FCC Holds Open Meeting

The  FCC took up a number of 5G related items and a record fine for spoofed robocalls.

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At a 9 June Federal Communications Commission (FCC) meeting, the agency approved a number of rulings and proposed rulemakings, most notably the rules for an auction to implement a new $16 billion rural broadband initiative and a $225 million fine for over 1 billion spoofed robocalls. The agency summarized its actions:

• Rural Digital Opportunity Fund Final Auction Procedures.
• Modernizing and Expanding Access to the 70/80/90 GHz Bands.
• State/Local Approval of Wireless Equipment Modifications.
• Promoting Broadcast Internet Innovation through ATSC 3.0.
• Proposed Fine for Illegal Spoofed Robocalls.

In the Rural Digital Opportunity Fund Public Notice, the FCC explained

• By this Public Notice, we establish procedures for Phase I of the Rural Digital Opportunity Fund auction (auction or Auction 904).  The auction will award up to $16 billion over 10 years to service providers that commit to offer voice and broadband services to fixed locations in eligible unserved high-cost census blocks.  The bidding in the auction is now scheduled to begin on October 29, 2020. 
• Auction 904 will be the Commission’s second auction to award ongoing high-cost universal service support through competitive bidding in a multiple-round, reverse auction and follows the successful Connect America Fund Phase II auction (Auction 903) in 2018.  As before, we intend to maximize the value the American people receive for the universal service funds we spend, balancing the need to support future-proofed networks and higher-quality services against the need to consider cost efficiencies and maximize the number of locations that receive service.  Therefore, we will again use an auction mechanism designed to select bids from providers that would deploy high-speed broadband and voice services in unserved communities for lower relative levels of support.  The bidding procedures we adopt, including some modifications to our proposals, will be implemented through the Auction 904 bidding system, which will enable a bidder to express in a simple and orderly way the amount of support it needs to provide a specified level of service to a specified set of eligible areas.
• Auction 904 will be the Commission’s single largest step toward bridging the rural digital divide, potentially bringing voice and broadband to millions of unserved homes and businesses in rural areas and fulfilling our commitment to universal service.  
• Nothing in this Public Notice is intended to amend the requirements set forth in the Rural Digital Opportunity Fund Order or the Commission’s rules. We urge prospective applicants to review carefully the Commission’s orders and public notices relating to the Rural Digital Opportunity Fund…

Regarding the Rural Digital Opportunity Fund, Chair Ajit Pai stated:

To help ensure that all Americans can enjoy those benefits of broadband, today we adopt final procedures for Phase I of the Rural Digital Opportunity Fund auction.  This reverse auction will distribute up to $16 billion over the next decade to deploy broadband to rural areas that everyone agrees lack broadband service, prioritizing gigabit-speed networks that will ensure networks serve consumers well into the future.  In March, Commission staff released a preliminary list of areas eligible for the Phase I auction, where staff estimate more than 11.7 million unserved Americans live and work.  That list includes millions of Americans who we know are on the wrong side of the digital divide.  And that’s why calls to delay the Phase I auction miss the mark.  These Americans deserve access to broadband as soon as possible.  They cannot afford to wait—and neither can we as a country—while we work to develop the new, more granular broadband coverage maps that will serve as the basis for the Phase II auction.  Digital opportunity delayed is digital opportunity denied.

Commissioner Geoffrey Starks explained:

Investments in bringing broadband to unserved areas are more critical than ever.  As I have noted throughout the development of the Rural Digital Opportunity Fund (RDOF), I support the auction structure, but I remain concerned about some key features of the program.  That includes our decision to spend such a large portion of the budget—over such a long term of support—based on broadband maps that are not accurate.  I would have preferred to start with a smaller budget or shorter term of support so that the bulk of the RDOF funds could be spent after we complete the mapping overhaul that data-driven policymaking and the Broadband DATA Act require.  Because this item builds on that flawed foundation, I must dissent in part.

The Notice of Proposed Rulemaking and Order titled “In the Matter of Modernizing and Expanding Access to the 70/80/90 GHz Bands,” the FCC stated

We initiate a proceeding to explore innovative new uses of the 71–76 GHz, 81–86 GHz, 92–94 GHz, and 94.1–95 GHz bands (collectively, the “70/80/90 GHz bands”).  In particular, we seek comment on potential rule changes for non-Federal users to facilitate the provision of wireless backhaul for 5G, as well as the deployment of broadband services to aircraft and ships, while protecting incumbent operations in the 70/80/90 GHz bands.  We seek to promote expanded use of this co-primary millimeter-wave spectrum for a myriad of innovative services by commercial industry, and in particular, we seek to take advantage of the highly directional signal characteristics of these bands, which may permit the co-existence of multiple types of deployments.  We also deny two requests for partial waiver of the antenna standards for the 71–76 and 81–86 GHz bands.  Because this is co-primary spectrum for Federal and non-Federal users, we will coordinate any proposed rule changes with the affected agencies and the National Telecommunications and Information Administration (NTIA).  This is consistent with established practice, in that, when evaluating any band that includes a shared allocation for Federal use, the FCC will work with NTIA to evaluate potential impacts associated with any new or expanded non-Federal use of shared allocations.

The agency also approved a notice of clarification and proposed rulemaking titled “In the Matter of Implementation of State and Local Governments’ Obligation to Approve Certain Wireless Facility Modification Requests Under Section 6409(a) of the Spectrum Act of 2012,” in which

• [W]e clarify the meaning of our rules implementing Congress’ decisions in section 6409(a) of the Spectrum Act of 2012, which recognized the efficiency of using existing infrastructure for the expansion of advanced wireless networks.  Those rules set forth a streamlined process for State and local government review of applications to deploy wireless telecommunications equipment on existing infrastructure.  Under this framework, a State or local government shall approve within 60 days any request for modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.
• [W]e seek comment on whether changes to our rules regarding excavation outside the boundaries of an existing tower site, including the definition of the boundaries of a tower “site,” would advance the objectives of section 6409(a).

Commissioner Jessica Rosenworcel explained her opposition by noting

[Cities and states] want a bit more time to weigh in on our decision, so they can be in a better place to implement it.  They want this time because their resources are strained by a deadly virus, economic calamity, and civil unrest.  As 24 members of the United States House of Representatives Committee on Energy and Commerce noted last week, “[i]f local governments are forced to respond to this Declaratory Ruling instead of focusing on their public health and safety responses, it very well may put Americans’ health and safety at risk.” But the FCC has decided to ignore this modest request for time to review.  I don’t get it.

The FCC also adopted a declaratory ruling and a notice of proposed rulemaking titled “In the Matter of Promoting Broadcast Internet Innovation through ATSC 3.0” and explained

More than twenty years ago, during the transition from analog to digital broadcast television, the Commission adopted rules allowing digital television (DTV) licensees to provide ancillary or supplementary services on their excess spectrum capacity and authorized licensees to enter into leases with other entities that would provide such services. Flash forward to today, and the conversion of digital television from the first-generation technologies associated with the ATSC 1.0 standard to the next-generation of ancillary services that will be enabled by ATSC 3.0 is now underway.  This new technology promises to expand the universe of potential uses of broadcast spectrum capacity for new and innovative services beyond traditional over-the-air video in ways that will complement the nation’s burgeoning 5G network and usher in a new wave of innovation and opportunity.  These new offerings over broadcast spectrum can be referred to collectively as “Broadcast Internet” services to distinguish them from traditional over-the-air video services.  Broadcasters will not only be able to better serve the information and entertainment needs of their communities, but they will have the opportunity to play a part in addressing the digital divide and supporting the proliferation of new, IP-based consumer applications or voluntarily entering into arrangements to allow others to invest in achieving those goals.  We undertake this proceeding to ensure that our rules help to foster the introduction of new services and the efficient use of spectrum.

Finally, in “In the Matter of John C. Spiller; Jakob A. Mears; Rising Eagle Capital Group LLC; JSquared Telecom LLC; Only Web Leads LLC; Rising Phoenix Group; Rising Phoenix Holdings; RPG Leads; and Rising Eagle Capital Group – Cayman,” the FCC stated

This Notice of Apparent Liability proposes the largest fine in FCC history.  John C. Spiller and Jakob A. Mears, doing business under the names Rising Eagle Capital Group LLC, JSquared Telecom LLC, Only Web Leads LLC, Rising Phoenix Group, Rising Phoenix Holdings, RPG Leads, and Rising Eagle Capital Group – Cayman (collectively, Rising Eagle), made approximately one billion spoofed robocalls in the first four-and-a-half months of 2019 with the intent to defraud, cause harm, and wrongfully obtain something of value in apparent violation of the Truth in Caller ID Act.  Given the egregious circumstances and the scope and scale of the robocall campaigns, we propose a forfeiture of $225,000,000.

Rosenworcel noted her approval of the size of the fine considering the conduct but added

But there’s something missing in this all-hands effort.  That’s the Department of Justice.  They aren’t a part of taking on this fraud.  Why not?  What signals does their refusal to be involved send?  Here’s the signal I see.  Over the last several years the FCC has levied hundreds of millions in fines against robocallers just like the folks we have here today.  But so far collections on these eye-popping fines have netted next to nothing.  In fact, it was last year that The Wall Street Journal did the math and found that we had collected no more than $6,790 on hundreds of millions in fines.  Why?  Well, one reason is that the FCC looks to the Department of Justice to collect on the agency’s fines against robocallers.  We need them to help.  So when they don’t get involved—as here—that’s not a good sign.

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