December 27, 2020, President Trump signed the Consolidated Appropriations Act ("CAA"), 2021, which included Section 904 authorizing the $3.2 billion Emergency Broadband Benefit (EBB) Program. The Program will reimburse up to $50 per month per eligible low-income household to discount broadband service and certain connected devices during an emergency period. To participate, providers must have offered broadband internet access service as of December 1, 2020 and must either be an Eligible Telecommunications Carrier or be approved by the FCC pursuant to an expedited approval process. Congress gave the FCC 60 days to promulgate regulations to implement the EBB program and the FCC released a Public Notice establishing a comment cycle on January 4, 2021. Comments were filed on or before January 25, 2021 and reply comments are due by February 16, 2021. The Commission is also holding a roundtable discussion on the EBB implementation on February 12, 2021.

COVID-19 Telehealth Program: The FCC will hear a presentation about the agency’s plans for the next stage of the COVID-19 Telehealth program. The agency already approved $200 million in funding under the program for health care providers in 2020, exhausting the initial funding appropriated by Congress to support connected care services to patients. But Congress recently provided an additional $249.95 million for the program and the FCC already has sought comment on the appropriate metrics for evaluating requests for this funding and potential program improvements and taken action to streamline the process for disbursing future funding.

Improving Broadband Mapping Data: The FCC will hear a presentation on the agency’s work to improve its broadband maps, including through the Digital Opportunity Data Collection (DODC) that will require service providers to submit granular data regarding their current and potential broadband service territories. Among other things, the FCC will use this information to determine the areas eligible for the second round of support under the Rural Digital Opportunity Fund, which will provide at least $4.4 billion over ten years to spur broadband deployment in unserved areas. The DODC enjoys bipartisan support at the FCC, but has received criticism for its complex reporting requirements, crowdsourcing and challenge processes, enforcement standards, and lack of exceptions for smaller providers.

Supply Chain Security: The draft Further Notice of Proposed Rulemaking (“FNPRM”) would align the FCC’s supply chain security rules with the recently-enacted CAA, which allocated $1.9 billion to reimburse providers for the costs of removing, replacing, and disposing of network equipment and services posing a national security risk. In particular, the FCC plans to: (1) raise the cap on reimbursement eligibility to encompass providers with 10 million or fewer customers; (2) seek comment on allowing providers to use reimbursement funds to cover the removal, replacement, and disposal of all network equipment and services provided by Chinese telecommunications companies Huawei and ZTE that were deemed a national security threat last year; (3) request input on allowing providers to use reimbursement funds to cover the removal, replacement, and disposal of unsecure network equipment and services obtained on or before June 30, 2020; (4) prioritize reimbursement funding to smaller providers with two million or fewer customers and non-commercial educational broadband service (“EBS”) providers as well as “core” network transition costs; and (5) expand the definition of advance communications service providers eligible for reimbursement to explicitly include EBS providers, libraries, and health care providers, in line with the CAA.

911 Fee Diversion: The draft Notice of Proposed Rulemaking (“NPRM”) would implement section 902 of the Don’t Break Up the T-Band Act of 2020, which requires the FCC to take action to address the diversion of 911 fees by states and other jurisdictions for purposes unrelated to 911 operations. Section 902 specifically directs the FCC to issue final rules within 180 days of defining what uses of 911 fees by states and taxing jurisdictions constitute 911 fee diversion. The NPRM seeks comment on proposed rules to implement these provisions. Notably, fee diversion was a key focus area for former FCC Commissioner O’Rielly and remains a controversial issue within the agency.

Podcast: Don’t Forget About Biometric Privacy When Instituting COVID Procedures

Michael R. Dover — Thu, 03 Dec 2020 16:12:32 -0500

In this episode of Kelley Drye’s Legal Download, Special Counsel Michael Dover and Tara Marciano discuss compliance requirements of Illinois' Biometric Information Privacy Act ("BIPA") and how they affect companies implementing COVID-19 procedures to get their employees back to work, as well as how ongoing litigation may have an effect on BIPA compliance in "emergency" circumstances like the pandemic.

Click here to listen to this episode.

COVID-19: What Communications Service Providers Need to Know – October 5, 2020

Mon, 05 Oct 2020 13:07:29 -0400

As the COVID-19 pandemic continues to impact how Americans connect at work and home, the Federal Communications Commission (“FCC”) has been active to keep communications services available through various waivers, extensions, and other regulatory relief. Kelley Drye’s Communications Practice Group is tracking these actions and what they mean for communications service providers and their customers. CommLaw Monitor periodically provides updates to its analysis of the latest regulatory and legislative actions impacting your business and the communications industry. Click on the “COVID-19” blog category for previous updates.

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 Extends Telehealth Purchase and Implementation Deadline

On September 28, 2020, the FCC’s Wireline Competition Bureau (“WCB”) extended the deadline for COVID-19 Telehealth Program funding recipients to purchase eligible devices and implement eligible services. The Public Notice extended the deadline from September 30, 2020 to December 31, 2020. 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 Three COVID-19-Related Waiver Requests

On September 30, 2020 the WCB granted several requests for review, requests for waiver, and petitions for reconsideration of decisions related to actions taken by the Universal Service Administrative Company (“USAC”), including three related to the COVID-19 pandemic. The Public Notice granted two requests for waiver of a filing deadline due to COVID-19 and one request for waiver of a 499-Q revision deadline due to COVID-19. In each case, the filer claimed that COVID-19 related shutdowns caused the filer to miss the filing deadline or to file an incorrect form. The Bureau cited to an order granting waivers of the filing deadlines in areas impacted by hurricanes Harvey, Irma and Maria in 2017.

COVID-19: What Communications Service Providers Need to Know – September 2020

Mon, 21 Sep 2020 16:47:46 -0400

FCC Seeks Comment on TCPA Exception for COVID-19 and Flu Vaccine Communications Under “Emergency Purposes” Exception

On September 18, 2020, the FCC’s Consumer and Governmental Affairs Bureau issued a Public Notice seeking comment on a request for clarification filed by the National Association of Chain Drug Stores (“NACDS”). NACDS requests clarification that communications from pharmacies related to COVID-19 vaccines, once available, and flu vaccines during the pandemic fall within the Telephone Consumer Protection Act’s “emergency purposes” exception to the statute’s prior express consent requirement. Comments are due September 25, 2020, and reply comments are due October 2, 2020.

FCC Opens Second Window for 2020 E-Rate Funding Requests

On September 16, 2020, the FCC’s Wireline Competition Bureau (“WCB”) directed the Universal Service Administrative Company (“USAC”) to open a second funding year 2020 filing window, allowing E-Rate program participants to request additional funding to purchase more bandwidth needed to meet the unanticipated and increased demand for e-learning during the pandemic. E-Rate program participants will be permitted to request additional funding for this limited purpose without having to undergo a new competitive bidding process. This window opened on September 21, 2020 with the publication of the Notice in the Federal Register and will close on October 16, 2020.

FCC Extends Inteliquent Waiver of Access Stimulation Rules Through December 1, 2020

On September 17, 2020, the WCB granted Onvoy d/b/a Inteliquent, Inc.’s (“Inteliquent”) second request to renew the temporary waiver of part of the FCC’s access stimulation rules. On June 23, 2020, the WCB granted 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 four 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.” Absent the waiver, Inteliquent would be required to accept financial responsibility for paying certain access charges associated with the traffic.

Inteliquent requested that the waiver be extended until March 1, 2021. However, the FCC only extended the waiver through December 1, 2020, in light of the ongoing uncertainty regarding the pandemic.

FCC Streamlines Financial Hardship Regulatory Fee Payment Request Procedures

On September 4, 2020, the FCC released a Public Notice highlighting streamlined processes for regulatees to request a waiver, fee reduction, deferral, and/or installment payment plan for FY 2020 regulatory fees in light of the pandemic. Waiver and installment plan requests must be filed on or before September 25, 2020. Waiver requests filed after that date will not be dismissed but any unpaid regulatory fees will be assessed the FCC’s 25% late payment penalty and may accrue interest.

FCC Extends E-Rate and RHC Gift Rule Waivers Through December 31, 2020

On September 3, 2020, the WCB extended waivers of the Rural Health Care (“RHC”) and E-Rate program gift rules through December 31, 2020. The FCC previously waived gift rules applicable to both programs to assist rural health care providers and schools and libraries affected by the pandemic by allowing them to accept free upgrades to connections, equipment, and other services. The WCB also waived the previously extended RHC deadline for responding to information requests from USAC through December 31, 2020. These waivers were set to expire on September 30, 2020.

Podcast: Closing the Digital Divide and Enabling Connected Life

Tue, 01 Sep 2020 13:09:36 -0400

Americans who lack high-speed broadband internet access are caught on the wrong side of the “Digital Divide,” with students facing a “homework gap” and adults, and even entire communities, facing an “opportunity gap” that impacts everything from jobs, education, and healthcare to sustainability and well-being. This episode of Kelley Drye’s Legal Download discusses the increasing importance of access to advanced communications networks and services, and a few of the legal issues involved in closing the digital divide and enabling connected life.

Click here to listen and subscribe.

COVID-19: What Communications Service Providers Need to Know – July 13, 2020

Mon, 13 Jul 2020 16:45:39 -0400

As the COVID-19 pandemic rapidly unfolds, the Federal Communications Commission (“FCC”) has been active to keep communications services available through various waivers, extensions, and other regulatory relief. Kelley Drye’s Communications Practice Group is tracking these actions and what they mean for communications service providers and their customers. CommLaw Monitor will provide regular updates to its analysis of the latest regulatory and legislative actions impacting your business and the communications industry. Click on the “COVID-19” blog category for previous updates.

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.

COVID-19: What Communications Service Providers Need to Know – July 6, 2020

Mon, 06 Jul 2020 14:55:59 -0400

FCC Continues COVID-19 Telehealth Program Approvals, Closes in on $200 Million Funding Cap

On July 1, 2020, the FCC’s Wireline Competition Bureau (“WCB”) approved 70 additional funding applications for the COVID-19 Telehealth Program. Under the latest funding round, $31.63 million will go to health care providers across 31 states and Washington D.C. This is the first set of approvals since the FCC’s June 25 announcement that it will no longer accept new applications for funding, noting that demand for funding exceeds currently-available Program funds. To date, the FCC has approved 514 funding applications in 46 states plus D.C. for a total of $189.27 million in funding, leaving just over $10 million to be allocated under the Program’s current $200 million funding cap.

FCC Announces Availability of Unused Funds for Rural Health Care

On June 30, 2020, the FCC’s WCB directed (DA 20-688) the Universal Service Administrative Company to carry over up to $197.98 million in unused funds from prior funding years to the extent necessary to satisfy funding year 2020 demand for the Rural Health Care Program. In 2018, the FCC adopted rules to adjust the Rural Health Care Program funding cap annually for inflation and allow unused funds from previous years to be carried forward into new funding years. FCC Chairman Pai highlighted this funding flexibility as critical to supporting COVID-19 telehealth measures.

FCC Announces Workshop on Libraries Amid COVID-19

On June 30, 2020, the FCC’s Digital Empowerment and Inclusion Working Group of the Advisory Committee on Diversity and Digital Empowerment and the Media Bureau announced via Public Notice (DA 20-698) a virtual workshop to examine the role of U.S. libraries as community hubs to drive digital adoption and literacy. The workshop, which is scheduled for August 3 from 10:00 am to 1:30 pm, will address the impact of COVID-19 on advancing digital inclusion, as well as the impact of various local, state, and federal actions. The workshop will be available to the public via live feed from the FCC’s web page at www.fcc.gov/live.

COVID-19: What Communications Service Providers Need to Know – June 29, 2020

Mon, 29 Jun 2020 15:23:12 -0400

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.

COVID-19: What Communications Service Providers Need to Know – June 22, 2020

Mon, 22 Jun 2020 17:01:35 -0400

FCC Continues COVID-19 Telehealth Program Approvals

On June 17, the FCC’s Wireline Competition Bureau approved 62 additional funding applications for the COVID-19 Telehealth Program. Under the latest funding round, $23.25 million will go to health care providers across 29 states. With this latest set of approvals, the FCC’s COVID-19 Telehealth Program has approved 367 applications in 45 states, plus D.C., for a total of $128.23 million in funding awarded so far. Congress appropriated $200 million for the Program and the FCC continues to evaluate applications and distribute funding on a rolling basis. As the funding awarded nears the Program’s current $200 million cap, providers should take action now to assess their interest and ability to participate in the Program, if they have not already done so.

For a complete list of applications granted in the COVID-19 Telehealth Program, with breakdowns by round number and state, check out our chart here.

FCC Plans to End Keep Americans Connected Pledge, Seeks Support for Small Providers and Consumers

The FCC plans to let the Keep Americans Connected Pledge expire as scheduled on June 30, but urged providers not to disconnect consumers and small businesses who remain behind on their bills in July. Specifically, Chairman Pai asked providers to adopt consumer-friendly steps like payment plans, waiving a portion of unpaid balances, and working with customers individually to meet their needs based on hardship post-Pledge. On June 19, FCC Chairman Pai sent a letter to Congress seeking legislation to help consumers and small businesses stay connected after the expiration of the Pledge by further streamlining deployments and increasing funding for telehealth and other communications programs. The FCC launched the Keep Americans Connected Pledge on March 13, and later extended the voluntary initiative to June 30. The Pledge required service providers to commit to not terminate service, to waive late fees for residential and small business customers who could not pay during the pandemic, and to make their Wi-Fi hotspots available to any American who needs them. Many providers plan to continue at least some of these initiatives after the Pledge’s expiration.

Podcast: A Closer Look at the FCC’s COVID-19 Telehealth Program

Wed, 17 Jun 2020 16:34:56 -0400

In the most recent episode of Kelley Drye’s Full Spectrum podcast, Partner John Heitmann and Special Counsel Denise Smith discuss the COVID-19 Telehealth Program. The episode covers healthcare provider eligibility criteria, funding coverage, and key application considerations. They also provide an update on awards granted. At the time of the recording, the FCC had awarded a total $104.98 million over nine funding rounds, to 305 health care providers, representing about half of the money allocated for the Telehealth Program. This podcast follows our April 28th webinar on the Telehealth Program, a recording of which is available here.

Click here to listen to this podcast episode and subscribe to Full Spectrum.

COVID-19: What Communications Service Providers Need to Know – June 15, 2020

Mon, 15 Jun 2020 18:36:15 -0400

FCC Approves Tenth Set of COVID-19 Telehealth Applications, Surpassing $100 Million in Funding Out of the $200 Million Allocated

On June 10, the Wireline Competition Bureau (“WCB”) approved 67 additional funding applications for the COVID-19 Telehealth Program. Under the latest funding round, $20.18 million will go to health care providers across 27 states and Washington, D.C. With this latest set of approvals, the FCC’s COVID-19 Telehealth Program has funded 305 health care providers in 42 states, plus D.C., for a total of $104.98 million in funding awarded so far. Congress appropriated $200 million for the Program and the FCC continues to evaluate applications and distribute funding on a rolling basis.

In the most recent episode of Kelley Drye’s Full Spectrum podcast, Special Counsel Denise Smith discussed the COVID-19 Telehealth Program, including healthcare provider eligibility criteria, funding coverage, and key application considerations.

WCB, OMD Defer Form 470 Changes

On June 8, the WCB and the Office of the Managing Director (“OMD”) issued a Public Notice (DA 20-598) notifying E-Rate program participants that the FCC Form 470 will remain unchanged for funding year 2021. Form 470 is the form that E-Rate program applicants use to solicit bids from service providers for eligible services. This is the latest FCC action aimed at allowing schools and libraries to continue to focus their time and resources on responding to the pandemic.

WCB Waives Filing Requirement for RoR ETCs

On June 8, the WCB released an Order (DA 20-641) granting a temporary waiver of the requirement for privately held rate-of-return (“RoR”) eligible telecommunications carriers (“ETCs”) that receive loans from the Rural Utilities Service (“RUS”) to file electronic copies of their annual RUS Operating Report for Telecommunications Borrowers filings by July 1. The RUS is a unit within the United States Department of Agriculture (“USDA”). In the USF/ICC Transformation Order, the FCC required all privately held rate-of-return ETCs to provide a full and complete annual report on their financial condition and operations. The Order notes that it is “not in the public interest to require these carriers to submit a copy of a report that has not yet been required by or reported to the USDA.” These carriers must submit a copy of this report to USAC at the time it is due to USDA. The FCC still requires all ETCs, including those who are RUS loan recipients, to complete the remainder of their Form 481 filing and submit it to USAC by the July 1 deadline.

Commissioner Starks Announces Digital Opportunity Equity Recognition Program

On June 8, FCC Commissioner Geoffrey Starks announced the Digital Opportunity Equity Recognition (“DOER”) Program to commend organizations, institutions, companies and individuals who, through their actions and responses to the COVID-19 crisis, have helped to make quality affordable broadband service available to unserved or underserved communities. Nominations for the first round of recognitions are due to [email protected] by July 8.

COVID-19: What Communications Service Providers Need to Know – June 8, 2020

Mon, 08 Jun 2020 16:06:01 -0400

FCC Approves Ninth Set of COVID-19 Telehealth Applications, Nears Halfway Mark for Currently-Available Funding

On June 3, 2020, the FCC’s Wireline Competition Bureau approved 53 additional funding applications for the COVID-19 Telehealth Program. Under the latest funding round, $16.46 million will go to health care providers across 25 states and Washington, D.C. With this latest set of approvals, the FCC’s COVID-19 Telehealth Program has funded 238 health care providers in 41 states, plus D.C., for a total of $84.96 million in funding awarded so far. Congress appropriated $200 million for the Program and the FCC continues to evaluate applications and distribute funding on a rolling basis. As the FCC nears the halfway point for currently-available funding, providers should take action to assess their interest and ability to participate in the Program, if they have not already done so.

FCC and NARUC Partner to Help Low-Income Consumers Stay Connected Through Lifeline

On June 1, 2020, FCC Chairman Ajit Pai and National Association of Regulatory Utility Commissioners (“NARUC”) President Brandon Presley issued a joint letter asking state officials to distribute educational materials regarding the federal Lifeline program to low-income consumers. The letter notes that Americans newly-unemployed or otherwise facing financial hardship as a result of the COVID-19 pandemic may not be aware that they are eligible for Lifeline service. The letter urges state officials to circulate the Lifeline education materials as widely as possible, especially to state agencies that administer Medicaid, SNAP, and unemployment benefits. The letter also highlights features of the federal Lifeline program, including recent steps taken to ease the application and enrollment process.

FCC Grants Temporary Spectrum Access Request in Rural Kentucky

On June 2, 2020, the FCC’s Wireless Telecommunications Bureau granted Harlan 2-Way, Inc.’s emergency Special Temporary Authority request to operate in the 2.5 GHz band in Harlan County, Kentucky. This is the latest action in the FCC’s continued effort to improve communications and broadband service in rural and other hard-to-serve areas during the crisis through increased spectrum access.

COVID-19: What Communications Service Providers Need to Know – June 1, 2020

Mon, 01 Jun 2020 17:24:26 -0400

FCC Eases Lifeline Application Process for Tribal Consumers, Extends Previous Waivers

On June 1, the FCC’s Wireline Competition Bureau (“WCB”) released an Order (DA 20-577) aimed at easing the Lifeline program application and enrollment process for consumers who reside in rural areas on Tribal lands and qualify for Lifeline benefits. Specifically, the WCB FCC’s Wireline issued a temporary waiver to allow Lifeline carriers to begin providing Lifeline service to consumers in rural Tribal areas even if those consumers have not yet submitted certain documentation to complete their application. The FCC noted that consumers living in rural areas on Tribal lands already face difficulties in providing this documentation, and the pandemic has added to these hardships.

Under the June 1 waiver, until August 31, 2020, a Lifeline eligible telecommunications carrier (“ETC”) may choose to immediately begin providing Lifeline service to a consumer living in a rural Tribal area who applies for Lifeline but is unable to provide the necessary documentation to resolve a failed automated eligibility check at the time of application. The consumer will have 45 days from the time of application to submit the documentation. If the applicant then does provide the necessary documentation within 45 days and is determined to qualify for Lifeline service, the Lifeline provider can go back and claim reimbursement for the discounted service provided during the 45-day period.

In addition, in the Order, WCB also extended its recent waivers of the Lifeline program’s recertification, reverification, general de-enrollment, usage requirements, and three-month documentation requirements for income verification through August 31, 2020. Those waivers were set to expire at the end of June.

FCC Approves Latest Set of COVID-19 Telehealth Applications

On May 28, 2020, the WCB approved 53 funding applications for the COVID-19 Telehealth program. Under the latest funding round, $18.22 million in funding will go to health care providers across 24 states. With this latest set of approvals, the FCC’s COVID-19 Telehealth Program has funded 185 health care providers in 38 states, plus Washington D.C., for a total of $68.22 million in funding awarded. Read the latest issue of Kelley Drye’s USF Tracker for details on awards granted.

FCC Grants Washington Tribe’s Temporary Spectrum Access Request

On May 29, 2020, the FCC’s Wireless Telecommunications Bureau (“WTB”) granted the Makah Tribe emergency Special Temporary Authority (“STA”) request to operate in the 2.5 GHz band in Washington State. This is the latest action in the FCC’s continued effort to improve communications and broadband service in rural and other hard-to-serve areas during the crisis.

COVID-19: What Communications Service Providers Need to Know – May 26, 2020

Tue, 26 May 2020 19:57:16 -0400

FCC Approves Seventh Set of COVID-19 Telehealth Applications, Surpasses $50 Million in Funding

On May 20, 2020, the FCC’s Wireline Competition Bureau (“WCB”) approved 43 funding applications for the COVID-19 Telehealth Program. Under the latest funding round, $16.87 million in funding will go to health care providers across 20 states. This includes Children’s National Hospital, the first Washington, D.C. provider to receive funding. With this latest set of approvals, the FCC’s COVID-19 Telehealth Program has funded 132 health care providers in 33 states, plus D.C., for a total of just over $50 million in funding awarded.

Congress appropriated $200 million for the Program and the FCC continues to evaluate applications and distribute funding on a rolling basis. Providers therefore should take action now to assess their interest and ability to participate in the Program, if they have not already done so. On May 21, 2020, the senior counsel for the WCB’s Telecommunications Access Policy Division encouraged providers to apply as soon as possible. "Don't let the perfect be the enemy of the good" he said. “Bureau staff will work with applicants and seek clarification as needed.”

FCC, FTC Demand More Gateway Providers Cut Off Robocallers to Stop Coronavirus-Related Scams

On May 20, 2020, the FCC demanded that service providers take action to stop coronavirus-related scam robocalls from bombarding American consumers. The agency warned a number of “gateway” communications providers allegedly facilitating COVID-19-related scam robocalls originating overseas that they must stop carrying these calls or face serious consequences. Specifically, if the providers do not take action to address the scam robocalls, the FCC will allow other providers to block all traffic from these gateway providers’ networks.

This is the second such action taken by the agencies, following a similar demand in in April, when three gateway providers stopped carrying COVID-19-related scam robocalls within 24 hours of receiving the warning. The FCC and FTC have been working closely with the Department of Justice on these efforts to stop scammers from reaching American consumers. The warning shows that the FCC, FTC, and other agencies plan to aggressively address consumer protection-related issues during the crisis and will target service providers in addition to the underlying scammers to resolve problems quickly.

FCC and IMLS Partner to Keep Libraries and Communities Connected

On May 21, 2020, the FCC announced that it is partnering with the Institute of Museum and Library Services (“IMLS”) to promote use of $50 million in CARES Act funding to help address the digital divide. The CARES Act allocated $50 million in funding to IMLS, the primary source of federal funding for the nation’s museums and libraries, to enable these institutions, as well as organizations serving Tribal communities, to respond to the pandemic. This includes work to expand network access, purchase Internet accessible devices, and provide technical support services to communities. States and territories may use the funds to expand broadband access and prioritize their efforts to high-need communities. $15 million in funding will be awarded through grants to libraries and museums, as well as Tribes and organizations serving and representing Native Hawaiians. Applications are due June 12, 2020 with award announcements anticipated in August 2020.

As part of the FCC’s collaboration with IMLS, the FCC will publicize these CARES Act resources, help conduct outreach to libraries and organizations serving Tribal Communities, and provide information on broadband service providers that may be able to help. The agencies will also work together to ensure that libraries are aware that community use of Wi-Fi networks supported by the FCC’s E-Rate program is permitted during library closures.

COVID-19: What Communications Service Providers Need to Know – May 18, 2020

Mon, 18 May 2020 17:10:07 -0400

FCC Approves Latest Set of COVID-19 Telehealth Program Applications, Bringing Approvals to $33 million

On May 13, 2020, the FCC’s Wireline Competition Bureau (“WCB”) approved 33 funding applications for the COVID-19 Telehealth Program. Under the latest funding round, $8.36 million will go to health care providers across 18 states for telehealth services during the pandemic. With this latest set of application, the FCC’s COVID-19 Telehealth Program has approved and funded 82 health care providers in 30 states for a total of $33.26 million in funding. Congress authorized up to $200 million in funding for the program.

Over 750 Providers Extend Keep Americans Connected Pledge

On May 14, 2020, the FCC announced that 774 broadband and telephone service providers have taken the Keep Americans Connected Pledge and extended that commitment through June 30, 2020. On April 30, 2020, Chairman Pai announced he was extending the Pledge, originally set to expire on May 12, to June 30. Since Pai’s announcement, the number of companies covered by the Pledge has increased, as more companies have signed onto the Pledge for the first time than declined to extend it. The pledge involves service providers committing to not terminate service, to waive late fees for residential and small business customers who cannot pay during the pandemic, and to make their Wi-Fi hotspots available to any American who needs them.

In the latest episode of Kelley Drye's Full Spectrum podcast, we discuss the unique issues the Keep Americans Connected Pledge creates in a bankruptcy proceeding involving an affected customer. Click here to listen.

Consumer and Government Affairs Bureau Extends Temporary Waivers for Relay Services Rules

On May 14, 2020, FCC’s Consumer and Governmental Affairs Bureau extended temporary waivers (DA 20-517) through June 30, 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.

WTB Permits More WISPs to Use 5.9 GHz Spectrum on a Temporary Basis

Last week, the FCC’s Wireless Telecommunications Bureau (“WTB”) granted requests by United Wireless Communications, Inc. and Comcell, Inc. for emergency Special Temporary Authority (“STA”) to operate in the 5850-5895 MHz band to provide relief during the pandemic. The grants are for a period of 60 days, provided the applicant files a complete FCC Form 601 application within 10 days. These actions are part of the FCC’s continued effort to improve communications and broadband service in rural and other hard-to-serve areas during the pandemic.

WTB Grants GE Healthcare Waiver to Expedite Medical Equipment from New Suppliers

On May 11, 2020, the WTB granted GE Healthcare’s request for a waiver (DA 20-489) to allow the importation, marketing, and operation of certain GE medical devices, including wearable patient monitors, diagnostic testing systems, and portable x-rays. The action will enable GE Healthcare to overcome disruptions in the medical device supply chain. Without the waiver, many of GE’s devices that are sourced from new suppliers or that contain new components would have required prior FCC equipment certification.

COVID-19: What Communications Service Providers Need to Know – May 11, 2020

Mon, 11 May 2020 17:53:30 -0400

FCC Approves Fifth Set of COVID-19 Telehealth Program Applications, Moves to Portal-Only Applications

On May 6, 2020, the FCC’s Wireline Competition Bureau (“WCB”) approved an additional 26 applications for the COVID-19 Telehealth Program. Under the latest funding round (which is the largest so far), $11.19 million in funding will go to health care providers in California, Texas, Massachusetts, and several other hard-hit areas. To date, the Program has funded 56 health care providers in 23 states for a total of $24.9 million. On May 1, 2020, the WCB announced via Public Notice that it will no longer accept PDF form applications by email for the Program. Instead, all applications for the Program must be submitted through the FCC’s online application portal available at https://www.fcc.gov/covid-19-telehealthprogram. The WCB stated that accepting applications only through the portal will enable it to expedite Program funding decisions.

Congress appropriated $200 million for the Program and the FCC continues to evaluate applications and distribute funding on a rolling basis. While money remains available, the size and pace of disbursements under the Program continues to increase and providers should take action now to assess their interest and ability to participate in the Program.

FCC Highlights Consumer Broadband Service Through Temporary 5.9 GHz Band Access Grants

On May 4, 2020, the FCC announced that its decision to grant wireless Internet service providers (“WISPs”) temporary access to 5.9 GHz spectrum is helping boost consumer internet access during the pandemic. To date, the FCC has granted Special Temporary Authority (“STA”) to more than 100 WISPs to access otherwise fallow spectrum in the 5.9 GHz band and other bands. Many providers in rural and suburban communities have reported how the spectrum is helping to address the increased demand for broadband as consumers adjust to stay-at-home orders and social distancing measures. It is likely that the FCC will continue to approve STAs to improve consumer broadband service during the pandemic.

FCC Hosts HBCU Presidents' Roundtable on Connectivity during Pandemic

On May 4, 2020, FCC Commissioner Geoffrey Starks virtually hosted a roundtable to discuss the connectivity needs at Historically Black Colleges and Universities (“HBCUs”) during the COVID-19 pandemic. This event featured remarks from U.S. Representatives Alma Adams (D-NC) and G.K. Butterfield (D-NC), and brought together leadership from HBCUs across the country. HBCU requests included laptops and residential broadband for students and employees, and funding for HBCUs in the next COVID-19 stimulus bill. Rep. Adams suggested that future COVID-19 legislation should include $10 million for a technology infrastructure fund for HBCUs to continue their transition to online learning.