FCC to Consider Order Streamlining Historic and Environmental Reviews

On March 1, 2018, the Commission released a Draft Order in the Wireless Infrastructure Streamlining Proceeding.  This follows the Notice of Proposed Rulemaking and Notice of Inquiry adopted last April (Vol. XIV, Issue 17). The NOI/NPRM sought comment on existing state and local deployment barriers and whether the FCC could institute rules that better facilitated site deployment compliance with the National Historic Preservation Act (NHPA) and National Environmental Policy Act (NEPA). The draft Order exempts small cell deployments from NHPA and NEPA review, updates the tribal review process, and includes an agency “shot clock” for processing Environmental Assessments (EAs).  Additionally, EAs are no longer required for deployments at least a foot above baseline flood elevation. The Wireless industry has praised the proposed changes, while tribal groups have largely criticized the FCC’s actions. The Commission plans to vote on the draft Order at their March Open Meeting. 

Repurposing the 3450-3550 MHz Band for Commercial Use

The NTIA and the DOD have announced plans to conduct an engineering study under the Spectrum Pipeline Act to potentially repurpose the 3450-3550 MHz band for advanced innovative wireless services including 5G technologies. Currently, this band is utilized to operate military radar systems. The study will focus on the potential impacts advanced wireless services could have on critical government operations that are vital to national security. FCC Chairman Pai applauds the move, indicating that this band could unleash valuable spectrum for other technologies and services.

Federal Trade Commission (FTC) v. AT&T Mobility 

On Feb 26, 2018, the Ninth U.S. Circuit Court of Appeals reaffirmed the lower court’s finding that the common carrier exemption from FTC enforcement is activity-based, not status-based. In 2014, the FTC filed suit against AT&T for throttling customers with unlimited data plans, claiming this is an unfair or deceptive practice. Traditionally, the FTC has the authority to sue companies that engage in unfair and deceptive business practices; however, this authorizing law provides an exemption for common carriers.  The ruling clarifies that the common carrier exemption is activity-based; therefore AT&T is not exempt simply because it is a common-carrier. The decision comes as the Restoring Internet Freedom Order, which restored the FTC’s authority to regulate broadband privacy and data security practices (Vol. XV, Issue 9), became effective last week. FCC Chairman Pai praised the decision for reinforcing the FTC’s authority to regulate Internet service providers. 

Mobility Fund Phase II Update

The FCC released the Second Order on Reconsideration for Mobility Fund Phase II (MF-II) to address the remaining issues raised by petitioners. As we previously reported (Vol. XIV, Issue 9), the FCC adopted a framework which allocated up to $4.35 billion over the next decade to wireless service providers to advance the broadband deployment to rural or underserved areas. The Order eases the letter of credit requirements and amends the collocation requirement to include all newly constructed towers, while generally preserving the auction budget, disbursement, and performance rules adopted last year. The FCC intends to finalize the areas eligible for funding, but in the meantime, has released an initial map of areas that are presumptively eligible. The window for the MF-II challenge process will open on March 29, 2018. Procedures for the challenge process can be found here. 

Upcoming Auctions and Two Mid-Band Spectrum Proposals  

FCC Chairman Pai announced at the Mobile World Congress in Barcelona the Commission’s intention to hold an auction of 28 GHz band spectrum in November, immediately followed by a 24 GHz band auction. The Commission plans to seek comment on auction procedures this spring. In order to proceed with the proposed schedule, Chairman Pai indicated that legislation is necessary to enable the FCC to deposit upfront auction payments in an interest bearing account. The legislative fix must be passed by May 13, and the Chairman is hopeful that Congress will act quickly on the bipartisan issue. In addition, Chairman Pai announced that the Commission will propose rule changes to make the 3.7-4.2 GHz band available for commercial use and will move forward in allowing unlicensed devices in the 6 GHz band by the end of the year. Chairman Pai’s speech is available here.