Legislative Activity

Senators Voice Concern over Broadband Speeds in Advance of FCC’s 2016 Broadband Progress Report

Days before the Federal Communications Commission’s (FCC’s) January Open Meeting at which the FCC adopted its 2016 Broadband Progress Report, six Senate Republicans wrote a letter to FCC Chairman Tom Wheeler arguing that the FCC’s broadband speed benchmarks were without merit and objected to the use of these benchmarks in measuring the breadth of broadband deployment and coverage throughout the country. The Senators argued that the FCC’s benchmark speeds of 25 megabits per second (Mbps) download and 3 Mbps upload – a change from the previous standard of 4 Mbps download and 1 Mbps upload – were inconsistent with what most citizens consider to be broadband in the United States. They further noted that few broadband applications actually require download speeds of 25 Mbps, citing applications like Netflix that recommend a download speed of only 5 Mbps to receive high-definition streaming video. The Senators also voiced concerns that if the FCC continued to use its current benchmarks, broadband providers would ultimately be discouraged from offering speeds at or above the benchmarks, especially if to do so would mean increased regulation by the FCC.

Agencies Confirm that Plans for Vehicle Spectrum Sharing Tests Are Underway

In a letter to Senate Commerce, Science, & Transportation Committee (Senate Commerce Committee) Chairman John Thune (R-SD), three federal agencies have confirmed that plans for vehicle spectrum sharing tests are underway. As discussed here, in September 2015, a group of senators wrote letters to the FCC, the Department of Transportation (DOT), and the Department of Commerce (DOC) instructing the agencies to work together to determine the feasibility of sharing valuable spectrum in the 5.9 GHz Band, currently allocated for use by intelligent transportation services and vehicle-to-vehicle (V2V) communication by the FCC, to provide more spectrum for unlicensed uses like Wi-Fi.

In the letter, DOC Secretary Penny Pritzker, DOT Secretary Anthony Foxx, and FCC Chairman Tom Wheeler expressed their collective commitment to “develop, successfully test, and deploy advanced automotive safety systems while working to meet existing and future spectrum demands.” The group also indicated that the DOT has conducted some initial testing to determine whether such sharing would cause interference with new vehicle safety technologies. The letter also highlighted the FCC’s work in developing its own three-phased plan, which will involve testing various unlicensed devices in laboratory and real-world environments. The letter concluded by emphasizing that each agency involved has been meeting with stakeholders and that a joint stakeholder-interagency meeting will likely be held in the future.

This Week’s Hearings:

• Tuesday, February 2: The Communications & Technology Subcommittee of the House Committee on Energy and Commerce will hold a hearing entitled “Status of the Public Safety Broadband Network.” The hearing will continue the subcommittee’s oversight of the First Responder Network Authority’s (FirstNet) progress toward the deployment of the nationwide public safety broadband network. David Furth, Deputy Chief of the FCC’s Public Safety and Homeland Security Bureau and Michael Poth, CEO of FirstNet, will testify at the hearing.

Regulatory Activity

FCC To Consider Two Media Items at February 18 Open Meeting

On January 28, the FCC announced that the following items are tentatively on the agenda for the FCC’s February 18 Open Meeting:

• “Promoting Diverse and Independent Programming.” The FCC will consider a Notice of Inquiry that “seeks comment on the current state of programming diversity and the principal obstacles that independent programmers face in obtaining carriage on video distribution platforms.”

• “Expanding Consumer Choice.” The FCC will consider an NPRM containing proposals designed to “unlock the set-top box,” according to a Fact Sheet released by the FCC on January 28. The FCC states in the Fact Sheet that “consumers should be able to have the choice of accessing programming through the MVPD-provided interface on a pay-TV set-top box or app, or through devices such as a tablet or smart TV using a competitive app or software.” The FCC’s primary proposal in the NPRM is to require that multichannel video programming distributors (MVPDs) – which are “cable, satellite or telco companies” – provide “three core information streams” to “creators of competitive devices or apps” that can be used to access MVPD-provided programming.

Chairman Wheeler discussed these items in a January 28 blog post , noting that the February Open Meeting “has a clear unifying theme: expanding consumer choice in the video marketplace.”

The FCC’s Open Meeting will take place on Thursday, February 18 at 10:30 a.m. in Room TW-C305 of the FCC’s headquarters at 445 12^th Street, S.W., Washington, D.C. and will be streamed live at fcc.gov/live.

FCC Finds Broadband Not Being Deployed to Americans in a “Reasonable and Timely Fashion”

On January 29, the FCC released the 2016 Broadband Progress Report (Report), in which the FCC finds that broadband is not being deployed in the U.S. in a “reasonable and timely fashion.” The FCC issues a Broadband Progress Report annually pursuant to Section 706 of the Telecommunications Act, which requires the FCC to conduct an annual inquiry into “whether advanced telecommunications capability [including broadband internet] is being deployed to all Americans in a reasonable and timely fashion,” and also to “take immediate action to accelerate deployment” if the FCC finds that deployment is lagging.

The FCC makes various findings supporting its conclusion that broadband is not being deployed in a “reasonable and timely fashion.” Specifically, that 34 million Americans (10 percent of the population) lack access to fixed broadband at the FCC’s benchmark speeds of 25 Mbps for downloads and 3 Mbps for uploads. The FCC also found that the “disparity between advanced telecommunications capabilities available to rural and urban Americans persists,” noting that 39 percent of the rural population lack access to broadband at the FCC’s benchmark speeds as compared to the 4 percent of urban Americans that lack access at those speeds. The FCC also determined in the Report that “the availability of advanced telecommunications capability requires access to both fixed and mobile services,” but concluded that the current record was insufficient for the FCC to set a benchmark speed for mobile broadband.

FCC Seeks Comment on Proposals to Strengthen the Emergency Alert System

On January 29, the FCC released a Notice of Proposed Rulemaking seeking comment on proposals to improve the Emergency Alert System (EAS) and Wireless Emergency Alerts (WEA) system, which are the “nation’s public alert and warning systems” and are recognizable by their distinctive triple-tones. The FCC’s numerous proposals “fall into four categories: 1) improving alerting organization at the state and local levels; 2) building effective community-based public safety exercises; 3) ensuring that alerting mechanisms are able to leverage advancements in technology, including IP-based technologies; and 4) securing the EA against accidental misuse and malicious intrusion.” Comment deadlines on the proposals will be set when the item is published in the Federal Register.

FCC Extends Filing Window for Application to Participate In Forward Auction

On January 27, the FCC announced that it would extend by one day the close of the filing window for the application to participate in the forward auction phase of the broadcast incentive auction (FCC Form 175) due to the Washington, D.C. federal office closures resulting from severe weather in the DC area. The FCC Form 175 is now due at 6:00 p.m. EST on February 10.

FCC Extends Online Public Inspection Requirements to Cable Operators, Satellite Radio and TV Providers, and Broadcast Radio Licensees

On January 29. the FCC released a Report and Order to require “cable operators, satellite TV . . . providers, broadcast radio licensees, and satellite radio . . . licensees to post their public file documents to the FCC-hosted online database[.]” The FCC established the online public file to create a “central, FCC-hosted online database [for public file documents] rather than maintaining paper files locally at their main studios.” Entities are only required to upload to the online file “those public file documents that are not already on file with the [FCC] or what the [FCC] does not currently maintain in its own database.”

FCC Announces Staff Changes

On January 29, the FCC announced that Roger Sherman, Chief of the Wireless Telecommunications Bureau, will be leaving the Commission at the end of February and will be replaced by Jon Wilkins, currently the FCC’s Managing Director. Mark Stephens, currently the FCC’s Chief Financial Officer, will then serve as acting Managing Director.