DC Circuit Remands RF Emissions Rules

Earlier this month, the U.S. Court of Appeals for the DC Circuit remanded to the FCC the agency’s decision not to open a proceeding to amend its current radio frequency (“RF”) emissions exposure rules (Vol. XVI, Issue 49).  In 2013, the Commission issued a Notice of Inquiry (“NOI”) to gather information about the effectiveness of the agency’s existing RF safety rules, which had remained largely unchanged since 1996.  The FCC resolved this NOI in 2019 by determining that the rules should remain unchanged.  Several groups and individuals challenged this determination in the Court and argued, among other things, that the Commission failed to consider information in the record regarding the ubiquity of wireless devices and changing nature of wireless deployments.  The U.S. Court of Appeals for the DC Circuit agreed.  Though the Court took no position on the scientific debate regarding the health and environmental effects of RF radiation, it determined that the Commission’s “cursory analysis of material record evidence was insufficient as a matter of law.”  The Court remanded the case to the FCC and ordered the agency to “provide a reasoned explanation for its determination that its guidelines adequately protect against harmful effects of exposure to radiofrequency radiation unrelated to cancer.”  The Court said the FCC “must, in particular, (i) provide a reasoned explanation for its decision to retain its testing procedures for determining whether cell phones and other portable electronic devices comply with its guidelines, (ii) address the impacts of RF radiation on children, the health implications of long-term exposure to RF radiation, the ubiquity of wireless devices, and other technological developments that have occurred since the Commission last updated its guidelines, and (iii) address the impacts of RF radiation on the environment.” 

911 Reliability Certification System Open

Last week, the FCC’s Public Safety and Homeland Security Bureau announced that the Commission’s 911 Reliability Certification System is now open for filing annual reliability certifications.  Under FCC rules, covered 911 services providers must take reasonable measures to provide reliable 911 service with respect to (i) 911 circuit diversity; (ii) central office backup power; and (iii) diverse network monitoring.  Providers must certify as to their compliance with each of these requirements or to their implementation of reasonable alternative measures.  Annual reliability certifications are due on October 15, 2021.  

AT&T Set Back in FCC Joint Use Ruling

Following an FCC Enforcement Bureau ruling on AT&T’s initial pole attachment complaint against Florida Power & Light, the Bureau last week dealt a significant blow to AT&T’s effort to block termination of the joint use agreement and FPL’s trespass claim, by ruling on a second AT&T complaint that AT&T’s arguments that the default provision and FPL’s termination notice were unjust and unreasonable were too late.  The Bureau also ruled that the joint use agreement’s “abandonment” clause does not apply to pole replacements. 

VoIP Provider Violates Accessibility Rules

The FCC issued an Order last week finding that ViaTalk, LLC (“ViaTalk”) violated its accessibility rules by failing to ensure that individuals with disabilities had access to information provided to other customers and failing to file annual compliance certifications with the Commission.  Under FCC rules, Voice over Internet Protocol (“VoIP”) providers must ensure that individuals with disabilities have access to information and documentation that the service providers provide to other customers, including product support communications.  Providers must also file an annual compliance certification with the FCC attesting to the entity’s accessibility efforts.  The Commission found that ViaTalk failed to respond to a support request from a customer with a disability.  ViaTalk must work with the customer to remedy product issues and establish processes to (i) ensure that complaints by individuals with disabilities are promptly referred to a representative; and (ii) document all efforts to resolve such complaints and retain such documents for 24 months.  

FCC Seeks Comment on Section 253 Petitions

Last week, the FCC issued a Public Notice seeking public comment on two separate Section 253 (47 U.S.C. § 253) petitions for declaratory ruling to preempt claimed municipal barriers to the provision of telecommunications service.  The first petition, filed by MediaCom against the City of West Des Moines, Iowa, alleges that the City’s proposed conduit lease agreement with Google Fiber is discriminatory.  The second petition filed by BlueBird against the City of Columbia, Missouri, claims that the City’s rights-of-way fee is impermissible under Section 253.  Comments and reply comments on the petitions are due on September 22 and October 12, respectively. 

911 Disability Alerting System Bill Introduced

Representatives Cathy McMorris Rodgers (R-WA) and Debbie Dingell (D-MI) introduced the Information Sharing and Advanced Communication (ISAAC) Alerting Act in the House last week.  The bill seeks to improve 911 emergency response for people with disabilities.  If enacted, it would require the FCC to prepare a report on the feasibility of establishing a national 911 disability alerting system that would inform first responders when a call was placed from a household or device with which an individual with a disability is associated.  Currently, the City of Spokane, Washington employs the ISAAC Alert System to aid responders in assisting individuals with disabilities. 

Casey Lide also contributed to this article.