Federal Communications Commission (FCC)

Punishing state 911 fee diverters could worsen funding problems for the emergency call system and might be ineffective, commented local and public safety groups this week in docket 20-291. Penalizing local governments for states’ decisions is “much like sending your daughter to bed without dinner because your son took a cookie from the jar without permission,” the National Association of State 911 Administrators (NASNA) responded to the FCC notice of inquiry. “The two siblings are related, but the response is not.”

The FCC should end more than a decade of indecision about giving states access to the network outage reporting system (NORS), said current and former state commissioners in interviews last week. NARUC will vote at its annual meeting Thursday-Friday and Nov. 9-11 on proposed resolutions asking the FCC to grant a 2009 California Public Utilities Commission petition to share NORS information and urging state legislatures to authorize commissions to reduce intrastate inmate calling service (ICS) rates to cost-based prices. NARUC will consider the resolutions just days after a presidential election that might change control of the FCC in 2021.

In what he said will likely be his final speech as a commissioner, Mike O’Rielly told a GSMA/CTIA conference FCC should focus on the 7 GHz and other bands in the months ahead and that some, if not all 7 Ghz, should be repurposed for 5G. Beyond making the 3.45-3.55 GHz band available for 5G, and potentially spectrum below 3.45, the next vein of spectrum to tap for 5G isn't clear and warrants a discussion, said AT&T Vice President-Federal Regulatory Hank Hultquist.

Challengers of the C-band clearing order (see 2007220003) and a panel of federal judges discussed whether the FCC did enough by ensuring 200 remaining megahertz are enough for incumbent satellite operators' future needs, in oral argument Wednesday. With the FCC auction in December, there's a hope and expectation that the expedited argument will mean the U.S. Court of Appeals for the D.C. Circuit will rule by then, though the court hasn't signaled any specific timing, a lawyer involved in the legal challenge told us.

The FCC approved an order making further changes to wireless infrastructure rules Tuesday, with dissents from Commissioners Jessica Rosenworcel and Geoffrey Starks as expected (see 2010220048). The order addresses equipment compound expansions as part of collocations, clarifying that an infrastructure modification doesn’t cause a “substantial change” if it entails excavation or deployments up to 30 feet outside macro tower compound boundaries (see 2010060060). Commissioner Brendan Carr indicated there were some changes from the draft. The FCC moved quickly, with a Further NPRM OK’d in June (see 2006090060).

The FCC could “withhold frequency licenses and renewals” to stop 911 fee diversion in New York, the state’s 911 Coordinators Association suggested Friday in response to a commission notice of inquiry. “States need frequencies and bandwidth to operate their communications systems and this is a tool the FCC can effectively use to pressure states.” Other related federal grants “may be another lever,” but the government “may face legal challenges regarding the nexus to 911 fee diversion,” it said. In New York, which collected $200 million from 911 fees in 2019, “the paucity of federal grant funds compared to the state’s surcharge revenues make enforcement highly unlikely.” New York protested the FCC blocking it and other 911 diverters from 4.9 GHz spectrum (see 2010060057). Comments on 911 fee diversion are due Monday (see 2010050038).

Congress authorized the FCC to interpret “all provisions” of the Communications Act, including amendments, so the agency can issue a rulemaking clarifying the immunity shield’s scope, General Counsel Tom Johnson blogged Wednesday (see 2010210022). Authority originates from the “plain meaning of” Communications Act Section 201(b), “which confers on the FCC the power to issue rules necessary to carry out the provisions of the Act,” Johnson wrote. Congress inserted Section 230 into the CDA, making clear “rulemaking authority extended to the provisions of that section,” he wrote. Johnson cited Supreme Court decisions by the late Justice Antonin Scalia in AT&T v. Iowa Utilities Board in 1999 and 2013's City of Arlington v. FCC.

The FCC intends to move forward with a rulemaking to clarify the meaning of Communications Decency Act Section 230, Chairman Ajit Pai said Thursday (see 2010150067). He said the FCC’s general counsel told him the agency has the “legal authority to interpret Section 230.” The announcement drew backlash from Democratic commissioners and praise from NTIA and Commissioner Brendan Carr. Republicans on Capitol Hill welcomed a potential rulemaking.

An expected 3-2 approval of the net neutrality remand order on Oct. 27's FCC agenda (see 2010060056) will likely be met by a reconsideration petition and/or legal challenge, interested parties told us. Which route petitioners go will depend somewhat on whether the FCC stays in Republican control in 2021 or changes hands, said lawyers and industry and public interest representatives. The agency declined comment Thursday.

The FCC made major changes to its draft 4.9 GHz order after it was circulated by Chairman Ajit Pai, based on our comparison. Commissioners last week approved the order on a party-line vote (see 2009300050). It now includes a section blocking states that divert 911 funds from participating. The FCC will make the cut, initially, based on the 2019 fee diversion report. Nevada, New Jersey, New York, Rhode Island and West Virginia are initially ineligible. A comparison of the draft and final order and Further NPRM on 5G in 3.45-3.55 GHz also found changes.