[Senate Hearing 116-569]
[From the U.S. Government Publishing Office]
S. Hrg. 116-569
OVERSIGHT OF
THE FEDERAL COMMUNICATIONS COMMISSION
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
JUNE 12, 2019
__________
Printed for the use of the Committee on Commerce, Science, and
Transportation
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available online: http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
52-606 PDF WASHINGTON : 2023
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
ROGER WICKER, Mississippi, Chairman
JOHN THUNE, South Dakota MARIA CANTWELL, Washington,
ROY BLUNT, Missouri Ranking
TED CRUZ, Texas AMY KLOBUCHAR, Minnesota
DEB FISCHER, Nebraska RICHARD BLUMENTHAL, Connecticut
JERRY MORAN, Kansas BRIAN SCHATZ, Hawaii
DAN SULLIVAN, Alaska EDWARD MARKEY, Massachusetts
CORY GARDNER, Colorado TOM UDALL, New Mexico
MARSHA BLACKBURN, Tennessee GARY PETERS, Michigan
SHELLEY MOORE CAPITO, West Virginia TAMMY BALDWIN, Wisconsin
MIKE LEE, Utah TAMMY DUCKWORTH, Illinois
RON JOHNSON, Wisconsin JON TESTER, Montana
TODD YOUNG, Indiana KYRSTEN SINEMA, Arizona
RICK SCOTT, Florida JACKY ROSEN, Nevada
John Keast, Staff Director
Crystal Tully, Deputy Staff Director
Steven Wall, General Counsel
Kim Lipsky, Democratic Staff Director
Chris Day, Democratic Deputy Staff Director
Renae Black, Senior Counsel
C O N T E N T S
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Page
Hearing held on June 12, 2019.................................... 1
Statement of Senator Wicker...................................... 1
Statement of Senator Cantwell.................................... 3
Statement of Senator Capito...................................... 29
Statement of Senator Blumenthal.................................. 31
Statement of Senator Scott....................................... 33
Statement of Senator Schatz...................................... 35
Statement of Senator Gardner..................................... 38
Statement of Senator Duckworth................................... 40
Truthout Op-Ed--Prisons & Policing dated June 21, 2019
entitled, ``My Grandmother's 20-Year Fight for Prison Phone
Justice'' by Ulandis Forte................................. 41
Support letter dated June 11, 2019 to Senators Duckworth,
Booker, King, Markey, Portman and Schatz from nonprofit
organizations and community members........................ 44
Letter dated June 11, 2019 to Hon. Roger Wicker and Hon.
Maria Cantwell from Elias Diggins, President; Louis
Quinones, Jr., Legislative Chair; and Robert J. Kasabian,
Executive Director, American Jail Association.............. 47
Support letter dated June 11, 2019 to Hon. Roger Wicker and
Hon. Maria Cantwell........................................ 48
Letter dated June 11, 2019 to Hon. Roger Wicker and Hon.
Maria Cantwell from the Association of Metropolitan Water
Agencies, Water Environment Federation and the Water
Utility Climate Alliance................................... 49
Letter dated June 11, 2019 to Senator Roger Wicker and
Senator Maria Cantwell from Vanita Gupta, President and CEO
and Kristine Lucius, Executive Vice President for Policy
and Government Affairs, The Leadership Conference on Civil
and Human Rights........................................... 51
Letter dated June 11, 2019 to Hon. Roger Wicker and Hon.
Maria Cantwell from Jim Tymon, Executive Director, American
Association of State Highway and Transportation Officals... 53
Letter dated June 12, 2019 to Hon. Roger Wicker and Hon.
Maria Cantwell from Shailen P. Bhatt, President and CEO,
Intelligent Transportation Society of Amrica............... 55
Letter dated June 25, 2019 to Hon. Roger Wicker and Hon.
Maria Cantwell from Senators Duckworth, Booker, Portman,
Markey, Schatz and Angus S. King, Jr....................... 56
Letter dated July 2, 2019 to Mark A. Copeland, Senior Policy
Advisor, Office of Senator Duckworth from William L. Pope,
President, NCIC............................................ 57
Statement from the American Society of Civil Engineers....... 58
Statement of Senator Thune....................................... 60
Statement of Senator Markey...................................... 62
Statement of Senator Blackburn................................... 64
Statement of Senator Tester...................................... 66
Statement of Senator Lee......................................... 69
Statement of Senator Johnson..................................... 71
Statement of Senator Udall....................................... 73
Statement of Senator Blunt....................................... 75
Statement of Senator Sinema...................................... 77
Statement of Senator Sullivan.................................... 79
Statement of Senator Peters...................................... 82
Map entitled ``Connected Vehicle Deployment Locations--
Planned vs. Operational''.................................. 83
Witnesses
Hon. Ajit Pai, Chairman, Federal Communications Commission....... 4
Prepared statement........................................... 6
Hon. Jessica Rosenworcel, Commissioner, Federal Communications
Commission..................................................... 10
Prepared statement........................................... 12
Hon. Michael O'Rielly, Commissioner, Federal Communications
Commission..................................................... 15
Prepared statement........................................... 16
Hon. Geoffrey Starks, Commmissioner, Federal Communications
Commission..................................................... 19
Prepared statement........................................... 20
Hon. Brendan Carr, Commissioner, Federal Communications
Commission..................................................... 22
Prepared statement........................................... 24
Appendix
Response to written questions submitted to Hon. Ajit Pai by:
Hon. Roger Wicker............................................ 87
Hon. John Thune.............................................. 88
Hon. Dan Sullivan............................................ 88
Hon. Mike Lee................................................ 90
Hon. Ron Johnson............................................. 92
Hon. Todd Young.............................................. 92
Hon. Brian Schatz............................................ 94
Hon. Edward Markey........................................... 161
Hon. Tom Udall............................................... 162
Hon. Tammy Baldwin........................................... 164
Hon. Tammy Duckworth......................................... 165
Hon. Jon Tester.............................................. 166
Hon. Jacky Rosen............................................. 167
Response to written questions submitted to Hon. Jessica
Rosenworcel by:
Hon. Roger Wicker............................................ 168
Hon. Todd Young.............................................. 169
Hon. Amy Klobuchar........................................... 170
Hon. Edward Markey........................................... 170
Hon. Tom Udall............................................... 171
Hon. Jon Tester.............................................. 173
Hon. Jacky Rosen............................................. 175
Response to written questions submitted to Hon. Michael O'Rielly
by:
Hon. Ron Johnson............................................. 176
Hon. Todd Young.............................................. 176
Hon. Edward Markey........................................... 176
Hon. Tom Udall............................................... 177
Hon. Jon Tester.............................................. 178
Response to written questions submitted to Hon. Geoffrey Starks
by:
Hon. Amy Klobuchar........................................... 179
Hon. Edward Markey........................................... 180
Hon. Tom Udall............................................... 180
Hon. Jon Tester.............................................. 182
Hon. Jacky Rosen............................................. 183
Response to written questions submitted to Hon. Brendan Carr by:
Hon. Edward Markey........................................... 184
Hon. Tom Udall............................................... 184
Hon. Jon Tester.............................................. 186
OVERSIGHT OF THE FEDERAL COMMUNICATIONS COMMISSION
----------
WEDNESDAY, JUNE 12, 2019
U.S. Senate,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m. in room
SD-G50, Dirksen Senate Office Building, Hon. Roger Wicker,
Chairman of the Committee, presiding.
Present: Senators Wicker [presiding], Cantwell, Capito,
Blumenthal, Scott, Schatz, Gardner, Duckworth, Thune, Markey,
Blackburn, Tester, Lee, Johnson, Udall, Blunt, Sinema,
Sullivan, and Peters.
OPENING STATEMENT OF HON. ROGER WICKER,
U.S. SENATOR FROM MISSISSIPPI
Senator Wicker. Good morning and welcome to today's hearing
on The Oversight of the Federal Communications Commission.
I'm glad to convene the hearing with my friend and
colleague, Ranking Member Cantwell.
I welcome our distinguished panel of witnesses and thank
all of them for appearing. Today, we'll hear from FCC Chairman
Ajit Pai, Commissioner Michael O'Rielly, Commissioner Benjamin
Carr, Commissioner Jessica Rosenworcel, and Commissioner
Geoffrey Starks.
One of the FCC's most important responsibilities is to
promote the expansion of competitive telecommunications and
broadband networks across the United States.
Under Chairman Pai's leadership, the agency has taken steps
to close the Digital Divide in Rural America. The Commission
has promoted investment and innovation by addressing outdated
rules and regulations and has also taken steps to enhance
public safety, protect consumers, and improve transparency into
agency actions.
I commend the FCC for its efforts but note, as we would all
agree, that more work remains. That work starts with closing
the Digital Divide once and for all. Access to broadband is
essential. Through Internet connectivity, Americans can access
jobs, education, economic opportunities, good health, and
entertainment.
For too long, Americans across the Nation have gone without
access to reliable high-speed Internet service simply because
they live in the rural heartland.
In previous hearings, we have discussed how inaccurate maps
have contributed to the persistent broadband gap. It is clear
to me that short of a completely new approach to developing
accurate and reliable maps, the FCC should not move forward on
broadband funding decisions until it gets the maps right.
As a first step to improving the Nation's broadband maps,
last month I introduced the Broadband Interagency Coordination
Act with Senator Klobuchar. This legislation would improve
coordination among Federal agencies that administer broadband
deployment programs. It would also facilitate information
gathering among the FCC, the NTIA, and the Department of
Agriculture concerning broadband activity throughout the United
States.
Increased coordination will help target broadband resources
to unserved areas and communities that lack access to Internet
services.
Today, I will introduce the Broadband Data Act with
Senators Peters, Thune, and Klobuchar. This legislation would
build upon better coordination among Federal agencies and would
require the FCC to collect more granular data about where
wired, fixed wireless, and satellite broadband is available and
where it is not.
I'm sure Commissioners will want to discuss today what the
FCC is doing to collect more accurate data about broadband
availability as well as how the Commission is verifying the
data submitted by carriers.
I also hope the Chairman will provide a status update on
the Mobility Fund Phase II Program and discuss how the recently
announced $20.4 billion Rural Digital Opportunity Fund will be
used to close the Digital Divide.
We must solve the problem and do so without further delays.
The FCC's work also includes ensuring American leadership
in 5G, which is critical for the continued economic well-being
and security of the United States. The Commission has made real
progress in bringing spectrum to market to foster the
development of next generation networks.
Mid-band spectrum is particularly important to the initial
deployment of 5G, but the United States currently lags behind
our competitors in the availability of mid-band spectrum.
This morning's hearing is an opportunity for Commissioners
to discuss the FCC's efforts to speed up the availability of
mid-band spectrum for 5G and whether they believe congressional
action is necessary to advance the Commission's work in this
area.
Winning the race to 5G is dependent on the security of the
Nation's communications networks. I recently introduced
bipartisan legislation, The United States 5G Leadership Act,
with Senators Cotton, Warner, Markey, and Sullivan. This
legislation would provide relief to providers that need to
replace foreign equipment that may present a national security
risk.
The legislation would help improve information-sharing
among the national security agencies and communications
providers to address immediate threats to network security.
I look forward to hearing what more the Commission and the
entire Federal Government might do to improve security in the
next generation of telecommunications infrastructure.
Finally, let me commend the Commission for taking steps to
expand telemedicine in rural areas through its proposed $100
million Connected Care Pilot Program. This program is inspired
by the University of Mississippi Medical Center, which is a
national trailblazer in telehealth.
The Commission's focus on expanding connectivity through
this program can help reduce the cost of care and improve
patient outcomes, especially among the Nation's most
underserved populations.
Clearly, there's much to discuss today. I look forward to
hearing testimony from the Commissioners and thank them for
appearing.
I will now turn to my good friend from the State of
Washington, Senator Cantwell.
STATEMENT OF HON. MARIA CANTWELL,
U.S. SENATOR FROM WASHINGTON
Senator Cantwell. Thank you, Chairman Wicker, and thank you
for holding this important hearing and having the FCC
Commissioners before us today.
We have had two and a half of the last years in which I
think a lot of the important issues that affect consumers
before the FCC have been challenged, and I would say
eviscerated, as opposed to the consumer interests that have
been pushed forward.
Last year, more than 20 million Americans wrote asking you
to protect a free and open Internet, and instead net neutrality
protections for consumers were repealed. Don't worry. Big cable
companies will do the right thing by you.
Just last week in my own state, Comcast was ordered to pay
$9.1 million in fines for deceptive practices that affected
50,000 Washingtonians. And since the repeal of net neutrality,
some wireless and broadband companies already appear to be
testing ways to undermine the free and open internet.
Wireless carriers have been accused of potentially
throttling subscribers to Netflix and YouTube. CenturyLink
temporarily blocked access to the Internet in Utah to force
consumers to watch ads. Sprint allegedly interfered with
competitive Skype services using wireless networks. So these
are all questions that I will definitely be following up on in
our Q&A session.
But time and time again, big cable companies have
prioritized their bottom lines over the fair treatment of
consumers and the Internet economy, and we want to know that
you are on the front line of consumer interests.
When scientists and weather experts from outside and inside
the Trump Administration warned that actions on spectrum could
harm forecasting, their concerns were ignored. Peer-reviewed
science research has concluded that without key vapor data,
that could vanish due to actions on where spectrum has been
allocated, that this could impact our weather forecasting. And
despite the correct forecasting, if you consider that Sandy
impacted hundreds of lives and caused $70 billion, getting that
forecast wrong would have been deadly.
I want to thank Chairman Wicker for agreeing to hold a
hearing on this topic in the near future because I think it
needs to be addressed in more detail.
I also want to make sure that we are clear today we are not
going to allow this vital information to be jeopardized in the
future.
We have also heard, at a time when motor vehicle accidents
claim more than 37,000 lives in the United States each year,
that the FCC is pushing to open up key spectrum that
jeopardizes the promise of new technologies in this particular
area that could prevent as many as 80 percent of those
accidents.
So just like spectrum and its important use in
transportation, weather, launch forecasting, also the Chairman
mentioned broadband. So we all agree that we need to make more
access to Internet broadband equitable to Americans.
He mentioned the issue that's so important to all of us,
and that is rural telemedicine. But if we've failed at the FCC
to collect accurate data about who has access to broadband and
we don't have the right information, how can we ever fix the
problem?
I know that the FCC wants to put a cap on universal
service, the most successful broadband deployment in the
Nation's history, because they refuse to make the hard
decisions about how to appropriately fund it. So I hope that we
will hear about real solutions today and how we get through
these challenging times and make sure that we are protecting
the public interest.
I know that in the Information Age, we're going to continue
to grow and new products and services are going to be there,
but we also have to make sure we are aggressive about doing our
jobs and protecting that interest on behalf of the consumer.
Thank you, Mr. Chairman.
Senator Wicker. Thank you very much, Senator Cantwell.
And now we'll proceed with hearing opening statements from
our panelists, and today, why don't we do it this way? Why
don't we hear from Commissioner Pai first and then Ms.
Rosenworcel, then Mr. O'Rielly, then Mr. Starks, and finally
with Mr. Carr.
So, Chairman Pai, welcome, and we are interested in hearing
your five-minute statement.
STATEMENT OF HON. AJIT PAI, CHAIRMAN,
FEDERAL COMMUNICATIONS COMMISSION
Mr. Pai. Thank you, Chairman Wicker, Ranking Member
Cantwell, Members of the Committee.
Thank you for holding this hearing. I appreciate the
opportunity to update you on the work of the Federal
Communications Commission.
For almost two and a half years, we have worked together
with the Committee on a number of important priorities, from
advancing our Nation's leadership in 5G, including the 24
gigahertz ban, to tackling robocalls, our Number 1 consumer
complaint.
For example, last week, the FCC made clear that voice
service providers may block unwanted robocalls by default and
last month, the Senate passed the TRACED Act, important
legislation that I hope soon becomes law. I'm optimistic that
steps like these will make a significant dent in this problem.
This morning, I'd like to focus on my top priority, closing
the Digital Divide. The FCC has taken many steps to better
enable the private sector to deploy broadband infrastructure,
from eliminating unnecessary regulatory burdens to modernizing
our rules to make it easier to replace copper with fiber, to
groundbreaking reforms, like One Touch Make Ready.
The good news is that we're headed in the right direction.
Investment in our Nation's broadband networks rose in 2018 for
a second straight year by an estimated $3 billion. Fiber was
deployed to more new homes in 2018 than any year before and
small cell deployment more than quadrupled. Additionally,
Internet speeds are up 40 percent year over year.
We're also maximizing the impact of the Universal Service
Fund with aggressive reforms that will deliver more broadband
to more Americans. Last year, we finished the Connect America
Fund Phase II Reverse Auction. Through this novel approach, we
are now awarding about $1.5 billion to connect almost 700,000
unserved homes and businesses nationwide.
We are distributing this funding much more efficiently
thanks in part to competitive bidding, saving $3.5 billion from
the $5 billion price tag we initially thought would be required
to connect these unserved areas. These dollars are making a
real difference.
To date, the Commission has authorized $278 million for the
build-out of high-speed Internet service to almost 100,000
unserved locations in 27 states. Among other construction,
these applicants will be deploying gigabit fiber to locations
in rural Hawaii, Kansas, Massachusetts, Minnesota, Missouri,
and Tennessee.
I saw a glimpse of the exciting future ahead for consumers
in these areas during a recent visit to the East Central
Electric Cooperative in Okmulgee, Oklahoma. Thanks in part to
FCC funding, this electrical cooperative will build gigabit
speed connections to thousands of locations in Rural America,
including many tribal residents of the Creek Nation.
Now our efforts don't stop there, we reformed the FCC's A-
CAM Program last December and as a result, 186 small rural
carriers have now accepted $657 million in additional support
to connect 106,000 more rural homes and small businesses. This
is a 31 percent overall increase in the number of locations
that will have 25 megabit per second service and some states
will see a much larger increase, 114 percent in Arizona and 105
percent in Montana.
At the same time, we increased the funding of small rural
carriers that rely on the FCC's Legacy cost-based support
mechanism and we increased their obligations accordingly.
Under the prior Administration's rules, these carriers were
only required to provide 10 megabit per second service to about
115,000 locations. Under our new rules, these same carriers
will have to provide 25 megabit per second service to more than
600,000 locations, and we initiated the second round of A-CAM
offers to these carriers in exchange for building out 25
megabit per second broadband to all fully funded locations in
those service areas.
If all carriers accept offers, over 1.1 million locations
will have 25 megabit service, including 58,000 locations in
Texas, 42,000 in Indiana, and 36,000 in Missouri, and that's
not all.
In the coming months, we will begin a rulemaking to
establish a $20 billion Rural Digital Opportunity Fund to spur
the deployment of high-speed broadband networks and bring
greater economic opportunities to Rural America over the next
decade. This program will bring broadband to over four million
rural homes and small businesses.
Now while we continue our work closing the Digital Divide,
we also understand the importance of improving our broadband
deployment maps and that is why I am pleased to announce this
morning that, after a thorough review of the record and the
painstaking work of our career staff, I intend to recirculate a
report and Order of the FCC's monthly meeting in August that
would result in more granular and more accurate broadband maps.
That means requiring broadband providers to report where
they actually offer service below the census block level and
looking to incorporate public feedback into our mapping
efforts.
I hope my colleagues will join me in this effort to improve
upon our maps and I look forward to working with you on that
effort.
Chairman Wicker, Ranking Member Cantwell, Members of the
Committee, thank you once again for inviting me to testify. I
look forward to answering your questions and continuing to work
with you in the days to come.
[The prepared statement of Mr. Pai follows:]
Prepared Statement of Hon. Ajit Pai, Chairman,
Federal Communications Commission
Chairman Wicker, Ranking Member Cantwell, and Members of the
Committee, thank you for holding this hearing. I appreciate this
opportunity to update you on the work of the Federal Communications
Commission to advance the public interest.
I'd like to lead off by saying how proud I am of the dedicated
staff of the Commission. They come to work every day eager to carry out
their mission to close the digital divide, promote innovation, protect
consumers and public safety, and improve the FCC's processes and
programs. It has been a privilege to work alongside them at the FCC's
headquarters and in the field. They exemplify what it means to be
public servants.
For almost two-and-a-half years, we have worked together to achieve
the priorities I set at the beginning of my chairmanship--most notably,
the top priority of closing the digital divide. The Commission has
taken a variety of steps to better enable the private sector to deploy
broadband infrastructure. For example, last year, we made it easier and
cheaper for competitive providers to attach fiber to utility poles
through a groundbreaking reform called ``one-touch make ready.''
Of course, there are some areas where the business case for
broadband deployment just won't exist--no matter how much red tape we
cut. These are typically rural areas with sparser populations and lower
incomes. The FCC manages programs to connect these rural communities
through the Universal Service Fund. Here, we've been aggressively
taking action to maximize the USF's impact--to stretch scarce dollars
as far as we can.
Last year, we finished the Connect America Fund Phase II reverse
auction. Through this novel approach, we're now awarding about $1.5
billion to connect over 713,000 unserved homes and businesses
nationwide.
Before the auction, we identified parts of our country that were
unserved by broadband. This was so that we could target funding to
leverage--not displace--private capital expenditures. We didn't want to
fund overbuilding. We also made sure the auction was open to providers
of all types, including rural telecom, cable, fixed wireless, and
satellite companies, as well as electric utilities. This ensured that
there would be plenty of competition.
The outcome of the auction was a tremendous success. We distributed
funding much more efficiently thanks in part to intermodal, competitive
bidding, saving $3.5 billion from the $5 billion price we initially
thought would be required to connect these unserved areas. And
consumers are getting high-quality broadband--99.7 percent of the
winning bids are to provide consumers with service of at least 25/3
Mbps.
On Monday, we gave final approval to a second round of auction
funding that will provide $166.8 million over the next decade to expand
broadband to 60,850 locations in 22 states (including Arizona, Kansas,
Missouri, Nevada, New Mexico, and Tennessee). This money will begin
flowing by the end of the month. In May, we gave final approval to the
first batch of applications to expand service to 37,148 rural homes and
businesses in 12 states, and these funds have already started reaching
broadband providers. Among other construction, these applicants will be
deploying gigabit fiber to thousands of locations in rural Missouri and
Hawaii. To date, the Commission has authorized $278.4 million over the
next decade for buildout of high-speed Internet service to 97,998
unserved locations. I saw a glimpse of the exciting future ahead for
consumers in these areas during a recent visit to East Central Electric
Cooperative in Okmulgee, Oklahoma. Thanks in part to CAF funding from
the FCC, this electric cooperative will build gigabit-speed connections
to thousands of locations in rural Oklahoma, including many Tribal
residents of Creek Nation.
Moreover, last December, we implemented reforms to the FCC's
Alternative Connect America Cost Model (A-CAM). As a result, a total of
186 small, rural carriers participating in the A-CAM program have now
accepted $657 million in additional support over the next decade to
provide 106,000 more rural homes and small businesses with 25/3 Mbps
broadband service. This represents a 31.8 percent increase in the
number of locations that will have high-quality service available
through the FCC's A-CAM program. And the increase is much larger in
many states, such as 123 percent in New Mexico, 114 percent in Arizona,
and 105.4 percent in Montana.
In December, for the first time we also began requiring that small,
rural carriers that continue to rely on the Commission's legacy, cost-
based support mechanism provide 25/3 Mbps broadband service to specific
numbers of rural homes and small businesses in their service areas.
Under the prior Administration's rules, these carriers were only
required to provide 10/1 Mbps service to 115,441 locations; under our
new rules, these same carriers will have to provide 25/3 Mbps broadband
to at least 600,535 locations. At the same time, we also initiated a
second round of A-CAM offers of fixed, model-based support for a term
of ten years to these carriers, in exchange for building out 25/3 Mbps
broadband to all fully-funded locations in their service areas. If all
legacy-reliant carriers accept the new A-CAM offers, they will be
required to provide 25/3 Mbps service to at least 1,126,082 locations.
This would include 58,000 locations in Texas and Iowa, 42,000 locations
in Indiana, and 36,000 locations in Missouri.
Last year, we took other steps through the Fund to help close the
digital divide. For example, we increased the annual cap on rural
healthcare program spending by nearly 43 percent to $571 million per
year and implemented ongoing annual inflation adjustments--the first
increase in the program's funding level since it was established in the
1990s. In addition, in June 2018, we established a process to carry-
forward unused rural healthcare program funds from past funding years
for use in future funding years. This sensible modification means an
additional $83 million can be used in funding year 2019 that will help
to provide critical connectivity to rural healthcare institutions.
Going forward, we plan to continue our emphasis on closing the
digital divide. Later this year, for instance, we will begin a
rulemaking to establish a $20.4 billion Rural Digital Opportunity Fund.
Applying lessons learned from the Connect America Fund Phase II reverse
auction, this program will spur the deployment of high-speed broadband
networks across more of rural America over the next decade, bringing
greater economic opportunities to America's heartland. Service
providers that win funding in the reverse auction will deploy needed
infrastructure to provide up to gigabit-speed broadband in the parts of
the country most in need of connectivity. I'm excited about this
program--it will be the FCC's single biggest step yet to close the
digital divide and will connect up to 4,000,000 rural homes and small
businesses to high-speed broadband networks.
Of course, it is vital that we spend USF funds wisely and eliminate
waste, fraud, and abuse in these programs. That's why recently, we
developed a reorganization plan to create a Fraud Division within the
Enforcement Bureau. I am pleased that this proposal was unanimously
endorsed by the Commission and cleared by the Office of Management and
Budget. This reform will embed a permanent effort to combat USF fraud
within the structure of the Enforcement Bureau.
Another critical Commission priority is to maintain and advance our
Nation's leadership in 5G, the next generation of wireless
connectivity. 5G networks will be 100 times faster than today's
networks, perhaps more. They will have lag times that are one-tenth of
what they are today. And they'll have much more capacity, being able to
connect as many as one million devices per square kilometer.
Our work on 5G will open the door to new services and applications
that will grow our economy and improve our standard of living. Smart
transportation networks will link connected cars--reducing traffic,
preventing accidents, and limiting pollution. Ubiquitous wireless
sensors will enable healthcare professionals to remotely monitor your
health and transmit data to your doctor before problems become
emergencies. Connected devices will empower farms to apply precision
agriculture. And there will be more innovations that we can't even
conceive of today.
These breakthroughs will boost our economy. One study pegs 5G's
potential at three million new jobs, $275 billion in private
investment, and $500 billion in new economic growth. And that should
not be news to the members of this Committee, which has taken the lead
in ensuring America's leadership in 5G by passing laws like the MOBILE
NOW Act.
To realize this potential, we've developed and are executing the 5G
FAST plan--a comprehensive strategy that will ``Facilitate America's
Superiority in 5G Technology.'' It has three key components: (1)
pushing more spectrum into the marketplace; (2) promoting the
deployment of wireless infrastructure; and (3) modernizing outdated
regulations. In my testimony today, I'd like to concentrate on the
first prong, spectrum.
The applications and services of tomorrow will require much more
bandwidth. They cannot be developed and deployed without spectrum. This
critical resource represents the lifeblood of the communications
industry--and with it, the future of our economy. That's why the FCC
must continue its work to aggressively make more spectrum available for
commercial use.
Last year, I stated that the FCC would hold two high-band spectrum
auctions during this Fiscal Year: one for the 28 GHz band and another
for the 24 GHz band. And I noted that conducting these auctions
successfully and promptly would be important to U.S. leadership in 5G.
I am pleased to report that we have done what I said we would do.
Our 28 GHz auction began last November and concluded this January. All
in all, bidders won 2,965 licenses, and the auction raised $700,309,809
in net bids for the U.S. Treasury. Our 24 GHz auction began in March
and concluded in May. In this auction, bidders won 2,904 licenses, and
the auction raised $2,022,676,752 in net bids.
These auctions are significant accomplishments, but the FCC cannot
and will not rest on our laurels. Instead, we will continue to free up
spectrum for commercial use. Starting on December 10, we will hold an
auction of the upper 37 GHz, 39 GHz, and 47 GHz bands. This auction
will be the largest in American history, releasing 3,400 megahertz of
spectrum into the commercial marketplace. All in all, these auctions
will free up for the commercial marketplace over 5 gigahertz of
spectrum for flexible use. For context, that's more spectrum than is
currently used for mobile broadband by all mobile broadband providers
in the United States combined.
We are also taking aggressive action on mid-band spectrum,
important spectrum given the desirable combination of coverage and
capacity that these bands offer for wireless services. Next year, we
intend to auction mid-band spectrum in the 3.5 GHz band. However, we
expect to authorize initial commercial deployments in this band later
this summer--well ahead of the auction--after we complete our review of
the laboratory test results from the first group of spectrum access
systems. And we intend to take action to make available more spectrum
in the 2.5 GHz and 3.7-4.2 GHz bands in the coming months. Notably, the
MOBILE NOW Act also required the Department of Commerce to evaluate the
sharing of the 3.1-3.55 GHz band with commercial operators. Although
the Department has only announced that it has started looking at a
small portion of that band--the upper 100 megahertz--we look forward to
working with our Federal partners on how to effectuate the widespread
sharing of the full 450 megahertz of this prime mid-band spectrum.
As part of our balanced spectrum strategy, we have also been
working to make more spectrum available for unlicensed use. Earlier
this year, for example, we allocated over 21 gigahertz of spectrum in
the Spectrum Horizons bands for unlicensed operations. And we are
continuing our effort to open up a large amount of unlicensed spectrum
in the 6 GHz band (while safeguarding incumbents with innovative
technologies and sharing techniques). This will make sure we get the
most use of this limited, essential resource and deliver consumer
value.
The next priority I'll discuss is our important mission to protect
public safety. Here, the Commission has been extremely active, both
proactively and in response to emergencies that have arisen, such as
Hurricanes Harvey, Irma, Maria, and Michael.
Last year, for example, we took important steps to improve Wireless
Emergency Alerts, which play a critical role in notifying Americans
when emergencies strike. We adopted an order that requires the delivery
of more precise, geographically targeted alerts so that the alerts
reach only those communities impacted by an emergency. The order also
adopted rules to enable the public to better review emergency
information by requiring that alert messages remain available on
wireless devices for at least 24 hours after receipt, or until
consumers choose to delete it.
Last year, we also took important steps to improve the reliability
and effectiveness of the Emergency Alert System, or EAS. For example,
we adopted an order that authorizes ``live code'' testing of EAS--that
is, the testing of the same alert codes and processes that would be
used in actual emergencies--but also requires clear messaging and
outreach to make sure the public knows they are receiving a test
message, not an actual emergency alert. And to reduce the risk and
impact of false alerts, the order requires new safeguards in the
configuration of EAS equipment and also requires broadcasters, cable
systems, and other EAS participants to notify the Commission's 24/7
operations center when they discover they have transmitted a false
alert.
We have also taken steps to ensure that Americans in need can reach
someone who can help and that emergency responders can more quickly
locate Americans in need. For instance, we have proposed rules to
implement Kari's Law--and I would like to thank the members of this
Committee again for making this vital 911 improvement law a reality.
Kari's Law requires multi-line telephone systems--which commonly serve
hotels, office buildings, and campuses--to enable users to dial 911
directly. And it also contains a notification requirement so that when
a 911 call is made in these settings, a front desk or security office
will be alerted to facilitate building entry by first responders. In
March, we also proposed rules to help first responders more precisely
locate wireless 911 callers in multi-story buildings. Specifically, we
proposed a vertical, or ``z-axis'' metric to our location accuracy
rules that would enable 911 call centers and emergency responders to
figure out on what floor wireless 911 callers are located. In the
coming year, the Commission intends to take final action to improve our
location accuracy rules and implement Kari's Law.
Our work in this area also extends to national security. When it
comes to the security of our communications networks, we cannot afford
to make risky choices and just hope for the best. We must have a clear
view of the threats we face and take action to respond to those
threats. That ethos extends to our review of foreign companies that
seek to do business in the United States. At our May open meeting, for
example, the Commission advanced our national security by denying the
application of China Mobile USA, a wireless carrier ultimately owned by
the Chinese government, to provide international telecommunications
services in the United States.
The process that yielded decision reflects the well-considered,
fully-integrated approach of the FCC and Administration to the national
security implications of communications networks. The FCC solicited the
views of the relevant Federal agencies on whether China Mobile's
application raised national security, law enforcement, or related
concerns. After a lengthy review of the application and in consultation
with the U.S. intelligence community, in 2018, the Executive Branch
agencies recommended that the FCC deny China Mobile USA's application
due to substantial national security and law enforcement concerns.
Notably, this was the first time the Executive Branch had ever
recommended that the FCC deny an application due to national security
concerns. Based on this recommendation and the full public record in
this proceeding, I determined that approving this application would not
serve the public interest and the Commission voted to deny China Mobile
USA's application. I'm pleased my colleagues agreed with me.
Our cross-agency efforts extend to the international stage. Last
month, I was honored to be part of the United States delegation that
traveled to Prague for an important conference on how best to secure
our 5G networks. I'm grateful to the leaders of the Czech Republic's
government for convening this meeting, which featured government
officials from more than 30 countries, as well as industry leaders. I'm
even more gratified that this gathering was able to develop a set of
consensus best practices for 5G security. Dubbed the Prague Proposals,
these guiding principles fall into four categories: policy, technology,
economy, and security.\1\ And the fact that proposals gained such wide
support was due in part to the close collaboration among U.S.
government agencies, including the FCC, and direct engagement on the
international stage.
---------------------------------------------------------------------------
\1\ The Prague Proposals issued following the Prague 5G Security
Conference are available at https://www.vlada.cz/en/media-centrum/
aktualne/prague-5g-security-conference-announced-series-of-
recommendations-the-prague-proposals-173422/.
---------------------------------------------------------------------------
Going forward, we will continue to prioritize the security of our
communications networks. We are working with our Federal partners to
implement Executive Order 13,873, the President's May 15 Order on
Securing the Information and Communications Technology and Services
Supply Chain, and section 889 of the John S. McCain National Defense
Authorization Act for Fiscal Year 2019. We are in turn examining the
impact of these developments on the FCC's 2018 proposal to ban the use
of money from the Universal Service Fund to procure equipment or
services from companies that pose a national security threat to our
communications networks or the communications supply chain. And we have
followed with interest the bipartisan introduction of the United States
5G Leadership Act of 2019, which would create a Supply Chain Security
Trust Fund to aid small carriers in replacing such equipment.
The last priority I'll mention--but certainly not the least
important--involves attacking unwanted and illegal robocalls. During my
tenure as FCC Chairman, I've had the opportunity to set the agenda for
28 monthly meetings. At almost half of those meetings, we've voted on
measures to fight unlawful robocalls and caller ID spoofing. We've
taken action to cut off robocalls and spoofing at the source, including
authorizing carriers to stop certain spoofed robocalls. We've
authorized the creation of a reassigned numbers database. We've taken
aggressive enforcement action against those who unleash robocalls on
consumers. We've proposed to use the authority Congress gave us in last
year's RAY BAUM'S Act to expand the reach of our anti-spoofing rules.
Most recently, last week we made clear that voice service providers may
block unwanted robocalls by default and sought comment on creating a
safe harbor for providers who block such calls that fail Caller ID
authentication. I'm optimistic that these steps will make a significant
dent in this problem, which generates the most consumer complaints to
the Commission.
An important coda on Caller ID authentication framework, which can
help combat illegal caller ID spoofing: Call authentication is the best
way to ensure that consumers can answer their phones with confidence.
It will help consumers know when a phone call is fraudulent before they
pick up, thus eroding the ability of scam artists to use false caller
ID information to trick vulnerable Americans into answering their
phones when they shouldn't. With a robust framework in place, consumers
and law enforcement alike will be able to more readily identify the
source of illegally spoofed robocalls and reduce their impact.
I have repeatedly demanded that major carriers implement the
SHAKEN/STIR Caller ID authentication framework by the end of 2019. If
they do not, the Commission has taken the necessary steps to be move
directly to final regulations early next year to require that they do
so. Our work here is fully in line with, and a complement to, the
important work this Committee has done in crafting the Telephone
Robocall Abuse Criminal Enforcement and Deterrence Act, or TRACED Act--
important legislation that I hope soon becomes the law of the land.
In addition, the Commission continues to aggressively enforce the
Telephone Consumer Protection Act as well as the Truth in Caller ID
Act. We have sent a clear message that those who engage in illegal
robocall schemes will pay a price. The FCC coordinates with the Federal
Trade Commission on investigations into violations of our Do Not Call
rules, and we work together on consumer education programs. The
Commission also works with Federal and state agencies to share
information and resources that can be used to investigate unwanted
calls, such as the Department of the Treasury, Department of Justice,
and Department of Homeland Security. Finally, we alert consumers about
robocall scams, such as a recent ``one-ring'' advisory issued this
month warning consumers about scam calls using three-digit country
codes for Mauritania or Sierra Leone and hanging up after a single
ring.\2\
---------------------------------------------------------------------------
\2\ The `` `One-Ring' Phone Scam'' advisory is available at https:/
/www.fcc.gov/consumers/guides/one-ring-phone-scam.
---------------------------------------------------------------------------
* * *
I would like to conclude by once again thanking our dedicated
staff. Day in and day out, they work hard to advance the public
interest. Whether they are working to combat robocalls, expand
broadband deployment, promote wireless innovation, protect public
safety, or address consumer complaints, they serve the American people
with skill and dedication, and I am honored to have them as colleagues.
Thank you for this opportunity to testify. I will be pleased to
answer any questions that you may have.
Senator Wicker. Thank you very much, Commissioner Pai, and
we appreciate that announcement.
Commissioner Rosenworcel, welcome back to the Committee.
STATEMENT OF HON. JESSICA ROSENWORCEL, COMMISSIONER, FEDERAL
COMMUNICATIONS COMMISSION
Ms. Rosenworcel. Good morning, Chairman Wicker, Ranking
Member Cantwell, and Members of the Committee. Thank you for
the opportunity to be here today.
I believe the future belongs to the connected. No matter
who you are or where you live in this country, you need access
to modern communications to have a fair shot at 21st Century
success, and I saw this just over a month ago in Washington
State where, with the Ranking Member of this Committee, I met a
fisherman who suffered a stroke. He was from Shaw Island, a
population of 165.
Now that's not a place with a big health care facility, but
he was diagnosed remotely and airlifted to a hospital for
surgery and telemedicine made it possible.
Just last week, I saw something similar at the Mayo Clinic
in Minnesota where heart patients can be sent home with a
wearable patch to monitor cardiac activity, offering continuous
care outside of the hospital.
But the story that stays with me most is from Arkansas and
the Upper Delta. This is an area with a proud history. It's
known the world over for the rice its fields produce. It was
where Johnny Cash spent his childhood and where Ernest
Hemingway penned A Farewell to Arms in a barn.
But this region is also on the leading edge of an ugly
trend and that's increasing maternal mortality. You see, the
United States is the only industrialized nation with a growing
rate of maternal mortality and it hits women of color
especially hard but in rural communities across the country,
obstetric care is disappearing.
Half of our rural counties no longer have a hospital with a
maternity ward and in light of this, this team of health care
professionals I met at the University of Arkansas for Medical
Sciences decided they were going to do something about it. They
described for me a typical patient in the Upper Delta and she
had been diagnosed with pre-eclampsia, a hypertensive disorder
that is a leading cause of maternal mortality, and to manage
this disorder monitoring is key.
But this patient lives in a rural area. In fact, she had to
drive several hours just to give birth at a specialty hospital.
There's just no way she was going to make the same drive on a
daily basis during the weeks after delivery.
So this team of health care professionals, they got
creative. They sent her home with a blood pressure cuff, a
digital scale, and a pulse oximeter to measure the levels of
oxygen in her blood and she was told just connect all of these
devices to a wireless gateway and transmit daily readings to
the medical center. This was great, except for one small
detail.
The patient had no wireless service at home. As she
described it, she lived in a dead zone. So every day after
performing these rituals, she climbed in her truck, drove up to
the top of a hill a mile away, and then sent the data along.
Now I can't stop thinking about that story because it tells
us about the power of communications but it reminds us of how
too many people in too many places in this country are still
struggling to connect and during the past 2 years, I don't
think the Federal Communications Commission has done enough to
address this problem.
For starters, we don't even know with certainty where
broadband and wireless service is throughout the country. Our
broadband maps are a mess. One cabinet official recently called
them ``fake news.''
The FCC distributes billions each year to help build
broadband but it's wasteful and irresponsible to continue to do
so without a truly accurate picture of where service is and is
not.
On top of this, we have done too little to fix robocalls.
At the start of this Administration, consumers received about
two billion robocalls a month. They now get about five billion
a month. That's crazy.
Last week, the FCC took steps to authorize phone companies
to deploy new blocking technology to help with this problem,
but here's the kicker. Nothing in this decision prevents
carriers from charging consumers for this blocking technology.
I think robocall solutions should be free to consumers, full
stop. They didn't cause this mess on their phone lines. They
shouldn't have to pay to fix it.
Finally, privacy matters. Recent press reports show that
for a few hundred dollars some shady middlemen can sell you
your location within a few hundred meters based on your
wireless phone data. I don't recall consenting to this
surveillance when I signed up for wireless service and I bet
neither do you.
Think about what the sale of this data means for criminal
activity and domestic abuse. It's chilling. This is a matter
that's crying out for clarity but so far, the FCC has been
totally silent. That's unacceptable. It's time for the agency
to hold those who violated the law responsible and make clear
to the American public that their wireless location data is
safe.
In closing, we have problems to solve, resources that are
constrained and communities that are having difficulty
navigating the Digital Age. The right communications policies
can help and they can even help solve hard problems, like
maternal mortality, but the way to do this is have the FCC
change course and put the public first.
Thank you. I look forward to answering any questions you
may have.
[The prepared statement of Ms. Rosenworcel follows:]
Prepared Statement of Hon. Jessica Rosenworcel, Commissioner,
Federal Communications Commission
Good morning, Chairman Wicker, Ranking Member Cantwell, and Members
of the Committee. Thank you for the opportunity to appear before you
today.
I believe the future belongs to the connected. No matter who you
are or where you live in this country you need access to modern
communications to have a fair shot at 21st century success. Clearing
the way for this connected future should be at the heart of everything
we do at the Federal Communications Commission. I believe we can do
this when we focus on the most basic values in our laws: universal
service, consumer protection, competition, and public safety.
It saddens me that during the past two years, we have not led with
these values. Instead, too often this agency has acted at the behest of
the corporate forces that surround it, shortchanging the American
people.
You see this clearly in our inability to bring broadband to
underserved communities and our bungled efforts to produce an accurate
map showing where high-speed service is and is not all across the
country. You see it in our slow and tepid response to the robocall
epidemic. You see it, too, in the mess we made with our roll back of
net neutrality and in our failure to offer anything but total silence
in response to revelations that our privacy has been violated with the
sale of sensitive wireless location data on our phones.
I am disappointed that the FCC has failed to show the courage I
believe is necessary to take on these big challenges. Because on top of
these, so many others lie ahead: our leadership in 5G wireless, the
extraordinary cybersecurity challenges facing our networks, and the
need for a bolder national broadband goal of 100 megabits per second
with gigabit speeds in sight--everywhere and for everyone.
Our challenges with 5G leadership are particularly acute. There is
widespread agreement that to get 5G out of dense cities and into rural
America, we need mid-band spectrum to do it. However, the FCC has made
zero mid-band spectrum available at auction for the 5G economy.
Instead, we are doubling down with auction after auction of high-band
spectrum that is too costly to deploy in rural areas. By doing so we
are expanding the digital divide--when we should be collapsing it.
Moreover, we are creating a gap between the airwaves used for 5G in the
United States and the rest of the world, as China, Japan, South Korea,
Australia, Spain, Italy, Austria, Switzerland, Germany, and others put
a premium on early 5G deployment with mid-band spectrum. Our choice to
focus just on high-band airwaves with limited propagation has
consequences--less scale, greater interoperability challenges, and
limited prospects for service in remote communities.
The truth is we have problems to solve, resources that are
constrained, and communities that are having difficulty navigating the
digital age. I still believe that the right communications policies can
help. They can help students caught in the homework gap, stuck without
the Internet service they need to do their nightly schoolwork. They can
help expand the use of telemedicine to tackle our hardest healthcare
challenges, like the increasing rate of maternal mortality in this
country. They can help make us safer, with improved 911 service in all
of our communities. They can help make our democracy stronger, if we
can commit to media policies that can ensure news organizations can
report without fear or favor.
I believe it is not too late to change course. It is not too late
to refocus our attention on our most basic values--universal service,
consumer protection, competition, and public safety. To that end, I
have some ideas about where we can start to regain what has been lost.
Universal Service
Universal service is a cherished value in communications law. As I
noted at the outset, no matter who you are or where you live in this
country, you need access to modern communications to have a fair shot
at 21st century success.
But the fact of the matter is that too many Americans lack access
to broadband. According to the FCC's last-published report, over 21
million Americans do not have access to high-speed Internet service,
the bulk of them in rural areas. That's troubling. But even more
troubling is that there is no way this statistic is truly credible. Our
methodology--assuming a single broadband customer in a census block
means service is available throughout--is inadequate. How inadequate?
Consider that another study found that 162 million people across the
United States do not use Internet service at broadband speeds. That
turns our digital divide into a yawning chasm.
We have to figure out what is going on. It is becoming clear that
the FCC does not have the full picture of just where service is and is
not all across the country. This is unacceptable. It is time to fix
this mess with accurate and honest broadband and wireless maps. This is
essential because we will never be able to manage problems that we do
not measure.
I am not the only one who feels this way. In a congressional
hearing earlier this year, a cabinet official pronounced the FCC's maps
``fake news.'' We need to do better. Our wired maps have serious
inaccuracies. Our wireless maps are so suspect they are now the subject
of an ongoing investigation. To fix our maps, we need to be creative.
We should use crowdsourcing, spot checking, auditing, and processes to
challenge these maps based on our lived experience. But above all, we
should stop taking data from carriers and simply assuming every bit of
it is true.
Getting this right matters. If we don't have proper maps, we will
not be able to target policy solutions effectively. The FCC distributes
billions of dollars each year to help accelerate the build out of
broadband, so we can connect all of our communities. It's wasteful and
irresponsible for the agency to do so without having a truly accurate
picture of where these resources should go.
Consumer Protection
Consumer protection is always in the public interest. It requires
the FCC to be nimble, especially as the communications industry changes
at a breakneck pace. But our efforts to stem the growing tide of
robocalls have been anything but.
At the start of this Administration, American consumers received
roughly 2 billion robocalls a month. That number is now about 5 billion
a month. That is about two thousand robocalls every second every day.
That's insane.
To tackle this mess, the FCC has tried to take on bad actors
flooding our lines with these nuisance calls. But as the Wall Street
Journal reports, out of the hundreds of millions of fines the FCC has
assessed on these bad actors, the agency has collected no more than a
grand total of $6,790. It's clear the FCC's enforcement is not working.
This is like trying to empty the ocean with a teaspoon.
Earlier this month, the FCC decided to take a different approach.
The good news is that it authorized phone companies to deploy
technology to block robocalls across the network, unless a consumer
opts out. The bad news is that nothing in this decision prevents
carriers from charging consumers for this blocking technology to stop
robocalls. I think robocall solutions should be free to consumers. In
fact, I wrote major phone companies in December of last year to demand
that they provide free robocall blocking tools to consumers. Consumers
didn't cause this mess on their phone lines. They shouldn't have to pay
up to fix it. That's because consumers are already paying the price--in
scams flooding our phone lines; wasted time responding to false and
fraudulent calls offering us what we did not ask for, do not want, and
do not need; and a growing distrust in communications networks. It's
disappointing that the FCC couldn't simply do what consumers want
most--stop robocalls and do it for free.
Competition
Competition is fundamental. It yields lower prices and higher
quality services. But right now, too few households have any choice
when it comes to high-speed broadband service. I know this personally,
because I'm one of them. But I also know this professionally, because
the FCC's data show that half the households in this country have no
choice of broadband provider.
This is one of the reasons why the FCC adopted net neutrality rules
a few years back. With these rules in place, your broadband provider
does not have the right to block websites, throttle online services, or
censor online content. That sounds good to me--and to American
consumers everywhere. In fact, a study from the University of Maryland
found that 86 percent of the public support net neutrality. But, the
FCC--over my objection--stripped net neutrality from our rules. Now,
because of the lack of competition, consumers have nowhere to turn if
their broadband provider slows down their service or censors websites.
This is not right.
Moreover, in its haste to roll back net neutrality, the agency used
a process that should make no one proud. The record was rife with
fraud. More than nine million people--including United States
Senators--had their identities stolen and used to file views about net
neutrality that were not their own. This is a crime under state and
Federal laws. However, the FCC refused to assist state authorities
looking to understand how this happened and turned away requests from
journalists seeking information about this mess. The agency was forced
to pay one journalist tens of thousands of dollars to settle a court
case and is actively fighting others in court. All of which begs the
question, what is the FCC hiding?
Earlier this year, I was the only FCC Commissioner to sit through
the oral argument at the court reviewing the FCC decision to eradicate
net neutrality. What was obvious to me is that some part of our
decision--if not all of it--will be remanded to us. When that happens,
I hope that this agency will have the courage to run a fair and open
process. I hope that it will reflect the strong desire of the American
public to have open Internet policies once again be the law of the
land.
Public Safety
Finally, public safety is paramount. In the very first sentence of
the Communications Act, Congress instructed the FCC to make available,
``to all the people of the United States . . . a rapid, efficient,
Nation-wide, and world-wide radio and communication service'' in order
to promote the ``safety of life and property.''
At about this time last year, press reports revealed that wireless
carriers were selling our private data about when and where we are
using our phones to third-party location aggregators. Then, earlier
this year, it was revealed that this data was still for sale--and
ending up in the hands of bounty hunters. It turns out that for a few
hundred dollars, shady middlemen could use this data to show where you
were at any moment within a few hundred meters.
This is outrageous. I don't recall consenting to have my wireless
location data sold this way--and yet it has been happening. I don't see
how this is permissible under the law--and yet it has been happening.
This is an issue of personal and national security. It is an issue
of privacy. Think about what the sale of this data means for criminal
activity and domestic abuse. It's chilling. This is a matter that is
crying out for clarity from the FCC. But to date, the agency has been
totally silent.
That's unacceptable. I believe the FCC needs to do more to provide
the public with basic information about what is happening with their
real-time location information. So I wrote every major wireless carrier
and asked them to confirm that they have stopped this kind of sale of
our wireless data. Moreover, I asked them to explain just what has
happened to any data that has already been made available to location
aggregators or anyone else. I made their responses public. To date,
this is the only information publicly available about this practice.
It's not enough. It's time--past time--for the FCC to hold those who
violated the law responsible and make clear to the American public that
their wireless location data is safe.
In closing, thank you for holding this hearing. Thank you for
providing me with the opportunity to offer my views. I look forward to
answering any questions you may have and I look forward to working with
you and your staff in the days ahead.
Senator Wicker. Thank you, Commissioner.
Commissioner O'Rielly, welcome back to the Committee.
STATEMENT OF HON. MICHAEL O'RIELLY, COMMISSIONER, FEDERAL
COMMUNICATIONS COMMISSION
Mr. O'Rielly. Thank you, sir. Thank you, Chairman Wicker,
Ranking Member Cantwell, and the Members of the Committee.
It is a pleasure to be before this body as it conducts
further oversight of the FCC.
With your indulgence, I'd like to raise three areas of
communications infrastructure for the Committee's attention.
First, spectrum. I believe there's near universal agreement
to free up additional mid-band spectrum given its propagation
characteristics and opportunities for global spectrum
harmonization.
Continuing what Chairman Pai has put in motion, the
Commission must redouble its efforts to allocate additional
mid-band frequencies for the next generation license services.
Part of this must be reallocating a portion of the 3.7 to
4.2 gigahertz band or the C-band. One of my foremost concerns
is to ensure that the mechanisms selected allow for the
quickest possible process, and I remain hopeful that satellite
incumbents will be willing to part with closer to 300
megahertz.
Separately, there needs to be a greater effort to identify
more Federal bands that can be converted to commercial use.
Moreover, the Commission must free additional unlicensed
spectrum.
Second, while broadband availability has improved over the
years, many unserved areas remain and we must continue our
efforts to expand access in an efficient and timely manner. At
the same time, I worry that the well-intentioned desire of
Congress or selected agencies to expand broadband
infrastructure will lead to unexpected wasteful and duplicative
spending with adverse consequences for consumers.
Specifically, it is my foremost desire that any new funding
go to unserved areas rather than areas where broadband service
already exists. Coordination among various agencies and
departments is helpful but only through clear legislative
directions, like that in the Broadband Interagency Coordination
Act of 2019, to ensure funding does not duplicate existing
programs and goes to only those Americans without broadband
today.
The last issue I want to touch upon is 9-1-1 fee diversion.
Every month, millions of consumers pay their phone bills only
to see a good portion of the money flowing to a state or
territory's general treasury and as a result, only a small
percentage goes toward emergency services.
On top of being downright deceptive, this is a serious
public safety matter that directly affects emergency call
centers and personnel. Following the FCC's December report the
states and territories guilty of diverting these critical funds
for 2017 were New York, New Jersey, Rhode Island, Montana,
Nevada, West Virginia, and the U.S. Virgin Islands.
I respectfully request the Committee's assistance. The name
and shame process generated by our annual report has only been
so helpful. I believe new legislation is needed and it'll take
a more forceful approach to end diversion once and for all.
Thank you for inviting me to testify. I welcome any
questions you may have.
[The prepared statement of Mr. O'Rielly follows:]
Prepared Statement of Hon. Michael O'Rielly, Commissioner,
Federal Communications Commission
Good morning. It is a pleasure to appear before this Committee once
again, as it conducts further oversight of the Federal Communications
Commission. I appreciate the opportunity to be here and welcome any
questions you may have.
In approaching the current communications landscape, the Committee
and the Commission have been focused on the changing nature of the
industry, whether in terms of technological advancement, modern
networks, or present-day markets. Under Chairman Pai's leadership, the
Commission has made a strong effort to modernize our regulations to
keep pace with these changes. Make no mistake, this is hard work.
However, we have made progress despite the headwinds, and I am excited
to see further growth and strengthening of our Nation's communications
infrastructure over the coming months and years.
In considering the many different areas of communications policy
ripe for discussion at today's hearing, I decided to narrow my
testimony to four issues that are of particular importance to me: first
and foremost, the need to quickly deploy more mid-band spectrum;
second, the urgent need to prevent taxpayer-funded overbuilding of
existing infrastructure; third, the need to end theft of 9-1-1 fees by
states for unrelated programs; and finally, the need to address illegal
robocalls while protecting legal communications. I am happy to answer
your questions on these or other topics.
Freeing Additional Spectrum, Especially in the Mid Bands
The Commission continues to make great strides to ensure U.S.
leadership in 5G by allocating the necessary millimeter wave
frequencies. Over the past three years, however, I have focused most of
my energy on crucial mid-band spectrum. There is now near universal
acceptance that far more needs to be done to free up additional mid-
band spectrum given its propagation characteristics and opportunities
for global spectral harmonization.
Finding additional mid-band spectrum is extremely hard. There is no
fallow spectrum, incumbent users are everywhere, and a multitude of
interested parties have different and often conflicting visions,
interests, and needs. I faced these issues head-on when I led, with the
Chairman's blessing, the process to review and revise our 3.5 GHz
rules. Today, 3.5 GHz is nearly ready to go to auction and will support
many functions, including 5G deployment. Unfortunately, software
reconfiguration, the testing process, and other issues have delayed our
auctions. In turn, the priority access licenses are probably not going
to be auctioned until the second quarter of 2020, at best. And, while
3.5 GHz is a good start, current supply cannot meet overall demand,
especially since providers are seeking 100 megahertz channels. Building
on what the Chairman has already put in motion, the Commission must
continue its efforts to allocate additional mid-band frequencies for
next-generation licensed services.
Highest on our priority list must be the 3.7 to 4.2 GHz band, or
the C-band. The Commission continues a deliberative process to consider
the market-based approach, along with other options presented in the
record. One of my foremost concerns is to ensure that the mechanism
selected allows for the quickest reallocation of the band. I believe
that the majority of relevant stakeholders are diligently working
through how best to accommodate the current incumbents and provide a
sufficiently transparent process. Further, I remain hopeful that the
satellite incumbents recognize the great need for such frequencies and
are willing to part with closer to 300 or more megahertz, assuming the
requisite technology can accommodate this amount.
In addition to 3.5 GHz and C-band, there needs to be a greater
effort to identify more Federal agency holdings in the mid bands for
reallocation. I have suggested that the 3.45 to 3.55 GHz band be made
available for commercial use, and that additional feasibility studies
be initiated to determine the extent of commercial offerings that can
be introduced in 3.1 to 3.45 GHz. This spectrum can be combined with
spectrum at 3.5 and 3.7 to 4.2 GHz to create the channel sizes required
for true 5G services. Further, we should also start looking to the
7.125 to 8.5 GHz band to ensure that there is sufficient spectrum for
the many entities that want to offer 5G services.
At the same time, the Commission must also consider mid-band
spectrum for unlicensed use, such as the 4.9, 5.9, and 6 GHz bands. The
community serving this incredibly valuable function needs larger
spectrum swaths to meet the speed, capacity, and latency expectations
demanded of next-generation Wi-Fi and other unlicensed uses.
Broadband Deployment & Overbuilding Concerns, Especially in Rural
Communities
One of the many things my fellow colleagues and I agree on is the
critical importance of broadband infrastructure to the American people.
It is hard to imagine any part of our current society that hasn't been
integrated with Internet connectivity: from education and information,
to employment and health care, broadband is a key component of modern
American life and has improved our standard of living in so many ways.
This is true no matter the underlying characteristics of the technology
used to provide digital access--wired or wireless. In fact, both serve
interchangeable functions for increasing numbers of Americans and will
likely continue to do so going forward.
Similarly, there is consensus among FCC Commissioners that all
Americans--including those living in areas with challenging topography
and sparse populations--should have the opportunity to access broadband
Internet, if they wish to do so. While broadband availability has
improved over the years, many unserved areas remain, and we must
continue our efforts to expand access in an efficient and timely
manner. That is why I have spent so much time over the years promoting
better incentives and greater efficiency within our Universal Service
Fund programs, and why I have repeatedly called for the implementation
of the Remote Areas Fund (RAF) auction--in order to serve those
Americans in the hardest to reach communities, which tend to be more
rural and of lower economic status. I know that Chairman Pai is
committed to this goal as well.
At the same time, I worry that the desire to expand broadband
infrastructure will lead to wasteful and duplicative spending and
adverse consequences for consumers. Recently, Congress allocated new
funding for broadband programs at the Department of Agriculture, and
there appears to be interest in funding broadband buildout via the
Department of Commerce as well. While I would reiterate my humble
request from previous testimony that Congress consider the FCC's
Universal Service Fund (USF) as a primary means to distribute new
funding, it is my foremost concern that any new funding go to unserved
areas, rather than areas where broadband service already exists.
Coordination among the various agencies and departments would be
helpful, and, of course, there are new legislative efforts by members
of this Committee to help facilitate this. However, coordination can
mean different things to different government agencies and their
employees. Only through clear legislative direction and necessary
oversight can Congress ensure that funding does not duplicate existing
programs and goes only to those Americans without broadband today.
Failure to prevent overbuilding can undermine providers' existing
and future investments and result in extremely problematic outcomes. In
particular, providers serving hard-to-reach areas can face serious
financial difficulties if a new government-subsidized provider
``competes'' to serve existing customers--or worse--takes only the most
highly profitable customers. I have seen this situation firsthand
within the Commission's own USF program. It recently came to my
attention that new E-Rate-subsidized fiber networks were overbuilding
local USF-funded Texas broadband providers and stealing their anchor
customers. By manipulating the contracting process to favor the bids of
particular providers or self-provisioned service, some local school
districts have been actively undermining local USF-supported providers'
existing investments, and as a result, making it even more difficult to
serve surrounding communities where some households may lack any
Internet access at all.
Ending Theft of 9-1-1 Fees by States & Territories
The next issue that I will touch upon today is one that I've been
very vocal about for the past several years and which has caught the
attention of this Committee as well: 9-1-1 fee diversion. This is a
very significant problem, though not as widespread as it once was,
thankfully. Every month, millions of consumers pay their phone bills
and if they look closely enough, they'll see a line item that generally
refers to 9-1-1 emergency services, though the exact wording varies by
jurisdiction. In accordance with the line item, consumers appropriately
expect that those funds will go toward maintaining and upgrading 9-1-1
emergency calling systems. In some states and territories, however,
this money flows into the general treasury and, as a result, only some
portion of the collected fees ends up going toward emergency services.
On top of being downright deceptive, this is a serious public safety
matter that directly affects emergency call centers and personnel, not
to mention all the people who live in or visit these states who expect
that when they call 9-1-1, the system is up to date. Following the
FCC's December report,\1\ the states and territories guilty of
diverting these critical funds for 2017 were: New York, New Jersey,
Rhode Island, Montana, Nevada, West Virginia, and the U.S. Virgin
Islands.
---------------------------------------------------------------------------
\1\ Tenth Annual Report to Congress on State Collection and
Distribution of 911 and Enhanced 911 Fees and Charges for the Period of
January 1, 2017 to December 31, 2017 (Dec. 17, 2018), https://
www.fcc.gov/files/lothannual9llfeereporttocongresspdf.
---------------------------------------------------------------------------
As I noted, some members of this Committee have been outspoken on
this issue as well, and I thank them for their efforts. The Commission
has been issuing an annual report for the last decade, pursuant to
Federal law, that measures the amount of money, if any, that each state
diverts, on a total funding and a percentage basis. The report also
provides an assessment of whether the diverted funds were used for
purposes related in some capacity to public safety or completely
unrelated. You may find it shocking that the diversion rate was as high
as 90 percent in one state (New York).
Beyond creating a problem of public confidence in the fee system
itself, fee diversion also shortchanges the budgets of emergency call
centers and has prevented much-needed upgrades. I've been to public
safety answering points (PSAP), and I've met with the dedicated
emergency communications professionals in many of the states subject to
diversion. I can assure you that they are continually frustrated by
their state politicians who do not have the will to do the right thing.
However, I would be remiss if I didn't also address the positive side
of our report. There are many states and territories that have made a
concerted effort to get off the list, especially in some cases where
the problem was an accounting technicality, and in others where public
officials simply did the right thing and rectified their state budget
practices. West Virginia has committed to do just this. To those states
and their leaders, I tip my cap, and I know that in the long run, the
people in their states will be better off and their emergency
communications systems will be stronger and more reliable.
It is also important to remind those states and territories that
continue this despicable practice: they remain ineligible for new
Federal funding to modernize their call centers as the shift to Next
Generation 9-1-1 occurs. NG911 will be costly, but these improvements
will increase the system's effectiveness and will be vital to saving
lives. In the Middle Class Tax Relief and Job Creation Act of 2012,
this Committee helped create a new grant program for 9-1-1, E9-1-1, and
NG911, and the law specifically excluded states and territories that
divert fees from receiving these grants.
In closing on this topic, I respectfully request the Committee's
assistance. The ``name and shame'' process generated by our annual
report has only been so helpful. The state leaders of certain
recalcitrant states--New York, New Jersey, and Rhode Island--don't seem
to care about the shaming part. Moreover, other states and territories
seem to spring up after seeing a lack of substantial penalties and
decide to divert for a few years to address a budget shortfall or
provide new spending for a pet project. I believe new legislation is
needed, in addition to what has already been introduced, and that it
will take a more forceful approach to end diversion once and for all. I
would be pleased to work with any Senators who are interested in this
issue.
Stopping Illegal Robocalls & Protecting Legal Calls
The final issue I will discuss is the Commission's rightful focus
on the surge of illegal robocalls in this country. These calls, many
from overseas, are at best irritating; at worst, they serve to scam
susceptible consumers out of their hard-earned money. Implementation of
new technology should substantially reduce this menace, as will
cooperation with foreign governments, but it is clear that eliminating
such calls altogether is likely impossible.
In considering this issue, it is important to maintain a careful
and nuanced approach. Not all robocalls are illegal or scams, and we
must be precise in describing the actual problem at issue. Many honest,
legitimate businesses use automatic dialing technologies to communicate
needed information to their customers and doing so is perfectly within
the scope and intent of the TCPA. These legal and legitimate calls and
texts include fraud alerts, flight schedule changes, school closures,
delivery window delays, prescription alerts, appointment reminders,
default notices, and public safety information, and share no part in
the true robocall problem facing the Nation's communications networks.
In terms of illegal calls, I applaud those innovative companies and
carriers that have already offered or are in the process of offering
free call authentication and call blocking services to their customers.
I am hopeful that the Commission's recent Declaratory Ruling allowing
carriers to block illegal and unwanted calls on an opt-out basis will
help to further protect consumer interests. This includes pushing
carriers to adopt expeditious processes for correcting false-positives,
to ensure that legal and wanted calls are not incorrectly labeled or
blocked.
* * *
Thank you to the Chairman and Ranking Member for inviting me to
testify today. I welcome any questions from Committee members related
to the topics I have covered or any others that are important to you
and your constituents.
Senator Wicker. Thank you very much, Commissioner.
Commissioner Starks, welcome to the Committee.
STATEMENT OF HON. GEOFFREY STARKS, COMMISSIONER, FEDERAL
COMMUNICATIONS COMMISSION
Mr. Starks. Good morning, Chairman Wicker, Ranking Member
Cantwell, and Members of the Committee.
I'm honored to appear before you as a Commissioner for the
first time and I appreciate the support that I received from
all of you to assume this post.
The future is already here. It's just not evenly
distributed. Wise words that excellently frame the state of our
Digital Divide. From this seat, I see a world that is on the
cutting edge of a 5G transformation that will open the
floodgates of innovation with autonomous vehicles, virtual
reality, advanced health, precision agriculture, and artificial
intelligence, and while I'm excited about 5G, I'm increasingly
concerned about the far too many communities that are stuck
with, as Senator Tester has said, no G.
There cannot be two Americas, one where those with much get
even more and another for those who are left behind.
Researchers describe the Digital Divide as, quote unquote,
persistent, and I agree. To that end, I see a world in which
our Digital Divide is hardening into a state of Internet
inequality impacting our economy, our democracy, and in fact
the individual dignity of our citizens.
We must make sure that quality affordable broadband is
available to all Americans and where people are connected great
things are possible. For instance, broadband can create
opportunities in health care and education. I've seen the power
of telehealth while visiting with Corie Nieto, the Director of
Telehealth Services at the Nevada Health Center Clinic in
Amargosa Valley, where technology connects distant doctors with
rural patients, bringing expertise and specialty services that
would otherwise be unavailable.
I've also seen the power of high-quality online education
at Winston-Salem State University in North Carolina. WSSU's
program allows students unable to attend in person to take
classes online and study at their own pace. These students
efficiently acquire skills needed for jobs that are in high
demand across the state, including back home in their own
communities, and, for example, I met with Gabriel Bettazzi, a
second career student who graduated from SSU's online Health
Care Administration Program and now runs the Llibott
Consultorios Medicos, a group of four primary care clinics
focused on serving North Carolina's Latino community through
in-person and telemedicine visits.
And we live in a nation that runs on networks. Fixed and
wireless communications are critical to our defense,
infrastructure, business, and the billions of communications
sent in America every day. Network security is national
security and so it concerns me that right now our networks
contain insecure Chinese equipment that could allow hostile
actors to spy on us or even cripple our communication networks
during a national emergency.
While recent White House action has barred U.S. companies
from buying or using this equipment moving forward, it did not
address equipment that is already in our networks.
I have said that the FCC needs to find it, fix it, and fund
it. We need to find the equipment that poses a national
security threat. We must fix it to secure our networks and we
must fund the removal of insecure equipment in our networks as
rapidly as possible while minimizing the disruption to
consumers, and it could be expensive but it's an investment
that we must make.
Finally, I'd like to highlight two areas where the
Commission must do more for our consumers.
First, robocalls. I supported the Commission action last
week to clarify that providers can offer call blocking service
to consumers by default. This action should make these tools
available to millions more and the FCC spoke clearly. We fully
expect these services to be offered for free, free. If not, the
FCC will know and will initiate a rulemaking and providers have
long said that they want to be part of the solution and now is
the time.
On Monday, I sent letters to all the major carriers asking
whether they plan to offer call opt-out blocking, how they plan
to inform their customers and whether it will be free. If they
fail to meet my expectations, you will hear of it.
Second, I want to again call for the Commission to act in
response to the sale of our location data by wireless carriers.
Under this practice, anyone with a few hundred dollars could
purchase real-time geo-location information.
As a former Federal prosecutor, I'm shocked to think that a
domestic abuser could access location data illegally to track a
survivor to a safe house or a shelter. This is downright
dangerous and so is our inaction.
This practice was first reported over a year ago and the
Commission has yet to find anyone responsible and we need to
act now.
In closing, I am honored to serve the American people. We
have a lot to do. I look forward to working with you all and
with my colleagues to address the many challenges ahead.
Thank you. I look forward to your questions.
[The prepared statement of Mr. Starks follows:]
Prepared Statement of Hon. Geoffrey Starks, Commissioner,
Federal Communications Commission
Good morning, Chairman Wicker, Ranking Member Cantwell, and Members
of the Committee. I'm honored to appear before you as a Federal
Communications Commissioner for the first time today and I appreciate
the support that I received from all of you to assume this post.
``The future is already here, it's just not evenly distributed.''
Wise words, and ones that excellently frame the state of our digital
divide. In this seat, I see a world on the cutting edge of
transformational fifth generation of wireless technology, or 5G, that
will open the floodgates of innovation--autonomous vehicles, virtual
and augmented reality, advanced telehealth, precision agriculture, and
artificial intelligence. And I'm excited. But while we press forward
with 5G, I am increasingly concerned about the far too many communities
that are stuck with ``no-G.'' There cannot be two Americas--one where
those with much get even more, and another for those who are left
behind. Researchers have begun to describe the digital divide as
``persistent.'' I agree. To that end, I see a world in which our
``digital divide'' is hardening into a state of ``internet
inequality.'' This is an issue that affects not only the U.S. economy,
but also the individual dignity of our citizens and our democracy. It
is absolutely imperative that we make sure that quality, affordable
broadband is available to all Americans.
Where people are connected, great things are possible. I'm
particularly excited about how broadband can create healthcare and
educational opportunities. For health care, I've seen the power of
telehealth while visiting with Corie Nieto, the director of telehealth
services at the Nevada Health Center Clinic in Amargosa Valley,
Nevada--population about 1,500. She demonstrated how telehealth
technology connects doctors from distant urban centers with patients in
rural communities, bringing expertise and specialty services that would
otherwise be unavailable to patients in this rural community. For
educational opportunities, I recently saw the power of high-quality
online education in action when I visited Winston Salem State
University (WSSU) in North Carolina. WSSU's program allows students who
may not be able to attend traditional in-person classes due to work or
family demands, to study at their own pace to acquire skills needed for
high-demand jobs. These same students apply what they've learned back
home in their communities. For example, Gabriel Bottazzi, a second-
career student who graduated from WSSU's online Healthcare
Administration program, now runs LliBott Consultorios Medicos, a group
of four primary care clinics that focus on serving the Latino community
in North Carolina through in-person and telemedicine visits.
The FCC manages billions of dollars of Universal Service program
funds intended to ensure that all Americans have the broadband
connectivity needed to access programs like those offered by WSSU and
the Nevada Health Center Clinic. But to eliminate Internet inequality
we must understand the scope and scale of the problem. The fundamental
question is this: does the FCC truly know who has broadband and who
does not? Unfortunately, at present, it appears that we do not, and the
problem begins with the data. The FCC's recently-released broadband
deployment report is, unfortunately, a glaring demonstration of our
shortcomings. The first draft of the 706 Report was based on data that
overstated high speed broadband connections by more than 62 million
connections--that's more than the populations of Mississippi,
Washington, Texas, Michigan, and Illinois put together. This is
troubling for a host of reasons: that the FCC's data practices lack the
sophistication to catch such a significant error by a new entrant; that
we had to rely on an outside party to catch the mistake; that a draft
with an error of this magnitude was circulated for consideration; that
the inaccurate numbers from the draft were publicized in a way that
overstated our progress on addressing access disparities; that it took
months to correct the data; and that the fluctuating data did not
change the FCC majority's analysis in any way. And, even when our data
is reported correctly, it still doesn't paint an accurate picture in
many instances. Under the current system, if a provider reports that it
does, or even could, connect a single home in a census block, we count
the entire census block as if everybody who lives there is connected.
It's no secret that the FCC's broadband maps have problems. It's past
time that we fix this.
Right now, the FCC is considering imposing an arbitrary budget cap
on all USF programs. But instead of imposing an arbitrary cap, the FCC
should get the data needed to produce granular and accurate maps of
where broadband is and is not available in the U.S. The status quo is
not good enough--not by a long shot. In short, the FCC should be
focused on mapping not capping.
I'd also like mention a universally hated phenomenon--robocalls.
Robocalls have overwhelmed the network and consumers, and have
fundamentally changed the fabric of our culture--we don't pick up our
phones anymore. These calls range from annoying and disruptive to
deceptive and dangerous, defrauding unwitting consumers out of real
money. Often, calls are spoofed to appear like they are coming from a
local business or neighbor. This pernicious practice makes it
impossible to differentiate these unwanted robocalls from calls coming
from our pastor, doctor, or kids' schools. Put simply, by allowing
these calls to proliferate, we've broken phone service in this country.
I supported the Commission's action last week to clarify that voice
service providers can offer call blocking service by default on an opt-
out basis. This action should make these tools available to millions
more consumers. And the FCC spoke clearly--we fully expect these
services to be offered to consumers for free. Free. Because if not, the
FCC will know about it, and initiate a rulemaking to prohibit these
charges.
We live in a nation that runs on networks. The importance of fixed
and wireless communications to the U.S. economy can't be overstated.
They are critical to military and government communications, utility
infrastructure, every sector of business, and the billions of personal
e-mails, phone calls, and text messages sent in America every single
day. Looking forward, as the Internet of Things emerges and billions of
cars, appliances, and other devices come online, the importance of our
networks will only grow. Network Security is National Security, and
right now there are threats in our communications networks--national
security threats posed by unsecure Chinese telecommunications equipment
with vulnerabilities that carry the risk of espionage or surveillance,
and the ability of foreign entities to cripple our communications
networks in times of a national emergency. These threats are serious
and their presence in our networks is a problem. And while the
President's recent Executive Order barred U.S. companies from buying or
using telecommunications equipment deemed to be a national security
risk moving forward, it did not address the fact that our networks
already contain and depend on much of this equipment.
I have said that we need to ``find it, fix it, and fund it.'' The
FCC needs to step up, using its own authority and working with other
Federal agencies, to investigate and determine the scope of our
network's exposure to these threats. We must find any equipment that
poses a national security threat. We must fix it to secure our
networks. And we must fund the transition of carriers away from
insecure equipment in their networks as rapidly as possible. This may
require ``ripping and replacing,'' but it must be done in a way that
minimizes disruption to carriers and their customers. This is a
national problem that needs a national solution. It could be
expensive--estimates range from $150 million for mitigation measures to
over $1 billion for full replacement as we offset the cost of
purchasing and installing new, secure equipment. But our national
security is at stake and we must act to protect it.
Finally, I want to reiterate my call for the Commission to act in
response to wireless providers selling customer location data. With
each passing month, our inaction becomes harder to explain and more
problematic. This outrageous practice allowed anyone with a few hundred
dollars to purchase anyone else's real time location. As a former
Federal prosecutor, I've personally petitioned courts for restraining
orders to protect survivors of domestic abuse. And I'm shocked to think
that an abuser could illegally track a survivor's phone to a safehouse
or a shelter. The misuse of this data is downright dangerous. This
practice was first widely reported more than a year ago, yet the
Commission still hasn't acted against those responsible. The passage of
this much time is significant--the Commission typically has only a year
to act before statutes of limitations run out. We need to act now.
In closing, I am honored to serve the American people. We have a
lot to do, and I look forward to working with my colleagues to address
the many challenges ahead. Thank you for the opportunity to testify
today. I look forward to answering your questions.
Senator Wicker. Thank you very much.
Commissioner Carr, you're recognized. Welcome to the
Committee.
STATEMENT OF HON. BRENDAN CARR, COMMISSIONER, FEDERAL
COMMUNICATIONS COMMISSION
Mr. Carr. Thank you.
Chairman Wicker, Ranking Member Cantwell, Distinguished
Members of the Committee, thank you for the invitation to
testify.
When I first appeared before this Committee in 2017, the
U.S. faced significant challenges in our effort to lead the
world in 5G. Our outdated rules meant that it took too long and
it cost too much to build out Internet infrastructure in this
country. We risked ceding U.S. leadership in 5G and half a
trillion dollars it could add to our economy, to our global
competitors.
Indeed, China was putting up new cell sites, the building
blocks for 5G, at 12 times our pace. We needed to take bold
action and that's exactly what we've done at the FCC.
For one, we updated the Federal rules that apply to the
construction of small cells, the backpack size antennas needed
for next gen connectivity. We did so by excluding them from the
costly and time-consuming review that applies to the
construction of large 200-foot towers.
For another, we addressed the state and local review
process. We did this by building common sense reforms already
enacted by elected officials in their own towns, reforms that
provide clarity on fees, and ensure timely decisions.
The FCC's reforms are now delivering results. Internet
speeds are up nearly 40 percent. More fiber was built out last
year than ever before. The number of small cells put up
increased from 13,000 in 2017 to more than 60,000 in 2018.
Investment in broadband networks is back on the rise, and the
U.S. now has the world's largest 5G deployment.
There's more to do, but we've turned the page on the failed
policies of the prior FCC. We're now heading in the right
direction.
I've had the chance to see firsthand how our decisions are
helping to create jobs in communities around the country. In
places like Euless, Texas, I visited a manufacturing plant that
build the smart poles needed for 5G. One of the workers there,
Chris, told me that they're now doubling production every
quarter because of an increase in demand for small cells.
In fact, our success in accelerating infrastructure
construction has created a new opportunity. Industry could now
fill 20,000 job openings for tower techs. That would nearly
double their existing workforce and bring thousands of families
into the middle class.
So two months ago, I announced a jobs initiative, modeled
on a program developed by Aiken Technical College in South
Carolina, it looks to community colleges as a pipeline for 5G
jobs. In 12 weeks, someone with no training can learn the
skills needed to land a good-paying job in the tower industry,
and I'm working to open up this program to even more Americans.
While we know broadband can create jobs, it can also help
save lives. I learned more about this from a service-disabled
veteran named James who served in the Navy for 24 years before
suffering a spinal cord injury while on an operation.
James is now under the care of the VA and this used to mean
a long two-hour drive from his home to the nearest VA facility,
but he's now enrolled in a Connected Care Program that lets
James stay home and visit with specialists over a secure video
connection. His doctors track his vitals remotely and can
intervene if they see something out of range. This has cut in
half his need to make the long drive to the VA and improved his
care.
James's story is part of a new trend we're seeing in
telehealth. The delivery of high-tech, high-quality care is no
longer limited to the confines of brick and mortar health care
facilities. Remote technologies, whether enabled by a smart
phone or tablet, can deliver care directly to patients outside
hospitals and regardless of where they're located.
I think the FCC should support this new trend and that's
why I'm leading our effort to stand up a new $100 million
program to support these Connected Care efforts for low-income
consumers and veterans.
I look forward to working with all stakeholders as we
continue the work to stand that up.
In closing, I want to thank you again, Chairman Wicker,
Ranking Member Cantwell, and Members of the Committee, for the
chance to testify. I look forward to your questions.
[The prepared statement of Mr. Carr follows:]
Prepared Statement of Hon. Brendan Carr, Commissioner,
Federal Communications Commission
Chairman Wicker, Ranking Member Cantwell, and distinguished Members
of the Committee, thank you for the invitation to testify. It is a
privilege to appear before you again.
At the outset, I want to commend the Committee on its notable and
bipartisan achievements--from passing the TRACED Act, which would
increase the FCC's authority to crack down on robocalls, to introducing
the STREAMLINE Small Cell Deployment Act, which would update our
infrastructure rules to account for new, 5G technologies.
On that note, I want to begin today with an update on the steps we
are taking at the FCC to accelerate the buildout of 5G and other
broadband infrastructure in communities across the country.
When I first testified before the Committee in 2017, the U.S. faced
significant challenges. Outdated rules were holding back broadband
deployment. It took too long and it cost too much to build Internet
infrastructure in this country. We were at risk of ceding U.S.
leadership in 5G--and the half a trillion dollars it could add to our
economy--to our global competitors. Indeed, China was putting up new
cell sites--the building blocks for 5G--at twelve times our pace.
We needed to take bold action. And that is exactly what we have
done at the FCC. I want to highlight two decisions in particular that
have made a difference.
First, in March of 2018, we examined some of Federal rules that
apply to the construction of small cells. These are the backpack-sized
antennas that provide next-gen connectivity. They can be attached to
light poles or other structures in a matter of hours. But the Federal
review process could take years and cost hundreds of thousands of
dollars. This is because our rules treated a single, unobtrusive small
cell the same as a new, 200-foot tall tower. Applying all that red tape
to every one of the thousands of new small cells needed for 5G
threatened to hold the U.S. back. So we excluded small cells from those
large tower reviews.
Second, in September, the FCC addressed the state and local review
process that applies to small cells. We did so by building on the
commonsense reforms already enacted by elected officials in their own
communities. This meant updating the shot clocks that have long applied
to the local review process, thus ensuring timely decision-making. And
it meant providing clarity on the types of fees that can effectively
prohibit service in violation of Federal law. As specified in the
decision, wireless providers--not cities--will pay the costs imposed by
the buildout of small cell infrastructure.
These and other FCC reforms are delivering results. Internet speeds
are up nearly 40 percent. Americans saw more fiber broadband built to
their homes and businesses last year than ever before. The number of
small cells put up in this country increased from around 13,000 in 2017
to more than 60,000 in 2018. The digital divide--the percentage of
Americans lacking access to high-speed Internet--narrowed by almost 20
percent last year alone. Investment in broadband networks is now
increasing--reversing the significant declines we saw in 2015 and 2016.
And a new forecast shows the U.S. will have twice the percentage of 5G
connections as Asia.
In fact, the U.S. now has the largest 5G deployment in the world.
Fourteen cities went live last year, and we expect 92 5G builds by
year's end. While there is much more work to do to secure U.S.
leadership and ensure every American has a fair shot at next-generation
connectivity, we are now heading in the right direction. The FCC's new
policies are working.
But more than the numbers, I've had the chance to see firsthand how
the FCC's decisions are helping to create jobs and benefit American
workers in communities around the country.
I saw this recently in South Carolina. That's where a company built
a 100,000 square foot manufacturing plant less than a year ago to meet
the increase in demand for small cells. At the facility, Jake and his
crew told me that they got jobs at the plant less than six months ago.
They had been employed in general steel and construction work before.
They now have 5G jobs. And the company says they are expanding their
workforce by nearly 10 percent every month to keep up with demand.
I saw this in Elkmont, Alabama. That's where a small-town
manufacturing plant is already seeing a big boost from 5G. The facility
makes the harnesses and other gear that America's tower climbers use to
install new small cells. The plant has doubled production over the last
year and a half with new small cell builds underway.
I've also seen firsthand the hard work that America's tower crews
are doing every day to bring more broadband to more Americans. In fact,
the successes we are seeing in accelerating infrastructure deployment
has created a new opportunity. Industry estimates that it needs to fill
another 20,000 job openings for tower climbers and telecom techs to
complete this country's 5G build. That would nearly double the size of
this group of skilled workers, bringing thousands of families into the
middle class.
In April, I announced a jobs initiative to help address this
opportunity. It looks to community colleges as a pipeline for these 5G
jobs. And it is modeled on a program developed by Aiken Technical
College in Graniteville, South Carolina. In 12 weeks, the program can
take someone with virtually no training, teach them the mix of
classroom and physical skills necessary to build and install new cell
sites, and enable them to land a good-paying job in the tower industry.
Dr. Gemma Frock, who developed the program, says that 100 percent of
her students have received job offers upon graduating from the program.
We need to expand this model program to community colleges across
the country to ensure we have the skilled workforce in place to build
next-gen networks. I am working toward that goal with a number of
stakeholders. These efforts will help address our country's need for 5G
workers and close the skills gap.
Programs like these can make a real difference in communities
around the country. A few months ago, I joined Senator Blackburn at an
automotive manufacturing plant in Chattanooga, Tennessee. This plant
partners with a local community college to offer classroom training and
on-the-job technical skills to its workers. Immediately upon
graduation, students have the potential to get a job--either with the
manufacturer or in other high-tech fields--and they start out making
more than $40,000 a year.
While we know that broadband deployment can create jobs, it can
also save lives. I have seen it in places like Sioux Falls, South
Dakota, where doctors used telehealth to treat rural patients for
severe burns following a chemical explosion. I have seen it in the
small community of Manokotak, Alaska, where a broadband-enabled
otoscope can allow an ENT located in Dillingham to diagnose a child's
ear infection before it threatens her hearing.
For years, the FCC has played a key role in supporting the
deployment of broadband to these facilities through our Rural Health
Care Program. But there's a new trend in telehealth--a trend towards
connected care everywhere. The delivery of high-tech, high-quality
health care is no longer limited to the confines of connected, brick-
and-mortar facilities. With remote patient monitoring and mobile health
applications that can be accessed on a smartphone or tablet, we now
have the technology to deliver high-quality care directly to patients,
regardless of where they are located.
I first learned about this trend from Senator Wicker during a trip
to Jackson, Mississippi. I then had the opportunity to see the results
first-hand in the Mississippi Delta, where I witnessed how an
innovative remote patient monitoring program run by the University of
Mississippi Medical Center was making a real difference for members of
this very rural community.
The Delta is ground zero for the country's diabetes epidemic. It
sees diabetes at rates that are about twice the national average.
Ruleville, Mississippi is no exception to this trend. In addition to
having one of the highest rates of diabetes in the state, more than
half of all children in this area live in poverty. That only adds to
the challenge of finding and accessing affordable health care. But
using remote patient monitoring technologies, the pilot program was
helping to treat and control cases of Type II Diabetes in the Delta.
One of the program's patients is Ms. Annie. She noticed the first
signs of her diabetes when she woke up one day with blurred vision.
After seeing little progress in managing her diabetes with traditional
care options, Ms. Annie signed up for a remote patient monitoring pilot
program. She walked me through the blood sugar monitor that she uses at
home. The monitor uses Bluetooth to connect to her iPad, which chimes
every morning to remind her to check her blood sugar. Ms. Annie then
pricks her finger and her A1C level is displayed on-screen. Based on
that, the iPad app suggests appropriate actions--from a particular food
or exercise, to watching a relevant video. If she forgets to enter her
numbers that day, she'll get a phone call from a nurse. With this
technology, Ms. Annie's A1C levels have gone down and she says she's
never felt better.
At the FCC, we are taking steps to align public policy in support
of this movement in telehealth. Last August, we initiated a proceeding
to provide up to $100 million for connected care pilots that benefit
low-income patients, including those eligible for Medicaid and
veterans. It would support a limited number of projects over a two-or
three-year period, with controls in place to measure and verify the
benefits, costs, and savings associated with connected care. It could
take the results we've already seen in the limited trials to date and
help replicate those results in communities across the country.
From chronic disease management to pediatric cardiology, from PTSD
to opioid dependency, this pilot has the potential to make a real
difference for low-income individuals that might lack access to quality
health care today. I anticipate moving to the next stage of the
proceeding this summer, and I look forward to working with my
colleagues at the FCC, Federal and state partners, members of the
Committee, and all stakeholders as we stand up the Connected Care Pilot
Program.
* * *
In closing, I want to thank you again Chairman Wicker, Ranking
Member Cantwell, and Members of the Committee for holding this hearing
and for the opportunity to testify. I look forward to continuing to
work with you on reforms that will accelerate the buildout of broadband
networks and the opportunity it enables. I welcome the chance to answer
your questions.
Senator Wicker. Well, thank you very much, and it's clear,
I think, to every member of the Committee that we have a lot of
brainpower and knowledge in front of us.
Let me see if I can start off this way. Ms. Rosenworcel and
Mr. Pai, let me give you one minute each to have you comment on
something that Commissioner Carr said.
Internet speeds are up nearly 40 percent, more fiber
broadband built to homes than ever before, number of small
cells increased from 13,000 in 2017 to 60,000. The Digital
Divide is being narrowed by almost 20 percent. Investment in
broadband networks is now increasing.
As we all know, the Commission on a partisan basis passed
the Internet Freedom Act dealing with this net neutrality issue
some year and a half ago.
How does the rhetoric involved in this square with these
facts that Mr. Carr has outlined in his testimony? First you,
Mrs. Rosenworcel, and then Mr. Pai.
Ms. Rosenworcel. Sure. I support net neutrality. I believe
the FCC made a mistake when it rolled back its Internet
policies in 2017. I'm not alone. Eighty-six percent of the
American public agrees with me that we made a mistake. They
don't like the idea that our broadband providers now have the
legal right to block websites and censor content.
If you actually unpack some of that data, what you'll find
is during the period after the FCC adopted net neutrality
rules, our speeds went up at even greater percentages.
Moreover, with respect to investment, which I acknowledge we
should all care about, we should stop looking at the data that
advocates filed before this agency and start looking at what
they tell Wall Street on earnings calls.
Major CEOs have said that our rules have not a whit of
difference in their decisions about investment and network
deployment. Moreover, that data suggests that their capital
expenditures have actually decreased in the last year.
So I would challenge the data that my colleagues have
offered because I think the American public are right when they
say they want net neutrality to be the law of the land.
Senator Wicker. OK. Well, thank you for that minute-long
answer.
Ms. Rosenworcel. You're welcome.
Senator Wicker. Chairman Pai, your turn.
Mr. Pai. I appreciate the question, Chairman Wicker, and I
think you put your finger on one of the central problems in
this entire debate, if you can call it that, which is the
rhetoric has tended to obscure the facts.
When we made our decision, there were several predictions
clearly made, including by some elected officials. This was the
end of the Internet as we know it. You will have to pay $5 per
tweet. The Internet will work one word at a time. Our Internet
will look like Portugal's, ironically a country that has net
neutrality regulations.
A year after our decision in December 2018, the results
were in. As my colleague pointed out, Internet speeds have been
up. Infrastructure investment is up. The Internet remains free
and open and all of these parades of horrible have been
dismissed.
Meanwhile, I think that my statement in November 2017 when
I outlined the proposal has proved prescient. The greatest
threat to a free and open Internet has been the unregulated
Silicon Valley tech giants that do, in fact, today decide what
you see and what you don't. There's no transparency, there's no
consumer protection, and I think bipartisan members of both
chambers have now come to that realization.
Meanwhile, the other unfortunate thing is that this entire
debate obscures the common ground that is out there. I have
long said that I would support legislation, bipartisan
legislation out of this body that would ban blocking, ban
throttling, ban any competitive paid prioritization, and
require every ISP in this country transparency. That is common
ground that can go on one page.
Senator Wicker. Thank you very much, and I appreciate both
of you trying to give concise answers to a very, very
controversial and complicated issue.
Let's talk about 5G and rural providers. Chairman Pai, mid-
band spectrum is critical to us winning the race to 5G. How
soon do you expect the FCC to take action to make C-band
spectrum available for 5G in the way that it's both efficient
and equitable?
Mr. Pai. Appreciate the question, Chairman Wicker, and I
salute Commissioner O'Rielly for his leadership on this issue,
as well.
We are working through some of the very complicated issues
with respect to the C-band. We look forward to moving forward
as quickly as we can but even just a couple days ago, we
received a very complex auction design from one of the parties
that has a solution that we need to evaluate. So we're working
through it as quickly as we can.
In the meantime, we're moving forward on other bands,
including the 2.5, 3.5, and other bands, as well.
In addition, as you might know, in the context of the
Sprint/T-Mobile transaction, one of the commitments the parties
have made is to build out substantially three-quarters of the
United States in 3 years and 88 percent within 6 years their
mid-band spectrum assets. That is a critical commitment that
will benefit all Americans, especially in Rural America.
Senator Wicker. Thank you very much.
Senator Cantwell.
Senator Cantwell. Thank you, Mr. Chairman.
I thank the Commissioners for being here. And your view, I
don't know, it's reminding me of, you know, the notion that Al
Gore created the internet. Chairman Pai is trying to equate the
actions of the FCC with somehow enabling or forecasting the
great growth of the internet economy.
I guarantee you we live in an information age, and it is
going to continue to grow. The question becomes whether we're
going to make sure that, as some of our Commissioners have
said, that is easily or evenly distributed, and when 21.3
Americans still lack access to high-speed broadband, and 76
percent of rural Americans have no choice among broadband
providers, or three cable Internet companies have access to 70
percent of the market, it's no wonder the National Cable
Association changed their name to the Internet Broadcasting
Association. They don't even want to be associated with the bad
behaviors of some of these industry tactics.
So I am concerned about the number of cases that have been
brought by Attorney Generals across the United States in the
last year for everything from not adequately disclosing fees to
consumers. Massachusetts Comcast settled a case in which the
company was accused of violating consumer protection laws on
fees. Charter settled a consumer fraud case with the New York
Attorney General for $172 million for failing to deliver
broadband speeds and reliability it promised. Minnesota
Attorney General charged Comcast with misrepresenting cable
prices.
So I just see this plethora of consumer issues, and then,
as Mr. Starks accurately pointed out, there are real security
issues, you know.
I hardly heard the word ``cybersecurity,'' other than Mr.
Starks' presentation, and yet I guarantee you that is one of
the Number 1 concerns of Americans. So I don't know if Ms.
Rosenworcel, Mr. Starks, if either of you want to comment on
the number of AG cases that we're seeing across America on
consumer interests and what else the FCC should be doing.
Ms. Rosenworcel. Thank you for the question.
You're right, Senator Cantwell. Consumers do not feel like
they're being taken care of by the FCC. State Attorneys General
are bringing these suits because we are not doing anything to
increase consumer protection when it comes to broadband and
communications services that are so essential to modern life.
As you point out, we're not doing enough to think about
security either. I mean, the first duty of a public servant is
public safety and we should be thinking about cybersecurity and
cyber hygiene in everything we do and not just on alternate
Thursdays when it occurs to us to pay attention.
With 5G networks, we're going to have connected reality
everywhere. We've got to figure out now how to build security
in from the start.
Mr. Starks. Yes, very briefly. Thank you for the question,
Senator.
I completely agree that the case that Comcast settled there
in Washington was basically where they were putting additional
things on folks' bill without them knowing about it. That is
the classic definition of an interest that has to be vindicated
by consumers and it has to be done on our end. Better
coordination with state attorneys general, better enforcement
of our consumer protection rules I think is warranted.
Senator Cantwell. What do you think we should do next on
the Huawei case, Mr. Starks?
Mr. Starks. Yes, it's an issue--thank you for the question.
It's an issue that I am studying. I think, first, we need
to understand the scope of it. We do know that there are small
rural carriers that have this in their networks. We know that
folks are focused on it going forward. I think we need to look
at the harms that we have sitting in there right now. So we
need to understand the scope of it. We need to understand
whether it is just on the edge of the networks with radios and
antennas or whether it actually goes to the routers and servers
that are actually the core of the network, and we need to make
sure that we specifically focus on this national security
interest. I think it is critically important.
Senator Cantwell. And I'm assuming the FCC does get secure
briefings on the amount of attacks to our networks on a very
frequent basis, is that correct?
Mr. Starks. Yes, we do have security briefings.
Senator Cantwell. OK. So you're well aware of the amount of
infrastructure issues that are facing us and the fact that this
is a very serious issue.
So I don't want people thinking that, you know, we have
this horrible choice, that we either give them access because
they're already in our infrastructure, or we disable
infrastructure. We've got to come up with a better process here
because allowing for a back door for a nation that basically
doesn't honor the same principles of government prohibiting
access to information, we have a challenge here, and so we need
to address it.
Mr. Starks. I think that's right, and in particular the FCC
has a specific role that I think we need to lean into. It's
very important that we protect the telecommunications networks
that we're in charge of.
Senator Cantwell. Thank you, Mr. Chairman.
Senator Wicker. Thank you.
Senator Capito.
STATEMENT OF HON. SHELLEY MOORE CAPITO,
U.S. SENATOR FROM WEST VIRGINIA
Senator Capito. Thank you, Mr. Chairman. Thank you all for
your service and thanks for the great information.
We had a hearing several weeks ago on broadband mapping and
I think my first comment was it was deja vu all over again.
We've had numerous hearings on mapping. The data that you all
generate doesn't match with what the anecdotal data that we see
in our communities and I think this is universal on the
Committee.
So we joined together, I did, with Senators Schatz, Moran,
and Tester to introduce The Broadband Data Improvement Act and
there are a lot of different bills out that would do this, but
our bill would reform and eliminate the current 477 process and
would encourage shape file formats, a more granular approach
that we think would be more accurate, at least this is what
we're looking for, and the new information would give us better
data, and I think it would also include sharing data across
different government entities without different programs to
promote this.
So I was just wondering, Chairman, if you have a reaction
to that on the broadband mapping issue and what improvements
that you might see that could come about because of the
improved more granular data that would generate.
Mr. Pai. I appreciate the question, Senator, and as you and
I've discussed before, we've seen it in places like Capon
Springs and Wardensville.
Senator Capito. Right.
Mr. Pai. We need to understand where broadband is and, more
importantly, where it isn't to target those resources.
I support the purpose of your legislation. I understand
that our staffs have been in touch and consistent with the
announcement I made this morning, we would look forward to
working with you as we try to make those maps more granular,
more accurate, and ultimately more useful to the Commission
and, of course, to you.
Senator Capito. What has been the biggest roadblock and why
can't we get there or why haven't we gotten there yet with the
mapping system?
Mr. Pai. The fundamental problem is that there are only two
ways to thread this needle. Either, Number 1, the FCC hires
thousands and thousands of people to go out into the country
and to verify or we have to rely on information we get from the
outside and that's why it's part of this mapping initiative
that we're going to be rolling out, we're going to be looking
at other sources of information, like crowdsourcing, to try to
get a better sense of where broadband is.
Senator Capito. Mr. O'Rielly, I think we talked about this.
Thank you for your visit the other day.
We talked about the need for coordination among agencies to
eliminate any kind of overbuilding. You mentioned you're
interested in delivering more to those who have no service at
all rather than upping service to folks that are already--could
you talk about the different coordinating capacities to be able
to maximize and make our process more efficient?
Mr. O'Rielly. First, let me congratulate and thank the
Committee for its leadership on legislation to solve this
issue.
I do worry that funding from different agencies will go to
upgrade speeds in areas that already have service. We can
dispute what the number is in terms of the unserved population,
but there is definitely an unserved population and that is my
focus.
The hardest to serve--we did the easy cases. We did the
medium cases. We did the medium hard cases, and now we're in
the really hard cases to solve and that's where I'm trying to
spend my time. I've been talking about the Remote Areas Fund
for quite awhile and I know the Chairman's working on that
issue and so that's really important.
But coordination is so key and coordination matters to the
eye of the beholder and, you know, if that's just a
conversation between agencies, that's not sufficient. It's
dealing with the fact that we have funding that is going to
particular areas that not be duplicated in other programs,
whether it's Department of Agriculture, whether it's NTIA, or
elsewhere, those dollars not go to the same places to fund
competing interests by the Federal Government.
Senator Capito. Thank you.
Mr. Carr, I think the FCC generated or reported terms of
telehealth that showed some coordination--I think former
Commissioner Clyburn sort of brought this to my attention, that
showed that the health of where you are--there is some overlap
as to the deployment of broadband within your area.
Obviously in West Virginia, we have challenges with our
deployment but also challenges with our health. What is the FCC
doing with this data in terms of telehealth and how can we
assist you? I believe you're coming to West Virginia maybe this
summer where we're going to do a deep dive on this. If you
could talk about that?
Mr. Carr. Thank you, Senator.
You're exactly right. There is a correlation between low
income, lack of broadband access, and poor health outcomes, and
the FCC, I think, could have a role to play in addressing that.
That's why we're launching this new Connected Care Pilot
Program designed for low-income consumers to make sure that
regardless of where they're living, they can have access to
high-quality care because particularly in Rural America, we're
facing a doctor divide where we're going to be short 42,000 to
120,000 doctors in the near term and technology can help
address that.
Senator Capito. I look forward to having you visit. Thank
you.
Senator Wicker. Thank you, Senator Capito.
Senator Blumenthal.
STATEMENT OF HON. RICHARD BLUMENTHAL,
U.S. SENATOR FROM CONNECTICUT
Senator Blumenthal. Thanks, Mr. Chairman. Thanks for having
this hearing and thank you all for being here today.
As I listened to some of this commentary, I am reminded of
my own experience as Attorney General when we brought actions
because of failures and lapses at the Federal level to enforce
Federal law and protect consumers and I have this feeling we're
going to look back on these hearings and say that the FCC and
maybe this Committee fiddled and mumbled while our privacy and
security burned. That's what's happening at a pace that raises
the urgency of strong protection for consumers and Americans
generally.
I am absolutely appalled that a year after the first
disclosure that mobile carriers are selling geo-location
information to subscribers, endangering domestic violence
survivors, that we still have no word, none, from the FCC on
its supposed investigation of this pratice.
When are we going to hear something, Chairman Pai?
Mr. Pai. Appreciate the question, Senator.
The FCC's career staff has been diligently investigating
this case. I can't comment on----
Senator Blumenthal. Can you give us a date by when you will
have some briefing, some results, some proposals for action?
Mr. Pai. My understanding is that the staff is wrapping up
the investigation and will be coming to me with recommendations
in the near future. I don't have a specific date that I can
offer you, however. They're still continuing to work on the
case.
Senator Blumenthal. Well, I think that's really regretful,
particularly for the possibly millions of Americans who will be
in endangered, literally in endangered because of that
continuing sale of geo-location information.
Let me go to robocalls. The rule that was proposed enables
the carriers to charge consumers. My robocall act would require
carriers to provide free call blocking technology to consumers.
I support the TRACED Act. I commend the new rule, but as
Commissioner Rosenworcel has said, this service should be free.
It should be required to be free. Do you agree?
Mr. Pai. Senator, my expectation is that it would be free.
Senator Blumenthal. Your expectation is, but why not
include it in the rule?
Mr. Pai. Well, Senator, that's part of the reason why,
thanks to Commissioner Starks' suggestion, we incorporated it
into our decision last week, the regulatory steps that would be
necessary for us to move forward, if we get word that telephone
carriers are in fact charging for that service.
Senator Blumenthal. And how long will that take?
Mr. Pai. The report will be due to us in a year but today,
there are call blocking tools by default that are offered for
free.
Senator Blumenthal. Why not require it right now? Why not
support the robocall cop-out?
Mr. Pai. For one thing, Senator, we would have notice and
comment issues that we would have to go through if you were
going to regulate the rates for that particular service. It was
important to me to set the legal foundation straight now so
carriers----
Senator Blumenthal. Do you personally support requiring
that this service be free?
Mr. Pai. Oh, I personally do want these services to be
free, yes, both as a regulator and as a consumer.
Senator Blumenthal. And you'd require a mandate for it to
be free?
Mr. Pai. From Congress, are you asking, or from----
Senator Blumenthal. From the FCC or Congress?
Mr. Pai. Well, certainly if Congress passes that
legislation, we would administer it according to its terms,
yes.
Senator Blumenthal. Let me turn to the T-Mobile/Sprint
merger. On May 20, you announced your support for it. As you
know, I strongly oppose it. A number of my colleagues have
joined me in a letter, very detailed letter calling attention
to the fact that the vague promises from T-Mobile about Boost
Mobile temporary price limits and build-out would address the
significant harms to competition, consumers, and workers with
no guarantee of those kinds of benefits in those vague
promises, and state AGs again have highlighted this issue.
I want to focus on potential interference from the White
House because it has been reported that the Department of
Justice staff is considering recommending blocking the deal. In
response to that news, Fox Business reported that the White
House, and I'm quoting, ``wants this deal done and that its
economic advisors have been encouraging the Assistant Attorney
General for Antitrust, Mr. Delrahim, to go against the advice
of its staff.''
Have you been contacted by anyone in the White House or are
you aware of any Commissioner being contacted about the T-
Mobile/Sprint merger?
Mr. Pai. I have not been contacted and I am not aware of
any other contacts with my fellow commissioners, no.
Senator Blumenthal. Will you report any such contact to
this Committee?
Mr. Pai. Yes.
Senator Blumenthal. When you announced on May 20 that you
opposed the deal, were you aware that the Department of Justice
staff was skeptical about it?
Mr. Pai. No, I don't have any judgment--I don't have any
reason to believe they were skeptical or favorable one way or
the other.
Senator Blumenthal. My time has expired. Thank you, Mr.
Chairman.
Senator Wicker. Thank you, Senator Blumenthal.
Before I recognize Senator Scott, I hope the Committee will
indulge me on this.
Mr. Starks, it seems everyone agrees that the robocall fix
should be free. Commissioner Pai said there are notice and
hearing requirements that had to be complied with. Is that the
way you see it?
Mr. Starks. Senator, yes. Thank you for the question.
The Order states out very clearly the expectation that it
is free. We set forth and I voted for a mechanism to institute
a rulemaking should we understand that carriers are not
offering this for free. We are specifically going to have
carriers report to us whether it's being offered for free. If
it's not, we'll institute a rulemaking.
Senator Wicker. To have gone ahead and done it would have
required notice and hearing, which----
Mr. Starks. It would not have if we had voted for it the
other day, no.
Senator Wicker. So it's your position this could already
have been done?
Mr. Starks. If we had required it, it could have been done.
Yes, sir.
Senator Wicker. OK. Well, then we have a difference of
interpretation there.
I thank the Committee for indulging me on that little
point.
Senator Scott, you are recognized.
STATEMENT OF HON. RICK SCOTT,
U.S. SENATOR FROM FLORIDA
Senator Scott. Thank you, Chairman.
Chairman Pai, we talked about this a little bit when we met
in the office, but we have companies, like Airbus, OneWeb, and
other satellite providers, that it's my understanding from what
they've told me is they're going to be able to provide
satellite service worldwide, including into our rural
communities, which we have a lot of them in Florida, that don't
have great Internet access now. They don't have good broadband
right now, and so they said that within, I guess, what, two or
two and a half years, they believe they'll have enough
satellites up that they'll be able to provide this and with no
Federal reimbursement. It will be basically a service that will
be provided and then the consumer will pay just like they pay
in any other community.
On the other side, I've talked to people that have come to
the Federal Government and are getting $4 plus billion a year
to put broadband out in the rural areas.
So where do you think this is going? Do you feel any
confidence that the satellite system will work, and will it be
able to save us money and help our rural communities even
better?
Mr. Pai. Thank you for the question, Senator.
I certainly am optimistic about the prospects for some of
the non-geo-stationary satellite constellations that we've
approved under this Administration.
I don't pretend to have insight into every single
technology that's being deployed. Some are focusing, for
example, on industrial IoTs, some are going toward residential
broadband, but overall our hope is that they will be
successful, that they will be able to provide access and
competition at a price point and a speed that will be
comparable to what you would get from a terrestrial provider
and over time, our hope is that with that injection of
competition, we will be able to reduce the amount that we have
to expend to build out broadband in those areas.
Our overall preference always is for the private sector to
do the job so that we can reduce the burden on America's
consumers and taxpayers.
Senator Scott. Do any other Commissioners--have you looked
at it? Do you have any optimism or skepticism?
Ms. Rosenworcel. No. A lot of optimism. I agree with my
colleague, the Chairman. We're entering a new commercial space
age and we are going to be able to be bringing cost-effective
connectivity to remote areas of the globe and this country in
ways we've never been able to before.
We're going to have to make sure we monitor it and make
sure that we can help that new age come about as soon as
possible.
Senator Scott. Is there anything we need to do--I mean, my
understanding is they're putting satellites up. My
understanding is they're not asking for reimbursement. It is
also my understanding that they really do believe, everyone
I've talked to, that they'll be able to effectively compete
with the real broadband.
Is there anything we need to do to make sure that happens
because this seems like it's going to help all of our states
that have rural areas and mine for sure does?
Mr. Pai. One thing that is important for us to do, I
believe, is to update our orbital debris rules. Those rules
have been in place since 2004. It has been a decade and a half
since we updated them and that's why under my leadership the
Commission unanimously, I believe, took a look at updating them
to make sure that as we approve these non-geo-stationary
satellites, a lot more satellites in space at lower earth
orbit, given the potential for orbital debris, it's important
to have a conversation about mitigation and I think that's
within our authority, given the fact that we license the
satellites themselves. The mitigation goes along with that, as
I see it.
Ms. Rosenworcel. I think there are two things we need to
do. First, our Part 25 satellite rules were built for another
era of satellite systems when we didn't contemplate
constellations with thousands of satellites. We've got to
streamline them to reflect the small size of satellites today.
In addition, we do have to update our orbital debris rules.
More stuff is going into our skies than ever before, increasing
the risk of collision. We've got to manage that before it
happens.
Senator Scott. What the companies have said to me is
there's already a lot of debris up there and a lot of these
things are colliding and you just get so much and so I guess at
this point it's not a big problem but everybody foresees it to
be a problem. So it's something you all are looking at?
Mr. Pai. Very much so, and I can tell you that our
International Bureau staff, which handles these issues, have
been hard at work not just domestically but in working with
foreign counterparts.
Obviously other countries can authorize the launch of these
satellites, as well, and so we need to make sure we have the
coordinated effort to mitigate the effects of the debris once
it's out there.
Ms. Rosenworcel. We have so much to do. About 35 years ago,
an astronaut dropped a screwdriver in space and it is now
hurdling around at over 21,000 miles an hour. That's 10 times
faster than the speed of a bullet. So just a small piece of
debris in space can have drastic consequences. We've got to
figure this out before this new space age nearly takes off.
Senator Scott. I think all of us have been in a position,
if there's something in legislation that we need to do that's
going to accelerate the use of these low level and low orbit
satellites, I think all of us, it'll help our rural
communities, we'd be interested.
So thank you very much.
Senator Wicker. Thank you, Senator Scott.
Senator Schatz.
STATEMENT OF HON. BRIAN SCHATZ,
U.S. SENATOR FROM HAWAII
Senator Schatz. Thank you, Mr. Chairman.
Thank you to the Commissioners for being here.
First of all, for every Commissioner, I have a yes or no
question. Do you believe that you affirmatively granted
permission for your wireless provider to track and sell your
location information when you signed up for service, yes or no?
Mr. Pai. No.
Mr. O'Rielly. No.
Mr. Carr. No.
Ms. Rosenworcel. No.
Mr. Starks. No.
Senator Schatz. Thank you. And let me follow up on the T-
Mobile/Sprint merger. Commissioner Pai, yes or no, has the
staff completed its analysis and recommendations for the T-
Mobile/Sprint transaction?
Mr. Pai. So the staff recommendations, yes.
Senator Schatz. Has the staff work been shared with all the
Commissioners?
Mr. Pai. We followed the consistent practice, which is that
the Chairman leads the transactional review effort and then
circulates an order to the----
Senator Schatz. Commissioner Rosenworcel, have you seen the
staff recommendation?
Ms. Rosenworcel. No, I've seen no recommendation.
Senator Schatz. Mr. Starks.
Mr. Starks. No, no recommendation, no engineering analysis,
no economic analysis, no.
Senator Schatz. Mr. Carr, have you seen the staff
recommendation?
Mr. Carr. I've reviewed the entire record that's been
presented to me. I've had a yearlong review process, met with
stakeholders, and my position at this point is based on my
review of the record.
Senator Schatz. Mr. O'Rielly.
Mr. O'Rielly. I've not seen the materials. As the Chairman
indicates, it's normal for the Chairman to prepare that
document and I look forward to reading it in the coming weeks
as he has indicated.
Senator Schatz. But you tweeted support for the merger?
Mr. O'Rielly. I said I was inclined to support, based on my
ability to read the document, and I intend to read the
document----
Senator Schatz. Is that normal?
Mr. O'Rielly. That I read the document? Yes.
Senator Schatz. No, not that part. You know what I mean. Is
it normal to tweet that you're inclined to support a merger
before----
Mr. O'Rielly. I did not----
Senator Schatz.--going through the regular order in the
FCC?
Mr. O'Rielly. I did not comment about mergers ever. This
instance was a circumstance where particular publication's
going to----
Senator Schatz. I guess the question becomes--it's sort of
two questions. I have one for you, Mr. O'Rielly, and one for
you, Mr. Pai.
What caused you to feel the need to kind of run ahead of
the process in this particular instance?
Mr. O'Rielly. Sure. I was alerted that there was going to
be a publication that was going to indicate how I was going to
vote and instead of calling that publication and saying--giving
them information, I thought it was appropriate to indicate to
everyone where I was which was exactly where I've indicated.
I'm inclined to support based on the information in the record
waiting to see the document and review the materials.
Senator Schatz. OK. Mr. Pai, I want to move on and, you
know, during your initial confirmation hearings and even in
some of the hearings that we had with your predecessor, there
was this concern about the FCC suddenly becoming a partisan
institution, and I remember multiple both public and private
conversations that we've had about our desire to get to more
five to zero decisions. That has not come to pass,
unfortunately, and as I hear your announcement about broadband
mapping, I just wonder whether the Democratic commissioners
knew you were going to make that announcement today.
Mr. Pai. Senator, I don't believe any of my colleagues knew
and that's one of the things we wanted to introduce was a topic
that we know is of great interest to both sides of----
Senator Schatz. I mean, if you are a team, if you're an
institution, it seems a little weird--one of the foundational
concerns of this Committee is the difficulty with getting
accurate broadband maps and I understand the desire to make an
announcement in a hearing. I get that.
I don't understand why Commissioners Rosenworcel and Starks
were out of the loop.
Mr. Pai. Senator, one of the things that has marked this
chairmanship has been an unprecedented level of delegation.
Under my leadership for the first time in my memory, every
member of the sitting Commission has been asked by me
personally to lead an effort of significance. For the first
time in Commission history that I can remember as a former
career staffer, almost every one of our bureau chiefs and
office chiefs is a career staffer, not a Democrat and
Republican who was brought in from the outside.
Our goal is----
Senator Schatz. What about the question that I'm asking
about communicating with the other members? That's fine.
Mr. Pai. Yes.
Senator Schatz. I stipulate to that. What about the
question I'm asking, which is that you just sprung an
announcement on your fellow commissioners, and I could see it
in their faces, they went huh, that's interesting, and I
actually had my staff text to figure out whether they were as
surprised as they looked and in fact they were and so I don't
want to get into a back and forth, except to say that it is not
enough to assign individual projects to members. They have to
be in the loop so that you're working together as a commission.
I'll just take this last one for the record. We're all
working on broadband mapping, but the difficulty right now is
not just getting granular data but the FCC itself was accepting
fraudulent data by a company called Barrier-Free Filed Data and
claimed that it suddenly went from not serving any census
blocks to 1.5 million blocks covering 62 million people.
The FCC failed to catch it and Free Press caught it and so
to the extent that we are engaged in magical thinking about the
amount of people covered by broadband, it is based on a flawed
FCC process, not any partisan dispute between members of this
Committee or even members of the Commission.
But to the extent that you went 62 million, that sounds
right and then an outside organization had to come in and say
that's nuts and then you caught it. It demonstrates the weak
foundation on which you're doing your mapping, and I'll take a
response for the record.
Thank you.
Senator Wicker. Thank you, Senator Schatz.
Senator Gardner.
STATEMENT OF HON. CORY GARDNER,
U.S. SENATOR FROM COLORADO
Senator Gardner. Thank you, Mr. Chairman.
Thank you to the Commissioners for your service and for
being here today.
I'm going to mix my audio-visual metaphors here and sound
like a broken record. We need to fix the orphan issue, the
orphan county issue in Southwest Colorado. We need to get it
fixed once and for all. We've spoken many times at these
hearings and in private conversations about the importance of
getting this fixed.
Commissioner Pai, I have very significant concerns with
your support of the Kansas City Chiefs----
[Laughter.]
Senator Gardner.--and the problem is the constituents of
Southwestern Colorado, who are Broncos fans, they're very
concerned about this, and so I've not forgotten your
allegiance, but I think we need to address this problem so we
don't have to have this conversation again.
In all seriousness, it's far more than about the Broncos,
although it's hard to believe that for LaPlata and Montezuma
Counties, we need to make sure that they are welcomed into the
Colorado News and Colorado programming that they should have.
So it's about local news, weather forecasts, and generally
my constituents who are connected to the rest of the state
through every other measure should be connected through
television, as well.
I'd like to applaud the Commission for approving LaPlata
County's initial market modification request and for recently
recirculating an item related to the petition, and I'd
encourage member Commissioners to vote expeditiously on this
item and hope that we settle the pending objections in favor of
LaPlata County quickly.
And so, Chairman Pai, if you haven't voted already, will
you commit to voting as soon as possible, as soon as you can,
and continue to help resolve this longstanding issue?
Mr. Pai. So, Senator, notwithstanding your constituents'
misunderstanding of what is in their football interests, we did
circulate some time ago an Order along those lines. I approved
it immediately. We're still waiting for votes to come in, but I
would encourage, as well, my Commissioners to vote.
Senator Gardner. Will you be voting soon and expeditiously
on this?
Mr. Pai. I've already voted. I believe the majority of the
Commission has voted and we're just looking for the final votes
to come in.
Senator Gardner. Mr. O'Rielly.
Mr. O'Rielly. I have voted for the matter.
Senator Gardner. Thank you. Mr. Carr.
Mr. Carr. I have voted for it, yes.
Senator Gardner. Thank you. Ms. Rosenworcel.
Ms. Rosenworcel. I have voted for it, as well.
Senator Gardner. Thank you. Mr. Starks.
Mr. Starks. Unfortunately, it sounds like I need to go vote
as expeditiously as possible, Senator. Thank you.
Senator Gardner. Thank you very much. I appreciate that.
Commissioner Carr, just a brief comment on the robocall
situation. According to YouMail Call Registry, about 2.1
million robocalls per day, that's just last month alone, 2.1
million robocalls per day. That's 24.5 robocalls per second.
This unending effort to the annoyance of every Coloradan, it
doesn't matter where you live, who you are, or where you are
at, it affects everyone. Scammers trying to take advantage of
the unsuspecting and innocent who simply answer their phone,
give private information, it has to stop.
So I'm a proud supporter and co-sponsor of the TRACED Act
that Senator Thune has put forward, and I know that it passed
the Senate with overwhelming bipartisan support. I'm hopeful
that it can go to the House and be signed into law as soon as
possible and it's going to require more than congressional
action, though, to minimize and eliminate this challenge.
How will the FCC work to ensure that we reduce robocalls
even further?
Mr. Carr. Thank you, Senator.
Americans are fed up with robocalls. They're sick and
tired. We took a vote a week ago that's going to enable
carriers to block many calls before they even reach them on
their phone. The legislation that you referenced would give us
additional authorities to help continue the crackdown on
robocalls and that will be another step in the right direction.
Senator Gardner. Thank you.
Ms. Rosenworcel, any comments on that?
Ms. Rosenworcel. Sure. We need to do three things. We need
to put in place call authentication technology which is in the
TRACED Act, but we could start it tomorrow and we should.
We should set up a division to manage and help consumers
with robocalls. It's 60 percent of the complaints that come
into the Commission. Our work should reflect their concerns.
And third, every single thing we do to help block
robocalls, we've got to find a way to make it free to
consumers. They didn't cause this mess on their lines. They
shouldn't have to pay for it.
Senator Gardner. Thank you very much for that.
Chairman Pai, you talked a little bit about the maps
already with Senator Schatz and others. The FCC relies on Form
477 data and other maps for their decisions and it affects
funding. It's important these maps are accurate and that
they're made accurate and quickly and so looking at the FCC
maps of Colorado, as a rural Coloradan, I can tell you where
the maps are inaccurate. I can tell you what mile marker they
are inaccurate and I can tell you what mile marker they pick up
again when we get out of that area that's ruby red on the map
or shows coverage.
Senator Manchin and I recently introduced a bill to tackle
this issue and my colleagues, Chairman Wicker, Senator Capito,
have also been very active in this space, as well, and so I
would just hope that you would commit to working with us to
improve the granularity and accurateness of the FCC's broadband
maps as quickly as you can.
Mr. Pai. Absolutely, Senator. That's something I've seen
for myself in your state.
Senator Gardner. Thank you.
Commissioner O'Rielly, the famous Eaglet Project that
needlessly overbuild rural telecom operators in the Eastern
Plains left isolated school districts on the Western Slope
without adequate access to broadband.
Senator Cortez Masto and I have introduced the Access
Broadband Act which would help improve oversight and
coordination among Federal agencies that provide broadband
funding.
The Universal Service Fund is critically important to rural
telecom companies in Colorado that depend on these resources to
make sure that we have all four corners of our great state
covered. So how are you working with the FCC to make sure that
any additional Federal broadband dollars aren't overbuilding
existing networks and systems?
Mr. O'Rielly. Two parts. One is working within the agency
and two is working with other agencies and so I've been raising
the alarm that there's only so much role that we can have and
that's why I would ask for additional legislation. You've been
working on it. It has been very helpful. I think that will help
other agencies recognize the importance to make sure that we're
not duplicating.
Within the agency, I've been raising the alarm that we not
have different programs within the Universal Service Fund, the
same area, and that's something that's ongoing.
Senator Gardner. Thank you, Commissioner O'Rielly.
Chairman Pai, we'll come back to you with questions for the
record on the Kansas City Chiefs. So thank you, Mr. Chairman.
Senator Wicker. Thank you, Senator Gardner.
Senator Duckworth.
STATEMENT OF HON. TAMMY DUCKWORTH,
U.S. SENATOR FROM ILLINOIS
Senator Duckworth. Thank you, Mr. Chairman.
I have no comments on the Chiefs.
[Laughter.]
Senator Duckworth. I want to start by thanking the FCC for
its work to address predatory prison phone rates. Each of you
has publicly stated your support for clarifying the FCC's legal
authority to end the gouging of vulnerable families. To keep
things simple, if any of you no longer supports these efforts,
please raise your hand. Great. For the record, no one raised
their hand.
Chairman Pai, yes or no, if your intrastate authority is
clarified, will you reaffirm your commitment to exercising it
expeditiously?
Mr. Pai. Yes.
Senator Duckworth. Thank you. That's good because
yesterday, Senators Schatz, Markey, Portman, Booker, and King
joined me in introducing the bipartisan Martha Wright-Reed Just
and Reasonable Communications Act. Our targeted bipartisan
legislation would permit the FCC to use its traditional
procedures and authorities to end unjust and unreasonable
rates, thereby keeping families together and enhancing
community safety by reducing recidivism.
The bill is actually named in honor of Martha Wright-Reed,
who for years struggled to keep in touch with her grandson
while he was in prison. As is often the case, her grandson was
moved repeatedly while incarcerated from Virginia to Ohio to
Arizona to Kentucky to Pennsylvania. This made it impossible
for her to make in-person visits.
As is common, phone calls quickly became the primary method
for their family to keep in touch. Her fight for affordable
phone rates lasted for more than 20 years but led to the FCC's
interim rules implemented by former Commissioner Clyburn who
supports my legislation, and today Mrs. Wright's grandson,
Ulandes Cortez, is with us in the audience. Wave your hand.
Mr. Cortez, I want to thank you for your family's
dedication to this very important issue.
Mr. Chairman, Mr. Cortez recently wrote about his family's
experiences and the unfortunes of addressing this issue, and I
request unanimous consent that his op-ed be entered into the
record.
Senator Wicker. Without objection.
Senator Duckworth. Thank you.
[The information referred to follows:]
Truthout--Op-Ed--Prisons & Policing
MY GRANDMOTHER'S 20-YEAR FIGHT FOR PRISON PHONE JUSTICE
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
A prisoner makes one of her daily allotment of six phone calls at
the York Community Reintegration Center on May 24, 2016, in Niantic,
Connecticut.
John Moore/Getty Images
By Ulandis Forte, Truthout Published June 21, 2019
Imagine having to choose between purchasing groceries or making a
phone call to speak with your incarcerated loved one this week. That's
the dilemma facing thousands of families across the country bearing the
burden of high-cost prison phone calls.
In states like Arkansas, according to the Prison Policy Initiative,
it can still cost up to $24 for a 15-minute phone call with someone
detained at a jail--a plight poignantly dramatized in Ava DuVernay's
new series about the Central Park jogger case, ``When They See Us.'' In
the series, DuVernay shows us how varied levels of contact and access
impacted the now-exonerated men at the heart of the case differently
over the course of their years of imprisonment.
This continued injustice is why, for more than 20 years, my
grandmother, Martha Wright-Reed, fought the prison phone industry for
affordable phone rates. Now, I am working to keep up the fight.
My own incarceration was the initial motivation for my
grandmother's struggle for phone justice. However, over time, we
realized this fight was much bigger than us; it was about keeping
families together across the United States. We also knew that lowering
the price of long-distance calls was only one aspect of this ongoing
battle.
My grandmother's perseverance and commitment finally bore fruit in
2013 when the Federal Communications Commission (FCC) announced they
would cap long-distance prison phone rates. I couldn't have been more
proud of my grandmother, who, in her final years, achieved such
tremendous change.
This past week, Sen. Tammy Duckworth introduced the Martha Wright-
Reed Just and Reasonable Communications Act to continue my
grandmother's legacy by pushing for fairer prison phone rates across
the country. This legislation would restore the FCC's authority to
regulate the prison phone industry and cap the rate of prison phone
calls from state and local prisons.
My grandmother often had to choose between speaking with me or
purchasing the medication she needed to stay alive.
We need to be clear about how prisons disappear our loved ones and
break apart families, especially Black and Brown families. This
isolation from the very communities that provide love and support to
incarcerated individuals does not facilitate rehabilitation; it only
creates further pain. In episode four of ``When They See Us,'' one of
the wrongly convicted men, Korey Wise, conveys his desperation for
contact with his mother by literally reaching over the physical barrier
between them, begging her to visit him more often as the guards drag
him away.
While I was incarcerated, I too, witnessed firsthand how many
people suffered great emotional and mental distress from the isolation
that incarceration creates. I was incarcerated at a time in the 1990s
not long after the Central Park jogger case in New York, when the
prison population was exploding nationwide, so I am deeply moved by
today's growing conversation around criminal legal reform.
Seeing others suffer from this kind of disconnection made me even
more grateful for my phone calls with my grandmother, which were so
unaffordable she often had to choose between speaking with me or
purchasing the medication she needed to stay alive. These are the tough
decisions families like mine must make every day when the prison phone
industry goes unregulated.
When I learned that my grandmother was fighting the high cost of
these calls, I was skeptical that we could ever win. Despite her being
a fearless and resilient fighter, I knew these prison phone companies
were literally profiting off the misfortune of others and had
repeatedly proved to be morally bankrupt. So, when we won in 2013, it
reminded me that our agency as directly impacted people is never easily
diminished.
My grandmother died in 2015, and I am proud to see her legacy
continue to empower other families fighting for their right to
communicate with their incarcerated loved ones today.
The fight for prison phone justice is critical to the larger prison
reform movement because our ability to communicate with our loved ones
is essential to our success when we come home after incarceration,
something which I hope people take away from DuVernay's series.
The support I had from my family throughout my incarceration made
such a difference--not only was I able to return to my community with
my closest relationships intact, but it inspired me to get involved and
to make a positive difference for other families that were experiencing
what we had gone through.
Supporting the Martha Wright-Reed Just and Reasonable
Communications Act means speaking up for those who haven't typically
been seen or heard in Washington, D.C., but who deserve and need
communication rights as much as anyone else.
That's a vision my grandmother spent more than two decades fighting
for, a vision that helped me through some of the most difficult moments
of my life, and a vision that I am committed to carrying forward
alongside so many others that our system has tried to make disappear.
Copyright Truthout. May not be reprinted without permission.
Ulandis Forte
Ulandis Forte is an activist fighting for prison phone justice, prison
reform and inspiring change to better humanity.
Senator Duckworth. Sorry. I should have said Committee
Chairman.
My personal legislation enjoys the support of nearly 100
civil rights groups, technology organizations, phone companies,
law enforcement entities and experts, yet some who want to
protect their golden goose argue that eliminating predatory
phone rates and fees will impact public safety.
Commissioner Rosenworcel, there's nothing in my bill that
prevents law enforcement from receiving fair compensation for
the costs of offering and managing inmate communications.
Instead, my bipartisan bill clarifies that inmates and their
families should receive just and reasonable charges, drawing on
Section 202 of the Communications Act, and these are not
radical ideas. Would you agree with this assessment?
Ms. Rosenworcel. I would totally agree with that
assessment.
Senator Duckworth. Thank you. The simple fact is that our
prison phone system suffers from a market failure. Families are
forced to pay outrageous charges because location monopolies
are protected from marketplace competition, even as new
technologies lower costs for providers.
Again, Commission Rosenworcel, today's inmate
communications providers use advanced technologies to cut their
costs while maintaining the highest levels of security. Do you
agree that my legislation makes clear that the obligations of
fairness and just and reasonable rates apply to all inmate
communications, regardless of technology used?
Ms. Rosenworcel. Yes, it does.
Senator Duckworth. Thank you. Achieving just and reasonable
intrastate prison phone rates is not rocket science. We know it
can be done because states like Illinois are leading the way.
Over the last decade, the price of a 15-minute in-state
call from an Illinois prison has dropped 98 percent. So it went
from $16.41 for a 15-minute call to just 14 cents. The same
goes for out-of-state calls in Illinois.
A final question. Commissioner Pai, minutes ago, you
reaffirmed your commitment to acting expeditiously if you were
given authority to address intrastate calls, but the FCC can
also do more to enforce its existing 25-cents-per-minute out-
of-state rate caps that went into effect more than two years
ago.
Rates at some correctional facilities still far exceed that
limit and when you factor in excessive fees and kickbacks that
do nothing to enhance security, the price skyrockets for
struggling families.
Will you commit to meeting with me and some of the
advocates I've been working with between now and the end of the
year to discuss both out-of-state and in-state inmate
communication costs? I'm happy to host it.
Mr. Pai. Senator, I would be happy to meet with you and I
would also point out that under my leadership, the Commission
blocked a merger of two of the leading providers in this area
precisely because we thought that would cause a concentration
in the marketplace that would end up raising rates even
further.
So I share obviously the goal that you have identified in
your remarks.
Senator Duckworth. Thank you.
Mr. Chairman, I'd like to enter into the record letters of
support from numerous stakeholders who support my legislation.
Senator Wicker. Without objection. Thank you.
Senator Duckworth. As well as some additional documents
that have to do with this issue.
Senator Wicker. Is there objection?
[No objection.]
Senator Wicker. Without objection.
[The information referred to follows:]
June 11, 2019
Senator Tammy Duckworth,
Washington, DC.
Senator Angus King,
Washington, DC.
Senator Rob Portman,
Washington, DC.
Senator Cory Booker,
Washington, DC.
Senator Ed Markey,
Washington, DC.
Senator Brian Schatz,
Washington, DC.
Dear Senators Duckworth, Booker, King, Markey, Portman, Schatz:
As nonprofit organizations and community members that support
reforms of the criminal justice system to strengthen the ties between
incarcerated people and their loved ones, we are proud to endorse the
Martha Wright-Reed Just and Reasonable Communications Act of 2019, S.
1764.
For more than fifteen years, families have been calling on the
Federal Communications Commission (``FCC'') to provide relief from the
exorbitant costs that the prison phone companies impose just to stay in
touch. But some children still have to pay over a $1/minute to talk to
an incarcerated parent. Without regulation, these high costs persist
because many prison systems, local jails and detention facilities award
monopoly contracts to phone companies that charge the highest rates and
therefore share the largest portion of the profits with the
correctional institution.\1\
---------------------------------------------------------------------------
\1\ For a detailed overview of the dysfunctional system see Please
Deposit All of Your Money: Kickbacks, Rates, and Hidden Fees in the
Jail Phone Industry by Drew Kukorowski, Peter Wagner and Leah Sakala
(Prison Policy Initiative), May 8, 2013, available at https://
www.prisonpolicy.org/phones/
---------------------------------------------------------------------------
While the Federal Communications Commission had made some progress
toward capping rates and fees in recent years, the phone companies
fought back, attacking the FCC's jurisdiction over the cost of calls
and fees and thereby dismantling most of the previously adopted
regulation.\2\
---------------------------------------------------------------------------
\2\ For an overview of the litigation, see Prison Phone Update:
Appellate Court Deals Major Blow to Prisoners and Their Families by
Carrie Wilkinson (Prison Legal News), June 30, 2017, available at
https://www.prisonlegalnews.org/news/2017/jun/30/prison-phone-update-
appellate-court-deals-major-blow-prisoners-and-their-families/
---------------------------------------------------------------------------
Consistent with FCC Chairman Pai's testimony in his confirmation
hearing, the bill is narrowly targeted to clarify the Federal
Communications Commission's jurisdiction. It makes clear the FCC is
required to ensure ``just and reasonable'' rates for consumers, rather
than only protecting phone company profits. The bill also clarifies
that the Federal Communications Commission's authority is technology-
neutral, which is particularly timely as many of the companies are
using new technology. For example, many correctional facilities have
expanded their use of video calling technology, which has not only led
to banning of in-person visits,\3\ but also threatens to circumvent
regulation.
---------------------------------------------------------------------------
\3\ Seventy-four percent of local jails across the country that
adopt video visitation eliminate in-person visits. See: Screening Out
Family Time: The for-profit video visitation industry in prisons and
jails by Bernadette Rabuy and Peter Wagner (Prison Policy Initiative),
January 2015, available at https://www.prisonpolicy.org/visitation/
report.html
---------------------------------------------------------------------------
Unfortunately, too often, our Nation's criminal justice policies
fail to recognize and support the powerful and positive role families
play in rehabilitation. This trend is not only harmful to families
trying to stay together during the hardship of incarceration; it is
also misguided correctional policy. Improving the ability of families,
clergy and others to maintain a relationship with incarcerated people
improves the safety of all communities. And yet visiting an
incarcerated loved one is already difficult for many. Correctional
facilities are often located far away from people's home communities,
forcing families to rely on phone calls to stay in touch. A recent
study found that more than a third of families surveyed went into debt
to cover phone and visitation costs.\4\
---------------------------------------------------------------------------
\4\ Who Pays? The True Cost of Incarceration on Families by Saneta
deVuono-powell, Chris Schweidler, Alicia Walters, and Azadeh Zohrabi
(Ella Baker Center for Human Rights, Forward Together, and Research
Action Design) September 2015, available at: http://whopaysreport.org/
wp-content/uploads/2015/09/Who-Pays-FINAL.pdf
---------------------------------------------------------------------------
The Martha Wright-Reed Just and Reasonable Communications Act would
enable the Federal Communications Commission to revive the work it has
already completed to reduce the cost of telephone communication home
from prisons and jails and ensure the new law will be effective
regardless of which technology is used to provide communications
services. It will also ensure that incarcerated people with
disabilities receive protection.
We are hopeful that the Martha Wright-Reed Just and Reasonable
Communications Act will rein in the exploitation of families of
incarcerated people throughout the country. This bill recognizes and
respects the humanity of incarcerated people by offering them the same
consumer protections afforded to the rest of the Nation's consumers.
On behalf of the millions of children of incarcerated parents, we
thank you for your leadership and look forward to working with you to
ensure passage of the Martha Wright-Reed Just and Reasonable
Communications Act.
Sincerely,
A New PATH (Parents for Addiction Treatment & Healing)
A New Way of Life Re-Entry Project
Access Humboldt
American Psychological Association
California Families Against Solitary Confinement
California National Organization for Women
Californians United for a Responsible Budget (CURB)
Center on Juvenile and Criminal Justice
Church of Scientology National Affairs Office
Community Works
Congregation of Our Lady of Charity of the Good Shepherd, U.S.
Provinces
CURE (Citizens United for Rehabilitation of Errants)
Robin Davenport
Professor Sharon Dolovich, UCLA School of Law, Director, UCLA Prison
Law and Policy Program
Ella Baker Center for Human Rights
End Solitary Santa Cruz County
Face To Face Knox
FAIR CHANCE PROJECT
First Friends of NJ & NY
FedCURE
Whitney Foskey
Franciscan Action Network
Free Press Action
Freedom for Immigrants (formerly CIVIC)
Friends of Guest House
Human Rights Defense Center
Illinois Campaign for Prison Phone Justice
Interfaith Action for Human Rights
International CURE
Islamic Society of North America
Jamila Hammami, MSW
Joanne Hessmiller, Ph.D., LCSW
The Jordan Center
Justice Strategies
Kristie E. Puckett, MA
The Ladies of Hope Ministries (The LOHM)
LatinoJustice PRLDEF
Lawyers Committee for Civil Rights of the San Francisco Bay Area
The Leadership Conference on Civil and Human Rights
Legal Services for Prisoners With Children
Life for Pot
LPS/LIFE Progressive Services Group Inc
Maine Prisoner Advocacy Coalition (MPAC)
Middle Ground Prison Reform (Arizona)
Michigan Citizens for Justice
David Miles
NAACP
National Advocacy Center of the Sisters of the Good Shepherd
National Association of Social Workers
National Consumer Law Center, on behalf of its low-income clients
The National Council for Incarcerated and Formerly Incarcerated Women
and Girls
National Hispanic Media Coalition
New Jersey Advocates for Immigrant Detainees
No Exceptions Prison Collective
Opportunities, Alternatives and Resources of Tompkins County, NY
Oregon CURE
OVEC-Ohio Valley Environmental Coalition
Place4Grace
Prison Policy Initiative
Public Knowledge
Queer Detainee Empowerment Project
Riverside All of Us or None
Topeka K. Sam
Tamara Sanford
Penny Schoner
Judy Schuler
Gail Smith
Social Workers Against Solitary Confinement
Starting Over, Inc
StoptheDrugWar.org
Urbana-Champaign Independent Media Center
UCLA Prison Law and Policy Program
Union for Reform Judaism
The United Methodist Church--General Board of Church and Society
United Church of Christ, OC Inc.
Voice of the Experienced
Volunteers for Hancock Jail (ME) Residents (VHJR)
Working Narratives
Worth Rises
______
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
______
June 11, 2019
Hon. Roger Wicker, Chairman,
U.S. Senate Commerce, Science, and Transportation Committee,
Washington, DC.
Hon. Maria Cantwell, Ranking Member,
U.S. Senate Commerce, Science, and Transportation Committee,
Washington, DC.
SUPPORT THE MARTHA REED-WRIGHT JUST AND REASONABLE COMMUNICATIONS ACT
OF 2019
Dear Senators Wicker and Cantwell:
We write to you as organizations and individuals that represent a
wide variety of views on many issues, but that stand united on the need
to reduce the exorbitant rates for telephone calls from prisons. A lack
of competition in the correctional calling market is not only costing
clergy and families extraordinary sums each year, it also deters
communication with incarcerated people, thus contributing to recidivism
which wastes hundreds of millions of dollars each year in the U.S.\1\
We therefore write to express our support for the Martha Reed-Wright
Just and Reasonable Communications Act of 2019, which would empower the
Federal Communications Commission to address this problem. In your
positions as Chairmen of the Senate Commerce, Science and
Transportation Committee and the Subcommittee on Communications,
Technology, Innovation, and the Internet, respectively, we urge you to
hold a hearing and support this legislation.
---------------------------------------------------------------------------
\1\ Pew Center on the States, State of Recidivism at 26 (2011) (if
41 states could reduce their recidivism rates by 10 percent, they could
save more than $635 million in averted prison costs in one year);
Illinois Sentencing Advisory Council, The High Cost of Recidivism
(2015) (recidivism will cost Illinois over $16.7 billion over five
years); Friedman, Alex, Lowering Recidivism through Family
Communication, Prison Legal News (April 15, 2014) (summarizing studies
showing communication reduces recidivism).
---------------------------------------------------------------------------
The costs of telephone calls from incarcerated people are often
extraordinarily high--well beyond what most people in our country pay
for telephone service. In some cities in the U.S., it could cost a
grandmother or a pastor $25 for a 15-minute phone call to jail.\2\
Further, a mother attempting to continue her children's relationship
with their incarcerated father could be charged $40 for a 40-minute
remote video call--as could an attorney planning an incarcerated
person's legal strategy.\3\ A pastor seeking to deposit money into a
prepaid account could be forced to pay more than $3 in fees to deposit
$5 into the account.\4\
---------------------------------------------------------------------------
\2\ The Wright Petitioners et al, Federal Communications Commission
Solutions 2020 Comments, Exhibit A, Public Notice No. 342689 (filed
Jan. 11, 2017) (chart detailing intrastate calling rates in late 2016
around the U.S.).
\3\ Securus, Facilities and Pricing, Henry County, IL, available
at: https://securustech.net/facilities-and-pricing/-/asset_publisher/
oBC88rqvvSp0/content/henry-county-il (visited 5/25/18). See also Letter
from Lee Petro, counsel for Wright Petitioners to Marlene Dortch,
Secretary, FCC, Attachments B, C and E (detailing average per minute
rates for Securus video visitation by remote family and attorneys and
for telephone calls in Michigan).
\4\ GTL Connect Network Deposit Amount calculator for Columbia
County OR Jail, found at https://www.connectnetwork.com/webapp/jsps/cn/
makepayment/paymentflow.cn (visited 5/25/18).
---------------------------------------------------------------------------
These calling rates and fees cannot be lowered through market
forces because consumers cannot choose the telephone company they use
to communicate with prisons. Prisons and jails often select telephone
companies based on which company will offer the highest fee or
commission to the correctional institution.\5\ Therefore, many prisons
and jails choose the most expensive service and the costs are passed on
to incarcerated people's families in the form of higher telephone
rates. On top of these high rates, telephone companies impose
additional fees that further inflate their profits on the backs of
inmate families and support systems.
---------------------------------------------------------------------------
\5\ Kukorowski, Peter, The Price to Call Home (Prison Policy
Initiative 2012).
---------------------------------------------------------------------------
The strain on families is extreme. The Prison Policy Initiative
estimated in 2013 that families are spending as much as $386 million
per year on fees--fees imposed over the costs of the calls
themselves.\6\ An Ella Baker Center report found 1 in 3 families of
incarcerated people went into debt to cover phone and prison costs.\7\
---------------------------------------------------------------------------
\6\ Kukorowski, Peter, et al., Please Deposit All of Your Money at
10 (Prison Policy Initiative 2013).
\7\ Ella Baker Center, True Cost of Incarceration at 9 (2015).
---------------------------------------------------------------------------
Unjust and unreasonable charges negatively impact the safety and
security of communities in the United States by exacerbating recidivism
and damaging relationships between people in prison and their support
systems. The rate of recidivism is at crisis levels in the U.S.: within
nine years of being released, five out of six, or 83 percent, of state
prisoners were arrested at least once;\8\ within three years, 67
percent of ex-prisoners re-offend and 52 percent are re-
incarcerated.\9\ We should not disincentivize communication with
incarcerated people--the very behavior that will help us keep families
together and in turn reduce future crime.
---------------------------------------------------------------------------
\8\ Mariel Alper, Ph.D., et al., 2018 Update on Prisoner
Recidivism, Bureau of Justice Statistics (2018).
\9\ Patrick A. Langan, Ph.D., David J. Levin, Ph.D., Recidivism Of
Prisoners Released In 1994, Bureau of Justice Statistics (2002).
---------------------------------------------------------------------------
The Federal Communications Commission possesses the expertise to
take a hard look at the costs of providing telephone service in order
to ensure just and reasonable rates for all telephone calls and fees in
the absence of competition. Congress had delegated that authority to
the Commission, until a recent court decision sharply constricted the
Commission's previous reform efforts.\10\ The Martha Reed-Wright Just
and Reasonable Communications Act of 2019 would clarify Congress'
intent that the Federal Communications Commission protect all consumers
and prevent these outrageous rates that negatively impact the safety of
all people in the United States.
---------------------------------------------------------------------------
\10\ Global Tel*Link v. Federal Communications Commission, 866 F.3d
397 (D.C. Cir. 2017).
---------------------------------------------------------------------------
Sincerely,
Fr. Michael Bryant, Catholic American Civil Liberties Union
Chaplain, D.C. Jail Asian Americans Advancing Justice--
The Rt. Rev. Mariann Edgar Budde, AAJC
Bishop, Episcopal Diocese of Christian Reformed Church, Office
Washington of Social Justice
John Clark (Retired), Warden and Friends Committee on National
Assistant Director, Federal Bureau Legislation Healing Communities
of Prisons USA
Sheriff Pete Dougherty, Jefferson Interfaith Action for Human Rights
County, West Virginia Interfaith Worker Justice
Kenneth L. Faiver (Retired), International CURE
Director of Health Care, Michigan The Leadership Conference on Civil
Department of Corrections and Human Rights
Ron Hampton, past Executive Michigan Citizens for Justice
Director of the National Black Middle Ground Prison Reform
Police Association, Inc. (Arizona)
Robert A. Hood, M.Ed., Warden NAACP
(Retired), Federal ``Supermax'' National Alliance of Faith and
Penitentiary Justice
Ken Kerle, founding editor, National Consumer Law Center, on
American Jails Magazine behalf of its low-income clients
Stefan LoBuglio, Former Chief of Oregon CURE
Pre-Release and Reentry Services Prison Policy Initiative
Division, Montgomery County R Street Institute
Department of Correction and U.S. Conference of Catholic Bishops
Rehabilitation Unitarian Universalist Association
Sheriff Ross Mirkarimi (Retired), United Church of Christ, OC Inc.
San Francisco, CA
Robert Woodson, Founder and
President, Woodson Center
______
Association of Metropolitan Water Agencies
Water Environment Federation
Water Utility Climate Alliance
June 11, 2019
Hon. Roger Wicker,
Chairman,
Committee on Commerce, Science, and Transportation,
United States Senate,
Washington, DC.
Hon. Maria Cantwell,
Ranking Member,
Committee on Commerce, Science, and Transportation,
United States Senate,
Washington, DC.
Dear Chairman Wicker and Ranking Member Cantwell:
As representatives of the Nation's water sector professionals and
utilities, we recently became aware of a Federal Communications
Commission (FCC) plan to auction spectrum in the 24 GHz band to support
commercial 5G broadband service. We understand that some stakeholders
have raised concerns that the use of 5G in this band could negatively
affect satellite data used for weather forecasting, so we therefore ask
you to urge the FCC to refrain from taking any action that could carry
detrimental effects to the Nation's weather forecasting capabilities.
Modern meteorological forecasts rely on satellite-based
observations from the National Oceanic and Atmospheric Administration
(NOAA), and these observations include measurements of atmospheric
water vapor that must be collected in the band of spectrum between 23.6
and 24 GHz. Meteorologists use this data to predict, among other
things, local storm precipitation rates and totals, flood risk and sea-
surface height variations, and tropical cyclone trajectories and
intensities. But this narrow band of spectrum is also critical to
ensuring consistent water service throughout the country.
Our organizations represent the local water systems and
professionals that provide service to millions of Americans from coast
to coast. To carry out this responsibility, water utilities employ
skilled staff who are dedicated to monitoring and interpreting the
latest long- and short-term weather forecasts that are informed in part
by NOAA's water vapor measurements. This information is used to make
critical water supply planning and storm preparedness decisions that
ensure water service will continue uninterrupted, no matter the
weather.
For example, Seattle Public Utilities uses NOAA's quantitative
precipitation forecasts to prepare for and respond to urban flooding,
comply with water quality regulations, manage regional water supply,
and protect endangered species. The utility believes that a degradation
of these forecasts as a result of spectrum interference would impair
its ability to maintain public safety and environmental quality.
We understand that concerns have been raised in and out of
government about the potential for 5G broadband uses in the 24 GHz band
to interfere with NOAA's water vapor observations in the adjacent 23.6-
24 GHz band. In particular, we are aware of a March 27, 2019 U.S. Navy
memo that warned that this interference ``will result in a partial-to-
complete loss of remotely sensed water-vapor measurements,'' with these
impacts ``concentrated in urban areas of the United States first.''
The loss of this key meteorological forecasting metric for the most
populated regions of the United States would severely undercut the
ability of water utility managers to manage resources in such a way as
to ensure that ample water supplies remain available in times of
drought, that sufficient storage capacity is available in times of
heavy precipitation, and that all necessary preparedness activities
have been undertaken in advance of extreme weather events. Denver
Water, for example, uses NOAA data to forecast and manage streamflow
rates, and less accurate information, particularly ahead of major
weather events, could increase risks of flooding to downstream
facilities and commwtlties, resulting in increased costs to ratepayers.
Additionally, less accurate forecasts could lead the utility to impose
unnecessary water use restrictions on customers leading to loss in
customer trust and increasing costs on users. Simply put, the loss of
water vapor spectrum measurement data in the 24 GHz band would
jeopardize the quality and reliability of municipal water service that
Americans have come to expect.
As the Commerce, Science, and Transportation Committee conducts an
oversight hearing of the FCC on June 12, our organizations ask you to
make commissioners aware of the critical importance of preserving the
23.6-24 GHz spectrum band for NOAA's use, and demand that the FCC halt
any activities that could threaten weather forecasting capabilities
until the preservation of NOAA's band can be guaranteed.
Thank you for your attention to this important matter.
Sincerely,
Association of Metropolitan Water Agencies
Water Environment Federation
Water Utility Climate Alliance
CC: Commerce, Science, and Transportation Committee members
______
The Leadership Conference on Civil and Human Rights
Washington, DC, June 11, 2019
Senator Roger Wicker,
Chairman,
Committee on Commerce, Science, and Transportation,
U.S. Senate,
Senator Maria Cantwell,
Ranking Member,
Committee on Commerce, Science, and Transportation,
U. S. Senate,
Dear Chairman Wicker and Ranking Member Cantwell:
On behalf of The Leadership Conference on Civil and Human Rights, a
coalition charged by its diverse membership of more than 200 national
organizations to promote and protect the rights of all persons in the
United States, we write to thank the Committee for holding an oversight
hearing of the Federal Communications Commission (FCC). We want to
highlight two critical civil rights priorities under the FCC's purview
for the Committee's attention. We ask you to: (1) carefully review the
FCC's quadrennial review process and its failure to address the dearth
of ownership by women and people of color; and (2) closely examine the
FCC's recent proposals to drastically gut the Lifeline program, the
only program that helps low-income consumers access vital
communications services, such as broadband.
Media Ownership and Equal Employment Opportunity
Media diversity has long been a top priority of The Leadership
Conference because we understand that meaningful protection of civil
rights and advancement of key policy objectives rely in great measure
on an accurate, independent, and diverse media that serves our
constituencies. Racial, gender, and ethnic diversity in broadcast media
ownership is essential to preserving a multitude of opinions and points
of view in the marketplace of ideas that is accessible to all people.
The Local Radio Ownership Rule, the Local Television Ownership Rule,
and the Dual Network Rule (collectively the ``Media Ownership Rules'')
serve the public interest and media diversity by assuring an accurate,
diverse, and independent media and are the last bulwark against already
abysmally low ownership diversity rates.
Despite their vitally important role in maintaining ownership
diversity, the FCC proposes to modify or eliminate all of the Media
Ownership Rules.\1\ Its proposals to radically restructure the radio
industry are particularly concerning following similarly detrimental
changes to TV regulation in 2017. Moreover, the agency made these
proposals without having collected sufficient data to know what effect
eliminating the rules will have on ownership diversity.\2\ The
Commission has persistently failed to obtain reliable data on which
broadcast outlets are controlled by women and people of color. The
Commission has never corrected identified reporting gaps and numerical
tracking errors, nor has it released a report summarizing the 2017 race
and gender broadcast data, although it has had these data since March
2018.\3\
---------------------------------------------------------------------------
\1\ MB Docket No. 18-349; FCC 18-179, 2018 WL 6589803 (2018)
[hereinafter ``2018 Quadrennial Regulatory Review''].
\2\ Comments, Leadership Conference on Civil and Human Rights, 2018
Quadrennial Regulatory Review, at 2.
\3\ Media Bureau Restricted FRN Public Notice, DA 17-1088, 32
F.C.C.Rcd.9330 (2017).
---------------------------------------------------------------------------
The numbers we do have, while unreliable, paint a dire picture of
ownership diversity. Women own only 7.4 percent of all full power TV
stations, Hispanics and Latinos control 4.5 percent of those stations,
and all tracked racial groups collectively controlled 2.6 percent of
all full power TV stations.\4\ As the following examples show, these
groups are, overall, not making progress. African-American ownership
has had zero or negative percent increases in all television
categories, with African Americans owning less than 180 stations in all
categories.\5\ In Commercial AM and FM radio, African Americans are
experiencing fractions of even 1 percent of growth.\6\ Asian full-power
TV ownership dropped precipitously between 2013 and 2015, from 1.4
percent to .7 percent.\7\ Female ownership growth is only 2 percent,
with women now owning less than 11 percent of any industry despite
making up over half the U.S. population.\8\ In all, Hispanics and non-
Hispanic minorities are experiencing no more than 3 percent growth in
media ownership.\9\
---------------------------------------------------------------------------
\4\ Federal Communications Commission's Industry Analysis Division
of the Media Bureau. ``Third Report on Ownership of Commercial
Broadcast Stations from FCC Form 323 Ownership Data as of October 1,
2015.'' May 2017. https://www.fcc.gov/biennial-forms-323-and-323-e-
broadcast-ownership-data-and-reports.
\5\ Id. Full Power Commercial TV: ``Black or African Americans
owned 12 stations (0.9 percent) in 2015 and 9 stations (0.6 percent) in
2013'' at 7. For Class A TV: ``Black or African Americans owned 1
station (0.3 percent) in 2015 and 8 stations (2.0 percent) in 2013'' at
9. For Low Power TV: ``Black or African Americans owned 8 stations (0.7
percent) in 2015 and 16 stations (1.3 percent) in 2013'' at 11.
\6\ Id citing Commercial AM Radio statistics: ``Black or African
Americans owned 87 stations (2.5 percent) in 2015 and 93 stations (2.5
percent) in 2013'' at 13; Commercial FM radio statistics: ``Black or
African Americans owned 72 stations (1.3 percent) in 2015 and 73
stations (1.3 percent) in 2013'' at 15.
\7\ Id at 7.
\8\ Id citing Broadcast ownership and gender statistics: ``Women
collectively or individually held a majority of the voting interests14
in 1,024 broadcast stations, consisting of 102 full power commercial
television stations (7.4 percent) of 1,385 stations; 15 Class A
television stations (9.3 percent) of 396 stations; 125 low power
television stations (11.0 percent) of 1,137 stations; 314 commercial AM
radio stations (8.9 percent) of 3,509 stations; and 446 commercial FM
radio stations (8.1 percent) of 5,492 stations.''
\9\ Id citing ``Hispanic/Latino persons collectively or
individually held a majority of the voting interests in 671 broadcast
stations, consisting of 62 full power commercial television stations
(4.5 percent) of 1,385 stations; 53 Class A television stations (13.4
percent) of 396 stations; 152 low power television stations (13.4
percent) of 1,137 stations; 176 commercial AM radio stations (5.0
percent) of 3,509 stations; and 228 commercial FM radio stations (4.2
percent) of 5,492 stations'' at 3; ``Racial minorities collectively or
individually held a majority of the voting interests in 402 broadcast
stations, consisting of 36 full power commercial television stations
(2.6 percent) of 1,385 stations; 7 Class A television stations (1.8
percent) of 396 stations; 27 low power television stations (2.4
percent) of 1,137 stations; 204 commercial AM radio stations (5.8
percent) of 3,509 stations; and 128 commercial FM radio stations (2.3
percent) of 5,492 stations'' at 4.
---------------------------------------------------------------------------
Given the apparent lack of broadcast ownership diversity, which we
can only assume to be true without reliable data, we urge the Committee
to press the FCC to collect and publish thorough and reliable data on
broadcast ownership by women and people of color before eliminating any
of the remaining Media Ownership Rules. Furthermore, prior to adopting
any further relaxation of the Rules, we hope the Committee will insist
that the FCC analyze any proposal specifically for its likely impact on
increasing or decreasing media ownership diversity.
The Committee should also consider legislative options, such as the
minority tax certificate, to promote diversity in broadcasting and to
work with appropriations colleagues to end budget restrictions on the
Commission's ability to enforce its local television ownership rules,
as those rules promote diversity of ownership.
Similarly, the Commission recently rejected a request to consider
its failure to comply with its statutory obligation to collect equal
employment opportunity (EEO) data in the broadcast and cable
industries. While the FCC spent time and resources considering an
inconsequential standardized form that was no longer needed,\10\ it did
not address its failure to implement a 2004 Bush Administration
decision to collect employment data across broadcasting and cable as
required by Sections 334 and 554 of the Communications Act.\11\ The FCC
has not complied with these laws in nearly twenty years.
---------------------------------------------------------------------------
\10\ Elimination of Obligation to File Broadcast MidTerm Report
(Form 397) Under Section 73.2080(f)(2), Report & Order, FCC 19-10 (rel.
Feb. 15, 2019).
\11\ Id., Statement of Commissioner Geoffrey Starks; 47 U.S.C.
Sec. 334(a) (mandating retention of broadcast reporting rules); see
also 47 U.S.C. Sec. 554(d)(3)(A) (imposing obligation on MVPDs).
---------------------------------------------------------------------------
Broadband Access for All
The Federal Lifeline program provides eligible low-income
households with a $9.25 monthly discount on qualified voice and/or
broadband service.\12\ It has never been more important to ensure that
low-income people, communities of color, and other vulnerable
populations have access to affordable communications services,
especially high-speed broadband. Reliable high-speed broadband is
essential for students of color to do their homework, for working
mothers to earn their degrees online at night, and for senior citizens
and people with disabilities to access tele-health services. Lifeline
helps to provide those services.
---------------------------------------------------------------------------
\12\ USAC Spreadsheet, LI08 Lifeline Subscribers by State or
Jurisdiction. Available at https://www.usac.org/about/tools/fcc/
filings/2019/q2.aspx.
---------------------------------------------------------------------------
The program began in the Reagan administration, in recognition that
subsidized telephone service for low-income Americans was essential to
full participation in the Nation's political, social, and economic
life. In the George W. Bush administration, Lifeline was modernized to
include wireless phone service. The Obama administration further
modernized the Lifeline program by extending its support to broadband
service.
Despite this progress, the FCC is considering and has issued
proposals that would gut the program. The FCC is now considering
pitting the four universal service programs, including Lifeline,
against one another with a budget cap.\13\ Further, the FCC's proposed
rulemaking in 2017 proposes to eliminate non-facilities-based
providers, which would leave a majority of Lifeline subscribers with no
service.\14\ It also would also impose a ``self-enforcing'' budget cap,
which would create unpredictability and drive eligible low-income
households away from the program. Finally, the proposal would mandate a
co-pay, which would effectively eliminate the most popular Lifeline
services, leaving some of our most vulnerable communities unconnected.
These proposed changes would devastate families currently enrolled in
the program and further widen the digital divide. They have received
virtually no support in the FCC's docket and at the same time, the mere
possibility of their adoption is destabilizing the program. These
proposals should be rejected, and the rulemaking should be promptly
brought to a close. At the same time, it is unclear whether the FCC is
placing a sufficient priority on the actions that would assist low-
income people, such as ensuring access to the most complete databases
for the new Lifeline national eligibility verifier and ensuring that
the verification process is accessible and usable for low-income
people.
---------------------------------------------------------------------------
\13\ https://www.fcc.gov/document/fcc-initiates-evaluation-funding-
usf; see also Eggerton, ``FCC's O'Reilly Promotes Cap on USF Fund,''
Broadcasting & Cable (April 2, 2019).
\14\ Bridging the Digital Divide for Low-Income Consumers et al,
Fourth Report and Order, Order on Reconsideration, Memorandum Opinion
and Order, Notice of Proposed Rulemaking, and Notice of Inquiry, 32 FC
Rcd 10475 (2017) (``2017 NPRM'').
---------------------------------------------------------------------------
We urge the Committee to inquire about the status of these
proposals and urge the FCC Commissioners to commit to protecting the
Lifeline program and ensuring access to broadband and other eligible
communications services for everyone.
We look forward to working with the Committee to encourage and
promote media ownership opportunities for women and people of color, as
well as to ensure the continued viability of the Lifeline program.
Please contact Leadership Conference Media/Telecommunications Co-Chairs
Cheryl Leanza, United Church of Christ, Office of Communication, Inc.,
at 202-904-2168, or Kate Ruane, American Civil Liberties Union, at
(202) 675-2309, or Corrine Yu, Leadership Conference Senior Program
Director at 202-466-5670, if you would like to discuss the above
issues.
Sincerely,
Vanita Gupta,
President and CEO.
Kristine Lucius,
Executive Vice President for Policy
and Government Affairs.
______
June 11, 2019
Hon. Roger Wicker,
Chairman, Senate Committee on Commerce, Science and Technology,
Hon. Maria Cantwell,
Ranking Member, Senate Committee on Commerce, Science and Technology.
Dear Chairman Wicker and Ranking Member Cantwell:
As part of your oversight hearing related to the Federal
Communications Commission, I am submitting this letter on behalf of the
American Association of State Highway and Transportation Officials
(AASHTO). AASHTO represents all 50 states, the District of Columbia,
and Puerto Rico and serves as a liaison between state departments of
transportation (state DOTs) and the Federal government. The top
priority for AASHTO and the state DOTs has been, and will remain, the
safety of all transportation system users. An emerging technology that
could significantly improve the safety of our transportation system are
connected vehicles (CVs) that would create a cooperative transportation
environment and is enabled by Vehicle-to-Everything (V2X)
communications. Cooperative systems achieved through communication
between vehicles, infrastructure, and other users will provide an
enhanced layer of safety and must be advanced. This ability to
communicate will be essential for extending the range of vehicle-based
sensing and achieving the full potential of safety benefits envisioned
by connected and automated vehicles (CAVs). AASHTO and the state DOTs
believe that the deployment of CAVs will yield significant
transportation safety benefits just like seat belts and airbags did in
the 1980s and 1990s.
An integral part of enabling a CV environment is V2X communications
and the 5.9 GHz wireless spectrum that is currently allocated solely
for transportation safety purposes. Allocated by the FCC in 1999 for
the safety of the public, there have been recent developments where
other industries and associations have advocated for the 5.9 GHz band
to be reallocated for other purposes because it is currently not being
utilized to its highest potential. The reality is that in order to
realize the full potential of a CV environment, an unprecedented amount
of collaboration between the private and public sectors will have to
occur on a scale not currently required between transportation
infrastructure owners and operators (IOOs) and original equipment
manufacturers (OEMs). Already, the public and private sectors have
invested hundreds of millions of dollars to develop and deploy CV
technologies and this collaboration will continue to take time to
develop further and it is critical that the current 5.9 GHz band
continue to be reserved for transportation safety purposes.
As IOO of the Nation's surface transportation infrastructure, state
and local transportation agencies are at the core of creating the CV
environment. While automakers and device manufacturers (aka OEMs) will
dictate availability of vehicular equipment, transportation agencies
will control the deployment and operation of roadside infrastructure
and the incorporation of CV technologies into infrastructure
applications. Only through a strong partnership between USDOT, IOOs,
and OEMs will the maximum potential benefits to safety and mobility be
realized.
AASHTO recognizes that there is no current agreement among the
transportation industry on which technology will be used to broadly
deploy V2X applications. AASHTO's position is that the only existing
technology ready for deployment to enable V2X communications using the
5.9 GHz spectrum is DSRC. As documented in numerous different reports,
demonstrations, and research projects on the subject,\1\ there are many
advantages to using DSRC, the most important being that it is ready for
deployment today. For example, an effort led by State and local public-
sector transportation IOOs is the national Signal Phase and Timing
(SPaT) Challenge.\2\ Under this initiative, over 200 infrastructure
communications devices have already been deployed with more than 2,100
planned by 2020 under this initiative in 26 States and 45 cities with a
total investment of over $38 million. Furthermore, it is the goal of
the SPaT Challenge to deploy a DSRC-based V2X communications
infrastructure with SPaT broadcasts in at least one corridor with at
least 20 signalized intersections, in each of the 50 States by January
2020. There are other trade associations and companies pushing for
competing technologies that use the 5.9 GHz spectrum including LTE C-
V2X and 5G New Radio that are purported to be better than DSRC. While
other V2X technologies are being developed and tested, the most
important advantage of DSRC is that it is ready for deployment today
which no other technology can claim at this time. However, AASHTO
understands and appreciates the fact that this technology will most
definitely evolve over time.
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\1\ Please see http://cav.transportation.org
\2\ More information on the SPaT Challenge is available here:
https://transportationops.org/spatchallenge
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The current debate among stakeholders in the transportation
industry on how best to use the 5.9 GHz spectrum should not be utilized
as an excuse to open the spectrum for non-transportation safety
purposes. Rather, it must be seen as a reason to continue to preserve
the spectrum because the transportation industry needs and wants to use
the spectrum for transportation safety and a CV environment can only be
created if there is a spectrum available with which CV technologies can
use to communicate. Thus, continuing to preserve the spectrum will
create a greater imperative for USDOT, IOOs, and OEMs to continue their
strong partnership to determine a way forward to use the spectrum. And,
AASHTO stands ready to support this endeavor in any way we can.
In closing, AASHTO's members understand that a CV environment holds
the potential to support a fundamental advance in ensuring the safety
of our surface transportation system. While the vehicle component and
infrastructure component of the transportation system have
traditionally been only loosely coupled (through static signing and
markings, dynamic message signs, traffic censors, etc.), CV technology
will allow these components to work actively together--creating a fully
cooperative transportation environment. This provides the potential for
significant safety improvements, reduction in congestion, reduced fuel
consumption, lowered emissions, and improved traveler experience.
However, in order for this future to become a reality, the 5.9 GHz
spectrum must be preserved for transportation safety purposes.
If you would like to discuss the issues raised in this letter,
please contact Matthew Hardy, Ph.D., AASHTO's Program Director for
Planning and Performance Management at (202) 624-3625.
Sincerely,
Jim Tymon,
Executive Director,
American Association of State Highway
and Transportation Officials.
______
Intelligent Transportation Society of America
June 12, 2019
Hon. Roger Wicker,
Chair
Committee on Commerce, Science, and Transportation,
United States Senate
Washington, DC.
Hon. Maria Cantwell,
Ranking Member,
Committee on Commerce, Science, and Transportation,
United States Senate
Washington, DC.
Dear Chairman Wicker and Ranking Member Cantwell:
In anticipation of the Senate Committee on Commerce, Science, and
Transportation's upcoming hearing entitled ``Oversight of the Federal
Communications Commission,'' the Intelligent Transportation Society of
America (ITS America) writes to underscore that the Federal
Communications Commission (FCC) embraced the use of spectrum in the 5.9
GHz band to promote the development of technology that saves lives and
improves the safety of roadways. It is time to move past the regulatory
uncertainty that has hung like a cloud for the past six years and
provide automakers and transportation operators the environment they
need to make our transportation system safer and save lives. It is time
to accelerate the deployment of Vehicle-to-Everything (V2X) safety
transportation communications technologies.
New and developing V2X technology that depends on the 5.9 GHz band
is allowing us to finally address the lives lost on our Nation's roads.
Vehicle-to-Vehicle (V2V), Vehicle-to-Infrastructure (V2I), and Vehicle-
to-Pedestrian (V2P)--collectively referred to as V2X--have incredible
potential to dramatically improve the safety, accessibility, and
operational performance of our roads and vehicle safety; this includes
all V2X technologies--Dedicated Short Range Communications (DSRC) as
well as Cellular vehicle-to-everything (C-V2X).
Safety is the top priority of the Nation's transportation system.
According to the U.S. Department of Transportation's National Highway
Traffic Safety Administration (NHTSA), 37,133 people lost their lives
in motor vehicle crashes in 2017, which roughly breaks down to a little
more than 100 fatalities per day. V2V deployments available today
include systems that provide emergency braking and the ability for
vehicles to be the ``eyes and ears'' of other vehicles. Non-Line-of-
Sight awareness means that drivers and vehicles can see around corners
and receive information about hazards in the roadway, even if they
cannot see the hazard. V2V communications help move traffic more
efficiently with demand responsive traffic signaling, which allows
emergency response vehicles to preempt signals.
V2I provides vehicles and drivers information about infrastructure
operations--weather and pavement condition, how signals are directing
traffic, and even the location of potential hazards at intersections
and other critical road safety hotspots. V2I applications include red
light violation warnings, reduced speed zone warnings, curve speed
warnings, and spot weather impact warnings. V2I soon will support other
applications that will disseminate the condition of the infrastructure,
such as bridge integrity, and may even collect vehicle data that
describes pavement condition. According to NHTSA, V2I technology helps
drivers safely negotiate intersections and could help prevent 41 to 55
percent of intersection crashes. Another connected vehicle safety
application that helps drivers with left turns at intersections could
help prevent 36 to 62 percent of left-turn crashes, according to NHTSA.
In addition to the lives saved, just these two applications alone could
prevent up to 592,000 crashes and 270,000 injuries each year.
V2X will enable us to deploy safety solutions to protect vulnerable
users of the system, which will be transformational. V2P is an
extremely important communications component. In Colorado, where the
largest increase was in vulnerable users of the system, fatalities
increased from 484 in 2014 to nearly 700 in 2017. By allowing vehicles
to communicate with these users through sensors or vehicle-to-device
communication, we can significantly reduce the number of pedestrians
killed on our roadways.
Public sector agencies can also reap the benefits of V2X.
Increasingly, vehicles will rely on digital formatting of roadway
information to process roadway rules. ITS America member Regional
Transportation Commission of Southern Nevada recently became the first
in the world to put roadway information into a digital format. As
connected vehicles drive over the actual roadway, they can pick up
differences between the ``digital'' road and the actual road. This
could eliminate the need for agencies to manually examine roadways for
striping or automatically report potholes instead of waiting for enough
drivers to incur tire damage before fixing them. These vehicles will
also give an up-to-the-minute snapshot of the system--how it is
performing, are there any incidents, live weather conditions, etc.
Millions of dollars have already been invested in this effort,
including states and cities incorporating connected vehicle
technologies into infrastructure. A majority of states and dozens of
cities are deploying or planning to deploy connected vehicle
technology. V2I deployments include expansions of the Safety Pilot
Model Deployment in Ann Arbor (MI), large pilot deployments in New York
City, Tampa (FL), and Wyoming, and the Smart City Challenge in Columbus
(OH). These technologies can also enhance automated driving systems,
which can provide numerous economic, environmental, and societal
benefits, such as decreased congestion and fuel consumption and
increased access for older adults and people with disabilities.
However, V2X communications are by no means guaranteed. The 5.9 GHz
band for V2X is being targeted by cable companies and their supporters
who are seeking additional spectrum for WiFi and are aggressively
pressuring the FCC to force V2X to share that spectrum with unlicensed
consumer broadband devices. Speed matters when safety information is
involved. Sharing the band could compromise the speed and put lives at
risk. What if a driver knew, in fractions of a second, that an airbag
deployed in a car in front of him/her? Alternatively, that the car in
front, around the next curve, was sliding on black ice? Or a pedestrian
is around the next corner? Thanks to V2X technology, that driver would
react--and avoid a crash. Deploying life-saving technologies that allow
cars, buses, trucks, bicycles, pedestrians, motorcycles, streetlights,
and other infrastructure to talk to each other will ensure more people
arrive home safely.
ITS America supports prioritizing the entire 5.9 GHz band for
existing, new, and developing V2X technologies. We want to make sure
all three phases of testing for the 5.9 GHz band are complete in a
timely manner before the FCC rules on whether the spectrum can be
shared between V2X operations and unlicensed devices like WiFi. Any
unlicensed use in the band should be done without harmful interference
to the incumbent technology or other intelligent transportation systems
technologies. Finally, it is time to move past the regulatory
uncertainty and accelerate the deployment of life saving V2X
transportation technologies.
Sincerely,
Shailen P. Bhatt,
President and CEO,
Intelligent Transportation Society of America.
Cc: Senate Committee on Commerce, Science, and Transportation
Ron Thaniel, ITS America Vice President of Legislative Affairs,
[email protected]
______
United States Senate
Washington, DC, June 25, 2019
Hon. Roger Wicker,
Chairman,
Senate Committee on Commerce, Science, and Transportation,
Washington, DC.
Hon. Maria Cantwell,
Ranking Member,
Senate Committee on Commerce, Science, and Transportation,
Washington, DC.
Dear Chairman Wicker and Ranking Member Cantwell:
We are writing to request that the Senate Committee on Commerce,
Science and Transportation (CST) include S. 1764, the Martha Reed-
Wright Just and Reasonable Communications Act of 2019, in the next
Business Meeting agenda. This important legislation is the result of
bipartisan efforts to address long-standing concerns regarding
predatory calling rates at prison facilities across the U.S.
Policymakers of all stripes acknowledge that the existing market
has failed to produce adequate competition to protect family, clergy,
and counsel who communicate with prisoners, inmates and detainees. The
Martha Wright-Reed Just and Reasonable Communications Act is a
technology-neutral legislative solution that provides the Federal
Communications Commission (FCC) with the appropriate authority to
address the U.S. Circuit Court of Appeals decision in Global Tel*Link
v. FCC. As all five FCC Commissioners recently reaffirmed, they welcome
clarity for their authority in this space.
This commonsense technical fix advances three key policy goals:
1. Protects consumers : While existing law requires all intra- and
interstate inmate calling to be ``fair,'' the U.S. Court of
Appeals found that the term only applies to communications
providers, not consumers. This bipartisan legislation makes
clear that ratepayers should also receive just and reasonable
charges, drawing on the standard in Section 202 of the
Communications Act of 1934.
2. Future-proof: When Section 276 of the Communications Act was
adopted in 1996, it was written with traditional telephone
service and traditional payphones in mind. Today's inmate
communications providers utilize advanced technology to lower
their costs, promote the highest security and provide
innovative services. This legislation makes clear that the
obligations of fairness and just and reasonable rates apply to
all inmate communications regardless of technology used, like
video visitation services and other advanced communications
services. This also ensures that the needs of inmates with
disabilities is addressed.
3. Targeted purpose: This legislation is precisely targeted at
clarifying existing law in light of the U.S. Court of Appeals
decision and to permit the FCC to use its traditional
procedures and authority to address unjust and unreasonable
rates. Just and reasonable communications rates enhance
community safety and security by improving the community
connections of inmates that studies have shown to reduce
recidivism.
After a decade of delay, it is time to address predatory prison
phone rates. We respectfully request that the Committee include this
bill on its next Business Meeting agenda. Thank you in advance for your
consideration of our request.
Sincerely,
Tammy Duckworth
United States Senator
Cory A. Booker
United States Senator
Rob Portman
United States Senator
Edward J. Markey
United States Senator
Brian Schatz
United States Senator
Angus S. King, Jr.
United States Senator
______
NCIC Inmate Communications
July 2, 2019
Mark A. Copeland,
Senior Policy Advisor,
Office of Tammy Duckworth,
Washington, DC.
Dear Mr. Copeland,
NCIC Inmate Communications (Network Communications International
Corp) strongly supports the Martha Wright-Reed Just and Reasonable
Communications Act which will help to address the shortcomings of
Federal Communications Commission and state regulators in controlling
abuses by inmate communications providers.
NCIC has been the most vocal inmate communications provider in
supporting the efforts of the FCC and state regulatory agencies to curb
excessive calling rates and fees for inmate telephone services going
back to the original FCC preceding in 2013. NCIC was instrumental in
educating the FCC, state regulators and the corrections industry on the
myriad of fees that have been assessed on inmates and their families,
and encouraging jail and prison authorities to specifically target
elimination of these abusive fees when contracting with inmate phone
providers. Often, jail authorities are oblivious to the hidden fees
levied by some providers. Further, NCIC was the only company to
intervene in support of both the FCC and the Alabama Public Service
Commission when several providers appealed both of their rulings.
NCIC applauded the FCC and state regulators for understanding the
continued need for jails and prisons to continue to receive
compensation to offer and manage their inmate communications, while
many attorneys and inmate phone providers were trying to encourage the
FCC to regulate or eliminate commission payments.
The Martha Wright-Reed Just and Reasonable Communications Act will
permit inmate service providers and correctional facilities to maintain
the freedom to structure their agreements as they see fit, but will
direct the Federal Communications Commission to close the remaining
loopholes that permits some inmate service providers to continue to
charge unreasonably high rates and fees to inmates and their families.
Thank you for reaching out to us and don't hesitate to contact me
if you have any questions.
Sincerely,
William L. Pope,
President.
______
Statement from The American Society of Civil Engineers
Introduction
Chairman Wicker, Ranking Member Cantwell, and Members of the Senate
Committee on Commerce, Science, and Transportation, on behalf of the
American Society of Civil Engineers (ASCE),\1\ thank you for the
opportunity to submit a statement for the record on the importance of
preserving the 5.9 GHz band of spectrum for transportation security
purposes. ASCE is eager to work with the Committee in 2019 and beyond
on finding ways further strengthen our Nation's vital transportation
infrastructure systems, its ever-growing relationship with technology,
and efforts to enhance human safety.
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\1\ ASCE was founded in 1852 and is the country's oldest national
civil engineering organization. It represents more than 150,000 civil
engineers individually in private practice, government, industry, and
academia who are dedicated to the advancement of the science and
profession of civil engineering. ASCE is a non-profit educational and
professional society organized under Part 1.501(c) (3) of the Internal
Revenue Code. www.asce.org,
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ASCE and its more than 150,000 members hold paramount public
health, safety, and welfare as they design, build, construct, operate,
and maintain the built environment. Through this commitment, we
recognize the impacts of evolving technologies such as the development
of connected and autonomous vehicles (CAV) on our infrastructure
systems and advocate for policies that strengthen the quality of our
infrastructure system and enhance human safety. Encouraging a strong
CAV environment through vehicle-to-vehicle (V2V), vehicle-to-
infrastructure (V2I), and vehicle-to-pedestrian (V2P) communication,
collectively known as V2X communications, is essential to modernize
existing transportation infrastructure, foster connected communities,
enhance mobility, and save lives.
Our nation's transportation infrastructures systems are critical to
our Nation's public safety, national security, and economic
competitiveness. In the 20th Century, the Federal government led the
charge in transportation infrastructure by building our Nation's
greatest infrastructure systems. Looking back to the Works Progress
Administration projects completed during the Great Depression, to the
creation of the Interstate Highway System in the 1950s and 1960s, the
20th Century will be remembered as a time when Americans took pride in
building a strong and lasting infrastructure foundation.
Now in the 21st Century, we're living in a nation where technology
has a fast, growing impact on all aspects of our daily lives, including
our surface transportation network. Despite this everchanging landscape
in our surface transportation network, investment has not kept pace
with this immense growth. Our nation currently has a significant
investment gap of nearly $2 trillion over the next ten years. If we
hope to repair, modernize, and support the technological growth of our
surface transportation infrastructure systems to be competitive in the
21st century marketplace, we must close this gap.
Failure to Act: Closing the Infrastructure Investment Gap for America's
Economic Future
Infrastructure is the foundation that connects the Nation's
businesses, communities, and people, serves as the backbone to the U.S.
economy, and is vital to the Nation's public health and welfare.
In 2016, ASCE released Failure to Act: Closing the Infrastructure
Investment Gap for America's Economic Future.\2\ This economic study
analyzed the impact of current infrastructure investment trends on
America's GDP, jobs, personal income, and businesses. The study
determined that the U.S. is on track to invest only half of what is
needed in infrastructure over the next decade. This underinvestment
will cause our infrastructure to further degrade, resulting in a loss
of 2.5 million jobs, $3.9 trillion in GDP, and $7 trillion in lost
business sales by 2025. In addition, poor infrastructure will cost each
American family $3,400 a year, which is $9 a day, in personal
disposable income. To catch up and fill in the investment gap, we must
invest an additional $144 billion each year, which is an average
investment of just $4 per day per household. This small investment
would put $3,400 back into the wallets of American families each year
for a three to one return.
---------------------------------------------------------------------------
\2\ Failure to Act: Closing the Infrastructure Investment Gap for
America's Economic Future. (2016) www.asce.org/failuretoact
---------------------------------------------------------------------------
Failure to Act found that our infrastructure challenges are
significant, but solvable. Surface transportation categories, including
roads, bridges, transit, and commuter rail, face the largest investment
gap. We must invest an additional $1 trillion throughout this network
to ensure we have an infrastructure system fit for the 21st century and
its technology.
Fundamental Criteria for Future Infrastructure Investment
ASCE believes that all infrastructure programs and projects
supported by infrastructure investment legislation must meet the
following fundamental criteria:
Investments must provide substantial, long-term benefits to
the public and the economy;
The cost of a project over its entire life span--including
designing, building, operating, and maintaining the
infrastructure--must be taken into account;
Projects should be built sustainably and resiliently; and
Federal investment should leverage state, local, and private
investment, not replace these other critical sources of
infrastructure funding.
ASCE urges the Committee to focus first on prioritizing those
aspects of our infrastructure most in need of repair, replacement, and
modernization, to sustain our economy, public health, and safety. As we
use these fundamental criteria to rebuild our nation, we must also
ensure that the use of ever-changing CAV technology will be able to
successfully operate in the built environment as a means to improve our
Nation's quality of life.
ASCE's 2017 Infrastructure Report Card
Infrastructure is the foundation that connects the Nation's
businesses, communities, and people, serves as the backbone to the U.S.
economy, and is vital to the Nation's public health and welfare. Every
four years, ASCE publishes the Infrastructure Report Card, which grades
16 major infrastructure categories using a simple ``A'' to ``F'' school
report card format. ASCE released its 2017 Infrastructure Report
Card\3\ giving the Nation's overall infrastructure a grade of ``D+,''
with an investment gap of $2 trillion over the next 10 years--and the
total investment needed is nearly $4.6 trillion. Our transportation
infrastructure categories earned mixed grades, with bridges ``C+'' and
roads ``D,'' and have a near $1.1 trillion 10-year investment gap.
---------------------------------------------------------------------------
\3\ https://www.infrastructurereportcard.org/
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Transportation Infrastructure Systems
Bridges
The nation has 614,387 bridges, almost four in ten of which are 50
years or older. In 2016, 56,007--9.1 percent--of the Nation's bridges
were structurally deficient, meaning that they require significant
maintenance, rehabilitation, or replacement. In that same year, on
average there were 188 million trips across a structurally deficient
bridge each day. While the number of bridges that are in such poor
condition and considered structurally deficient is increasing, the
average age of America's bridges keeps increasing and many of the
Nation's bridges are approaching the end of their design life. The most
recent estimate puts the Nation's backlog of bridge rehabilitation
needs at $123 billion.
Roads
With over four million miles of roads across the US--15 lane
interstates to residential streets--roads are among the most visible
and familiar forms of infrastructure. In 2016, U.S. roads carried
people and goods over 3.2 trillion miles--or more than 300 round trips
between Earth and Pluto. After a slight dip during the 2008 recession,
Americans are driving more, and vehicles miles traveled hit a record
high in 2016.
Despite the high use and demand, the Nation's roads are often
crowded, frequently in poor condition, chronically underfunded, and are
becoming more dangerous. The average commuter spends 42 hours per year
delayed in traffic. More than two out of every five miles of the
Nation's urban interstates are congested, and traffic delays cost the
country $170 billion in wasted time and fuel in 2017. One out of every
five miles of highway pavement is in poor condition and our roads have
a significant and increasing backlog of rehabilitation needs. After
years of decline, driving on unsafe roads has led to 36,750 people
dying in 2018 on our Nation's roads.
Technology Solutions
Our nation's elected leaders must act quickly to address the
widening investment gap for transportation infrastructure systems. The
Federal government has historically been the leader in strengthening
our surface transportation network. In addition to direct investment,
the Federal government must support technology that benefits vehicle
and human safety. Because of this Federal leadership role, ASCE urges
Congress to:
Through the wide scope of CAV available technology, we must
continue to ensure that CAVs are a means to improve not only
human safety, but also our transportation infrastructure. As
CAV technology continues to develop, cooperative systems must
be achieved through strong partnerships between vehicles
manufacturers, infrastructure owners, government entities, and
private sector actors.
A strong, resilient, and properly maintained infrastructure
system is mandatory to maximize the safety benefits that CAV
technology.
Emerging technologies such as CAVs and V2X communications
must be considered as viable tools to enhance existing
transportation infrastructure, foster connected communities,
enhance mobility, and save lives. Therefore, we should
encourage technology ready for deployment to enable V2X
communications by preserving the 5.9 GHz band for secure,
interoperable, and dedicated vehicle safety.
Conclusion: A 21st Century Vision for America's Infrastructure
ASCE thanks the Committee for holding this hearing on a topic that
affects the quality of life and livelihood of every American.
In the 21st century, American should be thriving because of its
high-quality infrastructure. For the U.S. economy to be the most
competitive country in the world, we must have a first-class
infrastructure system: transportation systems that move people and
goods efficiently, at reasonable cost by land, water, and air;
transmission systems that deliver reliable, low-cost power from a wide
range of energy sources; and water systems that drive industrial
processes as well as the daily functions in our homes. We must also
protect technological advances that can increase our mobility and save
human lives.
Let's commit today to make our vision of the future a reality--an
American infrastructure system that is the source of our prosperity.
ASCE and its members look forward to working with the Senate Committee
on Commerce, Science, and Transportation to improve America's
infrastructure so that every family, community, and business can
thrive.
Senator Wicker. Senator Thune.
STATEMENT OF HON. JOHN THUNE,
U.S. SENATOR FROM SOUTH DAKOTA
Senator Thune. Thank you, Mr. Chairman.
Thanks to all the Commissioners for being here.
Chairman Pai, the MOBILE NOW Act, which I authored with a
number of my colleagues on this Committee and which was signed
into law last year, recognizes the importance of both licensed
and unlicensed use and its implementation will be critical for
paving the way for 5G services.
Under your leadership, the FCC has completed successful
auctions in the 24 and 28 gigahertz bands. I commend you for
bringing this spectrum to market as it is vital to the United
States to maintain its global leadership in the race to 5G.
I understand potential interference concerns were raised
around the 24 gigahertz band. Could you tell us what steps the
Commission took to address those concerns?
Mr. Pai. Appreciate the question, Senator, and more
generally your support for our efforts on 5G, including the
recently completed 24 gigahertz auction.
In 2016, the previous FCC issued an Order teeing up
millimeter wave bands, including the 24 gigahertz band, as a
possible test bed for 5G innovation. In 2017, a unanimous
Commission identified this 24 gigahertz band and asked all of
our Federal agencies, as well as private stakeholders, if you
have any thoughts about interference, share them with us, do
some studies, let's work together to figure out what the
appropriate protection limit should be in terms of the devices
and bay stations that are operating in this band.
If there are any concerns, we would be happy to address
them and in the absence of that, we'll go with the traditional
minus 20 dbm limit that the FCC has adopted for many decades,
including for current fixed and microwave links that are
adjacent to the 23.6 gigahertz band.
One of our Federal partners said they had a study in 2017.
We then worked with them, as well as other Federal
stakeholders, to identify some serious flaws in that study.
That study was ultimately withdrawn.
At the time the 24 gigahertz auction started, we had not
had any validated study that showed that our protection limit
was inappropriate. At the 11th hour, however, one of our
Federal partners suggested there was such a study. We asked to
work with them, get some insight into what their study was
showing.
Until May 10, our staff never got the code that was
necessary for evaluating that study. So far from it being peer
reviewed, it wasn't even reviewed by some of the sister
agencies.
In the meantime, we have consistently said that we believe
that our protection limits are appropriate and so that's part
of the reason why we're evaluating any contrary arguments. One
of the agencies, the National Oceanic and Atmospheric
Administration (NOAA) has suggested that these--based on their
study, that a much higher protection limit is appropriate but
in our view, the assumptions that undergird that study are
fundamentally flawed.
For example, it ignores the fact that 5G will involve beam
forming, essentially adaptive antenna arrays that will more
precisely send 5G signals, sort of a rifle shot, if you will,
instead of a shotgun blast of 5G spectrum.
In addition, that study assumes that bay stations and user
devices will be communicating simultaneously. That is
impossible with the TDD technology that is involved in this
spectrum, and there are a few other methodological flaws,
including the fact that this band we're talking about, 24
gigahertz, is separated from the passive weather sensors in
question by over 250 megahertz and so we believe ultimately
that we can have the best of both worlds.
We can allocate the 24 gigahertz band for 5G and we can
improve tech, the very important passive weather sensors and
other functionalities that other agencies and other parts of
the government work on.
Senator Thune. Another band that has been the subject of
much debate is the 5.9 gigahertz band. Recognizing the
important safety considerations at issue, I've said for years
that it would be a positive public policy outcome for consumers
if engineers could find a reliable way for both Wi-Fi and
connected vehicle technology to safely exist in the 5.9
gigahertz band.
You've acknowledged that this valuable mid-band spectrum
has largely been unused for the past two decades. At the same
time, the Department of Transportation said that preserving
this band for transportation communications is essential for
safety now and into the future.
In your view, what is the best way to start a conversation
that would give all stakeholders an opportunity to discuss the
potential outcomes for this band?
Mr. Pai. Appreciate the question, Senator. You're correct.
The spectrum for 22 years has not reached its highest value of
use and that's part of the reason why I think it's important to
have an open conversation.
I appreciated the chance I had to share my view with the
Secretary of Transportation herself. In our view, at least, we
need to make sure that 75 megahertz spectrum is dedicated to
important functionalities. One of the reasons why we need to
have this conversation about it in the Notice of Proposed
Rulemaking is could it be connected vehicles to everything,
CV2X? That's an automotive safety analogy and--I saw just last
week in a demonstration by Ford.
We can't do CV2X unless the FCC acts. Should it be Wi-Fi,
as some have suggested? Well, we can't do Wi-Fi without a
notice of proposed rulemaking. Essentially, the status quo
means we are locked into one particular technology, called
DSRC, now and forever, unless the FCC has that conversation.
I'm not saying what the answer should be. I'm simply saying
let's ask the questions that would enable us to have an
informed conversation.
Senator Thune. Mr. Chairman, my time's expired, but I'd
like for the record to get the other Commissioners comments
with respect to that issue, and I would simply ask all of you,
I assume you all think it's important for the TRACED Act to
pass?
[All Commissioners nod yes.]
Senator Thune. OK. Good. Thank you. Thank you, Mr.
Chairman.
Senator Wicker. All five members nodded their heads
vigorously.
Senator Markey.
STATEMENT OF HON. EDWARD MARKEY,
U.S. SENATOR FROM MASSACHUSETTS
Senator Markey. My head is nodding vigorously, as well.
Senator Wicker. Thank you.
Senator Markey. Thank you, Mr. Chairman. Thank you, Senator
Thune.
The Telecommunications Act of 1996 created the Universal
Service Fund, as we know it today. The goal both then and now
was a bipartisan one, ensuring universal connectivity
throughout America. That's why members of both parties have
been supporting all four programs within the Universal Service
Fund: E-rate, Lifeline, the Rural Health Care Fund, and the
Connect America Fund.
Each of these four programs is designed to target separate
areas of need. For example, the E-rate provides broadband to
schools and libraries while the Rural Health Care Fund provides
improved health in rural communities.
Yet despite these different needs, the FCC just issued a
Notice of Proposed Rulemaking that would not only implement a
shared funding cap for all four USF programs but would also
directly pit the E-rate against the Rural Health Care Fund and
force these two worthy programs to vie for the same piece of
the pie.
Commissioner Rosenworcel, is a Hunger Games scenario
possible under this Notice of Proposed Rulemaking? Could the
proposed USF cap lead to a fight amongst four deserving
programs for scarce resources?
Ms. Rosenworcel. Yes, Senator, I share your concern.
Congress set aside specific programs for universal service that
we're supposed to use to help bridge the Digital Divide, but
this proposal would lead to doctors and nurses in rural health
care centers fighting with kids who want Internet access from
school to get support for universal service.
I don't think we need the Hunger Games. I think we should
end this proceeding right now.
Senator Markey. And I agree with you. I just think that we
don't need these four programs, each competing against each
other. They should be able to stand independently rather than
in this kind of Darwinian struggle which is being set up.
On children's television in 1990, I was able to author the
Children's Television Act, and I wrote that bill because I
believed then, as I believe now, that all children, regardless
of their family's income, deserve access to educational
programming that will help them to thrive and grow.
Commissioner Rosenworcel, some say that kids today can
stream programming online, so there's no need for quality
educational programming on broadcast TV, is that true?
Ms. Rosenworcel. That's true for some portion of the
population, but a quarter of the low-income households with
kids under eight rely on over-the-air television. The
Children's Television Act still matters.
Senator Markey. Yes, and so we're talking about in many
instances children of color in the country----
Ms. Rosenworcel. Absolutely.
Senator Markey.--and they're in the poorest families and
they need the nutrition that comes from high-quality
programming for their young brains.
Ms. Rosenworcel. Right.
Senator Markey. I agree with you a hundred percent.
Ms. Rosenworcel. And this legislation created a marketplace
for that that didn't exist before. It's still powerful. It's
good stuff.
Senator Markey. Yes, kids should have access to 3 hours of
high-quality educational and informational programming per week
on every single TV station in the country and that programming
should be aired at a time in the day when kids are actually
watching television.
And, finally, the Public Educational and Governmental
Television, also known as PEG, or Cable Access TV offers
critical coverage of local government proceedings, cultural
events, and community meetings.
These stations are invaluable platforms for local voices in
an era of media globalization and consolidation, but the FCC
has proposed a change to current rules governing franchise
agreements that would allow cable companies to shirk their
obligations to the communities where they operate.
The proposal would allow cable companies to avoid paying
some franchise fees to local cities and towns. That would
imperil PEG channels across the country.
Again, Commissioner Rosenworcel, why is it critical that
PEG channels continue to have the resources they need to serve
their communities?
Ms. Rosenworcel. There are thousands of PEG channels in
communities across this country. They cover the high school
football games. They cover city hall. They provide people with
truly local information.
I don't think the FCC's franchise fees proceeding should
bring all of those stations and all of that coverage to an end.
Senator Markey. Commissioner Starks, could you comment upon
the need to ensure that we continue robust funding for the
local PEG channels. Every single city and town in America has
it and it's greatly reliant upon the information that is
provided.
Mr. Starks. Yes. These PEG channels we know also are some
of the--on the vanguard when there are national emergencies.
They are often relied upon in that context.
I think it's important that these PEG channels continue to
have the funding that they need in order to survive and go to
the very touchstone of our broadcast rules, which is for
localism.
Senator Markey. Yes, and I agree with that. I know that
when the big TV stations go away, the only thing that's left in
many communities is just that local cable access channel. So
the people who live in that one small community can continue to
watch the big issue developing in their local area, and if this
gets diminished, it's just the loss of a great resource for the
communities across the country.
Thank you, Mr. Chairman.
Senator Wicker. Thank you, Senator Markey.
Senator Blackburn, and then Senator Tester.
STATEMENT OF HON. MARSHA BLACKBURN,
U.S. SENATOR FROM TENNESSEE
Senator Blackburn. Thank you so much, Mr. Chairman, and to
each of you, I want to say thank you for being here. It's good
to see you all.
Mr. Starks, welcome.
Mr. Starks. Thank you, Senator.
Senator Blackburn. This is the first time I've had you
before me, but I will tell you I enjoyed working through the
process last year in the House when we executed the
reauthorization of the FCC for the first time in nearly 30
years, a big win for those of us in Congress and for you all as
a Commission, and included in this we put Mr. Thune's MOBILE
NOW Act and were able to push this forward.
So we appreciate the work that you all are doing,
continuing to focus on closing that Digital Divide, and I heard
this week from some constituents in West Knox County,
Tennessee, who are still without access to high-speed Internet
and the need to continue with this, and I know, Mr. Carr,
you've been out and we appreciate the work you've done with
some of our rural areas.
Mid-band spectrum, I know the Chairman asked about that and
we're all very concerned about that, 5G, of course. 24
gigahertz had some questions around that that Mr. Thune
covered, but one other thing, Chairman Pai, I want you to just
circle back to.
We know some of the government agencies are encouraging a
more stringent emission limits on this. You mentioned NOAA, but
then I want you just to add a quick bit about how this would
affect the wireless providers that have already bid on this
spectrum with the 24 gigahertz.
Mr. Pai. Appreciate the question, Senator. If the
Department of Commerce's position were to prevail, not only
would the spectrum be unusable for 5G domestically but we would
also put at risk the U.S. position in the upcoming
International Conference in October where the overall world
limit for the 24 gigahertz band, among other 5G bands, will be
set and if that limit is artificially high around the world,
then we will forever forestall, I fear, the millimeter wave
development, development of these millimeter waves for 5G.
That is not a road that we want to go down, especially when
our current limit is sufficient to protect the passive weather
sensors in the 23.6 to 24 gigahertz band, which again is 250
megahertz away from the band we just auctioned.
Senator Blackburn. And that effect would be felt not only
by the commercial sector but the military sector, also?
Mr. Pai. Senator, that's absolutely right. In fact, the
limit that the Commerce Department is proposing is similar to
the one the European Space Agency is proposing with respect to
the 37 gigahertz band, among others, and that is where the
Department of Defense has identified potential 5G applications
for our military. That is not something we want to foreclose,
especially when we're talking about soldiers, sailors, and
airmen in theater who might need to rely on these 5G
applications.
Senator Blackburn. Thank you for that further clarification
on that.
Mr. Pai. Thank you.
Senator Blackburn. Let me come back to the $20.4 billion
Rural Digital Opportunity Fund, which, of course, this is
something that is important to me. It's important to
Tennesseans. What we need to know is the steps that you're
going to take to ensure that we continue to focus on unserved
and that this money does not go into overbuilding.
So, Chairman Pai and then Mr. Carr, I'd like to hear from
you on this.
Mr. Pai. Appreciate the question, Senator.
In fact, just this morning, I spoke with the public servant
who's leading our rural broadband efforts on this issue and she
is focused on this in particular.
Our goal is, and we'll be rolling this proposal out later
this year, is to incorporate some of the same principles that
have made the Connect America Fund so successful, adopt a rural
auction in which numerous different companies, not just rural
telephone companies, but electric utilities, satellite
companies, others can compete.
Second, have more accountability to have specific metrics
you have to build out within 4 years, 5 years, and 6 years,
have accountability at the back end, too, accelerated payback
schedules and the like. If you don't do what you say you're
going to do, you have to pay back some of that money, and
that's one of the reasons----
Senator Blackburn. Incremental accountability?
Mr. Pai. Accountability at every step of the way, from the
minute those applications are filed until the minute that
deadline expires at the end of 6 years or whatever term we
decide.
We want to make sure that you have the confidence in this
program that you and your constituents deserve.
Senator Blackburn. Thank you.
Mr. Carr.
Mr. Carr. I would agree with his steps. I think we're
making really good progress around the country with deploying
broadband, but there are still too many areas that don't have
any facilities right now. We need to make sure we're
prioritizing universal service there and not over-building in
areas that have it.
Senator Blackburn. And the rural health, you want to
comment on that?
Mr. Carr. Yes, telehealth is an area where I think we are
looking to stand up this new Connective Care Program. It can
make a big difference with driving down costs and improving
health care, particularly in rural areas that don't necessarily
have access to high-quality care today. So we're working hard
toward that goal.
Senator Blackburn. Thank you. Yield back.
Senator Wicker. Thank you, Senator Blackburn.
I have Senator Tester, followed by Lee and then Johnson.
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. Thank you, Mr. Chairman. Thanks for having
this hearing.
Chairman Pai, Senator Capito talked a little bit about her
Broadband Data Improvement Act of 2019. Are you familiar with
that bill?
Mr. Pai. Yes, Senator.
Senator Tester. Does your rule replace that bill?
Mr. Pai. I think it's generally consistent with the
purpose. I'd have to fly speck exactly how the terms match up,
but I think the overall gist of it is we're on the same page.
Senator Tester. Yes, right on. So in that bill, it says
that the FCC will determine a penalty for those willingly and
knowingly to submit inaccurate information. We may have enabled
bad behavior here with what's gone on already.
What kind of penalties are you talking about because what
kind of penalties would you set up? What's going to be the
stick because the truth is we've all talked about it? The maps
were bad, you guys know that, and we'll waste a lot of money if
we don't get it squared away. So what kind of penalties are we
talking about?
Mr. Pai. So under current law, the FCC can't administer
Title 18, so criminal penalties, but with respect to Title 4 of
the Act, the Act specifies certain fines that the FCC can
impose for violation of our rules and that is the tool.
Senator Tester. So what kind of fines are we talking about?
Mr. Pai. It depends on the particular violation.
Senator Tester. If somebody gives you bad information and,
by the way, we're not talking about putting a man on the Moon
here, we're talking about wire that goes into a house, OK, it
seems to me they give you bad information, they want to give
you bad information. Why? Because they want to cover that area
at some point in time. I got no tolerance for it, quite
frankly, because we're wasting taxpayer dollars, based on
somebody's trying to gain the system.
So the question is you're going to put the boots to them,
tell me why you're going to do it.
Mr. Pai. Why we're going to do it is because----
Senator Tester. No, not why but how? I mean, it's got to
hurt----
Mr. Pai. Yes.
Senator Tester.--and if they know it's going to hurt going
in, they'll give you good information.
So the question is, what kind of fines are we talking
about?
Mr. Pai. Senator, I think you used specific fine threshold
that the maximum is permitted under our rules, but what I can
tell you is we've kicked folks out of our----
Senator Tester. How much is it?
Mr. Pai. I can't remember the specific number off the top
of my head.
Senator Tester. If you guys kick--can you guys make it so
they can't get grants to put in fiber if they lied to you?
Mr. Pai. Senator, I've been in the foremost about wanting
to kick folks out of the program for abusing the system.
Senator Tester. OK. So, look, communication's critical and
so I really think it's going to be incumbent upon the FCC and
especially you to let the folks know, even with your rule, that
if they don't take this stuff seriously, they're going to pay a
price. You're going to do that?
Mr. Pai. Yes, sir.
Senator Tester. Good deal. Thank you.
Senator Wicker. Chairman Pai, if you could get back to us
on the record as to whether that's a possible sanction, the
question Senator Tester asked.
Mr. Pai. I'd be happy to do that, Mr. Chairman.
Senator Tester. OK. So everybody on the Commission says
that they feel that robocalls should be free. I'm not going to
beat the dead horse, but my head will explode if I get a
charge. I mean, I may just quit. OK?
So the bottom line is, is why not just take all doubt away
and make it--if you've got to take a comment period, OK, so it
takes 60 or 90 days, but at least we know. That's all. That's
all I'm going to say. If you all think it should be free, we
all think it should be free, make it free, give certainty.
I want to go a little bit off of what Senator Scott talked
about and that's satellite versus fiber because this is an
issue that I've been thinking about for awhile. We're spending
millions of dollars. What is it? A million bucks a mile to lay
in fiber and that may be obsolete in a few years and we've
pumped in a lot of money.
Can you tell me if this is real and maybe we're spending
money in the wrong spots to lay fiber? Maybe we should be
focused on satellite technology and going that route which I
don't even know much about but appears to me could be a heck of
a lot cheaper. What's the downside?
Mr. Pai. Senator, assuming the question is directed to
me,----
Senator Tester. Yes, it is.
Mr. Pai. Senator, I think it depends on the particular
area. Different technologies might work. I think there's a
place for fiber, there's a place for satellite. For example, in
places like St. Ignatius where I've been, where you can tell
the building season's going to be pretty short, the topological
challenges are pretty great, it might cost too much money to
get fiber in. So there might you imagine satellite.
Senator Tester. OK. So how do we get there because the
truth is, is that I think Rosenworcel said it, I mean, we will
be left behind. This is access to the Internet with high-speed
Internet connection is what's going to put people back in Rural
America and with all the tariff stuff that's going on, we're
going to see a mass exodus again because people are going to
start going broke.
So we've got to figure out how people can have access to
the Internet in Rural America. Why? Because so they can do the
same business in Scobey, Montana, that they can in New York
City.
So the question is, is how do we encourage the most cost-
effective way, and if it's satellites, I'm all for it. Tell me
what the downside is of satellites.
Mr. Pai. One of the concerns that has been expressed about
satellite services has been that the latency is not what you
would get from a terrestrial provider.
Senator Tester. OK. Is there any way we can speed that up?
Mr. Pai. That's one of the things the new satellite
constellations have suggested they may be able to solve. The
latency for some of these low earth orbit satellites would be
much less. They would be comparable to a terrestrial provider.
Senator Tester. Thank you very much. I wish I had another
20 minutes. Thank you, Mr. Chairman. We'll come in and visit
some more.
Mr. Pai. OK.
Senator Wicker. Thank you, Senator Tester.
Senator Lee, and then Senator Johnson.
STATEMENT OF HON. MIKE LEE,
U.S. SENATOR FROM UTAH
Senator Lee. Thank you very much, Mr. Chairman.
Thanks to each of you for being here and working in an area
that's heavily dependent on technology. The technology that you
address has an intimate relationship with 300+ million
Americans.
It's important that we continue to have technological
innovation. In your area in particular, innovation is heavily
dependent on the availability of spectrum. We know that
spectrum is in a lot of hands. It's especially in the hands of
a lot of Federal Government agencies.
The Federal Government and its various agencies and
departments owns a lot--not just a lot of spectrum
categorically but it owns a lot of spectrum that's of the
especially valuable sort, what you might call beachfront
property, the sort that's really useful to a lot of people, and
yet we know that there's kind of some problem with this.
Unlike a private actor, unlike an individual or a
corporation whose business it is to ensure that they're using
their spectrum in the most efficient possible manner, the
government doesn't necessarily act that way and that's OK. We
understand that. We don't expect governments to act necessarily
in the same way that private actors will.
But just the same, in order to make sure that we're using
it effectively and efficiently, we need to know what it's
worth. We need to have some type of valuation. Now that's why I
introduced the bill called ``The Government Spectrum Valuation
Act.''
This bill, if passed into law today, would do nothing to
actually move the spectrum. It would simply require an
appraisal of sorts, a valuation of what it is that the
government owns, where it owns it, and what it's worth. It's a
bill calling for a study for more data so that we can
understand what the opportunity costs are for the Federal
Government owning this much beachfront property, so to speak.
Mr. O'Rielly, I'll start with you. Given that spectrum is a
finite limited resource, do you think it's important for
Congress to have access to data about the value of the spectrum
that it holds and to identify inefficiencies that might exist
in the spectrum allocations?
Mr. O'Rielly. Absolutely, and I support your bill
wholeheartedly.
Senator Lee. Thank you, thank you. I appreciate that. I
appreciate you getting right to the point on that.
The type of data being sought in this bill, which includes
the identification of opportunity costs, do you believe that
that in particular is a useful tool toward helping Congress and
Federal agencies figure out how to allocate spectrum?
Mr. O'Rielly. Yes, I do believe we have--that's the first
step in the equation. The second step is how do you use that
data to then make a decision at your level and how do you free
particular bands--and I'll give you one band, for example.
3.45 to 3.55, we were led to believe in multiple
conversations we had that a hundred megahertz was going to come
from the Department of Defense to the FCC to make it
commercially available and that decision has since changed and
now we're doing a feasibility study whether it can be shared
which is much different than making a hundred megahertz of
prime mid-band spectrum available for commercial purposes.
Shared spectrum is valuable, too, and it has its place, but
here's a band that has changed behavior based on something I
can't describe what happened. If you had a valuation of what
that piece is worth, I think that would be critical for
decisionmakers to be able to go forward.
Senator Lee. Mr. Carr, would you agree that having access
to this kind of information would be helpful to Congress and
Federal agencies?
Mr. Carr. Thank you, Senator.
I agree with you. We shouldn't be flying blind when it
comes to decisions about those assets. If the government has
$30 billion worth of assets in a warehouse or it has half a
trillion dollars worth of assets in a warehouse, you all should
be able to know that to make informed decisions about what to
do with it.
Senator Lee. Ms. Rosenworcel.
Ms. Rosenworcel. Yes, absolutely. We need a uniform system
of valuation and once we have one, we need to develop
incentives so those Federal actors can see some gain and not
just loss from reallocation for new commercial use.
Senator Lee. Mr. Starks.
Mr. Starks. I would agree, as well, Senator. It certainly
sounds like a proposal that needs to be executed here and
getting a better understanding of what the value of this is
holistically so that we can make the right decisions in real
time.
Senator Lee. Thank you.
Chairman Pai, I'm going to ask you to answer the same
question and at the same time, I want you to describe for me
what the Digital Divide is, what it means when we talk about
closing the Digital Divide.
Mr. Pai. Appreciate the question, Senator.
I want to join my colleagues in advocating for your
approach and I think it actually dovetails quite nicely with
the FCC's determination to make spectrum decisions in this area
that are based on sound engineering.
So if we can get the economics right, we can get the
engineering right, I have a feeling the policy and politics
will take care of themselves.
To me at least, the Digital Divide means people not having
the access necessary to be able to educate their kids, to do
telemedicine, to engage in precision agriculture, to start a
business, to do all the other great things that broadband
affords, and I saw that when I was recently in your state. I
visited Moab where I got to see a telemedicine application
remotely connected with a school in far southern Utah that is
just clinging on to access.
When you see what it means to these kids who are in a
school that has just eight students to be able to gain access
to the Internet and learn at the same pace and at the same
level as their counterparts in Moab, that's a big game changer,
and to me that's why closing the Digital Divide has to be our
national mission.
Senator Lee. Mr. Chairman, can I ask a simple yes or no
question and a follow up? I promise to be very brief.
Senator Wicker. Sure.
Senator Lee. Does that include--when we talk about the
Digital Divide, you refer to all those uses, does it include
entertainment or should it properly under the statute include
access to entertainment?
Mr. Pai. Yes, Senator, any type of application that
broadband would allow.
Senator Lee. Thank you. Thank you, Mr. Chairman.
Senator Wicker. Thank you, Senator Lee.
Senator Johnson.
STATEMENT OF HON. RON JOHNSON,
U.S. SENATOR FROM WISCONSIN
Senator Johnson. Thank you, Mr. Chairman.
I'm not going to be asking Commissioners to endorse any
bill but well done.
Since I joined the Committee, I've been looking at spectrum
maps and not understanding them. So let me state that. I'm not
a scientist when it comes to this. But we all agree, I think
everybody agrees that 5G is crucial for our economy, correct,
the development of it?
I believe all five Commissioners completely agree in the 24
gigahertz auction, is that also true?
So as I'm reading articles about, as the Chairman said,
about the 11th hour concern issued by the Commerce Department,
I'm just trying to scratch my head why. I've got one article in
front of me that says, ``The Commerce Department and NOAA are
blanketing the press and Capitol Hill with dire predictions
they will lose 70 percent of weather forecasting data if 24
gigahertz auction goes forward.'' Their proof is based on
protecting the sensor that was never deployed.
So again I'm just trying to understand when all of
government, I think all of our society wants 5G, the way to
produce 5G is to have a spectrum band available to it. You've
all agreed. I mean, the experts in this field, your staff agree
it's 24 gigahertz. What's pulling off? Why the 11th hour
objection?
Mr. Pai. Senator, I think, unfortunately, some folks in the
Federal Government believe, wrongly, that for whatever reason
the development of 5G technologies and this and other bands
shouldn't happen. It may pose an unacceptable risk to some
Federal uses.
I firmly reject those determinations, especially in the 24
gigahertz band, where we've consistently had----
Senator Johnson. So I want you to be more specific. OK? I
don't want you to be diplomatic here.
Who's trying to block this and why? I mean, literally, this
makes no sense whatsoever.
Mr. Pai. Senator, I don't want to speculate, but what I
will say is that it has been difficult over the last several
months trying to have a framework where we can work
cooperatively with some of our sister agencies. Unfortunately,
one department has been very active in trying to undermine the
United States' position in these international negotiations and
make it more difficult for us to free up spectrum in 5G.
Senator Johnson. So do any of the Commissioners want to
speculate? If we're going to overcome this and again this would
probably be--this is gumming up the works here and we don't
have the time. We can't afford to have the works gummed up
here. We need to get to the bottom of this. Anybody else want
to volunteer, be a little less diplomatic?
Ms. Rosenworcel. I can be a little less diplomatic. I have
not been in the meetings that the Chairman has referred to, but
I can tell you this. The situation we have is embarrassing. We
have to resolve these issues before we put the spectrum to
market in an auction.
The idea that this one part of the Administration is not
talking to another, we bring these airwaves to market, ask
carriers to spend billions of dollars on them, and then don't
exactly know what the terms of service will look like, all the
while we're headed into the World Radio Conference and possibly
undermining our ability to negotiate these issues.
We've got to figure this stuff out before we hold an
auction. Otherwise, the integrity of our future auction
structures are at stake.
Senator Johnson. Mr. O'Rielly.
Mr. Pai. We did figure this out before in 24 gigahertz. The
Chairman has done a great job. The problem is the 11th hour
rising, and I would answer two points, speculating to your
point.
It's not just about 24 gigahertz. It's about every other
band that we're talking about in the millimeter wave, and they
want to come back and retest and rechallenge decisions that we
are making and that's very problematic.
So 24 is only so valuable. There are other bands that are
going to be even more valuable for different technologies, and
I think this is about precedent-setting and why they're talking
about a sensor that doesn't exist on the satellite.
Senator Johnson. Is there any validity or legitimacy to the
issues they've raised, Chairman Pai?
Mr. Pai. No, absolutely not. Currently, before we made our
decision, there were some 40,000 fixed and microwave links in
the band immediately adjacent to the 23.6 gigahertz band that's
in question. There has never been a reported case of
interference.
Over the last two and a half years, we've patiently waited
for a validated study to suggest that our proposed limit is
inappropriate. We've never gotten such a validated study. Now
the study that has been propounded, first of all, we didn't get
the source code for many, many weeks, despite asking for it.
Once we did get it, the assumptions that clearly underlay that
study were so flawed as to make the study, in our view at
least, meaningless and so part of the reason we're frustrated,
I'm personally frustrated and spending a lot of time on this
issue is that the Department of Commerce has been blocking our
efforts at every single turn and the situation, frankly, has
gotten worse since the head of NTIA, David Reynolds, resigned
recently.
Senator Johnson. Quickly, what should this Committee do to
help you out?
Mr. Pai. In terms of the passage of legislation, we would
welcome a simple resolution saying that it's the policy of the
United States for 5G development and deployment to be pursued
as quickly as possible. That one-sentence resolution alone
would give us, I think, some momentum.
Senator Johnson. Thank you for your service.
Senator Wicker. Does each member of the Commission agree
with the scientific conclusion on this issue? I'll start with
Mr. Pai.
Mr. Pai. Yes, Senator, after very extensive conversations
with our Office of Engineering and Technology and other outside
experts, I believe the FCC's proposed protection limits have
been and will continue to be appropriate for the protection of
passive weather sensors.
Senator Wicker. Mr. O'Rielly, in your view, all five of you
are on the same page here?
Mr. O'Rielly. Yes.
Senator Wicker. Mr. Carr.
Mr. Carr. Yes.
Senator Wicker. Ms. Rosenworcel.
Ms. Rosenworcel. I have not been in some of the meetings
that the Chairman is describing, but I will tell you we have to
resolve issues like this before we go to auction full stop.
Senator Wicker. So but are you or are you not satisfied
with the scientific conclusion that there's no interference?
Ms. Rosenworcel. We have a bunch of different studies on
the record and I have not been in the meetings where we have
gotten to the bottom of just what threshold for out-of-band
emissions should apply, but I share your disappointment that we
are in this position right now. I don't think it's fair and I
don't think it's right.
Senator Wicker. Mr. Starks.
Mr. Starks. I would share Commissioner Rosenworcel's
perspective. This item, 24 gigahertz, precedes my term, first
of all. I would agree that the integrity of our decisionmaking
process is at issue here. I have not personally studied this.
The last thing that I would say is that I do have
confidence in the Office of Engineering and Technology at the
FCC, but I haven't personally studied this issue.
Senator Wicker. Thank you.
Senator Udall.
STATEMENT OF HON. TOM UDALL,
U.S. SENATOR FROM NEW MEXICO
Senator Udall. Thank you, Mr. Chairman, and thank you to
all of the Commissioners today.
There are so many critical issues that deserve attention
today. The President's continued threats to free and open
media, the unrelenting flood of robocalls to consumers,
corporate consolidation of media that undermines local
broadcasting, and the Digital Divide that hurts our rural and
tribal communities.
On the Digital Divide, I'm particularly concerned about the
proposal to cap the overall Universal Service Fund budget,
especially since we don't even have an accurate picture of
where people lack broadband and wireless service. This is
unacceptable.
Corporate-backed pilot projects are nice but they cannot
substitute for the agency to fully engage on this issue.
Chairman Pai, you recently recommended approval for the T-
Mobile/Sprint merger. I'm very skeptical that their claims that
they will serve Rural America with 5G coverage. Companies that
seek regulatory clearance for mega-mergers will say whatever
they want to make the government happy. However, when the
rubber hits the road, they can come up with reasons they can't
meet their stated goals.
For example, T-Mobile paid a $40 million settlement for
failing to complete calls in rural areas and now I understand
that T-Mobile is also under investigation for overstating their
4G coverage.
On May 23, six Senators, including myself, sent you a
letter regarding the new promises from T-Mobile and Sprint. We
requested that these merger conditions be a part of the public
record so that interested parties can weigh in.
Chairman Pai, I received your response late yesterday
afternoon and thank you very much for that. I'm disappointed
you will not specifically take public comment on these
conditions and I remain concerned that this merger will do
nothing to serve Rural America.
Commissioner Rosenworcel, yes or no, did you think the
public should have been able to weigh in on these conditions?
Ms. Rosenworcel. Absolutely, yes.
Senator Udall. And, Commissioners Rosenworcel and Starks,
both of you have commented publicly the curious nature of the
Chairman agreeing to this merger, apparently without any
analysis from the expert staff at the FCC.
Do either of you know why this consequential decision was
made as hastily as it seems to have been and is that common
practice at the FCC?
Ms. Rosenworcel. No, this is highly unusual. I have no
economic analysis, legal analysis, or paper before me, and yet
my colleagues have announced that they're going to support this
transaction via press release. That's just the worst of what
people expect from Washington. It looks like some back room
dealing. This is really irregular.
Mr. Starks. Yes, thank you for the question, Senator.
In many ways, this is my first rodeo, certainly my first
mega-merger as a seated commissioner, but I do have concerns on
the way that this has played itself out.
One additional note that I would note for you is that with
regard to the divestitures, in the Sinclair-Tribune merger,
divestitures were in fact sent out for public notice and so I'm
curious why divestitures would not be sent out for public
commentary here, as well.
Senator Udall. Thank you very much.
I want to ask about tribal nation visits to all of you. As
you all are aware, the population most underserved by wireless
and broadband companies in the United States are tribal areas.
I recognize that some companies provide service to these areas,
including tribally owned ventures, but much more investment is
needed and it is essential that each of you understand the
conditions on tribal lands, conditions that can't be fully
appreciated without getting out of Washington and visiting
tribal communities.
Please go down the line. Have your travels included visits
to tribal nations, and have you sat down with tribal leadership
to discuss their needs and priorities? Chairman Pai.
Mr. Pai. Thank you for the question, Senator.
Just two weeks ago, I sat down with the Governor of
Chickasaw Nation in Ada, Oklahoma, and talked about these very
issues. As we discussed a few months ago, I visited the Hemas
and Zia Pueblos in your state along with your staff to
understand the conditions there, been to the Rosebud Sioux
Reservation in South Dakota. I've been to many other tribal
lands and Alaska Native villages during my time at the FCC.
These are, I think, the communities where you see the
Digital Divide the starkest and that's why our efforts on this
issue are so very important. So thank you for your leadership
on it.
Senator Udall. Thank you. Commissioner O'Rielly.
Mr. O'Rielly. Yes, it has in the past. It hasn't recently.
I have a 9-month-old, so I don't travel that much, but when I
do, I'll circle back.
Senator Udall. When you start getting out, it's really
important when you get into these states----
Mr. O'Rielly. I agree with you. It is almost Third World in
some circumstances. It doesn't mean that every company faces it
or every area, but it's really problematic.
Senator Udall. Commissioner Carr.
Mr. Carr. Yes, I've spent time on tribal lands. I've met
with tribal leaders, and we need to continue to close the
Digital Divide there.
Senator Udall. You were just in Montana and I don't think
you met with any tribes, is that correct?
Mr. Carr. I did not meet with any tribes on that particular
trip, but I've spent time now in 30 states in the 2-years that
I've been in the job and met with a lot of tribal leaders in
that time.
Senator Udall. OK. Commissioner Rosenworcel.
Ms. Rosenworcel. Absolutely. Multiple trips to Alaska,
Hawaii, North Dakota, Nevada, New Mexico, and also just last
month with the Lummi Tribe and its leadership in Washington
State.
Senator Udall. Thank you. Mr. Starks.
Mr. Starks. Yes, Senator. One of my very first--probably my
third meeting was with tribal folks here at the FCC. I've been
seated now for about 4 months or so. I have not had the
opportunity but it is in particular I've already teed up some
meetings with tribal nations and I look forward to those
conversations.
Senator Udall. Thank you. Thank you for the courtesies, Mr.
Chairman.
Senator Wicker. Thank you, Senator Udall.
Ms. Rosenworcel, did you find it terribly dry out there in
New Mexico?
Ms. Rosenworcel. I drank a lot of water.
Senator Udall. She stayed very well hydrated.
Senator Wicker. New Mexico is a beautiful state.
Senator Blunt.
STATEMENT OF HON. ROY BLUNT,
U.S. SENATOR FROM MISSOURI
Senator Blunt. Thank you, Chairman.
The advantage of coming so late is having the ability to
comment on things that have already been mentioned by others. I
do believe on the all-important Kansas City Chief front that
there is bipartisan Chief support on the Commission, and I'm
glad to see that.
I would also say on the topic of T-Mobile and Sprint,
without hearing all of the discussions or whether this report
was looked at by somebody as often as it should have because of
where Sprint is, I've taken great interest in its survival and
success over a long period of time. It has seemed to me for
some time, without having access to the analysis that you all
do that they have a true competitive environment. You needed a
strong third competitor, and either T-Mobile would wind up with
Sprint or Sprint would wind up with T-Mobile.
My preference would have been for Sprint to wind up with T-
Mobile but it didn't work out that way. I don't think there's
actually anything wrong with the FCC having an opinion on this,
and I certainly don't think that the FCC has to wait for
Justice to have an opinion on this. I think you know more about
this than the Department of Justice does and you should give
voice to that.
I'm not trying to weigh in on how that should have been
done, but I wanted to be sure you heard that not everybody
agrees with the Attorney Generals on this who, frankly,
probably haven't spent a lot of time thinking about this
particular marketplace or how important it is that there's a
strong third competitor.
I think one of the options you easily could have here is a
situation with no competitor, except for the two big
competitors, if the third and fourth competitor don't figure
out how to be in a truly competitive place. Without getting
into how you should do this, I believe that generally there is
no reason for the FCC to wait for Justice to have an opinion as
to whether a merger that's largely under your jurisdiction
makes sense and to announce that opinion.
And while I'm going down my list, I believe I heard my
friend, Senator Markey, talk about the franchise cap. I
personally think that while there are things like public
service announcements and even programming that the franchise
partner can produce, at some point it's really important that
the non-monetary things don't allow local governments to force
things beyond the cap that is set in law.
I believe you're moving forward with that, but I want to be
sure you heard from somebody on this panel that believes that
it is a legitimate concern.
Let me talk for a couple of minutes here on broadband.
Missouri's behind. We're catching up. We're not as far behind
as we were but still as the evidence of a lot of your
allocation indicates, you appreciate the fact that for whatever
reason--mapping, topography, or other reasons our state has
been behind in this. We've closed a lot of that gap but there's
still more of a gap than I would like to see addressed.
Missouri providers were just awarded over $254 million from
the recent auction. That would be assigned to serve about
95,000 individual locations. That's an important amount of
money and we are grateful for it.
I want to be sure that this allocation is in no way
impacted by a provider that turns out not to be able to do the
job. I'd like the money allocated for Missouri to be spent in
Missouri and I've talked to our state officials about this. I
believe we're prepared to do whatever we can to be helpful
doing our part to try to remove unnecessary obstacles, but if
you've chosen someone who it turns out can't perform, that
should not be the fault of those 95,000 Missourians that have
been allocated here.
The question is, are you willing to work with me and with
the state, to ensure the money awarded to Missouri through the
auction stays allocated to those geographic areas that it has
been allocated to, Chairman?
Mr. Pai. Yes, Senator.
Senator Blunt. Does anybody have a different view of that?
I think you all understand what I'm saying here. It's not the
fault of Missourians, or even your fault, if someone is unable
to perform, but if the money were to go anywhere but to some
other situation to meet the Missouri need, it would be a huge
problem for me. If there are any obstacles or gaps in the
authority you have to do what we just talked about, I would be
glad to help with that, too. I've known most of you for a long
time and I'm grateful for your service. I think your job gets
more complicated all the time and, I don't think it's likely to
get less complicated for a while. This Committee takes it
seriously and I know you do, too. Thank you all for appearing
today.
Senator Wicker. Well said, Senator Blunt.
Senator Sinema.
STATEMENT OF HON. KYRSTEN SINEMA,
U.S. SENATOR FROM ARIZONA
Senator Sinema. Thank you, Mr. Chairman, and thanks to
Chairman Pai and to all the Commissioners for being here today.
The issues of connectivity and access are vital to all
Arizonans in urban, rural, and tribal areas. While many
Arizonans look forward to fast 5G networks and connected self-
driving cars, we must remember that too many Arizonans have
been left on the wrong side of the Digital Divide.
As others today have mentioned, it's imperative that we win
the race to 5G, but we cannot lose focus on those who still
have zero Gs.
So I look forward to working with my colleagues on this
Committee and with all of you at the FCC to improve access
through smart policy and smart allocation of our resources,
both spectrum resources and financial resources.
My first question is for Commissioner Rosenworcel. My name
is tough, too. I'm concerned regarding the FCC's relationship
with Arizona's 22 federally recognized tribes. Currently, more
than 20 tribal nations around the country are suing the FCC
regarding tribal broadband deployment due to the FCC's failure
to consult with the tribes and the D.C. Circuit reversed and
remanded a troubling plan to cut assistance to low-income
consumers through the Tribal Lifeline Program.
These actions have kept children on tribal lands from
getting online and getting ahead. Less coordination and support
for tribal communities limits access to jobs, health care, and
other services.
So what can and what should the FCC do to improve these
troubling decisions that impact Arizona's tribal communities
and, of course, these are areas where the Digital Divide is
most pronounced?
Ms. Rosenworcel. Thank you for the question.
You're absolutely right, Senator. There is so much more we
need to do to connect our tribal lands. I mean, Native
Americans shouldn't be the last Americans to connect to the
Digital Age.
So here are a few things we can do. First, the GAO came out
with a report and they just trashed our data. They said
basically we do not know where service is and is not in tribal
areas. So I think we should use our Tribal Nations Task Force,
go to them and say here's what we have, we'd like you to help
us, tell us from your lived experience on the ground how we can
get this data right so we can target our resources.
Second, we're headed to court on that wireless siting issue
you described. We have 573 federally recognized tribes in this
country. Not one of them supported our efforts. We've got to
fix that.
And then, finally, we should be doing something with what's
called the Tribal Broadband Factor, which will help bring more
funding to rural communities on tribal lands.
Senator Sinema. Thank you.
My next question is for Commissioner Starks. The FCC
proposed in April 2018 to prohibit companies from using
Universal Service Funds to purchase equipment and services from
companies, such as Huawei, that pose national security threats.
The Administration invoked an Executive Order and at the
Department of Commerce have agreed that their equipment creates
``an undue risk of sabotage.'' Do you agree with this
perspective?
Mr. Starks. I do. Thank you for the question, Senator.
I do agree that for Huawei equipment, both prospectively as
the Executive Order and the NDAA tells us about in our supply
chain item, but also we need to focus on the risks inherent
with this equipment that's already in our infrastructure.
Senator Sinema. So everyone seems to agree that it is a
risk, but recently the President signaled that restrictions
could be lifted in exchange for a better deal or for better
terms in a negotiated U.S.-China trade deal.
How should or could the FCC react if the White House
changes its mind on these restrictions?
Mr. Starks. The nature of the risk inherent in the national
security issues that are going on with Huawei, I don't think in
particular play into the trade aspect of that.
I think these are inherent risks to having exposure and we
need to look at it from that national security lens.
Senator Sinema. And, Chairman Pai, would you agree with
that perspective and should or could the FCC change its
position on this company if the White House does reach a trade
deal with China?
Mr. Pai. Senator, Executive Order 13873 has been issued and
we're currently determining its effect on our current supply
chain proceeding, but if one were to assume for whatever reason
that the Executive Order didn't exist, just went away,
nonetheless, the FCC would have authority to prohibit the use
of Federal funding from the FCC from being spent on equipment
or services that come from companies or countries that are
determined to be a threat and I will give you my commitment
that I will be steadfast in making sure that we do everything
within our power to secure these communications networks.
Senator Sinema. Great. Thank you.
Commissioner Rosenworcel, as the Ranking Member on the
Aviation and Space Subcommittee of this Committee, I think it's
important to address the intersecting issues of space and
telecommunications.
I hear from Arizonans frequently about the importance of
space because we have a large aerospace manufacturing industry
and, of course, the cutting edge research that's performed in
our universities, but I'm concerned the FCC isn't paying enough
attention to these issues.
So does the FCC need a permanent seat on the Space Council
and what is the FCC doing to address the issue of orbital
debris, and then in your opinion, is it enough?
Ms. Rosenworcel. All right. We are headed into a new space
age. It is really exciting.
The FCC is the only entity with responsibility for
commercial satellites and spectrum in this country, but somehow
we've been left off the National Space Council. That's not
right. In addition, orbital debris, we should all be concerned.
There are about 5,000 satellites in space, according to the
U.N. right now, but in the last year, this agency authorized
another 13,000.
We are going to junk up our skies if we do not update our
orbital debris policies and do it fast.
Senator Sinema. And, Chairman Pai, do you agree that the
FCC should be engaged in the issue of orbital debris and does
the FCC need a permanent space on the Space Council?
Mr. Pai. Senator, on orbital debris, I couldn't agree more.
That's why I teed up the first proposed update to our rules
since 2004. I think it's critical as we're approving these new
LEO, Low Earth Orbit, constellations when we think about how to
update those rules, including to give some clarity to some of
the folks in Arizona who are trying to pioneer the next
generation in space.
With respect to the Space Council, I'd be happy to look at
that. I can tell you we engage regularly with folks who are on
the Council on a whole bunch of different issues and I think
that kind of coordination is very important.
Senator Sinema. Thanks. Thank you, Mr. Chairman.
Senator Wicker. Thank you, Senator Sinema.
Senator Sullivan.
STATEMENT OF HON. DAN SULLIVAN,
U.S. SENATOR FROM ALASKA
Senator Sullivan. Thank you, Mr. Chairman, and I want to
thank the Commissioners for being here. You guys have a tough
job, an important job.
You've seen a lot of the discussion bipartisan on the
issues of rural connectivity, particularly as it relates to
telehealth, and, you know, as I've said to many of you, there's
Rural America and then there's Alaska. You know, we're almost
one quarter the size of the entire Lower 48 and if you
superimposed my state on the Lower 48, you'd see that it's a
continental-wide expanse in terms of size.
We're also 80 percent of my communities are not connected
by roads and I think all of you, many of you, all of you have
been up to Alaska more than once. So you recognize this and
with the FCC's Alaska Plan which I appreciated. What I haven't
appreciated has been the reinterpretation and retroactive
application of rules that have related to the Rural Health Care
Program.
As a matter of fact, that's probably one of my biggest, if
not my biggest, frustration since I have been here in the
Senate the dozens and dozens of hours that my staff and I have
worked with mostly the Chairman's Office on this.
So I don't want to relitigate exactly what's happened here,
but I will tell you that as we've discussed, Mr. Chairman, you
know, the health care ecosystem in Rural Alaska has been very
negatively disrupted by these reinterpretation retroactive
applications, literally hundred of jobs lost, broadband
investment deferred, and most distressingly six clinics as of
now are dropping out of the Rural Health Care Program with
hopefully not more but maybe a lot more to come because of the
administrative uncertainty that has been happened by your
actions. So you and I've talked about this countless hours.
Commissioner O'Rielly, Commissioner Rosenworcel, you've
been to Alaska a number of times. Did you support the way in
which the Chairman's Office reinterpreted these rules and are
you aware of these negative impacts that happened? It's just
good to get more of a--I've been dealing the Chairman's Office
and you guys have a lot of experience and I would like to
quickly because I have questions for the Chairman, but I think
you understand. You've been keeping an eye on this. I'd like
your views, as well.
Mr. O'Rielly. I appreciate the question. I think what
happened with--the telehealth system in Alaska is top-notch and
I've been troubled by the concerns that you raised and troubled
by what could be the harm of closing six clinics.
Senator Sullivan. Some of the poorest people in America.
Mr. O'Rielly. I worked with Senator Stevens.
Senator Sullivan. Don't have hospitals or anything.
Mr. O'Rielly. And no ability to get there any time soon.
I'm sympathetic. I wasn't party to a lot of the conversations
to know how we got to where we are. So I----
Senator Sullivan. Commissioner Rosenworcel?
Ms. Rosenworcel. Yes, what this agency has done to rural
health care in Alaska is not right. We are shutting down health
centers in some of the most remote locations in this country.
They're not participating in this program anymore. We have work
to do. We've got to fix that.
Senator Sullivan. So let me turn to Commissioner Pai. As
part of Commissioner Carr's confirmation process, you committed
to me a number of things that relate to these.
Let me just get a quick update on these commitments, which
I think you agree with, but I'm not sure where we are on it.
One, you committed to ensuring that the new interpretation and
subsequent application of the statute and the Rural Health Care
Program and the rules could be subjected, would be subjected to
a public full commission review, which is why I asked other
commissioners, by granting the affected parties review of
appeals.
I think you and I got agreement together on by the first
quarter of this past year and then an expeditious review of any
appeals by the full commission. What is your view of a
reasonable definition of an expeditious review? I'm going to
run out of time here. So let me just hit you up on the other
commitments.
You also committed to finalizing the Rural Health Care
Rules at the end of Q2, which is quickly approaching, and I
want to know where we are on that, and if other commissioners
have seen that work that's important. Again, it would be really
good to have the other commissioners involved.
And then the public notice providing guidance, you've done
that as your reinterpretation of rural rates. We didn't agree
with the substance, but those were your three commitments.
If you could touch on those briefly?
Mr. Pai. Thank you for the question, Senator, and thank you
and your staff for spending many hours on this issue. I know it
has been of great importance to you and your constituents.
With respect to the first commitment, we did put the issues
out for public comment, I believe in the first quarter, can't
remember the specific month. With respect to the application
for review we had talked about, we are on track--we got a
little bit delayed because of the Federal shutdown for about a
month, but we are on track to circulate an order to the
Commissioners. I would expect it either late June to mid-July.
There are still some moving pieces but we're basically going to
meet that deadline that we had talked about.
And with respect to the third, finalizing the health care
rules, I would anticipate that the staff will be presenting to
me an item for my review and ultimately for the Commission's
review soon.
In addition to that, I wanted to flag for you that I did
learn from the staff recently, and I believe we had put this
out publicly, as well, that the adjusted increase in the budget
for this coming fiscal year will be approximately $593 million.
That's almost 50 percent above what the program was when I came
into office.
In addition to that, there's going to be some rollover
funding from the previous year that we can use to fill any gaps
and so I just want to make sure----
Senator Sullivan. So, sorry, Mr. Chairman, just one final
clarification. On the first one I had mentioned, on the
expeditious review, what is your reasonable definition of an
expeditious review?
I mentioned first quarter, but this is about the affected
parties. As you know, there are at least two, there could be
more, with regard to review and the granting of full commission
review.
One of the frustrations here is this has been--a lot of
this has been done retroactively. So there was no notice and,
you know, services were provided and yet it took years, months
to get to this point.
So the expeditious review aspect that you and I talked
about, the same with Commissioner Carr, it's very important.
Senator Wicker. Commissioner, what is your expeditious
definition of an expeditious review?
Mr. Pai. So my tradition, what typically happens when the
Chairman circulates an item to the other Commissioners, the
Chairman votes to approve immediately. I would anticipate doing
that and then it will be up to my fellow Commissioners. As long
as three members vote in affirmance, we can then move to get
that order out as quickly as possible. But as soon as we
circulate that item in late June to mid-July, depending on the
specific timing, I'll be voting to approve it.
Senator Wicker. Thank you. There will be questions for the
record, of course.
Thank you, Senator Sullivan.
Senator Sullivan. Thank you, Mr. Chairman.
Senator Wicker. Senator Peters.
STATEMENT OF HON. GARY PETERS,
U.S. SENATOR FROM MICHIGAN
Senator Peters. Thank you, Mr. Chairman, and thank you to
all of you for your testimony here today.
A lot of questions have been asked and answered over the
course of this hearing, many of them I wanted to ask. So thank
you for answering those questions, although I just want to say
I want to concur with I think it was the overwhelming sentiment
of everybody on this Committee that we need to do a whole lot
more when it comes to broadband Internet in rural areas and
Michigan is also a very rural state, as well.
So we want to continue to work closely with you and I'm
pleased to have joined with the Chairman, Chairman Wicker, on
the mapping bill that was introduced today, so we can base this
on good data, which is incredibly important.
My question, though, first question was really a follow up
on a question I think Senator Thune asked related to vehicles
and, you know, as the Nation moves forward with increasingly
connected vehicles and with autonomy becoming a major feature
of transforming mobility generally, not just the auto industry
but mobility in a dramatic way, I'm concerned that if we allow
unlicensed Wi-Fi to operate in some of the channels that these
autos are going to be relying on, that could be problematic.
I think a question that was asked of you, Chairman Pai, was
related to the spectrum reserve for auto safety in the 5.9
gigahertz and I believe your answer was it's not being used
very widely.
I want to respectfully disagree and show you this map here
which is basically connected vehicle deployment locations, both
ones that are operational now and will be coming online very
quickly.
Mr. Chairman, without objection, I'd like to enter this map
into the record, if I may, on deployment.
Senator Wicker. Without objection.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Peters. If you can't see it from where you're
standing, although you can see the colored areas, I'm sure, you
can see that there is quite a bit going on. You are not aware
of all this going on or want to kind of elaborate on your
answer that you gave earlier?
Mr. Pai. Sure, Senator, and my fellow Commissioners
Rosenworcel and O'Rielly have talked about this a lot, but I
think it is fair to say that DSRC has not progressed as people
would have anticipated in 1997 when the FCC first opened the
door to this technology and currently, there is not a single
automaker with the exception of one that is looking to pursue
this into the future.
And, second, in the meantime, one of the automakers has
done very interesting work on cellular vehicle to everything,
CV2X. I saw a demonstration of that just last week by Ford and
part of the issue is from our perspective at least we can't
move forward with other automotive safety technologies like
CV2X unless we have a conversation and it could well be one of
the things I want to tee up. Should we stick with the current
system, which is a DSRC-based? Should we open it up to other
technologies, like CV2X? Should we think about Wi-Fi?
But we can't get to the right answer if we never even ask
the right questions and that's part of my concern here.
Senator Peters. I guess the question is you appreciate, I
hope, the importance of making sure that we have the ability
for connected vehicles, whatever technology it may be, so we
can be technology-neutral, but I understand that the safety
impact on travel is dramatic and we want to make sure that our
auto companies are able to pursue that.
So you're committed to doing that and trying to have tests
that are independent tests that can look at whether or not
these technologies are compatible. Is that an accurate
statement?
Mr. Pai. Well, with respect to the first question, yes,
Senator, I mean, I've long shared the view that spectrum is
important for automotive industry. In fact, under my leadership
in my first year in office, we allocated four gigahertz of
spectrum, from 77 to 81 gigahertz, for vehicular radar,
recognizing this is an important thing.
With respect to the second, however, testing, we've already
done Phase 1 of the testing. Phases 2 and 3 are reliant on the
Department of Transportation. So I can't answer for them as to
what the testing protocols or timing would be.
Senator Peters. But it would be a three-phase test.
Ms. Rosenworcel, would you like to comment on this, as
well? We had some conversations about it yesterday.
Ms. Rosenworcel. Sure. Absolutely.
Senator Peters. You can elaborate on the record about it.
I'd appreciate it.
Ms. Rosenworcel. Yes, I agree with the Chairman that DSRC
technology, which has been around for 20 years, is not really
on the roadway. So we have an opportunity to look at the more
modern technologies that the auto industry is bringing forward
with CV2X, simultaneously ask questions about unlicensed
spectrum.
I have some optimism we're going to find space in our skies
to do all these good things. We could do it together and
prevent car crashes. So I agree with the Chairman to the
respect that with respect to his efforts to try to start a new
proceeding on just this issue.
Senator Peters. The question for you, as well, across
Michigan, the educational broadband service has been
successfully used to provide connectivity to communities who
otherwise would not have broadband access. I think you're
familiar with that.
For example, Northern Michigan University serves over
11,000 students and families and over 51 Michigan Upper
Peninsula communities right now and the university's on track
to expand its service by 2020 to 114 underserved and unserved
communities.
The FCC appears to be moving in the direction of auctioning
off EBS frequencies and removing educational requirement for
use of the band.
My question for you, ma'am, is can you describe the
potential problems that would be caused by auctioning off the
EBS to the highest bidder?
Ms. Rosenworcel. Sure. EBS spectrum was first developed
during the Kennedy Administration. Education has been in its
DNA from the start, and I've met with some of those folks from
the Upper Peninsula. They're doing some really interesting
things with these airwaves.
It would be a shame if the FCC took education out of the
2.5 gigahertz band and cut those entities off. I think we need
to be a whole lot more creative about how we can keep education
in this band because I think there's a lot of good we can do.
Senator Peters. Thank you. Thank you, Mr. Chairman.
Senator Wicker. Thank you, Senator Peters, and thank you
all. It has been a very free discussion and very helpful.
The hearing record will remain open for two weeks. During
this time, Senators are asked to submit any questions for the
record. Upon receipt, the witnesses are requested to submit
their written answers to the Committee as soon as possible but
by no later than Wednesday, July 10, 2019.
So thank you all and this concludes the hearing.
[Whereupon, at 12:25 p.m., the hearing was concluded.]
A P P E N D I X
Response to Written Questions Submitted by Hon. Roger Wicker to
Hon. Ajit Pai
Question 1. In her letter to you dated May 13, 2019, Sen. Cantwell
references ``an internal U.S. Navy action office-level working
document.'' Was that document submitted to the FCC by the Department of
Defense? If so, when and by whom? Does the document's analysis of
``interference to weather satellites permitted by future commercial
broadband uses at 24 GHz operating at the FCC's emission levels''
contain sufficient information for the Commission to determine if its
conclusions are reasonable and supported by sound analysis? If not, why
not? Is it your understanding that the conclusions of this ``an
internal U.S. Navy action office-level working document'' constitute an
official position of the Department of Defense?
Answer. Although we are aware of the referenced working-level
document, it does not constitute an official position of the Department
of Defense to our knowledge and has never been submitted by the
Department of Defense to the Commission. Notably, that document
contained no analysis of interference whatsoever; it instead analyzed
potential operational impacts based on assumed harmful interference.
Because a sound analysis of harmful interference in this band shows
that the United States can both lead in 5G and protect our weather
satellites (a position consistent with the views developed through the
Interdepartment Radio Advisory Committee), the document's conclusions
are quite mistaken.
Question 2. Senator Cantwell mentioned a number of issues in her
opening statement characterized as ``wireless and broadband companies
already appear[ing] to be testing ways to undermine the free and open
internet.'' Specifically, she mentioned: (1) ``Comcast [being ordered]
to pay $9.1 million in fines for deceptive practices that affected
50,000 Washingtonians since the repeal of net neutrality,'' (2)
``CenturyLink temporarily blocking access to the Internet in Utah to
force consumers to watch ads,'' and (3) ``Sprint allegedly interfered
with competitive Skype services using wireless networks.'' To the
extent you are aware of these issues, is there reason to believe they
would have been likely to have constituted a violation of the FCC's
Open Internet rules in effect before the Restoring Internet Freedom
order?
Answer. The FCC investigated and resolved the allegations regarding
Comcast in 2016 under a different set of regulations (47 CFR
Sec. 76.981). I do not believe anyone understood Comcast's conduct to
violate the Title II Order's rules at the time.
My understanding is that the allegations against CenturyLink were
the result of CenturyLink's attempt to comply with a Utah law requiring
ISPs to offer content filtering for material harmful to minors and to
notify customers in a conspicuous manner regarding the availability of
such filtering. It is also my understanding that CenturyLink ended this
particular method of notification due to customer dissatisfaction, and
it has not been an ongoing problem. Thus, we have not analyzed whether
its action would have violated the Title II Order's rules.
Additionally, with respect to the allegations against Sprint, we do not
have sufficient evidence to determine that Sprint engaged in conduct
violating the Title II Order's rules. Moreover, my understanding is
that Sprint has denied the allegations and that the researchers of the
study alleging that Sprint discriminated against Skype acknowledged
they themselves could not replicate the alleged conduct in the lab.
Question 3. In December 2018, you launched an investigation into
whether carriers violated the Mobility Fund Phase II rules by
submitting inaccurate coverage maps. What is the status of that
investigation? At the conclusion of the investigation, will the
Commission release an updated map of areas eligible for Mobility Fund
Phase II support, or will a new data collection be necessary?
Answer. Staff is actively wrapping up this investigation, and I
hope that we will be able to report the results of that investigation
soon. The Commission's next steps will depend on those results.
Question 4. Mid-band spectrum is critical to the U.S. winning the
race to 5G. I know the Commission recently sought public comment on its
authority to employ various clearing mechanisms to make C-band spectrum
available for 5G. How soon do you expect the FCC will take action to
make C-band spectrum available for 5G in an efficient and equitable
manner? How will the Commission ensure that rural providers have access
to C-band spectrum when it becomes available?
Answer. I hope to move forward with an item addressing the C-band
this fall. As part of our review process, Commission staff are
specifically looking at how to ensure that rural providers have access
to C-band spectrum when it becomes available, an issue we sought
comment on in the Notice of Proposed Rulemaking.
Question 5. On January 1, 2017, a 32-day-blackout occurred between
Cable One and Northwest Broadcasting. The blackout affected northern
Mississippi where all four network channels for 21 counties were
blacked out and another 16 counties only had access to ABC affiliate
WABG. To the extent that you are aware of these issues, what, if any,
oversight activity did the Commission engage in during this blackout?
Answer. Under Section 325(b) of the Communications Act, parties to
a retransmission consent negotiation are required to negotiate in good
faith. The Commission implemented specific rules to outline what
constitutes ``good faith'' negotiations and those rules are enforced
through complaints. We generally encourage parties to come to an
agreement as quickly as possible to mitigate the impact on consumers.
Commission staff monitored this specific situation at the time it
happened, but there was not a formal complaint filed with the
Commission by either party.
Question 6. In December 2018, I wrote you a letter regarding SSR
Communications Inc.'s 2013 petition for rulemaking to the FCC to create
a new commercial FM class, referred to as the ``Class C4 FM
allocation.'' I appreciated your response to my letter in February.
Please provide a status update on the FCC Media Bureau's efforts to
review the comments submitted as part of the FCC's notice of inquiry
and when we can expect further action.
Answer. I agree with you that local radio stations provide
essential service to their communities, and as Chairman I have worked
to help bolster this important industry. As you know, I circulated a
Notice of Proposed Rulemaking on this issue, but it was changed to a
Notice of Inquiry as a result of input from my colleagues. Commission
staff continue to review the record developed in this proceeding, which
includes balancing the benefits of the proposed power increases for
some stations with the potential for increased harmful interference to
others. My ability to move forward on this issue will also depend on
whether a majority of Commissioners is willing to support such action.
______
Response to Written Question Submitted by Hon. John Thune to
Hon. Ajit Pai
Question. The 6 GHz band has a lot of potential for fulfilling the
requirements under the MOBILE NOW Act, which was signed into law last
year. How soon can the Committee expect the Commission to issue rules
for this particular band?
Answer. I agree that the 6 GHz band shows great promise in
fulfilling the MOBILE NOW Act's directives. As you are aware, the
Commission's October 2018 Notice of Proposed Rulemaking proposed
allowing unlicensed use of the 6 GHz band while ensuring that the
licensed services operating in the spectrum would continue to thrive.
Now that the comment period has closed, we are reviewing the lengthy
and complex record to determine the best method for minimizing
potential harmful interference to the incumbents. At the same time,
stakeholders continue to provide ex parte briefings concerning the
issues raised.
I want to ensure that we have properly considered the outstanding
issues and that the final rules are supported by a comprehensive and
solid engineering analysis. We will proceed as expeditiously as
possible toward a final resolution in this matter, and keep your office
apprised of our progress.
______
Response to Written Questions Submitted by Hon. Dan Sullivan to
Hon. Ajit Pai
Question 1. As I've observed the Commission's work in my role as
Senator for Alaska, I'm continually struck by what appears to be a lack
of transparent, fair, due process for petitioners. I appreciated the
Chairman's commitment during the hearing to circulate an order
regarding GCI's Application for Review of the WCB's October 2018
determination of ``rural rates.'' As you know, we have other highly
consequential, outstanding items before the Commission. Please provide
a status update on the following petitions, including a commitment on
timeline for circulating the related orders--
Maniilaq Association's appeal of USAC's denial of FY 2017
FRNs
Copper Valley Telephone Cooperative's Request for Review of
USAC's denial of ``Incorrect Treatment of Substantial Rent
Expense Paid to an Affiliate''
Answer. The Commission makes every effort to conclude its review of
Universal Service support appeals as quickly as possible and in a fair
and transparent manner. I have asked Commission staff to review
promptly (while still thoroughly) both the Maniilaq Association appeal
of its FY 2017 USF Rural Health Care funding requests (filed on July 2,
2019) and the Copper Valley Telephone Cooperative's Request for Review
of USAC's denial of support for certain of its expenses under the
universal service high-cost program (filed on May 24, 2019). I can
assure you that we will take into consideration the issues and concerns
presented by all stakeholders in reaching a decision consistent with
the Commission's rules and policies.
Question 2. As you are aware, Alaskan carriers rely heavily on the
3.7-4.2 GHz Band, referred to as the C Band. Last year, the Commission
imposed a freeze on the filing of new license applications in the 3.7-
4.2 GHz band, while the Commission considers potential reallocation of
this spectrum for 5G use. The freeze is creating significant hardships
for Alaskan schools, health care providers, businesses including
telecoms that rely on C band satellite services for connectivity. Some
applications to license C band satellite earth station sites in Alaska
have been pending at the Commission for as long as a year. As you know,
``construction season'' in Alaska is short and limited to the summer
months. We are now well into our second construction season without
clarity or resolution.
What timeline can you commit to for processing these pending
applications?
If the answer depends on the conclusion of the larger C Band
proceeding ongoing at the FCC, when will that be complete?
Answer. A number of carriers have asked the Commission to waive its
temporary freeze on the filing of new earth station applications in the
3.7-4.2 GHz band to enable the construction and operation of new earth
stations. As you note, the freeze was adopted to preserve the current
landscape of authorized operations in that band pending Commission
action on permitting terrestrial broadband use. At the same time, the
Commission understands the critical role of C-band operations in
Alaska, as well as the unique challenges presented by building and
operating there. Thus, while future terrestrial use is one
consideration in the review of the waiver applications, the answer does
not depend on conclusion of the larger C-band proceeding; rather,
Commission staff is carefully reviewing the record in each of these
cases and weighing these considerations under the waiver standard
specified in our rules. We seek to resolve the waiver requests
expeditiously and are considering the issues and concerns presented by
the applicants, as well as the Commission's goal to expand flexible use
of mid-band spectrum.
Question 3. On February 28, 2018, the Commission's Wireline
Competition Bureau and Wireless Telecommunications Bureau released an
order requiring Alaska Plan participants to submit highly detailed
network maps. The Bureaus required that all of the network elements on
these maps be certified as geospatially accurate to within 7.6 meters
95 percent of the time. Please provide in full and with appropriate
citations: (1) the Bureaus' stated justification for requiring this
level of accuracy as opposed to some lower level of accuracy, (2) the
cost-benefit analysis the Bureaus relied on for requiring this level of
accuracy as opposed to some lower level of accuracy, and (3) specific
examples of other contexts in which the Commission has imposed such
stringent mapping requirements.
As you know, the Alaska Plan participants did not object to the
obligation to submit network maps. Certain Alaska Plan participants,
however, did seek a waiver of the 7.6 meter accuracy standard for
certain network elements, including buried fiber that may be dozens of
miles or more from the nearest customer or wireless antenna. The
Bureaus denied the waiver request and an application for review has
been filed. Please commit to a date certain by when you will circulate
to the full Commission a draft order proposing to address the pending
Application for Review.
Answer. The Wireline Competition Bureau and Wireless
Telecommunications Bureau affirmed the 7.6-meter accuracy standard in
the February 28, 2018 Order on Reconsideration, finding that the 7.6-
meter standard ``provides an important backstop to ensure carriers
maximize their commitments and service'' and is ``necessary for the
Bureaus to maintain compatibility with the census boundary and road
data for the census-block based Alaska Plan.'' The Bureaus concluded
the standard ``is critical for obtaining a complete picture of
facilities' locations in relation to other existing data'' and to
identify duplicative facilities. Notably, no carriers sought review of
the February 28, 2018 Order on Reconsideration; in fact, most carriers
subject to the requirement have already fully certified to the 7.6-
meter accuracy standard.
Additionally, the 7.6-meter standard is fairly widely used; for
instance, the Commission has used it in the context of its high-cost
data to account for inherent error in census block measurements, and
the Census Bureau also uses the same standard.
To be sure, one Alaska Plan recipient has a remaining objection
relating to this requirement. That recipient, GCI, receives more than
$58 million every year under that Plan, an amount that is substantially
larger than that received by any other participant in the Alaska Plan
(most of whom, again, have already apparently complied with the
requirement). What is more, GCI's remaining application for review
extends from a waiver request that came more than a year after the
Order on Reconsideration. GCI did not provide a cost estimate regarding
how much more it would cost to comply with the mapping data requirement
or explain why it did not adequately document the location of fiber it
deployed in 2018 after it was made aware of the 7.6-meter standard. The
Commission is analyzing the arguments raised in GCI's Application for
Review of the Waiver Denial Order, and the relevant record is being
studied by staff. I expect they will present me a recommendation on how
to proceed in the coming months.
______
Response to Written Questions Submitted by Hon. Mike Lee to
Hon. Ajit Pai
Question 1. During the hearing, we began a conversation regarding a
definition of the term ``digital divide.'' During this exchange, you
noted that such a definition would include any type of application that
broadband would allow, including ``access to entertainment.''
A. If the term ``digital divide'' is determined by such continually
evolving categories like ``entertainment'' or ``any type of application
that broadband would allow'' is it possible to ever close the ``digital
divide''?
Answer. Although precisely defining the term ``digital divide'' is
no doubt a difficult task, I believe closing it must be our priority.
To me, that means helping to make high-speed broadband available to
every American who wants access to the Internet. I have seen for myself
in 45 states, including Utah, and the territories of Puerto Rico and
the U.S. Virgin Islands what affordable high-speed Internet access can
do for a community--for its families, its schools, its hospitals, its
farms, its businesses--as well as the impact of its absence. High-speed
Internet access is critical to economic opportunity, job-creation,
education, and civic engagement. That's why we have encouraged carriers
to replace aging copper with fiber on an expedited basis, modernized
our rules to reduce barriers to infrastructure investment, and held our
Nation's first reverse auction for fixed broadband support, among many
other things. The results of these actions will be felt throughout
America, and especially in rural America, where the case for building
out broadband is already challenging for many businesses.
Question 2. As you know, Section 706 requires the FCC to determine
whether ``advanced telecommunications capabilities'' are being deployed
in a timely and reasonable fashion. The metrics used, like the setting
of the broadband speed, are important because such determinations can
trigger substantial FCC authority.
A. Can you identify any limits as to how the FCC establishes the
metrics used to make Section 706 determinations?
Answer. Under the prior Administration's interpretation, there were
no limits to the statutory language in section 706, and thus to the
FCC's authority under that statute. The previous FCC not only set an
impossibly high bar for determining whether ``advanced
telecommunications'' were being deployed, it then found section 706 to
be an authority-granting statute that imbued the Commission with vast
regulatory powers.
We have rejected an interpretation of section 706 that is so
elastic as to render limits meaningless. First, we have recognized that
the words of the statute mean what they say: We must assess progress in
broadband deployment (whether advanced telecommunications capability
``is being deployed to all Americans in a reasonable and timely
fashion'' (emphasis added))--not that every single American across the
country has broadband at this very moment. Second, we have recognized
that people use the Internet in various ways, so we have adopted a
holistic approach under which we examine progress in multiple speed
tiers and types of services. Third, we have re-established the proper
understanding of section 706--it is not an authority-granting statute
but a hortatory statute that, should the Commission make a negative
finding on the deployment of advanced telecommunications, simply
exhorts the Commission to use its preexisting authority to deregulate
(not heavily regulate) and spur competition.
Question 3. The Connect America Fund (CAF) is a Federal program
that gives subsidies to companies to build networks in high cost areas.
You've made a number of recent changes to the CAF program, including
increasing the target speeds to 25/3 Mbps.
A. Does increasing target speeds under CAF affect the overall cost
for a carrier to deploy a network? If so, what would those costs be?
B. How would increased carrier costs affect the overall CAF budget
as well as the larger Universal Service Fund (USF) budget? Will these
requirements necessitate increases to the CAF budget and the overall
fees for consumers?
C. The USF is funded by fees placed on Americans. These fees are
generally regressive and affect lower- and middle-income Americans more
than higher earners. Could these requirements increase USF costs to
American consumers?
Answer. Increasing speed targets under the CAF doesn't necessarily
increase meaningfully the overall costs to deploy a network. For
example, fiber networks are generally capable of providing service at
various speed tiers for negligible marginal-cost differences--so
increasing speed requirements for such builds generally benefits the
consumer without significantly increasing the cost to the recipient or
the taxpayer.
The Connect America Fund Phase II reverse auction, part of our
broader effort to close the digital divide in rural America, is a great
example of targeting finite USF funds to connect unserved areas with
high-quality services in an efficient manner. Through this novel
approach, we're now awarding about $1.5 billion to connect over 713,000
unserved homes and businesses nationwide. The Commission distributed
funding much more efficiently thanks in part to intermodal, competitive
bidding, saving $3.5 billion from the $5 billion price we initially
thought would be required to connect these unserved areas. And
consumers will receive high-quality broadband--99.7 percent of the
winning bids are to provide consumers with service of at least 25/3
Mbps, and over half are receiving service of 100/20 Mbps or better.
Question 4. The FCC is currently working on a rule related to
reforms of Section 621 or the regulations governing the issues of
franchises for cable operators.
A. Can you share an update on the timing for the rulemaking as well
as any particular findings on how the current cable franchise framework
affects cable operators, including the overall costs for broadband
deployment?
Answer. The Commission is scheduled to vote on a Third Report and
Order in this proceeding to resolve the pending rulemaking at its
August open meeting. A draft of this item was made public last week and
is currently available for review on our website. The pending
proceeding is a direct result of a 2017 remand by the U.S. Court of
Appeals for the Sixth Circuit in Montgomery County, Md., et al v. FCC.
The item, if adopted, would reach the following conclusions. First, we
would conclude that cable-related, ``in-kind'' contributions required
by a cable franchising agreement are franchise fees subject to the
statutory five percent cap on franchise fees set forth in section 622
of the Communications Act, with limited exceptions, including an
exemption for certain capital costs related to public, educational, and
governmental access (PEG) channels. Second, we would find that under
the Communications Act, local franchise authorities (LFAs) may not
regulate the provision of most non-cable services, including broadband
Internet access service, offered over a cable system by an incumbent
cable operator. Third, we find that the Communications reempts any
state or local regulation of a cable operator's non-cable services that
would impose obligations on franchised cable operators beyond what
Title VI of the Act allows. Finally, we would conclude that Commission
requirements that concern LFA regulation of cable operators should
apply to state-level franchising actions and state regulations that
impose requirements on local franchising. I believe the Third Report
and Order not only faithfully interprets the Communications Act but
will also curtail practices of LFAs and other state and local entities
to circumvent the franchise fee restrictions of the Communications Act.
For example, the record shows that some entities are requiring cable
operators to pay additional fees for the provision of non-cable
services, a practice which is prohibited by the Communications Act. I
expect that ending this practice will result in lower costs for
consumers and additional investment in broadband networks, which will
serve the public interest.
______
Response to Written Questions Submitted by Hon. Ron Johnson to
Hon. Ajit Pai
Question 1. As you know, I, along with my colleagues in the
Wisconsin delegation, sent you a letter regarding the importance of
accurate broadband maps for our state. I appreciate your quick response
to that letter and am glad to hear this is a shared priority of ours.
At the hearing, you made two great announcements--(1) plans for a $20
billion investment in rural broadband, known as the Rural Digital
Opportunity Fund, and (2) plans to move forward with a broadband
mapping proposal in August.
a. Do you agree that the FCC must first improve its broadband maps
to ensure that this valuable funding goes to the places that need it
most?
b. Will your mapping proposal ensure that the maps will be promptly
updated so that the new program is not delayed?
Answer. I agree that using updated and accurate broadband
deployment data is critical to accomplishing the goal of making
broadband available to all Americans, regardless of where they live. We
need to understand where broadband is available and where it is not to
target our efforts and direct funding to areas that are most in need.
That is why the Commission began a top-to-bottom review of our
deployment data collection to ensure that broadband data will be more
precise, granular, and ultimately useful to the Commission and the
public. I have circulated a Report and Order for the FCC's upcoming
monthly meeting on August 1. That Report and Order would yield more
granular and more accurate broadband maps. It also would provide for
regular updates of the filed data to ensure that the maps we rely on
are current. These updated maps would be used to focus funding to
expand broadband through future initiatives such as the second phase of
the proposed Rural Digital Opportunity Fund (RDOF). Once implemented,
the RDOF would provide over $20 billion over the next decade to connect
millions of rural homes and businesses to high-speed broadband,
representing the FCC's single biggest step yet to close the digital
divide.
Question 2. I understand there are a few proposals to fix this
problem, including having providers submit ``shapefiles'' showing their
actual service areas. This is not a new idea. In fact, some states and
the Rural Utilities Service have already been using ``shapefiles''
showing providers' actual service areas to produce more accurate maps.
Additionally, I understand USTelecom is currently piloting another
method for collecting mapping information called ``broadband
serviceable location fabric.''
a. Is the FCC considering these ideas as part of its Report and
Order?
b. Is Congressional action needed to support the FCC's mapping
goals?
Answer. The item that I circulated for the August Open Meeting, if
adopted, would require broadband providers to report where they
actually offer service below the census block level, including by
submitting broadband coverage polygons (similar to shapefiles). The
item also provides for incorporating public feedback into our mapping
efforts. Lastly, the draft item I circulated seeks comment on how we
could incorporate the fabric or similar location data into the new
maps. I welcome your support for this project and look forward to
continuing to work with you on our shared goal of improving the
Commission's broadband coverage maps.
______
Response to Written Questions Submitted by Hon. Todd Young to
Hon. Ajit Pai
Question 1. Chairman Pai, I want to first ask a couple of questions
about the 24 GHz auction and the process that has undertaken.
Please describe what you believe to be the flaws in the Department
of Commerce's study that claims 5G services in the 24 GHz band would
cause harmful interference to weather sensors.
Interagency disagreements like this on the 24 GHz auction could
send a message abroad that the U.S. Government isn't speaking within
one voice when it comes to spectrum policy. What risks do we face at
the World Radiocommunication Conference later this year if the U.S.
doesn't speak with a unified voice on spectrum policy?
Answer. Unfortunately, the emission limits most recently advanced
by the Department of Commerce's National Oceanic and Atmospheric
Administration (NOAA) and the National Aeronautics and Space
Administration (NASA) are based on an unvalidated and badly flawed
study. As just one example, international guidance from the ITU
suggests that analyses should be based on the adaptive array antennas
(beamforming) expected to be used in this spectrum. (To roughly
describe the concept, think of beamforming as a laser sending a single
discrete pulse of light, instead of a regular light bulb sending
streams of light everywhere.) These adaptive array antennas are one of
the innovations that make mobile 5G in millimeter-wave bands possible.
They significantly reduce the impact of commercial 5G operations on
passive weather satellites. And yet, NOAA did not use such antennas in
its study.
There are many other problems with the study. It assumes base
stations and respective user equipment are transmitting at the same
time, which is impossible under Time Division Duplex (TDD) systems that
will be used for 5G services. It overestimates both the quantity of and
power from base stations and user equipment. It does not adequately
take into account ``clutter,'' that is, the effects of buildings and
trees that would block potentially interfering signals. And the
wireless deployment scenarios the study uses are not consistent with
any reasonable expectation of how 24 GHz band spectrum will actually be
used. These and other flaws exist despite international guidance that
any study methodology should include appropriate and reasonable input
parameters.
Just as importantly, the most recent study has not been vetted
through any public process, including through the ITU processes other
studies have gone through. Indeed, the FCC staff was prevented from
conducting a thorough review until May 10, 2019, when NASA finally
provided the code for review after repeated requests by NTIA and FCC
for the underlying study simulation. Only then, two months ago, could
the FCC undertake an informed and detailed analysis of the study for
the first time.
Such input from stakeholders, including the technical experts with
the Commission, is critical for a study to be validated. FCC review has
already revealed the substantial impact of the study's known flaws. And
this review process is especially important since NOAA's prior study on
this issue was withdrawn and abandoned by NTIA earlier this year due to
flaws uncovered by the FCC and industry participants.
I strongly agree that the U.S. must speak with a unified voice
internationally. If we do not, there are several risks. First, we raise
the chances that the WRC-19 process results in spectrum policies that
do not allow American companies to fully develop and deploy 5G services
and applications and do not enable American consumers to be among the
first 5G beneficiaries. And second, to the extent that the United
States would be bound by a decision made at the WRC-19, that decision
could well override domestic rules and policies and be based on unsound
scientific and engineering analysis--each of which would set a bad
precedent for the future.
The bottom line: the FCC looks forward to advancing U.S. positions
for the WRC-19 that will advance U.S. leadership in 5G and protect
passive weather services in the 24 GHz band. Based on the ongoing work
of the Commission's spectrum engineering experts, we do not need to
choose between 5G and critical weather forecasting tools. Sound and
sober engineering analyses lead us to the firm belief that the United
States can have both.
Question 2. Chairman Pai, U.S. intelligence agencies allege that
Huawei and ZTE are linked to the Chinese government and their equipment
could contain ``backdoors'' for Chinese intelligence. To address the
concern, President Trump issued an Executive Order prohibiting the
acquisition and installation of telecommunications technology that are
determined to be a threat towards national security. With the FCC
starting to consider how to apply the ban, rural carriers are now
facing uncertainty.
Can you explain the ``rip and replace'' process and how it might
affect rural carriers and their infrastructure? Furthermore, what do
you believe would be the overall cost to replace Huawei, ZTE and other
equipment?
Answer. National security threats posed by certain communications
equipment providers have long been a matter of concern to both the
Executive Branch and Congress. In April 2018, the Commission adopted a
Notice of Proposed Rulemaking proposing to restrict use of universal
service funds prospectively to purchase or obtain any equipment or
services produced or provided by any company posing a national security
threat to the integrity of communications networks or the
communications supply chain. The NPRM seeks comment on ways to
determine which companies pose a national security threat to
communications networks or the communications supply chain, including
approaches based on existing legislation (such as the Spectrum Act of
2012 and the National Defense Authorization Act for Fiscal Year 2018),
as well as approaches that would rely on other Federal agencies to
maintain a list of suppliers that they believe pose national security
threats to U.S. communications networks. The NPRM also sought comment
on the potential costs associated with the proposed rule.
Last October, the Bureau sought comment on the applicability of the
John S. McCain National Defense Authorization Act for Fiscal Year 2019
to the Commission's NPRM and the Commission's universal service
programs. Some commenters have suggested carriers will need to remove
and replace equipment purchased from entities determined to pose a
national security threat to communications networks or the
communications supply chain--but we have yet to find hard data on the
costs of such a rip and replace process. The comment cycles have been
completed and Commission staff is carefully reviewing the record in
these proceedings, as well as the potential implications of the recent
Executive Order.
Question 3. Chairman Pai, millions of rural Americans lack access
to fixed high-speed broadband, which in today's economy is perceived as
basic infrastructure. In the FCC's 2019 Broadband Deployment Report,
the FCC concluded that broadband is being deployed to all Americans,
including rural Americans, in a timely fashion. The report also
asserted that FCC policies are promoting investments and removing
burdensome barriers.
Given the ongoing growth in private investments, what are the FCC's
priorities moving forward to ensure U.S. broadband providers have the
resources they need in the free market for continued investments in
rural America?
Additionally, how will the FCC continue to update its mapping to
provide an accurate account of high-speed service?
Answer. The Commission has taken many steps to better enable the
private sector to deploy broadband infrastructure. For example, last
year, we made it easier and cheaper for competitive providers to attach
fiber to utility poles through a groundbreaking reform called ``one-
touch make ready.'' We've also modernized rules that delay service
providers from replacing outdated facilities with modern technologies
like fiber. In March, we re-chartered the Broadband Deployment Advisory
Committee (BDAC). In its second term, the BDAC will continue its work
to craft recommendations for the Commission on how to accelerate the
deployment of high-speed broadband, including ways to reduce and remove
regulatory barriers to infrastructure investment, increase deployment
and availability of broadband to low income communities, and train the
workforce needed to deploy next generation networks.
We also need to understand where broadband is available and where
it is not to target our efforts and direct funding to areas that are
most in need. That is why the Commission began a top-to-bottom review
of our deployment data collection to ensure that broadband data was
more accurate, granular, and ultimately useful to the Commission and
the public. After a thorough review of the record and the painstaking
work of our career staff, I circulated a Report and Order for
consideration at the FCC's August Open Meeting that would result in
more granular and more accurate broadband maps through the creation of
the Digital Opportunity Data Collection. That means requiring broadband
providers to report where they actually offer service below the census
block level and incorporating public feedback to ensure up to date and
accurate broadband deployment maps.
______
Response to Written Questions Submitted by Hon. Brian Schatz to
Hon. Ajit Pai
Question. PEG channels are a critical way for the public to stay
informed and engaged in their local communities. Access to PEG
programming is particularly important to maintain media diversity,
local content, and government transparency in Hawaii and around the
Nation. So, I am troubled by the proposal currently under consideration
in the Second FNPRM in MB Docket No. 05-311, which I have been told
could drastically impact the quality and availability of PEG channels
and programming.
I understand that the FCC has not yet ruled in this proceeding, but
you have been a strong proponent of data-based decision making and
conducting cost-benefit analyses. As such, I expect that you will
collect and use robust and reliable data to evaluate your decision on
this issue. Has the FCC collected data about the likely impact of this
proposal on PEG channel and programming availability? Please provide
the current and historical data the FCC is considering that detail the
levels of actual and/or estimated in-kind contributions for PEG channel
capacity and equipment. What percent of actual contributions for PEG
channel capacity and equipment do you assume that cable providers will
deduct from their franchising fee requirements? How did you determine
these contribution levels? What other essential data points is the FCC
evaluating in its cost benefit analysis? Has the FCC's Office of
Economics and Analytics done a specific report on this proceeding in
which it analyzes this and all other relevant data upon which the
Commission intends to base its decision? If so, please provide a copy,
and if not, why not? Please provide all of the relevant data that the
FCC is considering in its analysis and, whenever possible, please
provide Hawaii specific information in addition to national averages.
If the data and analyses requested in this question is not available,
will you commit to delaying circulation of a report and order in the
docket until you have collected it and provided it to my staff?
Answer. I appreciate your questions regarding this proceeding. As
you may be aware, the Commission adopted a Third Report and Order in
this proceeding on August 1, 2019. For your convenience, I have
included a copy of the final document as adopted. As the Commission's
74 pages of painstaking analysis, and my own separate statement make
clear, this decision was driven primarily by the statutory framework
outlined by Congress in the Communications Act--namely, Section 622's
five-percent cap on franchise fees that local franchise authorities may
collect from cable operators. As I observed in my statement, to the
extent that those who disagree with the decision on policy grounds want
a different result, ``[t]he solution is simple: change the law. The job
of administrative agencies like ours is not to rewrite laws set forth
by Congress. It is to implement those laws. As the Supreme Court has
opined, `[u]nder our system of government, Congress makes laws and the
President, acting at times through agencies . . ., `faithfully
execute[s]' them. The power of executing the laws . . . does not
include a power to revise clear statutory terms [quoting Utility Air
Regulatory Group v. EPA, 573 U.S. 302, 327 (2014)].''
With respect to one issue you raise, the Commission's Office of
Economics and Analytics did review the draft item prior to circulation,
but as is generally the case, did not write an additional written
report. Indeed, as indicated above, the primary issues in this
proceeding involved statutory interpretation. Please feel free to reach
out if you would like to discuss this issue further.
______
Federal Communications Commission
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Implementation of Section 621(a)(1) ) MB Docket No. 05-311
of the Cable
Communications Policy Act of 1984 )
as Amended
by the Cable Television Consumer )
Protection and
Competition Act of 1992 )
THIRD REPORT AND ORDER
Adopted: August 1, 2019 Released: August 2,
2019
By the Commission: Chairman Pai and Commissioners O'Rielly and Carr
issuing separate statements; Commissioners Rosenworcel and Starks
dissenting and issuing separate statements.
TABLE OF CONTENTS
I. INTRODUCTION
II. BACKGROUND
III. DISCUSSION
A. In-Kind Contributions
1. Interpretation of Cable-Related, In-Kind Contributions Under
Section 622
2. Specific Types of Cable-Related, In-Kind Contributions Under
Section 622
a. Free and Discounted Cable Service to Public
Buildings
b. PEG Access Facilities
(i) The Franchise Fee Definition Generally
Includes Contributions for PEG Access
Facilities
(ii) Scope of Specific Franchise Fee
Exclusions Related to PEG Access Facilities
(iii) Policy Concerns and the Impact on PEG
Programming
c. I-Nets
d. Build-Out and Customer Service Requirements
3. Valuation of In-Kind Contributions and Application to
Existing Franchises
B. Mixed-Use Rule
C. Preemption of Other Conflicting State and Local Regulation
D. State Franchising Regulations
IV. PROCEDURAL MATTERS
V. ORDERING CLAUSES
APPENDIX A--Final Rules
APPENDIX B--Final Regulatory Flexibility Analysis
I. INTRODUCTION
1. In this Third Report and Order (Third Order), we interpret
sections of the Communications Act of 1934, as amended (the Act) that
govern how local franchising authorities (LFAs) may regulate cable
operators and cable television services, with specific focus on issues
remanded from the United States Court of Appeals for the Sixth Circuit
(Sixth Circuit) in Montgomery County, Md. et al. v. FCC.\1\ First, we
conclude that cable-related, ``in-kind'' contributions required by a
cable franchise agreement are franchise fees subject to the statutory
five percent cap on franchise fees set forth in section 622 of the Act,
with limited exceptions, including an exemption for certain capital
costs related to public, educational, and governmental access (PEG)
channels.\2\ Second, we find that under the Act, LFAs may not regulate
the provision of most non-cable services,\3\ including broadband
Internet access service, offered over a cable system by an incumbent
cable operator. Third, we find that the Act preempts any state or local
regulation of a cable operator's non-cable services that would impose
obligations on franchised cable operators beyond what Title VI of the
Act allows. Finally, we conclude that Commission requirements that
concern LFA regulation of cable operators should apply to state-level
franchising actions and state regulations that impose requirements on
local franchising.
---------------------------------------------------------------------------
\1\ Montgomery County, Md. et al., v. FCC, 863 F.3d 485 (6th Cir.
2017) (Montgomery County).
\2\ 47 U.S.C. Sec. 542.
\3\ See infra note 257 (defining ``non-cable service'').
---------------------------------------------------------------------------
II. BACKGROUND
2. Every LFA as well as every ``cable operator'' \4\ that offers
``cable service'' \5\ must comply with the cable franchising provisions
of Title VI of the Act.\6\ Section 621(b)(1) prohibits a cable operator
from providing cable service without first obtaining a cable
franchise,\7\ while section 621(a)(1) circumscribes the power of LFAs
to award or deny such franchises.\8\ In addition, section 622 allows
LFAs to charge franchise fees and sets the upper boundaries of those
fees. Notably, section 622 caps the fee at five percent of a ``cable
operator's gross revenues derived. . .from the operation of the cable
system to provide cable service.'' \9\ When Congress initially adopted
these sections in 1984, it explained that it was setting forth a
Federal policy to ``define and limit the authority that a franchising
authority may exercise through the franchise process.'' \10\ Congress
also expressly preempted any state or local laws or actions that
conflict with those definitions and limits.\11\
---------------------------------------------------------------------------
\4\ Id. Sec. 502(5) (``the term `cable operator' means any person
or group of persons (A) who provides cable service over a cable system
and directly or through one or more affiliates owns a significant
interest in such cable system, or (B) who otherwise controls or is
responsible for, through any arrangement, the management and operation
of such a cable system.'').
\5\ Id. Sec. 502(6) (``the term `cable service' means--(A) the one-
way transmission to subscribers of (i) video programming, or (ii) other
programming service, and (B) subscriber interaction, if any, which is
required for the selection or use of such video programming or other
programming service.'').
\6\ Id. Sec. Sec. 521-573.
\7\ Id. Sec. 541(b)(1).
\8\ Id. Sec. 541(a)(1).
\9\ Id. Sec. 542.
\10\ H.R. Rep. No. 98-934, at 19 (1984).
\11\ 47 U.S.C. Sec. 556(c). See, e.g., Comcast v. City of Plano,
315 S.W.3d 673, 678-80 (Tex. Ct. App. 2010) (discussing historical
development of Federal regulatory scheme); City of Chicago v. Comcast
Cable Holdings, L.L.C., 231 Ill.2d 399, 405-07 (2008).
---------------------------------------------------------------------------
3. As summarized in detail in the Second FNPRM, the Commission has
an extensive history of rulemakings and litigation interpreting
sections 621 and 622.\12\ In short, the Commission in 2007 released a
First Report and Order to provide guidance about terms and conditions
in local franchise agreements that are unreasonable under section 621
of the Act with respect to new entrants' franchise agreements.\13\ Two
major conclusions that the Commission adopted are that (1) non-cash,
``in-kind'' contributions from cable operators to franchise authorities
are franchise fees that count toward the statutory cap of five percent
of cable operator revenue,\14\ and (2) franchising authorities may not
use their cable franchising authority to regulate non-cable services
(like telephone and broadband services) that the new entrants deliver
over their mixed-use networks (i.e., networks that carry broadband
services, voice services, and other non-cable services, in addition to
video programming services).\15\ The Commission also sought comment on
whether to extend those conclusions to agreements that LFAs have with
incumbent cable operators,\16\ and ultimately decided in a Second
Report and Order\17\ and an Order on Reconsideration\18\ that those
conclusions should apply to incumbent cable operators.
---------------------------------------------------------------------------
\12\ Implementation of Section 621(a)(1) of the Cable
Communications Policy Act of 1984 as Amended by the Cable Television
Consumer Protection and Competition Act of 1992, Second Further Notice
of Proposed Rulemaking, 33 FCC Rcd 8952, 8953-59, paras. 3-14 (2018)
(Second FNPRM).
\13\ Implementation of Section 621(a)(1) of the Cable
Communications Policy Act of 1984 as Amended by the Cable Television
Consumer Protection and Competition Act of 1992, Report and Order and
Further Notice of Proposed Rulemaking, 22 FCC Rcd 5101 (2007) (First
Report and Order), aff'd sub nom. Alliance for Community Media et al.,
v. FCC, 529 F.3d 763 (6th Cir. 2008) (Alliance), cert. denied, 557 U.S.
904 (2009). The term ``new entrants'' as used in the First Report and
Order refers to entities that choose to offer ``cable service'' over a
``cable system'' utilizing public rights-of-way and thus are deemed
under the Act to be ``cable operator[s]'' that must obtain a franchise.
First Report and Order, 22 FCC Rcd at 5106 n.24. Such new entrants
largely were telecommunications carriers subject to Title II of the Act
that were seeking to enter the cable services market.
\14\ First Report and Order, 22 FCC Rcd at 5149-50, paras. 105-08.
\15\ Id. at 5155-56, paras. 121-24.
\16\ Id. at 5164-65, paras. 139-40.
\17\ Implementation of Section 621(a)(1) of the Cable
Communications Policy Act of 1984 as Amended by the Cable Television
Consumer Protection and Competition Act of 1992, Second Report and
Order, 22 FCC Rcd 19633, 19637-38, 19640-41, paras. 11, 17 (2007)
(Second Report and Order).
\18\ Implementation of Section 621(a)(1) of the Cable
Communications Policy Act of 1984 as Amended by the Cable Television
Consumer Protection and Competition Act of 1992, Order on
Reconsideration, 30 FCC Rcd 810, 814-17, paras. 11-15 (2015) (Order on
Reconsideration).
---------------------------------------------------------------------------
4. In Montgomery County, the Sixth Circuit addressed challenges by
LFAs to the Second Report and Order and the Order on
Reconsideration.\19\ The court agreed that in-kind (i.e., non-cash)
contributions are franchise fees as defined by section 622(g)(1),
noting that section 622(g)(1) defines ``franchise fee'' to include
``any tax, fee, or assessment of any kind'' and that the terms ``tax''
and ``assessment'' can include nonmonetary exactions.\20\ The court
found, however, that the fact that the term franchise fee can include
in-kind contributions ``does not mean that it necessarily does include
every one of them.'' \21\ The court concluded that the Commission
failed to offer any explanation in the Second Report and Order or in
the Order on Reconsideration as to why section 622(g)(1) allows it to
treat cable-related, ``in-kind'' exactions--such as free or discounted
cable services or obligations related to PEG channels--as franchise
fees.\22\ LFAs had claimed that the Commission's interpretation would
limit LFAs' ability to enforce their statutory authority to require
cable operators to dedicate channel capacity for PEG use and to impose
build-out obligations in low-income areas,\23\ and the court noted that
the Commission's orders did not reflect any consideration of this
concern.\24\ The court also stated that the Commission failed to define
what ``in-kind'' means.\25\ The court therefore vacated as arbitrary
and capricious the Second Report and Order and the Order on
Reconsideration to the extent that they treat cable-related, in-kind
exactions as franchise fees under section 622(g)(1).\26\ The court
directed the Commission to determine and explain on remand to what
extent cable-related, in-kind contributions are franchise fees under
the Act.\27\
---------------------------------------------------------------------------
\19\ Montgomery County, 863 F.3d at 487.
\20\ Id. at 490-91.
\21\ Id. at 491.
\22\ Id. In the First Report and Order, the Commission ruled that
``any requests made by LFAs that are unrelated to the provision of
cable services by a new competitive entrant are subject to the
statutory 5 percent franchise fee cap.'' First Report and Order, 22 FCC
Rcd at 5149, para. 105. This ruling was upheld by the Sixth Circuit in
Alliance. 529 F.3d at 782-83. The Commission later relied on the First
Report and Order to conclude that ``in-kind payments involving both
cable and non-cable services'' count toward the franchise fee cap.
Order on Reconsideration, 30 FCC Rcd at 816, para. 13. The court found
that the Order on Reconsideration incorrectly asserted that the First
Report and Order had already treated ``in-kind'' cable-related
exactions as franchise fees and that the Sixth Circuit had approved
such treatment in Alliance. Montgomery County, 863 F.3d at 490. The
court also found that the First Report and Order did not make clear
that cable-related exactions are franchise fees under section
622(g)(1). Id. In this regard, the court pointed out that the
Commission specifically told the Sixth Circuit in Alliance that the
First Report and Order's ``analysis of in-kind payments was expressly
limited to payments that do not involve the provision of cable
service.'' Id.
\23\ 47 U.S.C. Sec. 531.
\24\ Montgomery County, 863 F.3d at 491.
\25\ Id.
\26\ Id. at 491-92.
\27\ Id. at 492.
---------------------------------------------------------------------------
5. The court in Montgomery County also agreed with LFAs that
neither the Second Report and Order nor the Order on Reconsideration
offered a valid statutory basis for the Commission's application of its
prior ``mixed-use ruling'' to incumbent cable operators.\28\ Under the
mixed-use rule, ``LFAs' jurisdiction applies only to the provision of
cable services over cable systems'' and ``an LFA may not use its video
franchising authority to attempt to regulate a LEC's entire network
beyond the provision of cable services.'' \29\ The court stated that
the Commission's decision in the First Report and Order to apply the
mixed-use rule to new entrants had been defensible because section
602(7)(C) of the Act expressly states that LFAs may regulate Title II
carriers only to the extent that they provide cable services and the
Commission found that new entrants generally are Title II carriers.\30\
The court observed that in extending the mixed-use rule to incumbent
cable operators in the Second Report and Order, the Commission merely
relied on the First Report and Order's interpretation of section
602(7)(C), noting that section 602(7)(C) ``does not distinguish between
incumbent providers and new entrants.'' \31\ The court found, however,
that this reasoning is not an affirmative basis for the Commission's
decision in the Second Report and Order to apply the mixed-use rule to
incumbent cable operators because section 602(7)(C) by its terms
applies only to Title II carriers and ``many incumbent cable operators
are not Title II carriers.'' \32\ The court further found that the
Order on Reconsideration did not offer any statutory basis for the
Commission's decision to extend the mixed-use rule to incumbent cable
operators.\33\ Accordingly, the court concluded that the Commission's
extension of the mixed-use rule to incumbent cable operators that are
not common carriers was arbitrary and capricious.\34\ The court vacated
the mixed-use rule as applied to those incumbent cable operators and
remanded for the Commission ``to set forth a valid statutory basis, if
there is one, for the rule as so applied.'' \35\
---------------------------------------------------------------------------
\28\ Id. at 493. The court noted that LFAs' primary concern with
the mixed-use ruling is that it would prevent them from regulating
``institutional networks'' or ``I-Nets''--communication networks that
are constructed or operated by the cable operator and are generally
available only to subscribers who are not residential customers--even
though the Act makes clear that LFAs may regulate I-Nets. Id. at 492;
see 47 U.S.C. Sec. Sec. 531(b) (authorizing franchising authorities to
require as part of a franchise or franchise renewal that channel
capacity on institutional networks be designated for educational or
governmental use), 541(b)(3)(D) (``Except as otherwise permitted by
sections 611 and 612, a franchising authority may not require a cable
operator to provide any telecommunications service or facilities, other
than institutional networks, as a condition of the initial grant of a
franchise, a franchise renewal, or a transfer of a franchise''). See
also id. Sec. 531(f) (defining ``institutional networks''). The court
observed, however, that the Commission acknowledged that its mixed-use
rule was not meant to prevent LFAs from regulating I-Nets. Montgomery
County, 863 F.3d at 492.
\29\ First Report and Order, 22 FCC Rcd at 5155, paras. 121-22.
\30\ Montgomery County, 863 F.3d at 492-93.
\31\ Id. at 493.
\32\ Id.
\33\ Id.
\34\ Id.
\35\ Id.
---------------------------------------------------------------------------
6. The Commission in September 2018 issued the Second FNPRM to
address the issues raised by the remand from the Sixth Circuit in
Montgomery County. In the Second FNPRM, the Commission tentatively
concluded that: (1) it should treat cable-related, in-kind
contributions required by LFAs from cable operators as a condition or
requirement of a franchise agreement as franchise fees subject to the
statutory five percent cap on franchise fees set forth in section 622
of the Act, with certain exceptions;\36\ and (2) it should apply its
mixed-use rule to incumbent cable operators.\37\ The Commission sought
comment on these tentative conclusions.\38\ The Commission also sought
comment on whether other statutory provisions limit LFAs' authority to
regulate non-cable services offered over a cable system by an incumbent
cable operator or the facilities and equipment used to provide such
services.\39\ Finally, the Commission invited comment on whether it
should apply its proposals and tentative conclusions in the Second
FNPRM, and its prior decisions governing regulation of cable operators
by local franchising authorities, to franchising actions taken at the
state level and state regulations that impose requirements on local
franchising.\40\
---------------------------------------------------------------------------
\36\ Second FNPRM, 33 FCC Rcd at 8960-64, paras. 16-24. The
Commission proposed to apply this treatment of cable-related, in-kind
contributions to both incumbent cable operators and new entrants. Id.
at 8963-64, para. 22.
\37\ Second FNPRM, 33 FCC Rcd at 8964-65, para. 25. In particular,
the Commission tentatively concluded that the mixed-use rule prohibits
LFAs from regulating the provision of any services other than cable
services offered over the cable systems of incumbent cable operators
that are common carriers, or from regulating facilities and equipment
used in the provision of such non-cable services, with the exception of
I-Nets. Id. at 8965-66, para. 26. Similarly, the Commission tentatively
concluded that LFAs are prohibited from regulating the provision of
non-cable services provided by incumbent cable operators that are not
common carriers, or the facilities and equipment used to provide such
services. Id. at 8966-68, paras. 27-28.
\38\ Id. at 8952, para. 1.
\39\ Id. at 8969-71, para. 31.
\40\ Id. at 8971-72, para. 32.
---------------------------------------------------------------------------
III. DISCUSSION
7. We largely adopt our tentative conclusions in the Second
FNPRM.\41\ First, we conclude that cable-related, in-kind contributions
required by LFAs from cable operators as a condition or requirement of
a franchise agreement are franchise fees subject to the statutory five
percent cap on franchise fees set forth in section 622 of the Act. We
find that the Act exempts capital contributions associated with the
acquisition or improvement of a PEG facility from this definition and
remind LFAs that under the Act they may only require ``adequate'' PEG
access channel capacity, facilities, or financial support. Second, we
find that our mixed-use rule applies to incumbent cable operators.
Third, we find that the Act preempts any state or local regulation of a
cable operator's non-cable services that would impose obligations on
franchised cable operators beyond what Title VI of the Act allows.
Finally, we decide that our guidance related to the local franchising
process in this docket also will apply to state-level franchising
actions and state regulations that impose requirements on local
franchising.
---------------------------------------------------------------------------
\41\ As discussed below, we define ``cable related, in-kind
contributions'' slightly differently than proposed, and our reasoning
for not applying build-out costs is different than what we proposed.
Compare infra paras. 25 and 57 with Second FNPRM, 33 FCC Rcd at 8963-
64, paras. 21 and 24.
---------------------------------------------------------------------------
A. In-Kind Contributions
8. Section 622 of the Act contains a broad definition of franchise
fees. For the reasons provided below, we find that most cable-related,
in-kind contributions are encompassed within this definition and thus
must be included for purposes of calculating the statutory five percent
cap on such fees. In this section, we first explain our interpretation
of section 622 and why the definition of franchise fees includes most
cable-related, in-kind contributions. We then explain how our
interpretation applies to certain common franchise agreement terms.
Lastly, we explain the process that LFAs and cable operators should use
to amend their franchise agreements to conform to this Order.
1. Interpretation of Cable-Related, In-Kind Contributions Under Section
622
9. Addressing the first issue raised by the remand from the Sixth
Circuit in Montgomery County, we adopt our tentative conclusion that we
should treat cable-related, in-kind contributions\42\ required by LFAs
from cable operators as a condition or requirement of a franchise
agreement as franchise fees subject to the statutory five percent cap
set forth in section 622 of the Act, with limited exceptions as
described herein.\43\ We also adopt our tentative conclusion that this
treatment of cable-related, in-kind contributions should be applied to
both new entrants and incumbent cable operators.\44\ As explained
below, we find that this interpretation is consistent with the
statutory language and legislative history.
---------------------------------------------------------------------------
\42\ We define this term infra para. 25, to include ``any non-
monetary contributions related to the provision of cable services
provided by cable operators as a condition or requirement of a local
franchise, including but not limited to free or discounted cable
service to public buildings, non-capital costs in support of PEG
access, and costs attributable to the construction of I-Nets. It does
not include the costs of complying with build-out and customer service
requirements.''
\43\ Second FNPRM, 33 FCC Rcd at 8960, para. 16.
\44\ Id. at 8963, para. 22.
---------------------------------------------------------------------------
10. Section 622 of Title VI, entitled ``Franchise fees,'' governs
cable operator obligations with respect to franchise fees.\45\
Specifically, section 622(a) states that any cable operator may be
required under the terms of any franchise agreement to pay a franchise
fee, and section 622(b) sets forth the limitation that ``[f]or any
twelve-month period, the franchise fees paid by a cable operator with
respect to any cable system shall not exceed 5 percent of such cable
operator's gross revenues derived in such period from the operation of
the cable system to provide cable services.'' \46\ Notably, section
622(g) defines the term ``franchise fee'' for purposes of this
section.\47\
---------------------------------------------------------------------------
\45\ 47 U.S.C. Sec. 542.
\46\ Id. Sec. 542(a), (b).
\47\ Id. Sec. 542(g).
---------------------------------------------------------------------------
11. To understand what types of contributions from cable operators
are franchise fees subject to the five percent statutory cap, the key
provision is the section 622(g) definition, which states that ``the
term `franchise fee' includes any tax, fee, or assessment of any kind
imposed by a franchising authority or other governmental entity on a
cable operator or cable subscriber, or both, solely because of their
status as such,'' subject to certain enumerated exceptions.\48\
Specifically, according to the definition, the term ``franchise fee''
does not include the following: (1) any tax, fee, or assessment of
general applicability;\49\ (2) in the case of any franchise in effect
on October 30, 1984, payments which are required by the franchise to be
made by the cable operator during the term of such franchise for, or in
support of the use of, PEG access facilities;\50\ (3) in the case of
any franchise granted after October 30, 1984, capital costs which are
required by the franchise to be incurred by the cable operator for PEG
access facilities;\51\ (4) requirements or charges incidental to the
awarding or enforcing of the franchise, including payments for bonds,
security funds, letters of credit, insurance, indemnification,
penalties, or liquidated damages;\52\ or (5) any fee imposed under
Title 17.\53\ Because Congress spoke directly to the issue of what
constitutes a franchise fee in section 622(g), our analysis of whether
cable-related, in-kind exactions are included in the franchise fee is
appropriately focused on this statutory language.
---------------------------------------------------------------------------
\48\ Id. Sec. 542(g)(1) (emphasis added).
\49\ Id. Sec. 542(g)(2)(A). In the Second FNPRM, we noted that, by
definition, a tax, fee, or assessment of general applicability does not
cover cable-related, in-kind contributions, and therefore we
tentatively concluded that this exclusion is not applicable to such
contributions. Second FNPRM, 33 FCC Rcd at 8961, para. 18. See also
H.R. Rep. No. 934, 98th Cong., 2nd Sess. 1984 at 64 (``This would
include such payments as a general sales tax, an entertainment tax
imposed on other entertainment businesses as well as the cable
operator, and utility taxes or utility user taxes which, while they may
differentiate the rates charged to different types of utilities, do not
unduly discriminate against the cable operator so as to effectively
constitute a tax directed at the cable system.''). No commenter
disputes this analysis, and we affirm it here.
\50\ 47 U.S.C. Sec. 542(g)(2)(B). See infra Section III.A.2.b
(discussing PEG costs).
\51\ Id. Sec. 542(g)(2)(C). See infra Section III.A.2.b (discussing
PEG costs).
\52\ Id. Sec. 542(g)(2)(D). In the First Report and Order, the
Commission found that the term ``incidental'' in this section should be
limited to the list of incidentals in the statutory provision, as well
as certain other minor expenses, and the court in Alliance upheld this
determination. First Report and Order, 22 FCC Rcd at 5148, para. 103;
Alliance, 539 F.3d at 782-83. The Commission also emphasized that non-
incidental costs should be counted toward the five percent cap on
franchise fees, and listed various examples including attorney fees and
consultant fees, application or processing fees that exceed the
reasonable cost of processing the application, acceptance fees, free or
discounted services provided to an LFA, and in-kind services unrelated
to the provision of cable services. First Report and Order, 22 FCC Rcd
at 5149, para. 104. In the Second FNPRM, we explained that, although
the statute does not define the term ``incidental,'' based on the
interpretive canon of noscitur a sociis, the exemplary list delineated
in the text of the provision as well as the applicable legislative
history suggests that the term refers to costs or requirements related
to assuring that a cable operator is financially and legally qualified
to operate a cable system, not to cable-related, in-kind contributions.
Second FNPRM, 33 FCC Rcd at 8961-62, para. 18 (citing Gustafson v.
Alloyd Co., 513 U.S. 561, 575 (1995)). See also H.R. Rep. No. 934, 98th
Cong., 2nd Sess. 1984 at 64 (``[F]ranchise fee is defined so as not to
include any bonds, security funds, or other incidental requirements or
costs necessary to the enforcement of the franchise.''). Consistent
with this analysis and precedent, we find that cable-related, in-kind
contributions demanded by an LFA do not qualify as ``incidental''
charges excluded in section 622(g)(2)(D). See id. No commenter disputes
our interpretation of this particular exclusion.
\53\ 47 U.S.C. Sec. 542(g)(2)(E). In the Second FNPRM, we explained
that this section excludes from the definition of franchise fees any
fees imposed under the Copyright Act under Title 17, United States
Code, and thus does not appear to apply to cable-related, in-kind
contributions. Second FNPRM, 33 FCC Rcd at 8961, para. 18. See also
H.R. Rep. No. 934, 98th Cong., 2nd Sess. 1984 at 64 (``Any fee imposed
under the Copyright Act would not be considered a franchise fee.''). No
commenter disputes this analysis, and we affirm it here.
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12. As a preliminary matter, we note our prior finding, which was
upheld by the Sixth Circuit in Montgomery County, that the franchise
fee definition in section 622(g) can encompass both monetary payments
imposed by a franchising authority or other governmental entity on a
cable operator, as well as ``in-kind'' payments--i.e., payments
consisting of something other than money, such as goods and
services\54\--that are so imposed.\55\ The definition of ``franchise
fee'' in section 622(g)(1) broadly covers ``any tax, fee, or assessment
of any kind imposed by a franchising authority or other governmental
entity on a cable operator . . . solely because of [its] status as
such.'' \56\ Because the statute does not define the terms ``tax,''
``fee,'' or ``assessment,'' we look to the ordinary meaning of such
terms.\57\ As the court explained in Montgomery County, the definitions
of the terms ``tax'' and ``assessment,'' in particular, ``can include
noncash exactions.'' \58\ Further, as the court observed, section
622(g)(1) ``more specifically defines `franchise fee' to include `any
tax, fee, or assessment of any kind[,]' . . . which requires us to give
those terms maximum breadth.'' \59\ Thus, consistent with the court's
conclusion on this issue, the term franchise fee in section 622(g)(1)
includes non-monetary payments.\60\ We, therefore, reject arguments
that it should be construed to cover only monetary payments.\61\
---------------------------------------------------------------------------
\54\ See Merriam-Webster, Definition of ``In-Kind,'' available at
https://www.merriam-webster.com/dictionary/in-kind (defining ``in-
kind'' as ``consisting of something (such as goods or commodities)
other than money''). According to the record, LFAs in some cases
require a grant or other monetary contribution earmarked for cable-
related services, such as PEG and I-Net support. See, e.g., Altice May
9, 2019 Ex Parte at 7-8 (describing Altice's payment of ``PEG grants''
to LFAs). While we focus here on whether cable-related, in-kind (non-
monetary) contributions are subject to the five percent cap on
franchise fees, we note that these monetary contributions are subject
to the franchise fee cap, unless otherwise excluded under section
622(g)(2). See infra note 61.
\55\ See First Report and Order, 22 FCC Rcd at 5149, paras. 104-05;
Second FNPRM, 33 FCC Rcd at 8960, para. 17. We reject the argument that
franchise considerations are not ``imposed'' by a franchising authority
because they are negotiated in an arms-length transaction between the
parties and ``are not established by force.'' See Comments of the
Association of Washington Cities et al., at 10 (Nov. 14, 2018) (AWC et
al. Comments); Comments of the City of Philadelphia, et al., at 21-23
(Nov. 14, 2018) (City of Philadelphia et al. Comments); Reply Comments
of the City of Philadelphia, et al., at 6-7 (Dec. 14, 2018) (City of
Philadelphia et al. Reply); NATOA et al. July 24, 2019 Ex Parte at 2.
The definition of the term ``impose'' is not limited to ``established
as if by force,'' but can also mean ``to establish or apply by
authority.'' See Merriam-Webster, Definition of ``Impose,'' available
at https://www.merriam-webster.com/dictionary/impose. See also Reply
Comments of Free State Foundation, at 11-12 (Dec. 14, 2018) (Free State
Foundation Reply) (``Nor should the Commission accept the contention
that in-kind contributions are purely voluntary and therefore ought not
be restricted by the Commission's proposal. Sections 621 and 622
reflect the understanding that LFAs are not ordinary private market
participants but governing authorities with significant power and
policy setting concerns.''). Further, under this narrow interpretation
of the term, no monetary or in-kind payments could be construed as a
franchise fee if they are negotiated by the parties as terms of the
franchise agreement. As NCTA points out, ``[b]y this standard, even a
franchise agreement containing a requirement that the cable operator
pay five percent of gross revenues to the franchising authority would
not contain a franchise fee, since the five percent fee was included in
a negotiated document and was not imposed by government fiat.'' Reply
Comments of NCTA--The Internet & Television Association, at 5, n.13
(Dec. 14, 2018) (NCTA Reply).
\56\ 47 U.S.C. Sec. 542(g)(1) (emphasis added).
\57\ Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566, 132 S.
Ct. 1997, 2002, 182 L. Ed. 2d 903 (2012) (``When a term goes undefined
in a statute, we give the term its ordinary meaning.''). See Merriam-
Webster, Definition of ``Tax,'' available at https://www.merriam-
webster.com/dictionary/tax (defining ``tax'' as ``a charge usually of
money imposed by authority on persons or property for public purposes;
a sum levied on members of an organization to defray expenses'');
Black's Law Dictionary (7th ed. 1999), Definition of ``Tax,'' (noting
that ``[m]ost broadly, the term embraces all governmental impositions
on the person, property, privileges, occupations, and enjoyment of the
people. . . . Although a tax is often thought of as being pecuniary in
nature, it is not necessarily payable in money'' (emphasis added));
Merriam-Webster, Definition of ``Fee,'' available at https://
www.merriam-webster.com/dictionary/fee (defining ``fee'' as ``a fixed
charge; a sum paid or charged for a service''); Black's Law Dictionary
(7th ed. 1999), Definition of ``Fee,'' (defining ``fee'' as ``[a]
charge for labor or services''); Merriam-Webster, Definition of
``Assessment,'' available at https://www.merriam-webster.com/
dictionary/assessment (defining ``assessment'' as ``the amount
assessed: an amount that a person is officially required to pay
especially as a tax''); Black's Law Dictionary (7th ed. 1999),
Definition of ``Assessment,'' (defining ``assessment'' as the
``[i]mposition of something, such as a tax or fine, according to an
established rate''). See also Montgomery County, 863 F.3d at 490
(noting that the term ``assessment'' has been defined as ``[a]n
enforced contribution of money or other property . . . [or] any
contribution imposed by government upon individual, for the use and
service of the state,'' and observing that Justice Scalia has
recognized that assessments need not be monetary by referring to ``in-
kind assessments'') (emphasis in original) (citations omitted). We
disagree with NATOA et al.'s contention that the Commission ``nowhere
analyzes or explains why [certain] franchise requirements are
`assessments' or `exactions.' '' See NATOA et al. July 24, 2019 Ex
Parte at 2. See also Anne Arundel County et al. July 24, 2019 Ex Parte
at 8 (arguing that the Commission does not ``offer[ ] a basis in
established law for the idea that any imposition of costs is
presumptively a tax, fee, or assessment''). Rather, we find that an
``assessment,'' the term used in the statute, includes any contribution
imposed by government, based on its ordinary meaning.
\58\ See Montgomery County, 863 F.3d at 490-91.
\59\ Id.
\60\ Id. See also NCTA Reply at 4-5; Comments of Verizon, at 5
(Nov. 14, 2018) (Verizon Comments); Reply Comments of Altice USA, Inc.,
at 19 (Dec. 14, 2018) (Altice Reply); ICLE July 18, 2019 Ex Parte at 3-
13.
\61\ See City of Philadelphia et al. Comments at 22 (arguing that
``[b]ased on the ordinary meanings of the terms, there is nothing
unclear about what is included as a franchise fee'' and that all of the
terms used in the definition ``are referring to unilateral monetary
charges by a unit of government''); Comments of Charles County,
Maryland, at 7 (Nov. 14, 2018) (Charles County Comments) (arguing that
``the words tax, fee, and assessment are terms of art and have precise
meaning established by lengthy precedent'' and that ``Congress chose
not to draft the statutory language to include other forms of value
transfer, such as grants, external costs, or charges, in the statutory
definition of franchise fees''); Reply Comments of Anne Arundel County,
Maryland et al., at 6 (Dec. 14, 2018) (Anne Arundel County et al.
Reply) (``The Act is clearly structured to consider as franchise fees
only monetary payments, and to treat other, cable-related non-monetary
services and facilities requirements differently . . ..''). Contrary to
these arguments, the terms used in the statute are not limited to
monetary payments. See supra note 57 and accompanying text. Moreover,
these arguments ignore Congress' specification that the franchise fee
includes ``any tax, fee, or assessment of any kind,'' essentially
reading this expansive language out of the statute. For example,
although Anne Arundel County et al. argue ``that generally, taxes,
fees, and assessments are monetary, but that in exceptional
circumstances (such as forfeitures) non-monetary obligations may also
qualify,'' there is nothing in the statute--which specifically applies
to a tax, fee, or assessment of any kind--or in the definition of these
terms that supports this statement. See Anne Arundel County et al. July
24, 2019 Ex Parte at 7.
---------------------------------------------------------------------------
13. As the court noted in Montgomery County, ``that the term
`franchise fee' can include noncash exactions, of course, does not mean
that it necessarily does include every one of them.'' \62\ As such, the
next step in our analysis is to evaluate specifically whether cable-
related, in-kind contributions\63\ are included within the franchise
fees. The Commission previously determined that in-kind contributions
unrelated to the provision of cable service are franchise fees subject
to the statutory five percent cap, and the court's decision in
Montgomery County upheld this interpretation.\64\ In making this
determination, the Commission pointed to examples in the record where
LFAs demanded in-kind contributions unrelated to the provision of cable
services in the context of franchise negotiations, and it explained
that such requests do not fall within any of the exempted categories in
section 622(g)(2) and thus should be considered a franchise fee under
section 622(g)(1).\65\
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\62\ Montgomery County, 863 F.3d at 491.
\63\ See supra note 42 (defining and providing examples of ``cable-
related, in-kind contributions'').
\64\ See Second FNPRM, 33 FCC Rcd at 8960, para. 17 (citing
Montgomery County, 863 F.3d at 490-91; First Report and Order, 22 FCC
Rcd at 5149, para. 105). See also NCTA Reply at 5-6. But see Comments
of the National Association of Telecommunications Officers and Advisors
et al., at 8 (Nov. 14, 2018) (NATOA et al. Comments). Contrary to the
contention of NATOA et al., the Commission's finding in the First
Report and Order that in-kind contributions unrelated to the provision
of cable services are franchise fees subject to the statutory five
percent cap was undisturbed by subsequent court decisions in Alliance
and Montgomery County. The court in Montgomery County vacated the
orders to the extent they treat cable-related, in-kind exactions as
franchise fees, and thus the Commission's finding with regard to in-
kind contributions unrelated to the provision of cable services still
stands.
\65\ See First Report and Order, 22 FCC Rcd at 5149-50, paras. 105-
08. In the First Report and Order, the Commission cited examples of in-
kind contributions unrelated to the provision of cable services from
the record, including requests for traffic light control systems,
scholarships, and video hookups for a holiday celebration. See First
Report and Order, 22 FCC Rcd at 5149-50, paras. 106-07.
---------------------------------------------------------------------------
14. We find that there is no basis in the statute for exempting all
cable-related, in-kind contributions for purposes of the five percent
franchise fee cap or for distinguishing between cable-related, in-kind
contributions and in-kind contributions unrelated to the provision of
cable services. As noted above, the section 622(g)(1) franchise fee
definition broadly covers ``any tax, fee, or assessment of any kind,''
\66\ and we conclude that cable-related, in-kind contributions fall
within this definition. There is nothing in this language that limits
in-kind contributions included in the franchise fee.\67\ In fact,
Congress specified that the definition covers ``any'' tax, fee, or
assessment ``of any kind,'' which means those terms should be
interpreted expansively and given ``maximum breadth.'' \68\
---------------------------------------------------------------------------
\66\ 47 U.S.C. Sec. 542(g)(1).
\67\ See Comments of the American Cable Association, at 4 (Nov. 14,
2018) (ACA Comments); Comments of NCTA--The Internet & Television
Association, at 41-42 (Nov. 14, 2018) (NCTA Comments).
\68\ See supra note 59 and accompanying text. But see Comments of
Anne Arundel County, Maryland et al., at 20 (Nov. 14, 2018) (Anne
Arundel County et al. Comments). Anne Arundel County et al. make the
conclusory statement that ``[r]egulatory obligations are clearly not a
tax or fee,'' without citing a definition of these terms or including
the term ``assessment,'' and they make no mention of the court's own
conclusion in Montgomery County that the term franchise fee ``can
include noncash exactions.'' See Montgomery County, 863 F.3d at 490-91.
---------------------------------------------------------------------------
15. Further, there is no general exemption for cable-related, in-
kind contributions in the five excluded categories listed in section
622(g)(2).\69\ Only two of the exclusions encompass two very specific
kinds of cable-related, in-kind contributions, but not all such
contributions generally. In particular, section 622(g)(2)(B) excludes
payments required by the franchise to be made by the cable operator
for, or in support of the use of, PEG access facilities (for franchises
in effect on October 30, 1984), and section 622(g)(2)(C) excludes
capital costs which are required by the franchise to be incurred by the
cable operator for PEG access facilities (for franchises granted after
October 30, 1984).\70\ We agree with ACA that the structure of the
relevant statutory provision is ``straightforward,'' providing a broad
definition of franchise fee, ``then expressly provid[ing] a limited
number of exceptions to this definition, none of which is so broad as
to include all cable-related, in-kind contributions.'' \71\
---------------------------------------------------------------------------
\69\ See ACA Comments at 5-6.
\70\ See supra notes 50-51. We analyze and interpret these two PEG-
related exclusions in Section III.A.2.b, infra.
\71\ See Reply Comments of the American Cable Association, at 14
(Dec. 14, 2018) (ACA Reply). According to Anne Arundel County et al.,
the Commission incorrectly implies that ``unless something falls within
an exception, it must be a tax, fee, or assessment.'' See Anne Arundel
County et al. Comments at 19. However, this is inconsistent with our
analysis, in which we first evaluate whether a type of contribution
meets the definition of franchise fee in section 622(g)(1) and, if so,
then determine whether it falls within a specified exception in section
622(g)(2). It is also inconsistent with our conclusion herein that
certain requirements, such as customer service and build-out
requirements, are not covered by the definition of franchise fee. See
infra Section III.A.2.d.
---------------------------------------------------------------------------
16. Moreover, the fact that Congress carved out specific exceptions
to the franchise fee definition for certain PEG-related contributions
bolsters the conclusion that Congress did not intend to establish a
general exemption for all cable-related, in-kind contributions from
treatment as franchise fees.\72\ Because support for PEG access
facilities and PEG capital costs fall within the broader category of
cable-related, in-kind contributions, Congress would not have needed to
craft these narrow exceptions if all cable-related, in-kind
contributions generally were exempted.\73\ We disagree with the
contention that the specific exceptions in section 622(g)(2) were
intended to address only ``payments that otherwise might be considered
franchise fees,'' and that ``[o]ther cable-related obligations were not
considered `fees' to begin with, let alone payments that required a
specific exemption.'' \74\ This argument erroneously constricts the
definition of franchise fees to apply only to ``fees,'' while the
statute more broadly includes ``any tax, fee, or assessment of any
kind.'' Further, we believe it is more consistent with the statutory
text and structure to construe the exceptions as carve-outs from a
broader definition that sweeps in all cable-related, in-kind
contributions.\75\
---------------------------------------------------------------------------
\72\ See ACA Comments at 5.
\73\ See id.
\74\ See NATOA et al. Comments at 5; Reply Comments of the National
Association of Telecommunications Officers and Advisors et al., at 3
(Dec. 14, 2018) (NATOA et al. Reply); Anne Arundel County et al. July
24, 2019 Ex Parte at 12. See also Anne Arundel County et al. Comments
at 17-18 (``The subsections in 622(g)(2) are designed to permit
collection of additional fees that otherwise might be misinterpreted to
fall within the cap. The exceptions to the definition of franchise fee
are expansions of LFA authority, and do not narrow the definition of
franchise fees.''); Comments of the City of New York, at 9-10 (Nov. 14,
2018) (City of New York Comments); Reply Comments of the State of
Hawaii, at 2 (Dec. 14, 2018) (Hawaii Reply).
\75\ For example, under section 622(g)(2)(B), payments required by
the franchise to be made by the cable operator for, or in support of
the use of, PEG access facilities are included in the franchise fee
only for franchises granted after October 30, 1984.
---------------------------------------------------------------------------
17. While the statutory text is alone sufficient to support our
conclusion, we also find that the legislative history supports our
position that cable-related, in-kind contributions are franchise fees
subject to the five percent cap.\76\ As we observed in the Second
FNPRM, we see no basis in the legislative history for distinguishing
between in-kind contributions unrelated to the provision of cable
services and cable-related, in-kind contributions for purposes of the
five percent franchise fee cap.\77\ Further, we see no basis in the
legislative history to treat in-kind payments differently from monetary
payments for purposes of determining what is a franchise fee. The
legislative history, in discussing what constitutes a franchise fee,
refers to the definition in section 622(g)(1), which ``include[s] any
tax, fee, or assessment imposed on a cable operator or subscribers
solely because of their status as such,'' and it makes no distinction
between cable-related contributions and those unrelated to cable
services, nor between monetary and non-monetary payments.\78\ The
legislative history then elaborates on the specific exemptions in
Section 622(g)(2) and, in particular, notes that ``[s]pecific
exemptions from the franchise fee limitations are included for certain
payments related to public, educational and governmental access.'' \79\
It specifies that, ``[f]or existing franchises, a city may enforce
requirements that additional payments be made above the 5 percent cap
to defray the cost of providing public, educational and governmental
access, including requirements related to channels, facilities and
support necessary for PEG use.'' \80\ Because Congress limited this
exception to then-existing franchises, this provision elucidates
Congress' intent that contributions in support of PEG access--which are
cable-related, in-kind contributions--are subject to the five percent
cap for franchises granted after the 1984 Cable Act.\81\
---------------------------------------------------------------------------
\76\ See ACA Comments at 8.
\77\ Second FNPRM, 33 FCC Rcd at 8960, para. 17. According to NCTA,
the legislative history shows that Congress' intent generally was to
limit the total financial obligations that franchising authorities may
impose on cable operators. See NCTA Reply at 7 (``But Congress adopted
the five percent cap as a limit `to prevent local governments from
taxing private cable operators to death as a means of raising local
revenues for other concerns.' '') (citing 129 Cong. Rec. S8254 (1983),
statement of Sen. Goldwater). See also NCTA Comments at 39-40. We find
that allowing LFAs to circumvent the statutory five percent cap by not
counting cable-related, in-kind contributions that clearly fall within
the statutory definition of franchise fees would be contrary to
Congress' intent as reflected in the broad definition of franchise fee
in the statute. See Second FNPRM, 33 FCC Rcd at 8961, para. 17.
\78\ Second FNPRM, 33 FCC Rcd at 8960, para. 17 (citing H.R. Rep.
No. 934, 98th Cong., 2nd Sess. 1984 at 64, reprinted in 1984
U.S.C.C.A.N. 4655, 4701).
\79\ H.R. Rep. No. 934, 98th Cong., 2nd Sess. 1984 at 64-65.
\80\ Id. at 65.
\81\ Although the City of New York opines that the examples of
franchise fees in the legislative history are all ``services that do
not use the cable operator's cable system or other communications
facilities (`CF') or call on the core competencies (`CC') of the cable
operator,'' this reading overlooks the fact that certain PEG-related
costs are included as franchise fees, and it creates a distinction that
is not apparent from either the statute or the legislative history. See
City of New York Comments at 4.
---------------------------------------------------------------------------
18. We disagree with commenters who cite to a portion of the
legislative history as evidence of Congress' intent that franchise fees
include only monetary payments made by cable operators. Specifically,
LFA commenters cite a statement in the discussion of subsection
622(g)(2)(C), which excludes certain PEG-related capital costs from the
franchise fee definition, that ``[i]n general, this section defines as
a franchise fee only monetary payments made by the cable operator, and
does not include as a `fee' any franchise requirements for the
provision of services, facilities or equipment.'' \82\ LFA commenters'
reading of this statement is inconsistent with the overall text and
structure of section 622(g).\83\ Section 622(g)(1) ``specifically
defines `franchise fee' to include `any tax, fee, or assessment of any
kind[,]' '' subject to certain enumerated exclusions, and the court in
Montgomery County was clear that this statutory language ``requires us
to give those terms maximum breadth.'' \84\ The Commission has already
concluded, and the Sixth Circuit has twice upheld, that non-monetary
payments can be franchise fees. Further, this reading would render
section 622(g)(2)(C) superfluous because there would not need to be an
exemption for PEG-related in-kind contributions if non-monetary
contributions were not franchise fees in the first place.\85\
---------------------------------------------------------------------------
\82\ Id. See Comments of the Alliance for Communications Democracy
et al., at 6 (Nov. 14, 2018) (CAPA Comments); Comments of The City
Coalition, at 13-14 (Nov. 14, 2018) (City Coalition Comments); Comments
of the State of Hawaii, at 3-4 (Nov. 14, 2018) (Hawaii Comments); NATOA
et al. Comments at 5; City of New York Comments at 3; Anne Arundel
County et al. Reply at 6; Reply Comments of Free Press, at 4-5 (Dec.
14, 2018) (Free Press Reply); Hawaii Reply at 4-5; NATOA et al. Reply
at 3. We discuss further in Section III.A.2.b below the extent to which
certain PEG-related requirements are exempted from the statutory
definition of franchise fees.
\83\ See also NCTA Reply at 5, n.12 (stating that ``[a]s the
context makes clear, this language is meant only to elaborate on what
Congress considers a `fee' under the definition of franchise fee, and
not what constitutes an `assessment,' the latter of which Congress
understood to include in-kind exactions''). For the same reason, we are
not persuaded by Anne Arundel County et al.'s reliance on a letter from
the Commission's Cable Services Bureau that quotes the legislative
history. See Anne Arundel County et al. Comments at 23-24 (citing City
of Bowie, 14 FCC Rcd 9596 (Cable Services Bureau, 1999)); Anne Arundel
County et al. July 24, 2019 Ex Parte at 12; Letter from Sen. Chris Van
Hollen to Chairman Ajit Pai, FCC at 2 (June 12, 2019). First, this
Bureau-level letter does not bind the Commission. See Comcast v. FCC,
526 F.3d 763, 769 (D.C. Cir. 2008) (an agency is not bound by the
actions of its staff if the agency has not endorsed those actions).
Second, to the extent that the Bureau's guidance 20 years ago conflicts
with the conclusions in this rulemaking, it is reversed and superseded.
We note that the letter merely cites the statute and legislative
history, without analysis.
\84\ See Montgomery County, 863 F.3d at 490-91.
\85\ See, e.g., Duncan v. Walker, 533 U.S. 167, 174 (2001) (``It is
our duty `to give effect, if possible, to every clause and word of a
statute.' '' (quoting United States v. Menasche, 348 U.S. 528, 538-539
(1955))).
---------------------------------------------------------------------------
19. Because we believe that the pertinent statutory provision in
section 622(g) supports our conclusion that cable-related, in-kind
contributions are franchise fees, we reject arguments raised by
franchise authorities that other Title VI provisions should be read to
exclude costs that are clearly included by the franchise fee
definition. Instead of focusing on the key definition of ``franchise
fee'' as ``any tax, fee, or assessment of any kind'' subject to certain
enumerated exceptions, LFA commenters cite to other parts of the
statute which, they argue, evince Congress' intent to exclude cable-
related, in-kind contributions from the statutory cap on franchise
fees.\86\ We reject each of these arguments in turn below.
---------------------------------------------------------------------------
\86\ See, e.g., Comments of the City of Arlington, Texas, at 6-7
(Nov. 14, 2018) (City of Arlington Comments); Comments of the City of
Austin, Texas, at 7-8 (Nov. 14, 2018) (City of Austin Comments).
---------------------------------------------------------------------------
20. First, we affirm our tentative conclusion that treating cable-
related, in-kind contributions as franchise fees would not undermine
the provisions in the Act that authorize or require LFAs to impose
cable-related obligations on franchisees.\87\ For example, section
611(b) of the Act permits LFAs to require that channel capacity be
designated for PEG use and that channel capacity on I-Nets be
designated for educational and governmental use.\88\ Anne Arundel
County et al. argue that the Commission errs by not acknowledging that
the Cable Act ``authorize[s] LFAs to both impose cable franchise
obligations [in section 611] and collect franchise fees [in section
622]--they do not offset each other.'' \89\ However, as we observed in
the Second FNPRM, the fact that the Act authorizes LFAs to impose such
obligations does not mean that the value of these obligations should be
excluded from the five percent cap on franchise fees.\90\ We agree with
NCTA and ACA that there is no basis in the statutory text for
concluding that the authority provided in section 611(b) affects the
definition of franchise fee in section 622(g).\91\ As explained above,
section 622(g) is the key provision that defines what is included in
the franchise fee, and section 622(g)(2) carves out only limited
exclusions for PEG-related costs and makes no mention of an I-Net-
related exclusion. Since Congress enacted the PEG and I-Net provisions
at the same time it added the franchise fee provisions, it could have
explicitly excluded all costs related to PEG and I-Nets if it had
intended they not count toward the cap.\92\ Instead, they just excluded
a subset of those costs. Further, if we were to interpret the statute
such that all costs related to PEG, I-Nets, or other requirements
imposed in section 611 are excluded from treatment as franchise fees
because section 611(b) contemplates that such costs be incurred, the
specific exemption for PEG capital costs in section 622(g)(2)(D) would
be superfluous.\93\ While we acknowledge that PEG channels and I-Nets
provide benefits to consumers,\94\ such benefits cannot override the
statutory framework, which carves out only limited exclusions from
franchise fees.
---------------------------------------------------------------------------
\87\ See Second FNPRM, 33 FCC Rcd at 8962, para. 20.
\88\ 47 U.S.C. Sec. 531(b) (``A franchising authority may in its
request for proposals require as part of a franchise, and may require
as part of a cable operator's proposal for a franchise renewal, . . .
that channel capacity be designated for public, educational, or
governmental use, and channel capacity on institutional networks be
designated for educational or governmental use. . . .''). See also 47
U.S.C. Sec. 541(b)(3)(D) (``Except as otherwise permitted by sections
531 and 532 of this title, a franchising authority may not require a
cable operator to provide any telecommunications service or facilities,
other than institutional networks, as a condition of the initial grant
of the franchise, a franchise renewal, or a transfer of a
franchise.'').
\89\ Anne Arundel County et al. Comments at 15-16. See also AWC et
al. Comments at 6-8; CAPA Comments at 3-4; Comments of the Illinois
Municipal League, at 1-2 (Nov. 7, 2018); Comments of the International
Municipal Lawyers Association, at 2 (Nov. 13, 2018) (IMLA Comments);
Reply Comments of Media Alliance, at 4 (Nov. 19, 2018).
\90\ Second FNPRM, 33 FCC Rcd at 8963, para. 20.
\91\ See ACA Comments at 6; NCTA Reply at 7-8.
\92\ We disagree with the Cable Act Preservation Alliance (CAPA)
that ``it is equally true that Congress could have explicitly noted the
franchise fee limitation in 47 U.S.C. Section 531(b) if it had intended
to include these PEG-related costs as franchise fees.'' CAPA Comments
at 8. There was no need for Congress to specify which PEG-related costs
are franchise fees in section 611 when the statute sets forth a
standalone provision, section 622, that defines what is included in the
franchise fee and specifically addresses PEG-related costs. See NCTA
Reply at 14 (``Congress was not required to reiterate the limitations
imposed by the five percent cap at every mention of permissible in-kind
assessments in other provisions.''). NATOA et al. argue that the
Commission ``ignores that build-out and customer service obligations
also were enacted by Congress at the same time it added the franchise
fee provisions and were not explicitly excluded from the cap, yet . . .
finds these are not `franchise fees.' '' NATOA et al. July 24, 2019 Ex
Parte at 3. However, we explain herein that Congress expressly stated
that cable operators are responsible for the cost of constructing cable
systems. See infra Section III.A.2.d. We also find herein that
federally mandated customer service standards are not a ``tax, fee, or
assessment'' and, thus, there was no need for Congress to exclude them
from the franchise fee. See id.
\93\ See ACA Comments at 6-7.
\94\ See infra Sections III.A.2.b (PEG), III.A.2.c (I-Nets).
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21. Next, we do not find persuasive the argument that section 626
of the Act ``reflects the fact that cable-related franchise
requirements are not franchise fees.'' \95\ Section 626 directs
franchising authorities to consider, among other things, whether a
cable operator's franchise renewal proposal ``is reasonable to meet the
future cable-related community needs and interests, taking into account
the cost of meeting such needs and interests.'' \96\ NATOA et al.
contend that if cable-related, in-kind requirements are included as
franchise fees, ``it would be the LFA who pays for them, rendering the
cost consideration in this Section obsolete.'' \97\ We disagree with
this reasoning.\98\ As NCTA explains, ``[t]he cost/benefit analysis
required under this provision underscores that Congress intended
franchising authorities to balance the desire for any in-kind exactions
requested by parties in the renewal process against the overall
franchise fee burdens on cable operators and subscribers.'' \99\ The
section 626 assessment does not lose its purpose if cable-related, in-
kind contributions are counted as franchise fees; as part of this
assessment, for example, a franchising authority could determine that
cable-related community needs and interests can be met at a lower cost
to cable subscribers than the full five percent franchise fee.\100\
Moreover, the community needs assessment in section 626 also accounts
for items that are not in-kind contributions subject to the franchise
fee cap, such as build-out requirements.\101\
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\95\ NATOA et al. Comments at 7.
\96\ 47 U.S.C. Sec. 546(c)(1)(D).
\97\ NATOA et al. Comments at 7-8.
\98\ See CAPA Comments at 8-9; Charles County Comments at 10-11;
City of New York Comments at 5-6; City of Philadelphia et al. Comments
at 30; Comments of the Telecommunications Board of Northern Kentucky,
at 9-10 (Nov. 14, 2018) (TBNK Comments); Reply Comments of the Alliance
for Communications Democracy et al., at 6-7 (Dec. 24, 2018) (CAPA
Reply); Reply Comments of the City of Hagerstown, Maryland, at 8-9
(Dec. 13, 2018) (City of Hagerstown Reply); Reply Comments of the City
of Newton, Massachusetts, at 9-10 (Dec. 14, 2018).
\99\ NCTA Reply at 10-11.
\100\ See id. at 11. See also Reply Comments of NTCA--The Rural
Broadband Association, at 3 (Dec. 14, 2018) (``The Commission's
tentative conclusion in no way restricts the `in-kind' contributions
franchising authorities can impose on cable operators, provided such
contributions are cable-related and limited in value to the overall
level of the cap. As a result, franchise authorities can continue to
condition cable operators' franchise authority upon fulfilling certain
community needs; they may just have to be more tailored and precise in
value than is currently the practice.''). As Congress noted when it
adopted the five percent cap, the Commission capped franchise fees at
three percent of a cable operator's revenue. H.R. Rep. 98-934, 1984
U.S.C.C.A.N. at 4663; see 47 CFR Sec. 76.31 (1984).
\101\ Build-out requirements are subject to section 626's directive
to assess reasonableness while taking into account the cost of such
requirements, and a build-out requirement requested by an LFA could be
challenged under section 626. See NCTA Comments at 51.
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22. Finally, we disagree with commenters that cite a provision in
section 622 that relates to itemization on customer bills as evidence
that Congress did not intend PEG-related franchise obligations to be
included in franchise fees. In particular, LFA commenters point to
section 622(c)(1), which specifies that cable operators may identify as
a separate line item on each subscriber bill each of the following: (1)
the amount of the total bill assessed as a franchise fee and the
identity of the franchising authority to which the fee is paid; (2) the
amount of the total bill assessed to satisfy any requirements imposed
on the cable operator by the franchise agreement to support PEG
channels or the use of such channels; and (3) the amount of any other
fee, tax, assessment, or charge of any kind imposed by any governmental
authority on the transaction between the operator and the
subscriber.\102\ LFA commenters argue that ``[t]hrough this language,
Congress clearly outlined a separation between franchise fees and
cable-related, in-kind fees.'' \103\ On the contrary, ``the fact that
Section 622(c) allows cable operators to itemize certain charges on
subscriber bills has no bearing on which charges meet the definition of
franchise fees under Section 622(g).''\104\ While section 622(g) was
adopted as part of the 1984 Cable Act, Congress adopted section 622(c)
years later in 1992 to promote transparency by allowing cable operators
to inform subscribers about how much of their total bill is made of
charges imposed by local governments through the franchising
process.\105\ By differentiating the types of charges that can be
itemized on subscriber bills, there is no indication that Congress
intended to exclude certain charges from the franchise fee.\106\
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\102\ 47 U.S.C. Sec. 622(c).
\103\ City of Arlington Comments at 9. See also City of Austin
Comments at 10; CAPA Comments at 10; NATOA et al. Comments at 5-6; TBNK
Comments at 5-6.
\104\ NCTA Reply at 12.
\105\ Id. at 12-13 (citing Implementation of Sections of The Cable
Television Consumer Protection and Competition Act of 1992; Rate
Regulation, Report and Order and Further Notice of Proposed Rulemaking,
8 FCC Rcd 5631, 5967, para. 545 (1993)).
\106\ Moreover, as NCTA observes, ``[t]he fallacy that Section
622(c) distinguishes franchise fees from other exactions, as NATOA and
others claim, is underscored by the fact that subsection (c)(3) repeats
virtually verbatim Section 622(g)(1)'s broad definition of a franchise
fee. Yet, by NATOA's logic, the itemization of a cost under subsection
(c)(3) would control its treatment for franchise fee purposes, removing
it from the very definition that Congress established for such fees in
Section 622(g)(1). . . .'' Id. at 14, n.52.
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23. Having established our interpretation of section 622(g), we
adopt our tentative conclusion that this treatment of cable-related,
in-kind contributions should be applied to both new entrants and
incumbent cable operators.\107\ As the Commission has previously
observed, section 622 ``does not distinguish between incumbent
providers and new entrants.'' \108\ We affirm our belief that applying
the same treatment of cable-related, in-kind contributions to both new
entrants and incumbent cable operators will ensure a more level playing
field and that the Commission should not place its thumb on the scale
to give a regulatory advantage to any competitor.\109\
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\107\ See Second FNPRM, 33 FCC Rcd at 8963-64, para. 22. See also
NCTA Comments at 50.
\108\ Second Report and Order, 22 FCC Rcd at 19637, para. 11. See
Verizon Comments at 5; Altice Reply at 20.
\109\ See Verizon Comments at 5-6. See also Reply Comments of
Frontier Communications Corporation, at 3 (Dec. 14, 2018).
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24. We disagree with the contention that our interpretation of the
franchise fee definition in section 622(g) is impermissible under
Chevron.\110\ Charles County, Maryland posits that ``[b]ecause Congress
has directly addressed the questions at issue by employing precise,
unambiguous statutory language in Section 622 of the Act, the FCC's
proposed rules re-imagining. . .what constitutes a `franchise fee' are
impermissible,'' as ``[o]nly Congress may alter or amend Federal law.''
\111\ Charles County does not offer an explanation for why the
statutory language is unambiguous beyond arguing that the words ``tax,
fee, or assessment'' in the definition are terms of art.\112\ But
regardless of whether these are terms of art, they can include non-
monetary contributions, as the Sixth Circuit observed.\113\ And we
believe that our interpretation of this language using traditional
tools of statutory construction is a reasonable and permissible
construction of the statute that effectuates Congressional intent for
the reasons set forth above.\114\ Indeed, it is the interpretation that
is most consistent with the plain meaning of the statutory definition
of franchise fee.
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\110\ Review of the FCC's interpretation of the statutes it
administers is governed by Chevron USA, Inc. v. Natural Resources
Defense Council, 467 U.S. 837 (1984).
\111\ Charles City Comments at 5-8. See also IMLA Comments at 3;
City of Philadelphia et al. Comments at 19-20; City of Hagerstown Reply
at 7-8.
\112\ See Charles City Comments at 5-8.
\113\ See Montgomery County, 863 F.3d at 490-91.
\114\ Where a ``statute is silent or ambiguous'' with respect to a
specific issue, ``the question'' for the court is whether the agency
has adopted ``a permissible construction of the statute.'' Chevron, 467
U.S. at 843. See also Nat'l Cable & Telecomms. Ass'n v. Brand X
Internet Servs., 545 U.S. 967, 980 (2005). See Free State Foundation
Reply at 11.
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2. Specific Types of Cable-Related, In-Kind Contributions Under Section
622
25. In this section, we analyze whether specific types of cable-
related, in-kind contributions are franchise fees subject to the five
percent statutory cap under section 622. First, we find that costs
attributable to franchise terms that require free or discounted cable
service to public buildings are franchise fees, consistent with our
tentative conclusion that treating all cable-related, in-kind
contributions as franchise fees unless expressly excluded would best
effectuate the statutory purpose. Next, we adopt our tentative
conclusion that costs in support of PEG access are franchise fees, with
the exception of capital costs as defined below. Similarly, we find
that costs attributable to construction of I-Nets are franchise fees.
Finally, we conclude that build-out and customer service requirements
do not fall within the statutory definition of franchise fee.\115\
Based on these conclusions with respect to specific types of costs, we
adopt a definition of ``in-kind, cable-related contributions'' to
include ``any non-monetary contributions related to the provision of
cable services provided by cable operators as a condition or
requirement of a local franchise, including but not limited to free or
discounted cable service to public buildings, costs in support of PEG
access other than capital costs, and costs attributable to the
construction of I-Nets. It does not include the costs of complying with
build-out and customer service requirements.'' \116\
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\115\ See infra Section III.A.2.d.
\116\ See Second FNPRM, 33 FCC Rcd at 8964, para. 24. We modify the
definition slightly from what was proposed in the Second FNPRM to
reflect the conclusions adopted herein.
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a. Free and Discounted Cable Service to Public Buildings
26. We find that costs attributable to franchise terms that require
a cable operator to provide free or discounted cable service to public
buildings, including buildings leased by or under control of the
franchise authority, are cable-related, in-kind contributions that fall
within the five percent cap on franchise fees. The record includes
examples of cable operators providing cable service to public buildings
as part of a franchise agreement.\117\ Consistent with our statutory
interpretation above, providing free or discounted cable service to
public buildings is an in-kind (i.e., non-monetary) contribution
imposed on a cable operator by a franchise authority, and is not
included in one of the enumerated exceptions from the franchise fee in
section 622(g)(2).\118\ Although certain commenters emphasize that free
and discounted cable services have been considered franchise
considerations that are not subject to the five percent cap on
franchise fees in past franchise agreements,\119\ we find that our
reading that free and discounted services count towards the franchise
fee cap is a reasonable interpretation and best effectuates
Congressional intent given that the statute defines franchise fee
broadly, carving out only limited exclusions. If LFAs could circumvent
the five percent cap by requiring unlimited free or discounted cable
services for public buildings, in addition to a five percent franchise
fee, this result would be contrary to Congress's intent as reflected in
the broad definition of ``franchise fee'' in the statute.\120\ We find
that the Act does not provide any basis for treating the value
attributable to free or discounted services in a different manner than
other in-kind services which must be included in the franchise fee.
Although we acknowledge that the provision of free or discounted cable
service to public buildings, such as schools or libraries, can benefit
the public, such benefits cannot override the statutory framework.
Further, there are policy rationales for limiting free services, given
that, in a competitive market, such contributions may raise the costs
of the cable operator's service, reduce resources available for other
services, and result in market inefficiency.\121\
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\117\ See, e.g., Comments of the City of Newton, Massachusetts, at
19 (Nov. 14, 2018) (City of Newton Comments).
\118\ See 47 U.S.C. Sec. 542(g)(2); supra para. 11.
\119\ See, e.g., AWC et al. Comments at 7 (arguing that ``[t]he
Commission has acknowledged local authority to include additional
franchise considerations within the franchise,'' and that requiring
LFAs to pay for these negotiated franchise considerations is
inconsistent with precedent and decades of franchise agreements). AWC
cites a Bureau-level order in which the Cable Services Bureau found
that where the LFA and cable operator agreed to establish franchise
provisions regarding the eligibility standards for a senior citizen
discount rate and the formula for adjusting that rate, these terms were
not preempted by Federal law. See City of Antioch, California,
Memorandum Opinion and Order, CSR-5239-R, 14 FCC Rcd 2285 (CSB 1999).
While this decision is about the inclusion of discounted services in
the franchise terms, it does not address whether discounted services
should be included in the franchise fee and, thus, is not inconsistent
with our findings herein.
\120\ See Second FNPRM, 33 FCC Rcd at 8961, para. 17.
\121\ See NCTA Comments at 50 (``[I]f products and services are
available to a franchising authority without charge, or at a below-
market rate, the franchising authority will not be required to evaluate
a `need' in light of its market cost, and as a result will tend to
over-consume at the cable operator's buffet, resulting in market
inefficiency.'').
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b. PEG Access Facilities
27. We conclude in this section that in-kind contributions related
to PEG access facilities are cable-related, in-kind contributions, and
are therefore included within the statutory definition of ``franchise
fees'' under section 622(g)(1).\122\ We next conclude that the term
``capital cost'' in section 622(g)(2)(C) should be given its ordinary
meaning, which is a cost incurred in acquiring or improving a capital
asset. Applying that interpretation, we conclude that the exclusion for
capital costs under section 622(g)(2)(C) could include equipment that
satisfies this definition, regardless of whether such equipment is
purchased in connection with the construction of a PEG access facility.
We then conclude that the record is insufficiently developed for the
Commission to determine whether the provision of PEG channel capacity
is included within section 622(g)(2)(C)'s exclusion for capital costs.
We also find that the installation of PEG transport facilities are
capital costs that are exempt from the five percent franchise fee
cap,\123\ and that maintenance of those facilities are operating costs
that count toward the cap. Finally, we address policy arguments
regarding the impact of these conclusions on the provision of PEG
programming.
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\122\ PEG channels provide third-party access to cable systems
through channels dedicated for use by the public, including local
governments, schools, and non-profit and community groups. H.R. Rep.
No. 98-934, at 30. The Act provides for the creation and support of PEG
channels in various ways, including by authorizing LFAs to require
franchisees to designate channel capacity for PEG, and by excluding
certain costs associated with PEG access facilities from the definition
of franchise fees under section 622(g)(2). See 47 U.S.C.
Sec. Sec. 522(16), 531, 542(g).
\123\ As explained below, ``PEG transport facilities'' are
facilities that LFAs use to deliver PEG services from studios or other
locations where the programming is produced to the cable headend. See
infra para. 49.
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(i) The Franchise Fee Definition Generally Includes Contributions for
PEG Access Facilities
28. Consistent with our tentative conclusion in the Second
FNPRM,\124\ we find that the definition of franchise fee in section
622(g)(1) encompasses PEG-related contributions. Like other taxes,
fees, or assessments imposed by LFAs, we find that contributions
related to PEG access facilities imposed by an LFA are subject to the
five percent cap on franchise fees, unless they fall within one of the
five exclusions set forth in section 622(g)(2). Consistent with the
statutory analysis above, we conclude that the provision of equipment,
services, and similar contributions for PEG access facilities are
cable-related, in-kind contributions that meet the definition of
franchise fee.\125\ Such PEG-related contributions are not exempt under
section 622(g)(2) of the Act unless they fall under the limited
exceptions for capital costs and costs incurred by franchises existing
at the time of the Cable Act's adoption in 1984.\126\ As explained
above, our starting point for analyzing cable operator contributions to
LFAs is that the Act defines ``franchise fee'' broadly and has limited,
narrow exceptions. Thus, we believe that including in the franchise fee
cap any costs that are not specifically exempt is consistent with the
statute and reasonably effectuates Congressional intent.
---------------------------------------------------------------------------
\124\ Second FNPRM, 33 FCC Rcd at 8960, para. 16.
\125\ In some cases, LFAs require a grant or other monetary
contribution earmarked for PEG-related costs. See, e.g., Altice May 9,
2019 Ex Parte at 7-8 (describing Altice's payment of ``PEG grants'' to
LFAs). These monetary contributions are likewise subject to the five
percent cap on franchise fees, unless otherwise excluded under section
622(g)(2). See supra note 54. Section 622 exempts only the items
delineated in (g)(2), and Congress did not distinguish between in-kind
and monetary contributions, nor did it exempt monetary contributions
earmarked for a purpose that would otherwise not be excluded under
section 622(g)(2). Thus, we make clear that monetary contributions--
like in-kind contributions--must be counted toward the franchise fee
cap unless expressly exempt under section 622(g)(2).
\126\ See 47 U.S.C. Sec. 542(g)(2); supra para. 11.
---------------------------------------------------------------------------
29. Further, including contributions for PEG access facilities
within the franchise fee definition is consistent with the overall
structure of section 622. For ``any franchise in effect on October 30,
1984,'' section 622(g)(2)(B) excludes from the definition of
``franchise fee'' ``payments which are required by the franchise to be
made by the cable operator during the term of such franchise for, or in
support of the use of [PEG] access facilities.'' \127\ There would have
been no reason for Congress to grandfather in these PEG-related
contributions for existing franchises if such payments were not
otherwise included within the definition of ``franchise fees.'' In
effect, excluding PEG-related contributions would read ``in the case of
any franchise in effect on October 30, 1984'' out of section
622(g)(2)(B), extending this grandfathered exclusion to all franchises.
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\127\ 47 U.S.C. Sec. 542(g)(2)(B).
---------------------------------------------------------------------------
30. Some commenters claim that other sections of Title VI,
including the section authorizing LFAs to require the designation of
PEG channel capacity in section 611, override section 622's definition
of ``franchise fee.'' \128\ As discussed above, we find these arguments
unpersuasive.\129\ We also reject arguments that provisions of the Act
unrelated to cable franchising demonstrate that PEG-related fees are
not franchise fees.\130\ For example, section 623 of the Act, which
governs the regulation of cable rates, instructs the Commission to take
the following two factors (among others) into account when prescribing
rate regulations:
---------------------------------------------------------------------------
\128\ 47 U.S.C. Sec. 531(b). See, e.g., Reply Comments of Charles
County, Maryland, at 7 (Dec. 14, 2018) (Charles County Reply); Reply
Comments of Massachusetts Community Media, Inc., at 8 (Dec. 14, 2018)
(MassAccess Reply) (``Cable operators cannot classify as `in-kind' an
obligation which they are legally bound to fulfill.'').
\129\ See supra paras. 20-22.
\130\ See CAPA Comments at 11. See also City of Newton Apr. 10,
2019 Ex Parte at 2.
(v) the reasonably and properly allocable portion of any amount
assessed as a franchise fee, tax, or charge of any kind imposed
by any State or local authority on the transactions between
cable operators and cable subscribers or any other fee, tax, or
assessment of general applicability imposed by a governmental
---------------------------------------------------------------------------
entity applied against cable operators or cable subscribers;
(vi) any amount required [ ] to satisfy franchise requirements
to support public, educational, or governmental channels or the
use of such channels or any other services required under the
franchise. . . .\131\
---------------------------------------------------------------------------
\131\ See 47 U.S.C. Sec. 543(b)(2).
Commenters argue that the separate listing of franchise fees (in v)
and the costs of PEG franchise requirements (in vi) is evidence that
franchise fees do not include PEG-related costs.\132\ We disagree. We
note that that the question of which factors the Commission should
consider in setting rate regulations is both legally and analytically
distinct from the question of which costs are included as a franchise
fee under section 622. Even if it were not, the separate listing of
franchise fees and PEG-related exactions in section 623 does not
indicate that Congress understood these categories to be mutually
exclusive. In general, section 623(b) directs the Commission to
consider several factors relating to cable operators' costs, revenue,
and profits to ensure that the Commission sets ``reasonable''
rates.\133\ Ensuring that a rate is ``reasonable'' requires a full
consideration of the costs borne by cable operators. Listing only
franchise fees would fail to account for some of these costs, even
under the interpretation adopted in this Order: Franchise fees and PEG
costs only partially overlap, given that section 622(g)(2) excludes
certain PEG-related exactions from the definition of franchise
fees.\134\ We therefore find nothing inconsistent about the separate
listing of franchise fees and PEG-related costs in section 623 and the
interpretation of section 622(g) adopted in this Order. The same
analysis applies to the bill-itemization requirements in section
622(c), which permits the separate itemization of franchise fees and
PEG-related assessments in subscriber bills.\135\
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\132\ CAPA Comments at 11 (``If Congress had intended that the
amounts required to satisfy franchise requirements be subject to, and
included in, the five percent franchise fee cap, Congress's direction
that the Commission consider these [factors in Section 623(b)(2)(C)] as
separate factors makes no sense.'').
\133\ 47 U.S.C. Sec. 542(b)(1).
\134\ Id. Sec. 542(g)(2)(C).
\135\ Id. Sec. 542(c). Several commenters raised section 622(c) as
evidence that franchise fees do not include PEG-related assessments.
See, e.g., Anne Arundel County et al. Comments at 11; NATOA et al.
Comments at 6; Hawaii Reply at 2. We note that section 622(c) was
adopted years after section 622(g) was enacted. See generally NCTA
Reply at 12-13 (discussing the legislative history of section 622(c));
Cable Television Consumer Protection and Competition Act, Pub. L. No.
102-385, Sec. Sec. 3, 9, 14, 106 Stat. 1460 (1992).
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(ii) Scope of Specific Franchise Fee Exclusions Related to PEG Access
Facilities
31. Consistent with our tentative conclusions in the Second
FNPRM,\136\ we conclude (1) that PEG support payments for any franchise
in effect on October 30, 1984 and (2) PEG capital costs for any
franchise granted after October 30, 1984 are exempt from the definition
of franchise fee. As discussed above, two provisions of section
622(g)(2) exclude certain costs associated with PEG access facilities
from the definition of ``franchise fee'' in section 622(g)(1): First,
section 622(g)(2)(B) excludes PEG support payments, but only with
respect to franchises granted prior to 1984.\137\ To the extent that
any such franchises are still in effect, we affirm that under section
622(g)(2)(B), PEG support payments made pursuant to such franchises are
excluded from the five percent franchise fee cap. Consistent with the
statutory language and legislative history, we find this exclusion is
broad in scope, and commenters did not dispute this interpretation in
the record.\138\
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\136\ Second FNPRM, 33 FCC Rcd at 8962, para. 19.
\137\ 47 U.S.C. Sec. 542(g)(2)(B) (excluding, ``in the case of any
franchise in effect on [October 30, 1984], payments which are required
by the franchise to be made by the cable operator during the term of
such franchise for, or in support of the use of, public, educational,
or governmental access facilities'').
\138\ See Second FNPRM, 33 FCC Rcd at 8962, para. 19. The
legislative history further supports this interpretation. H.R. Rep. No.
98-934, at 65 (1984) (``For existing franchises, a city may enforce
requirements that additional payments be made above the 5 percent cap
to defray the cost of providing public, educational and governmental
access, including requirements related to channels, facilities and
support necessary for PEG use.'').
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32. Second, for any franchise granted after 1984, section
622(g)(2)(C) contains a narrower exclusion covering only PEG ``capital
costs which are required by the franchise to be incurred by the cable
operator for [PEG] access facilities.'' \139\ The Cable Act does not
define ``capital costs''. We address the scope of this exclusion below
by first clarifying the definition of ``capital costs'' and concluding
that it can apply to contributions for both construction-related and
non-construction-related contributions to PEG access facilities. We
then determine that the record is insufficient to determine whether
costs associated with providing PEG channel capacity are subject to
this exclusion, and we discuss the application of the exclusion to PEG
transport.
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\139\ 47 U.S.C. Sec. 542(g)(2)(C) (excluding, ``in the case of any
franchise granted after [October 30, 1984], capital costs which are
required by the franchise to be incurred by the cable operator for
public, educational, or governmental access facilities'').
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33. Definition of ``capital costs.'' Although the Commission
previously asserted with respect to section 622(g)(2)(C) that
``[c]apital costs refer to those costs incurred in or associated with
the construction of PEG access facilities,'' we now revisit that
interpretation and provide additional clarity on the definition of this
term.\140\ As described below, we find that the term ``capital costs''
is not limited to construction-related costs; rather, it generally
encompasses costs incurred in acquiring or improving capital assets for
PEG access facilities.\141\ The Commission's previous reading of the
phrase ``capital costs'' was based in part on section 622(g)'s
legislative history, which states that the Cable Act excludes from the
franchise fee cap ``the capital costs associated with the construction
of [PEG] access facilities.'' \142\ The Sixth Circuit affirmed the
Commission's prior reading in Alliance, where, rejecting a challenge to
the Commission's construction of the term ``capital costs'' in the
First Report and Order, the court held that:
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\140\ Implementation of Section 621(a)(1) of the Cable
Communications Policy Act of 1984 as amended by the Cable Television
Consumer Protection and Competition Act of 1992, First Report and Order
and Further Notice of Proposed Rulemaking, 22 FCC Rcd 5101, 5150-51,
para. 109 (2007).
\141\ See infra paras. 33-41.
\142\ See H.R. Rep. No. 98-934, at 26 (making clear that Congress
intended section 622(g)(2)(C) to reach ``capital costs associated with
the construction of [PEG] access facilities.'').
[t]o determine the permissibility of the Commission's
construction of Section 622(g)(2)(C), we start by consulting
the legislative history. During the enactment of this
provision, Congress made clear that it intended Section
622(g)(2)(C) to reach ``capital costs associated with the
construction of [PEG] access facilities.'' H.R.Rep. No. 98-934,
at 26 (emphasis added). Against this legislative pronouncement,
the FCC's limitation of ``capital costs'' to those ``incurred
in or associated with the construction of PEG access
facilities'' represents an eminently reasonable construction of
Section 622(g)(2)(C).\143\
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\143\ All. for Cmty. Media v. FCC, 529 F.3d 763, 784 (6th Cir.
2008).
34. We asked for additional comment on the definition of ``capital
costs'' under section 622(g)(2)(C) in the Second FNPRM.\144\ Arguably,
the Commission's previous construction left unsettled the extent to
which the ``capital costs'' exclusion encompassed PEG equipment--such
as vans, studios, or cameras. In Alliance, the Sixth Circuit observed
that the Commission's definition of capital costs could encompass the
costs of such equipment, but only insofar as the equipment costs were
``relate[d] to the construction of PEG facilities.'' \145\ But neither
the First Report and Order nor the legislative history from which it
borrowed expressly limited capital costs to construction-related
capital costs. Both statements are silent--or, at most, unclear--about
the treatment of non-construction-related capital costs.
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\144\ The Second FNPRM noted that ``capital costs which are
required by the franchise to be incurred by the cable operator for
[PEG] access facilities'' are excluded from the definition of franchise
fee, and sought comment on treating the costs of studio equipment as
capital costs for the purpose of this exemption from the franchise fee
cap. See Second FNPRM, 33 FCC Rcd at 8962, para. 19 & n.95.
\145\ All. for Cmty. Media v. FCC, 529 F.3d 763, 784 (6th Cir.
2008) (``Instead, the Commission underscores that the central test for
determining whether an expense is a capital cost is whether it is
`incurred in or associated with the construction of PEG access
facilities.' (Id.) This definition could potentially encompass the cost
of purchasing equipment, as long as that equipment relates to the
construction of actual facilities.'').
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35. Based on the arguments in the record and our further
consideration of the statutory text and legislative history we now
conclude that the Commission's earlier statement regarding the
definition of ``capital costs'' was overly narrow. As commenters note,
many local governments receive payments from cable operators that are
not simply for the construction of PEG studios, but also for, among
other things, the acquisition of equipment needed to produce PEG access
programming.\146\ LFAs argue for a broader definition of ``capital
costs'' that would include PEG channel capacity and certain equipment
costs associated with PEG access facilities.\147\ By contrast, cable
companies have urged the Commission to reaffirm, based on its previous
statement, that ``capital costs'' are limited to costs associated with
the construction of PEG access facilities (and thus do not include
channel capacity and equipment such as cameras, or other equipment
necessary to run a PEG access facility).\148\
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\146\ See, e.g., NCTA Reply, Appendix (Examples of Franchising
Authority Overreach) at 7 & n.2 (noting that New York City provides
that public-access-related exactions may be designated for, among other
things, ``studio and portable production equipment, editing equipment
and program playback equipment, cameras, [and] office equipment'').
\147\ See, e.g., CAPA Comments at 15-16 (``The costs of acquiring
studio equipment clearly are capital costs. Studio equipment has a
useful life of several years, and the cost of acquiring such equipment
is capitalized. And these costs are equally clearly for PEG access
facilities.''); Anne Arundel County et al. Reply at 13-14 (noting that
capital expenditures commonly include, for example, ``everything from
repairing a roof, to building, to purchasing a piece of equipment, or
building a brand new factory''). Similarly, several commenters argue
that section 611's grant of authority to require PEG channels suggests
that the cost of such channels cannot count toward the five percent
franchise fee cap. Charles County Comments at 15 (``Section 611 of the
Act is unambiguous that PEG channels and PEG capacity are PEG capital
costs, not franchise fees subject to the statutory five percent
cap.''); CAPA Comments at 8 (noting that ``Congress could have
explicitly noted the franchise fee limitation in 47 U.S.C. Section
531(b) if it had intended to include these PEG-related costs as
franchise fees.''). We disagree with the notion that the Act's grant of
authority to require designation for PEG use necessarily excludes the
costs of PEG from the definition of franchise fees. As we note above,
the fact that the Act authorizes LFAs to impose such obligations does
not mean that the value of these obligations should be excluded from
the five percent cap on franchise fees. See supra para. 20. Section 622
governs ``Franchise Fees'' and makes clear that any items not expressly
excluded from that section's broad definition of franchise fees are
included against the statutory cap. Section 622 excludes some--but not
all--PEG-related costs.
\148\ NCTA Comments at 47-48 (``Accordingly, the Commission should
confirm that PEG capital costs include only construction of PEG
facilities (not cameras, playback devices and other equipment),
including construction costs incurred in or associated with a PEG
return line from the PEG studio to the operator's facility, and that
any additional asks (including transport costs) are not part of the
statutory exemption and must count towards the franchise fee cap.'').
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36. In general, when a term is undefined in a statute, courts look
to that term's ``ordinary meaning.'' \149\ While there is no general
definition of the precise term ``capital costs,'' Black's Law
Dictionary defines a similar term,\150\ ``capital expenditure,'' as
``[a]n outlay of funds to acquire or improve a fixed asset,'' and
defines a ``fixed asset,'' or ``capital asset'' as ``[a] long-term
asset used in the operation of a business or used to produce goods or
services, such as equipment, land, or an industrial plant.'' \151\
Merriam-Webster similarly defines ``capital expenditure'' as ``costs
that are incurred in the acquisition or improvement of property (as
capital assets) or that are otherwise chargeable to a capital
account,'' and defines ``capital assets'' as ``long-term assets either
tangible or intangible (as land, buildings, patents, or franchises).''
\152\ An accounting textbook provides yet another similar definition:
---------------------------------------------------------------------------
\149\ Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566 (2012)
(``When a term goes undefined in a statute, we give the term its
ordinary meaning.''); Sorenson Commc'ns, LLC v. FCC, 897 F.3d 214, 228
(D.C. Cir. 2018) (``Because Sec. 225 does not define `efficient,' we
give the term its ordinary meaning.'' (citing Taniguchi)).
\150\ Costs and expenditures are related, but not identical,
concepts. Black's Law Dictionary defines ``cost'' as ``the amount paid
or charged for something; price or expenditure.'' Black's Law
Dictionary (10th ed. 2014). Black's relevantly defines ``expenditure''
as ``a sum paid out.'' Id. While we recognize that ``cost'' and
``expenditure'' have distinct meanings in the accounting context, for
the purposes of our interpretation of section 622(g)(2)(C), we find
that the meanings of these terms are highly analogous--i.e., both
pertain to expending resources to acquire a capital asset. See also
Rosebud Enterprises, Inc. v. Idaho Pub. Utilities Comm'n, 128 Idaho
624, 628, 917 P.2d 781, 785 (1996) (``Capital costs include costs of
constructing and installing generating equipment and facilities and the
financial carrying costs associated with the utility's investment in
the facility. Once incurred, these investment costs are assumed to be
``fixed'' and will not vary with changes in the actual amount of
generation.''); 42 CFR Sec. 412.302 (defining ``capital costs'' to
mean, in the Medicare context, ``allowable capital-related costs for
land and depreciable assets'' including depreciation and capital-
related interest expense).
\151\ Black's Law Dictionary (10th ed. 2014). Cf. Collins English
Dictionary, https://www.collinsdictionary.com/us/dictionary/english/
capital-cost (last accessed May 6, 2019) (defining ``capital cost'' as
``a cost incurred on the purchase of land, buildings, construction and
equipment to be used in the production of goods or the rendering of
services'').
\152\ Merriam-Webster, Definition of ``Capital Expenditure,''
www.merriam-webster.com (accessed Apr. 15, 2019).
Expenditures for the purchase or expansion of plant assets are
called capital expenditures and are recorded in asset accounts.
. . . In brief, any material expenditure that will benefit
several accounting periods is considered a capital expenditure.
Any expenditure that will benefit only the current period or
that is not material in amount is treated as a revenue
expenditure.\153\
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\153\ Williams et al., Financial & Managerial Accounting: The Basis
for Business Decisions 396-97 (14th ed. 2008).
We also note that capital costs are distinct from operating costs
(or operating expenses), which are generally defined as expenses
``incurred in running a business and producing output.'' \154\
Reflecting this distinction, the Commission has distinguished between
costs incurred in building of PEG facilities, which are capital costs,
and costs incurred in using those facilities, which are not.\155\
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\154\ Black's Law Dictionary (10th ed. 2014) (operating expense).
\155\ First Report and Order, 22 FCC Rcd at 5150-51, para. 109.
---------------------------------------------------------------------------
37. While we may also look to legislative history or other context
in ascertaining a statute's meaning,\156\ none of these sources here
compels a narrower definition than that set forth above. The
legislative history is ambiguous: The passage relied on by the
Commission in the First Report and Order, from a summary in the House
Report, notes that ``capital costs associated with the construction of
[PEG] access facilities are excluded from the definition of a franchise
fee.'' \157\ But section 622(g)(2)(C) does not itself restrict capital
costs to costs that are construction related, nor does this passage in
the legislative history expressly say that the capital costs exclusion
is limited to such costs. And, as some commenters recognize, not all
capital costs related to PEG access facilities are related to
construction: studio equipment, vans, and cameras, often have useful
lives of several years, and the costs of acquiring such equipment are
often capitalized.\158\ Such costs therefore often fall within the
ordinary meaning of capital costs. Had Congress wished to exclude such
costs, it could have done so by narrowing the definition of ``capital
costs'' in the statute.
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\156\ See, e.g., AT&T Corp. v. Ameritech Corp., Memorandum Opinion
& Order, 13 FCC Rcd 21438, para. 28 (1998) (``Accordingly, using the
traditional tools of statutory construction, we look next to the
context in which the term is used and any relevant legislative history
to determine a reasonable meaning.''); In the Matter of Enf't of
Section 275(a)(2) of the Commc'ns Act of 1934, As Amended by the
Telecommunications Act of 1996, Against Ameritech Corp., 13 FCC Rcd
19046, para. 11 (1998) (``When the meaning of a statute is ambiguous,
it is appropriate to turn to legislative history for guidance.'').
\157\ See H.R. Rep. No. 98-934, at 19 (1984), as reprinted in 1984
U.S.C.C.A.N. 4655, 4656.
\158\ See, e.g., CAPA Comments at 15 (``The costs of acquiring
studio equipment clearly are capital costs. Studio equipment has a
useful life of several years, and the cost of acquiring such equipment
is capitalized. And these costs are equally clearly for PEG access
facilities.'').
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38. Consistent with our analysis above, we find that the phrase
``capital costs'' in section 622(g)(2)(C) should be interpreted in a
manner consistent with its ordinary meaning. Based on the definitions
discussed above, the term ``capital cost'' generally would be
understood to mean a cost incurred in acquiring or improving a capital
asset. Because the ordinary meaning of this term is not limited to
construction-related costs, we now find that the definition of
``capital costs'' as used in section 622(g)(2)(C) is not limited to
costs ``incurred in or associated with the construction of PEG access
facilities.'' \159\ We conclude that while capital costs include costs
associated with the construction of PEG access facilities, they are not
limited to such costs.\160\
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\159\ Implementation of Section 621(a)(1) of the Cable
Communications Policy Act of 1984 as amended by the Cable Television
Consumer Protection and Competition Act of 1992, First Report and Order
and Further Notice of Proposed Rulemaking, 22 FCC Rcd 5101, 5150-51,
para. 109 (2007).
\160\ We agree with NATOA that franchising authorities should be
given an opportunity to show that franchise fees are being spent on PEG
capital costs if a cable operator requests an offset against franchise
fees for non-monetary, cable-related franchise provisions. Letter from
Nancy Werner, General Counsel, NATOA, to Marlene H. Dortch, Secretary,
FCC at 2 (July 24, 2019) (NATOA July 24, 2019 Ex Parte).
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39. The ordinary meaning of ``capital costs'' could encompass the
acquisition of a non-construction-related capital asset--such as a van
or a camera. Section 622(g)(2)(C) only excludes certain capital costs--
those ``which are required by the franchise to be incurred by the cable
operator for [PEG] access facilities.''\161\ Section 602(16) defines
PEG access facilities as ``channel capacity . . . and facilities and
equipment for the use of such channel capacity.'' \162\ In the
legislative history, Congress explains that ``[t]his may include vans,
studios, cameras, or other equipment relating to the use of public,
educational, or governmental channel capacity.'' \163\ Based on this
statutory language and legislative history as well as the current
record, we believe at the present time that the definition of ``capital
costs'' in section 622(g)(2)(C) includes equipment purchased in
connection with PEG access facilities, even if it is not purchased in
conjunction with the construction of such facilities.\164\ But, as both
sections 622(g)(2)(c) and 602(16) make clear, the capital costs of such
equipment may be excluded only insofar as they are for the use of PEG
channel capacity.\165\
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\161\ 47 U.S.C. Sec. 542(g)(2)(C) (excluding, ``in the case of any
franchise granted after [October 30, 1984], capital costs which are
required by the franchise to be incurred by the cable operator for
public, educational, or governmental access facilities'').
\162\ See id. Sec. 522(16) (emphasis added).
\163\ H.R. Rep. No. 98-934, at 45.
\164\ We note that this view was affirmed by the Sixth Circuit in
Alliance. 529 F.3d at 785 (finding that ``the unambiguous expression of
Congress confirms that `PEG access capacity' extends not only to
facilities but to related equipment as well'').
\165\ See 47 U.S.C. Sec. 542(g)(2)(C) (excluding only capital costs
``for public, educational, or governmental access facilities''
(emphasis added)); id. Sec. 522(16) (defining PEG access facilities as
``channel capacity . . . and facilities and equipment for the use of
such channel capacity'' (emphasis added)).
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40. This interpretation seems most faithful to the text of section
622(g)(2)(C), which does not restrict capital costs to those that are
related to construction. We recognize that this interpretation reflects
a broader sense of capital costs than described in the First Report and
Order. To the extent that our interpretation today is inconsistent with
the Commission's earlier statements about the capital cost exclusion,
we find that the interpretation in this Order better comports with the
Act's language, structure, and policy objectives.\166\
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\166\ NCTA requests that we ``make clear that cable operators have
the right to audit a franchising authority's use of the contributions
and that a franchising authority must provide reasonable supporting
documentation during an audit that such funds are, or were, being used
for PEG capital expenses.'' NCTA Comments at 49. We decline to do so.
We find nothing in the Act that precludes a cable operator from
auditing an LFA's use of PEG capital funds, nor do we find anything
that gives a cable operator an audit right. We note that under section
635(b) of the Act, a court may award a cable operator the right to
audit if the court finds that relief appropriate. 47 U.S.C.
Sec. 555(b).
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41. We disagree with NCTA's assertion that there would have been
``no good reason'' to grandfather PEG equipment--such as vans and
cameras--if such equipment were ``subject to the permanent exception
from franchise fees under section 622(g)(2)(C).'' \167\ The statute
itself fully excludes PEG obligations for franchises in effect on
October 30, 1984, but excludes only PEG-related capital costs for
franchises granted after that date.\168\ The broader exclusion for
existing franchises in section 622(g)(2)(B) reflects the legislative
intent to grandfather the provisions of existing PEG franchises.\169\
Section 622(g)(2)(C) provides a narrower exclusion for new franchises
than the broad exclusion enjoyed by grandfathered existing franchises;
one would therefore expect these two exclusions to overlap, but not be
coextensive. Even under our interpretation of section 622(g)(2)(C),
section 622(g)(2)(B) remains a much broader exclusion than section
622(g)(2)(C): a number of costs--most notably, operating expenses--
would still be excluded by section 622(g)(2)(B), but not by section
622(g)(2)(C).\170\
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\167\ NCTA Mar. 11, 2019 Ex Parte at 3.
\168\ Compare 47 U.S.C. Sec. 542(g)(2)(B) with id.
Sec. 542(g)(2)(C).
\169\ H.R. Rep. No. 98-934 at *45 (1984). See also id. at *46
(``[P]rovisions of existing franchises covering PEG channel capacity
and its use as well as services, facilities and equipment (such as
studios, cameras, and vans) related thereto, are fully
grandfathered.'').
\170\ Salaries and training are two examples of operating costs
excluded by section 622(g)(2)(B), but not by section 622(g)(2)(C). See
First Report and Order, 22 FCC Rcd at 5151, para. 109 (``[Capital]
costs are distinct from payments in support of the use of PEG access
facilities. PEG support payments may include, but are not limited to,
salaries and training.'').
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42. PEG channel capacity. While we find that the costs associated
with the provision of PEG channel capacity are cable-related, in-kind
costs that fall within the definition of ``franchise fee,'' we find
that the record is insufficiently developed to determine whether such
costs should be excluded from the franchise fee as a capital cost under
the exemption in section 622(g)(2)(C). The Second FNPRM stated that,
while the Act authorizes LFAs to require that channel capacity be
designated for PEG use, this authorization does not necessarily remove
the costs of such obligations from the five percent cap on franchise
fees.\171\ In the record in this proceeding, cable operators generally
agreed with this statement,\172\ and LFAs generally disagreed.\173\ As
discussed above, the Act's authorization of a franchise obligation
(e.g., one related to PEG access facilities or I-Nets) does not remove
that obligation from the five percent cap on franchise fees.\174\ It
follows, then, that the costs associated with providing PEG channel
capacity fall within this cap as a cable-related, in-kind contribution
unless they are otherwise excluded under section 622(g)(2).\175\
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\171\ See Second FNPRM, 33 FCC Rcd at 8962-63, para. 20.
\172\ See, e.g., ACA Comments at 6 (``[T]he fact that subsection
611(b) authorizes LFAs to require franchisees to designate channel
capacity on institutional networks (`I-Nets') for governmental use does
not exempt the costs incurred to provide that capacity from treatment
as franchise fees.'').
\173\ See Charles County Reply at 7; MassAccess Reply at 8 (``Cable
operators cannot classify as `in-kind' an obligation which they are
legally bound to fulfill.'').
\174\ See supra para. 20.
\175\ One commenter notes that California law requires ``all video
service providers''--a category broader than just cable providers--to
``designate a sufficient amount of capacity'' for the provision of PEG
channels. See Comments of the City and County of San Francisco,
California Comments, at 8-9 (Nov. 14, 2018) (City and County of San
Francisco Comments) (quoting Cal. Pub. Util. Code Sec. 5870(a)).
Because this requirement applies to more than just cable operators,
commenters argue, it is a fee of ``general applicability'' excluded
under section 622(g)(2)(A) from the definition of franchise fee. See
id. The Eastern District of California recently held that a CPUC fee
under the same California law was a fee of general applicability on
these grounds. Comcast of Sacramento I, LLC v. Sacramento Metropolitan
Cable Television Commission, 250 F. Supp. 3d 616 (E.D. Cal. 2017). The
Ninth Circuit recently vacated and remanded this ruling on other
grounds. Comcast of Sacramento I, LLC v. Sacramento Metro. Cable
Television Comm'n, 923 F.3d 1163 (9th Cir. 2019). An assessment aimed
only at cable or cable-like services would not fall within section
622(g)(2)(A)'s exclusion as a ``tax, fee, or assessment of general
applicability.'' The text of section 622(g)(2)(A) of the Cable Act
identifies a ``tax, fee, or assessment imposed on both utilities and
cable operators or their services'' as a paradigmatic example of an
assessment of ``general applicability.'' 47 U.S.C. Sec. 542(g)(2)(A)
(emphasis added). The legislative history further explains that an
assessment of ``general applicability'' ``could include such payments
as a general sales tax, an entertainment tax imposed on other
entertainment business as well as the cable operator, and utility taxes
or utility user taxes which, while they may differentiate the rates
charged to different types of utilities, do not unduly discriminate
against the cable operator as to effectively constitute a tax directed
at the cable system.'' H.R. Rep. No. 98-934, at 64 (1984) (emphasis
added). Here, the provision of PEG capacity appears to be an obligation
specific to cable operators--the California law itself references the
provision of PEG capacity by ``cable operator[s].'' Cal. Pub. Util.
Code Sec. 5870(a). We also note that the PEG authority provided in
section 611 only applies to cable service, and that there are no PEG
requirements under Federal law for other video providers, like Direct
Broadcast Service (DBS) or over-the-top streaming services. In any
case, we need not settle the question whether a specific state law is
of general applicability to determine whether the provision of PEG
capacity, in general, falls within the definition of ``franchise fee.''
Accordingly, we decline to do so here. See infra para. 94.
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43. LFAs claim that the costs of providing PEG channel capacity do
fall within section 622(g)(2)(C)'s exclusion for PEG-related capital
costs. In support, they point out that the Act defines ``[PEG] access
facilities'' as ``(A) channel capacity designated for public,
educational, or governmental use; and (B) facilities and equipment for
the use of such channel capacity.''\176\ Thus, they assert, because
section 622(g)(2)(C) expressly applies to costs incurred by a cable
operator for ``[PEG] access facilities,'' it necessarily applies to
costs associated with PEG channel capacity.\177\ But, as the cable
operators state, the Act's inclusion of channel capacity in the
definition of ``[PEG] access facilities'' does not settle the question
of whether channel capacity costs fall under section 622(g)(2)(C). This
is because section 622(g)(2)(C) excludes only a particular subset of
PEG access facility costs--capital costs--from the definition of
franchise fees subject to the five percent cap, and cable operators
claim that PEG channel capacity is not a capital cost.\178\ Moreover,
even assuming that PEG channel capacity is not a capital cost and is
therefore subject to the five percent cap, the record reveals serious
difficulties regarding how to calculate the value of PEG channel
capacity to account for this cost.\179\
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\176\ See 47 U.S.C. Sec. 522(16). See also NATOA et al. Reply at 6-
7 (``Thus, by its very terms, the Cable Act excludes from franchise
fees the costs of ``facilities and equipment'' that facilitate use of
PEG channel capacity.'').
\177\ See, e.g., Anne Arundel County et al. Comments at 16-17.
\178\ See, e.g., NCTA Mar. 11, 2019 Ex Parte at 2 (making this
argument, and noting that ``the structure of Section 622(g)(2)(B)-(C)
makes clear that not all costs related to PEG access facilities are
capital costs'').
\179\ NCTA proposes valuing channel capacity at market cost;
anything less, NCTA argues, would be an additional subsidy beyond the
cost of the service itself. See NCTA Comments at 51, 54 (``If in-kind
exactions are valued only at incremental costs to the cable operator,
the provider is still subsidizing them--a result that is contrary to
Congress's goals of limiting the overall amount a provider is required
to give to the community and that works against the Commission's goals
of ensuring that providers can put funds to their highest and best use,
including for broadband deployment.''). LFAs raise a host of problems
with using the fair market value approach to value channel capacity.
See, e.g., MassAccess Reply at 11 (``The `fair market value' of PEG
channels and PEG capacity, however, is zero dollars.''); Charles County
Comments at 21 & n.74 (``Since PEG capacity has no commercial value,
the only cost to the cable operator for providing such capacity is the
capital cost of provisioning PEG channels.''); AWC et al. Comments at
14 (noting that assessing fair market value to PEG channel capacity
would leave LFAs without objective and sufficient guidelines for
valuation).
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44. Given this, we find that the questions raised by channel
capacity are complex, and that the record is not developed enough to
allow us to answer them. We therefore defer this issue for further
consideration.\180\ In the meantime, we find that the status quo should
be maintained, and that channel capacity costs should not be offset
against the franchise fee cap. This approach will minimize disruption
and provide predictability to both local franchise authorities and
cable operators.
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\180\ See U.S. Cellular Corp. v. FCC, 254 F.3d 78, 86 (D.C. Cir.
2001) (``[A]gencies need not address all problems in one fell swoop.''
(citations and internal quotation marks omitted)). We encourage parties
to supplement the record on the channel capacity issue. To the extent
that we are provided sufficient information to answer the complex
questions raised by channel capacity, we intend to resolve them in the
next twelve months.
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45. Limits on LFA Authority to Establish PEG Requirements. While we
do not reach a conclusion with respect to the treatment of PEG channel
capacity, we reiterate here that sections 611(a) and 621(a)(4)(B) of
the Act restrict the authority of LFAs to establish PEG channel
capacity requirements.\181\ We discussed the limits imposed by section
611(a) in the First Report and Order.\182\ We noted that, while section
611(b) does not place a limit on the amount of channel capacity that a
franchising authority may require, section 621(a)(4)(b) provides that a
franchising authority may require ``adequate assurance'' that the cable
operator will provide ``adequate'' PEG access channel capacity,
facilities, or financial support.\183\ We determined that ``adequate,''
as used in the statute, should be given its ordinary meaning--
``satisfactory or sufficient.'' \184\
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\181\ 47 U.S.C. Sec. Sec. 531(a), 541(a)(4)(b).
\182\ First Report and Order, 22 FCC Rcd at 5152, para. 112.
\183\ 47 U.S.C. Sec. 541(a)(4)(B).
\184\ First Report and Order, 22 FCC Rcd at 5152, para. 112
(quoting American Heritage Dictionary, Second College Edition (1991)).
Citing section 621(a)(1)'s prohibition on franchising authorities from
``unreasonably'' refusing to award competitive franchises, the
Commission found that, as a general matter, PEG support required by an
LFA in exchange for a franchise should be limited to what is reasonably
necessary to support ``adequate'' PEG facilities. Id. at 5153, para.
115. Based on that reasoning, the First Report and Order found certain
LFA requirements regarding PEG channels to be unreasonable, including
(1) duplicative PEG requirements; or (2) requiring a new entrant to pay
PEG support in excess of the incumbent's obligations. Id. at 5154,
paras. 119-20.
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46. In the Second FNPRM, the Commission again discussed the limits
on franchising authority requirements for PEG channels under section
611(b), identifying PEG channel capacity as an in-kind contribution and
seeking comment on the effects on cable operators and cable subscribers
of ``allowing LFAs to seek unlimited'' PEG operating support and other
cable-related, in-kind contributions.\185\ In response, commenters
submitted examples of what they claim are LFA requirements for
excessive numbers of PEG channels.\186\ LFAs responded with comments
defending such requirements, as well as requirements for associated PEG
support.\187\
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\185\ Second FNPRM, 33 FCC Rcd at 8963-64, paras. 20, 23.
\186\ See NCTA Reply, Appendix (Examples of Franchising Authority
Overreach) at 10-11 (describing LFA demands ranging from seven to as
many as 43 PEG channels).
\187\ See, e.g., Minnesota Association of Community
Telecommunications Administrators Mar. 5, 2019 Ex Parte at 2-3.
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47. We note that many states have attempted to strike a balance
between the costs of PEG channels to cable operators and the benefits
of PEG channels to the public by imposing reasonable limits on PEG
channel capacity. For example, some states have limited the number of
PEG channels--typically to two or three.\188\ Others have required that
PEG channels be returned if they are not substantially used.\189\
States have also tied the number of appropriate PEG channels to the
size of the population served.\190\
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\188\ See, e.g., Kan. Stat. Sec. 12-2023(5)(B)(h)(1) (establishing
limit of two PEG channels); N.R.S Sec. 711.810 (Nevada) (establishing
limit of three PEG channels); Mo. Rev. Stat Sec. 67.2703 (same);
O.C.G.A Sec. 36-76-8 (Georgia) (same); LA. RS 45:1369 (Louisiana)
(same); Ohio Rev. Code. Sec. 1332.30 (same); S.C. Code Ann. Sec. 58-12-
370 (same); Tenn. Code Ann. Sec. 7-59-309(e) (same); Tex. Util. Code
Sec. 66.009(c) (same); Wisc. Stat. Sec. 66.0420(5)(a) (same).
\189\ See, e.g., Fla. Stat. Sec. 610.109(5) (PEG channels must be
``activated and substantially used'' for ``at least 10 hours per day on
average, of which at least 5 hours must be non-repeat programming as
measured on a quarterly basis,'' excluding ``[s]tatic information
screens or bulletin-board programming''; and requiring the return of
PEG capacity if these criteria are not met); Cal. Pub. Util. Code
Sec. 5780(e) (requiring the return of PEG capacity to the cable
operator where the channel ``is not utilized by the local entity for at
least eight hours per day as measured on a quarterly basis''); Wis.
Stat. Sec. 66.0420(5)(b)(1)(a)-(b) (requiring the return of PEG
capacity that is not ``substantially utilized by the municipality,''
defined as providing ``40 hours or more of programming on the PEG
channel each week and at least 60 percent of that programming is
locally produced''). See also NCTA Apr. 18, 2019 Ex Parte at 6, n.28.
\190\ See, e.g., O.C.G.A Sec. 36-76-8 (maximum of two PEG channels
where the population is less than 50,000, and maximum of three PEG
channels elsewhere); Wisc. Stat. Sec. 66.0420(5) (same); N.R.S
Sec. 711.810 (same, but using 55,000 population as the inflection
point); Tenn. Code Ann. Sec. 7-59-309 (maximum of one PEG channel where
the population is less than 25,000, maximum of two PEG channels where
the population is greater than 25,000 but less than 50,000, and maximum
of three PEG channels where the population exceeds 50,000).
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48. We decline the invitation by cable operators to establish fixed
rules as to what constitutes ``adequate'' PEG channel capacity under
section 621(a)(4)(B).\191\ We recognize that the number of channels
necessary to further the goals of the Cable Act might vary depending
on, among other things, the number of subscribers within a franchise,
the area covered by a franchise, the number of cable operators within a
franchise, the area's population and geography, the cable-related
community needs and interests, and whether PEG channel capacity is
substantially used.\192\ In general, each of these factors is relevant
in determining whether an LFA has exceeded its authority under section
621(a)(4)(B) by demanding more than ``adequate'' capacity.\193\ We note
that LFA demands for PEG capacity requirements that are more than
``adequate'' are subject to judicial challenge under section 635 of the
Act, as well as other forms of relief.\194\ We also reserve the right
to establish fixed rules in the future should there be widespread
evidence of LFAs requiring more than adequate PEG channel capacity.
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\191\ See, e.g., Altice May 9, 2019 Ex Parte at 9 (``Given the
uncertainty around the valuation of channel capacity on cable systems
for PEG use, the Commission should consider adopting a rebuttable
presumption under Section 621(a)(4)(B) that providing three linear
standard-definition PEG channels satisfies a cable operator's
obligations under Section 611(a), unless state law requires fewer
channels.'' (citations omitted)). As noted in paragraph 45, the
Commission concluded that ``adequate'' should be given its plain
meaning, ``satisfactory or sufficient'' in the First Report and Order.
First Report and Order, 22 FCC Rcd at 5152, para. 112. The Sixth
Circuit affirmed this interpretation. All. for Cmty. Media, 529 F.3d at
785.
\192\ See, e.g., LFA Comments at 12 (discussing the need for a
greater number of PEG channels where a franchise covers a large area
with many cable operators). See also 47 U.S.C. Sec. 546(a)(1)(A),
546(c)(1)(D) (discussing cable renewal standards).
\193\ LFAs argue that relying on the section 621 ``adequate''
standard conflicts with the standards established by section 626 in the
context of franchise renewals, which generally ask whether a renewal
proposal is reasonable to meet the ``needs and interests'' of the
community. See Anne Arundel County et al. July 24, 2019 Ex Parte at 8.
We see no such conflict. Section 621 establishes ``General Franchise
Requirements,'' and nothing in Section 626 suggests that these general
limits do not apply in the context of a franchise renewal. See 47
U.S.C. Sec. Sec. 541, 546. As NCTA points out, to find that franchise
renewals are constrained only by section 626's ``needs and interests''
inquiry would mean, among other things, that franchise renewals would
be unconstrained by the statutory cap on franchise fees in section 622.
See NCTA July 25, 2019 Ex Parte at 6.
\194\ 47 U.S.C. Sec. 555(a) (``Any cable operator adversely
affected by any final determination made by a franchising authority
under Section 621(a)(1), 625 or 626 may commence an action within 120
days after receiving notice of such determination may be brought in--
(1) the district court of the United States for any judicial district
in which the cable system is located; or (2) in any State court of
general jurisdiction having jurisdiction over the parties.'').
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49. PEG transport. We find that the installation of transport
facilities dedicated for long-term use by a PEG provider for the
transmittal of recurring programming to a cable headend or other point
in the cable system--PEG transport--does not count toward the five
percent franchise fee cap. For the reasons explained above, we find
that exempting capital costs from the five percent cap is consistent
with the Act. The expenditure for the installation of a system that
carries PEG programming from a PEG studio to a cable operator's headend
facility is a capital expenditure because it is a long-term asset meant
to deliver the programming.\195\ The ongoing costs associated with the
maintenance or operation of that facility would not qualify as a
capital expenditure, however, as these are operating costs that are
necessary to run the business and produce output.\196\ NCTA requests
that we declare PEG transport costs beyond ``a single PEG transport
return line [that] is dedicated to connecting the PEG studio to the
cable network or headend'' to count toward the five percent cap.\197\
Although we agree that the costs associated with the use of transport
lines for ``episodic'' or ``short-term'' PEG programming is an
operating cost that is subject to the franchise fee cap,\198\ we
decline to establish a fixed quantity of PEG transport return lines
that is ``adequate'' under section 621(a)(4)(B).\199\ Like the number
of PEG channels on a system, the number of adequate return lines in a
franchise area might vary according to particular circumstances like
the number of subscribers in the franchise area, the area covered by
the franchise and the number of cable operators in the franchise. The
number also might vary depending on the number of PEG channels provided
in a franchise area and the types of programming offered over them.
Nevertheless, any LFA requests for multiple transport connections
dedicated for long-term PEG use that the cable operator considers to be
more than ``adequate'' are subject to judicial challenge under section
635 of the Act.\200\
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\195\ See supra para. 36 (distinguishing capital expenditures from
operating expenditures).
\196\ Id. See also NCTA July 18, 2019 Ex Parte at 2 (``the costs
for using [a PEG] facility--and the costs for using capacity over
shared facilities to transmit PEG programming--and not just the costs
of maintenance of such facility, would be considered operating costs
under the statute and the Draft Order. The fair market value of the use
of such capacity, therefore, are costs that count against the franchise
fee cap.'').
\197\ NCTA July 18, 2019 Ex Parte at 2; NCTA Comments at 47-48.
\198\ NCTA July 29, 2019 Ex Parte at 2-3. See also Merriam-Webster,
Definition of ``Capital Expenditure,'' www.merriam-webster.com
(accessed Apr. 15, 2019) (defining ``capital assets'' as ``long-term
assets either tangible or intangible''); supra para. 36.
\199\ 47 U.S.C. Sec. 541(a)(4)(B); NCTA July 18, 2019 Ex Parte at
2. We note, however, that NCTA cites a particularly egregious example
of a ``transport line [that] is used once a year for a Halloween
parade'' that seems well beyond what constitutes adequate facilities.
NCTA July 29, 2019 Ex Parte at 1-2.
\200\ 47 U.S.C. Sec. 555(a) (``Any cable operator adversely
affected by any final determination made by a franchising authority
under Section 621(a)(1), 625 or 626 may commence an action within 120
days after receiving notice of such determination may be brought in--
(1) the district court of the United States for any judicial district
in which the cable system is located; or (2) in any State court of
general jurisdiction having jurisdiction over the parties.'').
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(iii) Policy Concerns and the Impact on PEG Programming
50. We acknowledge the benefits of PEG programming and find that
our interpretations adopted above are faithful to the policy objectives
of the Cable Act. A significant number of comments in the record
stressed these benefits, which include providing access to the
legislative process of the local governments, reporting on local
issues, providing a forum for local candidates for office, and
providing a platform for local communities--including minority
communities.\201\ Of course, Congress itself similarly recognized the
importance of PEG programming by authorizing LFAs to require the
provision of PEG channel capacity in the Cable Act,\202\ and by carving
out certain costs of such programming from the five percent cap on
franchise fees.\203\ Nothing in this proceeding disturbs the
Commission's longstanding view that PEG programming serves an important
role in local communities.\204\
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\201\ See, e.g., ACT Comments at 3 (calling local PEG programming
``critically important''); City Coalition Comments at 17-18 (noting,
among other things, that PEG programming has become increasingly
important and other sources of local news have experienced resource
constraints and industry consolidation); Comments of Common Frequency,
at 2 (Nov. 14, 2018) (Common Frequency Comments) (``PEGs also provide
platforms for free speech, space for communities to organize, and serve
as advocates for media access.''); Comments of King County, Washington,
at 9 (King County Comments) (noting that PEG channels provide important
programming such as County Council meetings and programming targeted at
minority communities); LMCTV Comments at 1-2 (citing the educational
resources that PEG channels provide to the local community); Letter
from Rony Berdugo, Legislative Representative, League of California
Cities, to Ajit Pai, Chairman, FCC, at 2 (Oct. 30, 2018) (``PEG
programming offers a host of community benefits, including public
access channels, educational access channels, and government access
channels all aimed at providing locally beneficial information.'');
City and County of San Francisco Comments at 2 (noting that SFGovTV
provides ``access to the legislative process,'' explains local issues,
explores neighborhoods, and offers a forum for local candidates for
office).
\202\ 47 U.S.C. Sec. 542(g)(2)(C) (excluding only PEG related
``capital costs'' from the definition of ``franchise fees'').
\203\ Id. Sec. 542(g)(2)(B)-(C). See also H.R. Rep. No. 98-934, at
30 (``Public access channels are often the video equivalent of the
speaker's soap box or the electronic parallel to the printed leaflet.
They provide groups and individuals who generally have not had access
to the electronic media with the opportunity to become sources of
information in the electronic marketplace of ideas. PEG channels also
contribute to an informed citizenry by bringing local schools into the
home, and by showing the public local government at work.'').
\204\ Accessibility of User Interfaces, & Video Programming Guides
& Menus, Report and Order, MB Docket Nos. 12-108, 12-107, 28 FCC Rcd
17330, 17378, para. 75 (2013) (``We recognize the important role of PEG
providers in informing the public, including those who are blind or
visually impaired, on local community issues. '').
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51. At the same time, the Cable Act seeks to encourage deployment
and competition by limiting the franchise fees that LFAs may
collect.\205\ These include limitations on imposing costs associated
with the provision of PEG programming.\206\ A number of cable operators
express concern with excessive LFA requirements for PEG channel
capacity, support, and in-kind contributions.\207\ Altice, for example,
notes that ``PEG operational contributions . . . are common and
routinely treated as separate from the 5 percent franchise fee.'' \208\
Commenters likewise suggest that these excessive PEG-related demands
can hinder competition and deployment.\209\
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\205\ 47 U.S.C. Sec. 542. See Letter from Rep. Robert E. Latta,
Member of Congress, et al., to Chairman Ajit Pai, FCC at 1 (July 22,
2019) (``The Cable Act carefully balanced the need to compensate
communities for use of public rights-of-way with imperatives to expand
services and limit costs for consumers.'').
\206\ 47 U.S.C. Sec. 541(a)(4)(B).
\207\ See, e.g., Altice Reply at 7 (describing what it claims are
excessive demands for PEG support); NCTA Reply, Appendix (Examples of
Franchising Authority Overreach) at 9-11 (describing what NCTA argues
are excessive LFA demands for PEG operational support, financial
support, and channel capacity requirements).
\208\ Altice Reply at 7.
\209\ NCTA Comments at 43 (citing First Report and Order, 22 FCC
Rcd 5149-50, paras. 105-08). See also Americans for Tax Reform May 8,
2019 Ex Parte, Att. at 3 (showing that extra-statutory exactions from
cable operators ``reduce the expected flow of revenues and/or increase
the cost of an investment project, either of which reduces the net
present value of an investment project and attenuates capital
investments'').
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52. The Cable Act itself, as interpreted in this Order, balances
these costs and benefits. By excluding PEG-related capital costs from
the five percent cap on franchise fees, but leaving other PEG-related
exactions subject to that cap, the Cable Act divides the financial
burden of supporting PEG programming between LFAs and cable
operators.\210\ By counting a portion of these costs against the
statutory cap on franchise fees that LFAs may collect, the Cable Act
allows LFAs to seek support for PEG programming from cable operators,
while guarding against the possibility that LFAs will make demands for
such programming without regard to cost.
---------------------------------------------------------------------------
\210\ See supra paras. 38-41 (discussing the capital cost exclusion
under section 622(g)(2)(C)).
---------------------------------------------------------------------------
53. Some commenters have suggested that the proposals in the Second
FNPRM threaten to eliminate or drastically reduce PEG programming.\211\
We disagree. Significantly, any adverse impact of our ruling on PEG
programming should be mitigated by (1) the expansion of the ``capital
cost'' exclusion beyond merely capital costs associated with
construction;\212\ and (2) our decision to defer ruling on whether the
costs of channel capacity may be counted under this exclusion.\213\
Under the interpretation adopted in this Order, cable operators will
continue to provide support where an LFA chooses, but some aspects of
that support will now be properly counted against the statutory five
percent franchise fee cap, as Congress intended.\214\ We recognize that
this represents a departure from the longstanding treatment of PEG
costs by LFAs and cable operators. We do not, however, believe that
these conclusions will eliminate PEG programming. Nor do we believe
that the existing practice was lawful merely because it was
longstanding: the Commission's duty is to conform its rules to law, not
tradition.
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\211\ See, e.g., Free Press Reply at 1 (noting that the proposal
``threaten[s] PEG channel support''); NATOA et al. Comments at 10
(warning that ``drastic reductions in franchise fees'' will jeopardize
the existence of PEG stations); Hawaii Comments at 7 (``Treating PEG
channel capacity as a franchise fee would also result in an impossible
choice for the State because the majority of the franchise fees that
are currently collected are allocated to the PEG access organizations
for their operating expenses''). This concern was also expressed in a
number of letters from members of Congress. See, e.g., Letter from Sen.
M. Hirono to Ajit Pai, Chairman, FCC (Dec. 18, 2018) (``The proposed
rulemaking, if adopted as currently proposed, would implement an overly
broad definition of in-kind contributions in a way that would encourage
cable providers to reduce the dollar contribution portion of the
franchise fee. This would have the effect of constraining PEGs ability
to serve the public as they have for decades.''); Letter from Rep. G.
Moore to Ajit Pai, Chairman, FCC, at 2 (Dec. 14, 2018) (``Under the
FCC's proposal, Wisconsin municipalities will have a hard choice to
make between crucial municipal services and purchasing a PEG channel
for the use of the community.''); Letter from Rep. E. Engel to Ajit
Pai, Chairman, FCC (Dec. 13, 2018) (``I am concerned that the FCC's
current proposal could jeopardize critical funding for public,
educational, and governmental (PEG) stations.'').
\212\ Compare supra para. 40 with Second FNPRM, 33 FCC Rcd at 8962,
para. 19.
\213\ Compare supra para. 44 with Second FNPRM, 33 FCC Rcd at 8962-
63, para. 20. NATOA et al. say that these aspects of our decision will
not have a mitigating impact on the availability of PEG programming.
See NATOA et al. July 24, 2019 Ex Parte at 4. They suggest that this
Order ``is not a boon to LFAs'' because it was already clear that both
construction-related and non-construction-related PEG equipment costs
are exempt from the franchise fee cap. This is incorrect. As we explain
above, the scope of the PEG capital cost exemption previously was left
unsettled. See supra para. 34. This Order clarifies that issue by
finding that equipment costs unrelated to construction may be
considered capital costs for purposes of section 622(g)(2)(C).
\214\ Finally, a number of commenters argue that PEG requirements
confer a benefit on the community, like buildout requirements, and
therefore should similarly not be considered a ``contribution'' to
LFAs. We find that PEG requirements are distinguishable from buildout
requirements for the reasons discussed below. See infra para. 57. PEG
requirements, unlike buildout requirements, are also specifically
discussed in the definition of franchise fee.
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54. To the extent that existing practices are inconsistent with the
law, LFAs will still have a choice: they can continue to receive
monetary franchise payments up to the five percent cap, they can
continue to receive their existing PEG support and reduce the monetary
payments they receive, or they can negotiate for a reduction of both
that fits within the bounds of the law that Congress adopted.
c. I-Nets
55. We find that the costs associated with the construction,
maintenance, and service of an I-Net fall within the five percent cap
on franchise fees. Such costs are cable-related, in-kind contributions
that meet the definition of franchise fee. In particular, agreeing to
construct, maintain, and provide I-Net service pursuant to the terms of
a franchise agreement is necessarily cable-related, is an in-kind
(i.e., non-monetary) contribution imposed on a cable operator by a
franchise authority, and is not included in one of the enumerated
exceptions from the franchise fee in section 622(g)(2) of the Act.\215\
Thus, we believe that including such services in the franchise fee is
consistent with the statute.\216\ As we tentatively concluded in the
Second FNPRM, treating cable-related, in-kind contributions, such as I-
Net requirements, as franchise fees would not undermine provisions in
the Act that authorize or require LFAs to impose cable-related
obligations on franchisees.\217\ We disagree with LFA commenters who
argue that the cost of I-Nets should be excluded from the franchise
fee.\218\ Although such commenters contend that ``[t]he Commission's
proposal to require LFAs to pay for I-Nets. . .cannot be squared with
the statute,'' \219\ it is entirely consistent with the statute to find
that franchising authorities may impose cable-related requirements,
such as requiring dedicated channel capacity on I-Nets, on cable
operators, but also to find that funding for these franchise
requirements applies against the five percent cap.\220\ Similar to our
conclusion with respect to PEG support, while we acknowledge that I-
Nets provide benefits to communities,\221\ such benefits cannot
override the statutory framework, which carves out only limited
exclusions from franchise fees.
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\215\ See 47 U.S.C. Sec. 542(g)(2); supra para. 11. See also 47
U.S.C. Sec. 531(f) (defining an ``institutional network'' or I-Net as
``a communications network which is constructed or operated by the
cable operator and which is generally available only to subscribers who
are not residential subscribers'').
\216\ See NCTA Comments at 49-50. See Second FNPRM, 33 FCC Rcd at
8963, para. 20.
\217\ Second FNPRM, 33 FCC Rcd at 8962-63, para. 20. See supra
para. 20.
\218\ See, e.g., City of Arlington Comments at 9; Charles County
Comments at 17-19.
\219\ See Anne Arundel County et al. Comments at 17.
\220\ See, e.g., NCTA Reply at 9 (explaining that ``Congress left
to the franchising authority's discretion how best to allocate the
franchise fee to reflect its community's particular cable-related
needs''); supra para. 20.
\221\ See, e.g., Hawaii Comments at 8; City of Hagerstown Reply at
10-11. See also NATOA July 24, 2019 Ex Parte at 1 (arguing that this
decision could ``create significant public safety risks if, for
example, [its] treatment of existing franchise obligations affects
infrastructure such as institutional networks now being used for
delivery of public safety services''). Anne Arundel County et al.
contend that the obligation to provide I-Nets ``benefits not only the
public, but also the cable operator, who is in a position to sell
commercial services via I-Nets,'' and they argue that the Commission
``offers no explanation as to how such a mutually beneficial
arrangement constitutes a tax.'' See Anne Arundel County et al. July
24, 2019 Ex Parte at 8. However, it is unclear from the record to what
extent, if any, cable operators benefit from providing I-Nets. See,
e.g., NCTA Reply at 17 (``I-Nets, and other in-kind exactions serve no
similar essential function for the provision of cable service to
subscribers, but rather provide value to franchising authorities or
particular third parties for purposes determined to be in the public
interest by the franchising authority.'').
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56. Further, as we conclude above, we disagree with commenters that
section 611(b) of the Act, which authorizes LFAs to require that
channel capacity on I-Nets be designated for educational and
governmental use, should be interpreted to exempt the costs of I-Nets
from franchise fees.\222\ There is no basis in the statutory text for
concluding that section 611(b) imposes any limit on the definition of
franchise fee.\223\ Moreover, section 622(g) defines what is included
in the franchise fee, and section 622(g)(2) carves out only limited
exclusions for PEG-related costs and does not exclude I-Net-related
costs. As we observe above,\224\ since Congress enacted the PEG and I-
Net provisions at the same time it added the franchise fee provisions,
it could have explicitly excluded all costs related to I-Nets if it had
intended they not count toward the cap.\225\
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\222\ 47 U.S.C. Sec. 531(b); supra para. 20.
\223\ See ACA Comments at 6; NCTA Reply at 7-8.
\224\ See supra para. 20.
\225\ Anne Arundel County et al. suggests that our interpretation
of the statute as it relates to I-Nets is somehow inconsistent with the
Commission's holding in a 1996 open video systems order. See Anne
Arundel County et al. July 24, 2019 Ex Parte at 12-13 (citing
Implementation of Section 302 of the Telecommunications Act of 1996;
Open Video Systems, Third Report and Order and Second Order on
Reconsideration, 11 FCC Rcd 20227 (1996) (OVS Order)). Contrary to Anne
Arundel County et al.'s assertion, the Commission did not conclude in
the OVS Order that I-Nets were meant to be excluded from the franchise
fee. Rather, that order affirmed the Commission's decision to preclude
local franchising authorities from requiring open video system
operators to build I-Nets, while also clarifying that this decision is
not inconsistent with permitting the local franchising authority to
require channel capacity on a network if an open video system operator
does build one. See OVS Order, 11 FCC Rcd at 20290-91, paras. 146-47.
As we explain above, it is entirely consistent with the statute to find
that franchising authorities may impose cable-related requirements,
such as requiring dedicated channel capacity on I-Nets, but also to
find that funding for these requirements applies against the five
percent cap.
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d. Build-Out and Customer Service Requirements
57. We conclude that franchise terms that require cable operators
to build their systems to cover certain localities in a franchise area
do not count toward the five percent cap.\226\ As we explain herein,
Title VI establishes a framework that reflects a fundamental bargain
between the cable authority and franchising authority--a cable operator
may apply for and obtain a franchise to construct and operate
facilities in the local rights-of-way and, in exchange, an LFA may
impose fees and other requirements as set forth in the Act.\227\ The
statutory framework makes clear that the authority to construct a cable
system is granted to the cable operator as part of this bargain and
that the costs of such construction are to be borne by the cable
operator. Specifically, section 621(a)(2)(B) of the Act provides that
``[a]ny franchise shall be construed to authorize the construction of a
cable system over public rights-of-way, and through easements, . . .
except that in using such easements the cable operator shall ensure . .
. that the cost of the installation, construction, operation, or
removal of such facilities be borne by the cable operator or
subscriber, or a combination of both.'' \228\ Because the statute is
clear that cable operators, not LFAs, are responsible for the cost of
building out cable systems, it would be inconsistent with the statutory
text and structure to count these costs as part of the franchise
fee.\229\ Both cable industry and LFA commenters generally support the
contention that build-out obligations should not count toward the five
percent franchise fee cap.\230\
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\226\ See Second FNPRM, 33 FCC Rcd at 8963, para. 21. Build-out
requirements are requirements that a franchisee expand cable service to
parts or all of the franchise area within a specified period of time.
See First Report and Order, 22 FCC Rcd at 5107, para. 7.
\227\ See infra para. 84.
\228\ 47 U.S.C. Sec. 541(a)(2)(B).
\229\ Because the statute is clear with regard to cable operator
responsibility for construction costs, we reject ACA's argument that
``build-out obligations should only be excluded [from the franchise
fee] to the extent an LFA needs to meet its obligation under paragraph
621(a)(3)'' to assure that access to cable service is not denied to any
group of potential residential cable subscribers because of the income
of the residents of the local area in which such group resides. See ACA
Comments at 7-8; 47 U.S.C. Sec. 541(a)(3). See also Anne Arundel County
et al. Reply at 9-11; CAPA Reply at 13.
\230\ See Comments of the City of Murfreesboro, Tennessee, at 2
(Nov. 6, 2018) (City of Murfreesboro Comments); Comments of the City of
Pasco, Washington, at 2 (Nov. 14, 2018); Comments of the City of
Springfield, at 2 (Nov. 13, 2018); Anne Arundel County et al. Reply at
9-10; Free Press Reply at 5, NCTA Reply at 16. While some LFA
commenters disagree with distinguishing between build-out obligations
and other cable-related contributions such as PEG and I-Net support
based on which entities receive the benefit of such obligations or
whether such obligations can be considered ``essential'' to the
provision of cable services, because we have clarified the rationale
for excluding build-out obligations, we do not need to address these
arguments. See AWC et al. Comments at 10-11; CAPA Comments at 12-13;
Hawaii Comments at 10-11; City of Murfreesboro Comments at 2-3; NATOA
et al. Comments at 6-7; City of New York Comments at 8-9; TBNK Comments
at 7; Free Press Reply at 5-6; Hawaii Reply at 3-4. See also State of
Hawaii July 22, 2019 Ex Parte at 1-4; Anne Arundel County, et al. July
24, 2019 Ex Parte at 2-4; NATOA et al. July 25, 2019 Ex Parte at 5-6.
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58. We also conclude that franchise terms that require cable
operators to comply with customer service standards do not count toward
the five percent cap.\231\ LFA commenters explain that cable operators
are required to comply with customer service standards under Federal or
state law, and that cable franchises may include an obligation to
comply with customer service standards.\232\ Notably, section 632 of
the Act directs the Commission to ``establish standards by which cable
operators may fulfill their customer service requirements,'' including
``at a minimum, requirements governing--(1) cable system office hours
and telephone availability; (2) installations, outages, and service
calls; and (3) communications between the cable operator and the
subscriber (including standards governing bills and refunds.'' \233\
The Commission implemented this mandate in section 76.309 of its rules,
which sets forth with specificity the customer service standards to
which cable operators are required to adhere relating to cable system
office hours and telephone availability, installations, outages and
service calls, and communications between cable operators and cable
subscribers.\234\ We find that franchise terms that require cable
operators to adhere to customer service standards are not part of the
franchise fee. In contrast to in-kind, cable-related contributions that
are franchise fees subject to the statutory cap, such as the provision
of free cable service to government buildings or PEG and I-Net
support,\235\ customer service obligations are not a ``tax, fee, or
assessment'' imposed on a cable operator; they are regulatory standards
that govern how cable operators are available to and communicate with
customers. Indeed, as the legislative history explains, ``[i]n general,
customer service means the direct business relation between a cable
operator and a subscriber,'' and ``customer service requirements
include requirements related to interruption of service; disconnection;
rebates and credits to consumers; deadlines to respond to consumer
requests or complaints the location of the cable operator's consumer
service offices; and the provision to customers (or potential
customers) of information on billing or services.'' \236\ Based on our
review of the statutory text and legislative history, we find no
indication that Congress intended that standards governing a cable
operator's ``direct business relation'' with its subscribers should
count toward the franchise fee cap. Apart from ACA, no commenter argued
that customer service obligations should be included as franchise
fees.\237\
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\231\ In the Second FNPRM, we sought comment on whether there are
other requirements besides build-out requirements that should not be
considered contributions to an LFA. See Second FNPRM, 33 FCC Rcd at
8963, para. 21.
\232\ See Anne Arundel County et al. Comments at 28 (``LFAs often
impose obligations such as ... minimum customer service obligations on
cable operators that may still result in profit to the cable operator
... but also do not directly serve county personnel or buildings.'');
id. at 29 (providing as an example the California state franchise,
which requires state franchise holders to comply with customer service
and protection standards); City of Newton Comments at 14 (``Under
Federal and state law, cable operators are required to comply with
customer service standards. Cable franchise agreements include an
obligation to comply with these customer service standards. Compliance
with types of consumer-facing standards should not be treated as cable-
related in-kind contributions.''). See also NCTA Mar. 13, 2019 Ex Parte
at 8 (observing that ``neither the Commission nor the cable industry
has suggested that ... costs [of customer service obligations] should
count toward the statutory cap'').
\233\ 47 U.S.C. Sec. 552(b).
\234\ 47 CFR Sec. 76.309(c)(1)-(3).
\235\ We clarify that if LFAs request build-out to an area that
includes a public building, we would consider that to be a build-out
requirement that is not subject to the franchise fee. However, we note
that our conclusion with respect to build-out and customer service
requirements is entirely separate from our findings regarding the
provision of free or discounted services to public buildings and the
provision of I-Net services. I-Net services as well as free or
discounted services to public buildings are counted toward the
franchise fee for the reasons explained above. See supra Sections
III.A.2.a, III.A.2.c.
\236\ H.R. Rep. No. 98-934, at 79 (1984), as reprinted in 1984
U.S.C.C.A.N. 4655, 4716.
\237\ See ACA Reply at 17 (arguing that cable-related, in-kind
contributions on any cable franchisee, other than capital costs for PEG
access facilities, should count towards the franchise fee cap). For the
reasons discussed above, we disagree with ACA that the costs of
complying with mandated customer service standards should be counted
toward the franchise fee cap.
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3. Valuation of In-Kind Contributions and Application to Existing
Franchises
59. As we explain in this section, we conclude that cable-related,
in-kind contributions will count toward the five percent franchise fee
cap at their fair market value. Because we conclude above that most
cable related, in-kind contributions must be included in the franchise
fee, cable operators and LFAs must assign a value to them. In our prior
rulemakings, we did not provide guidance on how to value such
contributions,\238\ but in the Second FNPRM, the Commission recognized
that cable-related contributions could count toward the franchise fee
cap at cost or at fair market value, and proposed to count toward the
franchise fee cap at their fair market value.\239\
---------------------------------------------------------------------------
\238\ First Report and Order, 22 FCC Rcd at 5149-50, paras. 105-
108.
\239\ Second FNRPM, 33 FCC Rcd at 8964, para. 24.
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60. Most critiques of applying fair market valuation in this
context challenge how it could be applied to PEG channel capacity.\240\
But, as discussed above, we have not yet determined whether to assign
the value of PEG channel capacity contributions toward the five percent
franchise fee cap, and therefore we do not need to address these
arguments.
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\240\ See, e.g., Anne Arundel County et al. Comments at 31; QC4
Comments at 5; CCSF Comments at 4-7; BNN Reply at 4.
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61. We must address the value of other in-kind contributions,
however, including free service to public buildings and I-Net
contributions. We believe that fair market value, where there is a
product in the market,\241\ is the most reasonable valuation for in-
kind contributions because it is easy to ascertain--cable operators
have rate cards to set the rates that they charge customers for the
services that they offer. Moreover, a fair market valuation ``reflects
the fact that, if a franchising authority did not require an in-kind
assessment as part of its franchise, it would have no choice but to pay
the market rate for services it needs from the cable operator or
another provider.'' \242\ In contrast, valuing these in-kind
contributions at cost would ``shift the true cost of an exaction from
their taxpayer base at large to the smaller subset of taxpayers who are
also cable subscribers.'' \243\ As we note above, Congress adopted a
broad definition of franchise fee to limit the amount that LFAs may
exact from cable operators.\244\ Accordingly, we conclude that a fair
market valuation for in-kind contribution best adheres to Congressional
intent.
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\241\ See, e.g., NCTA Comments at 53-55 (explaining that parties
can establish the value of many services, including I-Net service,
based on what ``cable operators are charging third parties for a
comparable service'' and the ``[m]arket value of equivalent services
and equipment from the relevant cable operator''). We note that certain
business or enterprise services may be comparable to I-Nets.
\242\ NCTA Comments at 52. This demonstrates the flaw in NATOA et
al.'s argument that we must provide guidance on how to calculate fair
market value. See NATOA July 24 Ex Parte at 7. If the LFA believes that
the cable operator's proposed valuation is too high, the LFA is free to
forgo the in-kind contribution, accept a monetary franchise fee
payment, and use the funds it received to purchase the good or service
in the competitive marketplace.
\243\ NCTA Reply at 19.
\244\ See supra paras. 12-16. See also 129 CONG. REC. 15,461 (1983)
(remarks of Senator Goldwater) (``[T]he overriding purpose of the 5-
percent fee cap was to prevent local governments from taxing private
operators to death as a means of raising local revenues for other
concerns. This would be discriminatory and would place the private
operator/owners at a disadvantage with respect to their competitors.'')
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62. The franchise fee rulings we adopt in this Order are
prospective.\245\ Thus, cable operators may count only ongoing and
future in-kind contributions toward the five percent franchise fee cap
after the Order is effective. There is broad record support for
applying the rulings prospectively; no commenter argues that our
rulings should apply retroactively to allow cable operators to recoup
past payments that exceed the five percent franchise fee cap.\246\ To
the extent a franchise agreement that is currently in place conflicts
with this Order, we encourage the parties to negotiate franchise
modifications within a reasonable time.\247\ If a franchising authority
refuses to modify any provision of a franchise agreement that is
inconsistent with this Order, that provision is subject to preemption
under section 636(c).
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\245\ 5 U.S.C. Sec. 551(4) (`` `rule' means the whole or a part of
an agency statement of general or particular applicability and future
effect designed to implement, interpret, or prescribe law or policy.''
(emphasis added)).
\246\ See, e.g., City Coalition Comments at 18-19; Free State Reply
at 12-13; King County Comments at 11; NCTA Reply at 22-23.
\247\ The City Coalition proposes that the parties should modify
their franchises to comply with this Order via the franchise
modification process set forth in section 625 of the Act. 47 U.S.C.
Sec. 545; City Coalition Comments at 19, n.89 (``the Second FNPRM could
only be incorporated into existing agreements through a Section 545
proceeding.''). Under those procedures, an LFA has 120 days to make a
final decision about a cable operator's request to modify a franchise
agreement. We do not adopt this framework, however, because as NCTA
points out, the parties may not modify PEG requirements under section
625, and therefore cable operators and LFAs could not use that
procedure to bring franchise agreements into compliance in every case.
NCTA July 19 Ex Parte at 4. Therefore, we encourage the parties to
negotiate franchise modifications within a reasonable time and find
that 120 days should be, in most cases, a reasonable time for the
adoption of franchise modifications.
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63. Many LFAs express concern that our rulings could disrupt their
budgets, which rely upon the franchise fees that they expect to
receive.\248\ It is by no means clear from the record what fiscal
choices remain available to the LFAs, but in any event, delaying the
effect of our decision to address this concern would not be consistent
with the statutory text. It is strongly in the public interest to
prevent the harms from existing franchise agreements to continue for
years until those agreements expire.\249\ In addition, the changes we
adopt today were reasonably foreseeable because we largely adopt the
tentative conclusions set forth in the Second FNPRM.\250\ Finally, we
note that LFAs can continue to benefit from their agreements by
choosing to continue to receive their existing in-kind contributions,
while reducing the monetary payments they receive.\251\ Thus,
consistent with the Act, we apply our rulings to future contributions
cable operators make pursuant to existing franchise agreements.
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\248\ See, e.g., City Coalition Comments at 18-19; City of Newton
Apr. 17, 2019 Ex Parte at 9; AWC Apr. 3, 2019 Ex Parte at 5; Letter
from Charlie Seelig, Town Administrator, Town of Halifax, MA, to
Marlene H. Dortch, Secretary, FCC at 1 (July 22, 2019).
\249\ See Letter from Katie McAuliffe Executive Director, Digital
Liberty Federal Affairs Manager, Americans for Tax Reform, to Marlene
H. Dortch, Secretary, FCC at Attachment at 8 (May 8, 2019) (stating
that cable franchise agreements ``typically have terms of about 10 to
15 years'').
\250\ See supra note 41. Indeed, the lawfulness of excluding costs
associated with PEG/I-Nets from the franchise fee cap has been under
Commission scrutiny for more than a decade (see, e.g., 621 First R&O
and FNRPM, 22 FCC Rcd 5701, 5750-51, 5765, paras. 109, 110, 140
(2007)), and in 2008, the Sixth Circuit affirmed the Commission's
determination as to new entrants that PEG related costs which do not
qualify as capital costs are subject to the franchise fee cap. See
Alliance for Community Media v. FCC, 529 F.3d 763, 583-86 (6th Cir.
2008). Therefore, we find Anne Arundel County's argument that this
``decision represents [an] `unexpected surprise' '' to be unfounded.
See Letter from Joseph Van Eaton et al,, Counsel to Anne Arundel
County, et al. to Marlene H. Dortch, Secretary, FCC at 13 (July 24,
2019) (citing Kisor v. Wilkie, 139 S.Ct. 2400 (2019); FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 515-16 (2009)).
\251\ Take, for example, a franchise agreement that requires a
cable operator to deliver free cable service to all municipal buildings
and contribute a monetary payment of five percent of its gross revenues
derived from the operation of its cable system to provide cable
services. In that case, the LFA may wish to either (1) continue to
receive the existing free cable service and a monetary payment of five
percent minus the fair market value of that service, or (2) discontinue
service and receive a monetary payment of five percent, or (3) reduce
the free cable service to select municipal buildings and receive a
monetary payment of the five percent minus the fair market value of the
reduced service. However, what an LFA may not do is ask a cable
operator to ``voluntarily'' waive the statutory cap by asking it to
continue providing free cable service to all municipal buildings and
contribute the five percent monetary payment, or request that a cable
operator waive anything else under the statute as interpreted by the
Commission. See, e.g., Altice May 9, 2019 Ex Parte at 9 (``Some
franchising authorities take advantage of periods in which they have
maximum leverage to ask cable operators like Altice USA to
`voluntarily' waive the cap and accede to making payments or
contributions that are not offset against the statutory limit on
franchise fees. That pressure puts operators in a bind because, as a
practical matter, they are often not in a position to resist
franchising authority demands since the franchising authority exercises
the sole domain over ROW access--which is one of the precise concerns
that led to adoption of the Federal Cable Act in the first place.'').
See also Amendment of Parts 1, 63, and 76 of the Commission's Rules to
Implement the Provisions of the Cable Communications Policy Act of
1984, Report and Order, 58 R.R.2d 1, 35, n.91 (``we note that neither a
cable operator nor a franchising authority may waive mandatory sections
of the Cable Act in reaching franchise agreements.''). Accordingly, we
reject the request of NATOA that we clarify that this Order ``is
permissive not mandatory.'' NATOA July 24, 2019 Ex Parte at 2.
Complying with the terms of the statute is not optional.
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B. Mixed-Use Rule
64. In this section, we address the second issue remanded from the
Sixth Circuit in Montgomery County, which relates to the Commission's
mixed-use rule. As explained above, the court in Montgomery County
found that the Commission, in its Second Report and Order and Order on
Reconsideration, failed to identify a valid statutory basis for its
application of the mixed-use rule to incumbent cable operators because
the statutory provision on which the Commission relied to do so--
section 602(7)(C) of the Act--applies by its terms only to Title II
carriers, and ``many incumbent cable operators are not Title II
carriers.'' \252\ The court thus vacated and remanded the mixed-use
rule as applied to those cable operators, directing the Commission ``to
set forth a valid statutory basis . . . for the rule as so applied.''
\253\ For the reasons set forth below, we adopt our tentative
conclusion that the mixed-use rule prohibits LFAs from regulating under
Title VI the provision of any services other than cable services
offered over the cable systems of incumbent cable operators, except as
expressly permitted in the Act.\254\
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\252\ Montgomery County, 863 F.3d at 493.
\253\ Id.
\254\ Second FNPRM, 33 FCC Rcd at 8952, para. 26 (tentatively
concluding that to the extent that any incumbent cable operators offer
any telecommunications services, they can be regulated by LFAs only to
the extent they provide cable service); id. paras. 27-28 (tentatively
concluding that LFAs are prohibited from regulating the provision of
broadband Internet access and other information services by incumbent
cable operators that are not common carriers).
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65. Our conclusions regarding the scope of LFAs' authority to
regulate incumbent cable operators' non-cable services, facilities, and
equipment follow from the statutory scheme. Congress in Title VI
intended, among other things, to circumscribe the ability of
franchising authorities to use their Title VI authority to regulate
non-cable services provided over the cable systems of cable operators
and the facilities and equipment used to provide those services. As
explained below, the legislative history of the 1984 Cable Act and
subsequent amendments to Title VI reflect Congress's recognition that
cable operators potentially could compete with local telephone
companies in the provision of telecommunications service and its intent
to maintain the then-existing status quo concerning regulatory
jurisdiction over cable operators' non-cable services, facilities, and
equipment.\255\ Under the status quo, regulation of non-cable services
provided over cable systems, including telecommunications and
information services, was the exclusive province of either the
Commission or state public utility commissions.\256\
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\255\ See infra notes 271, 272.
\256\ Specifically, the Commission historically has had
jurisdiction over interstate telecommunications and information
services. States have had jurisdiction over intrastate
telecommunications services but not information services, which are
jurisdictionally interstate. See infra note 272. We thus reject the
City of Eugene's suggestion that maintaining the ``status quo''
supports broad state and local authority over non-cable services
provided via cable systems. See City of Eugene July 24, 2019 Ex Parte
at 5.
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66. The Mixed-Use Rule Prohibits LFAs From Regulating Under Title
VI the Non-Cable Services, Facilities, and Equipment of Incumbent Cable
Operators That Are Also Common Carriers. As an initial matter, we
reaffirm the Commission's application of the mixed-use rule to prohibit
LFAs from using their cable franchising authority to regulate any
services other than cable services provided over the cable systems of
any incumbent cable operator that is a common carrier,\257\ with the
exception of channel capacity on I-Nets.\258\
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\257\ ``Non-cable'' services offered by cable operators include
telecommunications services and non-telecommunications services. Second
FNPRM, 33 FCC Rcd at 8964-65, para. 25. Telecommunications services
offered by cable operators include, for example, business data
services, which enable dedicated point-to-point transmission of data at
certain guaranteed speeds and service levels using high-capacity
connections, and wireless telecommunications services. Id. Non-
telecommunications services offered by cable operators include, but are
not limited to, information services (such as broadband Internet access
services), private carrier services (such as certain types of business
data services), and Wi-Fi services. Id. Cable operators also may offer
facilities-based interconnected Voice over Internet Protocol (VoIP)
service, which the Commission has not classified as either a
telecommunications service or an information service, but which is not
a cable service. Id.
\258\ Nothing in this Order is intended to limit LFAs' express
authority under section 611(b) of the Act, 47 U.S.C. Sec. 531(b), to
require I-Net capacity. But see supra paras. 55-56 regarding franchise
fee treatment of I-Nets.
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67. As noted above, the Commission in the First Report and Order
found that the then-existing operation of the local franchising process
constituted an unreasonable barrier to new entrants in the marketplace
for cable services and to their deployment of broadband, in violation
of section 621(a)(1) of the Act.\259\ The Commission adopted the mixed-
use rule with respect to new entrants to address this unreasonable
barrier. It provides, in relevant part:
---------------------------------------------------------------------------
\259\ First Report and Order, 22 FCC Rcd at 5102, para. 1. The
Sixth Circuit rejected challenges to the Commission's First Report and
Order. Alliance, 529 F.3d 763.
LFAs' jurisdiction applies only to the provision of cable
services over cable systems. To the extent a cable operator
provides non-cable services and/or operates facilities that do
not qualify as a cable system, it is unreasonable for an LFA to
refuse to award a franchise based on issues related to such
services or facilities [A]n LFA may not use its video
franchising authority to attempt to regulate [an] entire
network beyond the provision of cable services.\260\
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\260\ First Report and Order, 22 FCC Rcd at 5153, paras. 121-22.
68. The Commission in the Second Report and Order extended to
incumbent cable operators several rules adopted in the First Report and
Order, including the mixed-use rule.\261\ Although, as noted, the Sixth
Circuit in Montgomery County vacated and remanded the Commission's
application of the mixed-use rule with respect to incumbent cable
operators that are not common carriers, it left undisturbed application
of the rule to incumbent cable operators that are also common
carriers.\262\ Consistent with the court's ruling, therefore, we adopt
our tentative conclusion and reaffirm that the mixed-use rule prohibits
LFAs from regulating the provision of non-cable services offered over
the cable systems of incumbent cable operators that are common
carriers.\263\
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\261\ Second Report and Order, 22 FCC Rcd at 19640-41, para. 17.
The Commission adhered to that conclusion on reconsideration. Order on
Reconsideration, 30 FCC Rcd at 816, para. 14.
\262\ Montgomery County, 863 F.3d at 493 (finding that ``on the
record now before us, the FCC's extension of the mixed-use rule to
incumbent cable providers that are not common carriers is arbitrary and
capricious''). Our conclusion that the mixed-use rule applies to cable
operators that are common carriers is based on our interpretation of
sections 3(51) and 602(7)(C) of the Act. Second FNPRM, 33 FCC Rcd at
8965-66, para. 26. Under section 3(51) of the Act, a ``provider of
telecommunications services'' is a ``telecommunications carrier,''
which the statute directs ``shall be treated as a common carrier under
this Act only to the extent that it is engaged in providing
telecommunications services.'' 47 U.S.C. Sec. 153(51). Thus, to the
extent that an incumbent cable operator provides telecommunications
service, it would be treated as a common carrier subject to Title II of
the Act with respect to its provision of such telecommunications
service.
\263\ Second FNPRM, 33 FCC Rcd at 8965-66, para. 26. NCTA asserts
that many cable operators currently provide telecommunications
services. NCTA Comments at 7, n.16.
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69. Our interpretation is consistent with the text of section
602(7)(C), which excludes from the term ``cable system'' ``a facility
of a common carrier which is subject, in whole or in part, to the
provisions of Title II of this Act.'' \264\ We are not persuaded by
assertions to the contrary. Anne Arundel County et al. argues, for
example, that a cable operator's provision of telecommunications
services via its cable system (either directly or through a subsidiary)
``does not . . . suddenly [transform its cable system] into a Title II
facility'' for purposes of applying the section 602(7)(C) common
carrier exception.\265\ City of Philadelphia et al. similarly argues
that the common carrier exception in section 602(7)(C) was meant to
protect Title II common carriers from regulation by LFAs under their
Title VI franchising authority and thus cannot reasonably be read to
apply to any cable operator that provides Title II and other non-cable
services over a system that is a cable system.\266\
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\264\ 47 U.S.C. Sec. 522(7)(C).
\265\ Anne Arundel County et al. Comments at 40-41 (asserting that
under common carrier law, ``it is the service which is the focus, not
the facility. . . . [A] telecommunications service is defined
`regardless of the facilities used'. . . . Thus, a common carrier
facility is subject to Title II only to the extent it is offering Title
II services, and a facility owned by the cable operator could be used
in the provision of Title II services without being a common carrier
facility'').
\266\ City of Philadelphia et al. Comments at 44-45. City of
Philadelphia et al. asserts further that:
The FCC ignores the structure of the Communications Act by
conflating communications services, cable and non-cable, with
communications systems. Title II defines `common carriers' . . . in
terms of the `telecommunications services' they provide, not in terms
of the facilities they use to provide them. Title VI, to the contrary,
focuses on the facility, by defining a `cable system' as a
communications system that has particular characteristics . . . and
that is `designed to provide cable service which includes video
programming.' The cable system is a cable system if it satisfies the
defining characteristics of such a communications system, regardless of
whether it is used for non-cable, non-Title VI services. LFA authority
to regulate goes with the system. . ..
Id. at 46-47 (citations omitted).
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70. To the extent these commenters argue that section 602(7)(C)
precludes LFAs only from regulating non-cable services provided over
the facilities of incumbent local exchange carriers that subsequently
begin to provide cable service, we find such argument is not supported
by the language of the statute. As noted in the Second FNPRM, although
new entrants into the cable services market may confront obstacles
different from those of incumbent cable operators, the statute makes no
distinction between these types of providers.\267\ In the absence of
any textual basis for treating incumbent cable operators that provide
telecommunications services differently from new entrants that do so,
we conclude that a facility should be categorized as ``a facility of a
common carrier'' under section 602(7)(C) so long as it is being used to
provide some type of telecommunications service, irrespective of
whether the facility was originally deployed by a provider that
historically was treated as a ``common carrier.''
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\267\ Second FNPRM, 33 FCC Rcd at 8965-66, para. 26.
---------------------------------------------------------------------------
71. This interpretation also is consistent with the legislative
history of the 1984 Cable Act. Although, as City of Philadelphia et al.
points out, one of the concerns expressed in the legislative history
was the potential that cable operators' provision of telecommunications
services could enable large users of such services to bypass the local
telephone companies and thereby threaten universal service,\268\ the
legislative history also reflects Congressional recognition that
``ultimately, local telephone companies and cable companies could
compete in all communications services.'' \269\ The legislative history
clarifies, moreover, that Congress intended the 1984 Cable Act to
``maintain[] [then-]existing regulatory authority over all . . .
communications services offered by a cable system, including . . .
services that could compete with communications services offered by
telephone companies.'' \270\ Indeed, the legislative history is replete
with statements reflecting Congress's intent to preserve the then-
status quo regarding the ability of federal, state, and local
authorities to regulate non-cable services provided via cable
systems.\271\ In light of its stated intention to maintain the
jurisdictional status quo, we find that Congress intended via section
602(7)(C) to preclude LFAs from regulating under Title VI the provision
of telecommunications services by incumbent cable operators, services
that historically have been within the exclusive purview of the
Commission (with respect to interstate services) or state public
utility commissions (with respect to intrastate services).\272\
Moreover, section 602(7)(C) broadly states that, with narrow
exceptions, the facility of a common carrier is only ``considered a
cable system to the extent such facility is used in the transmission of
video programming directly to subscribers,'' and therefore not with
respect to provision of any other services. For these reasons, we see
no basis for altering our previous conclusion, as upheld by the Sixth
Circuit,\273\ that the mixed-use rule prohibits LFAs from exercising
their Title VI authority to regulate the provision of non-cable
services provided via the cable systems of incumbent cable operators
that are common carriers, except as otherwise provided in the Act.
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\268\ City of Philadelphia et al. Comments at 46-48, citing 1984
Cable Act House Report, H.R. Rep. No. 98-934 (1984), as reprinted in
1984 U.S.C.C.A.N. at 4659-60. In particular, City of Philadelphia et
al. asserts that:
Congress' stated reason for excepting Title II telephone and data
transmission services from LFA regulation . . . was to protect Title II
telephone companies from unfair competition by cable operators. . . .
Congress' fear was that cable operators could furnish the core services
of Title II carriers . . . at lower cost because they were not subject
to common carrier regulations, forcing [telephone companies] to raise
rates on telephone service to compensate for the lost business. . . .
[T]he Title II exception was [intended] to achieve competitive equity
between Title II telephone companies and cable operators.
Id. (citations omitted). See also 1984 Cable Act House Report, 1984
U.S.C.C.A.N. at 4664-66.
\269\ Id. at 4665 (emphasis added).
\270\ Id. at 4666.
\271\ See, e.g., id. at 4678 (``The Committee intends that nothing
in Title VI shall be construed to affect existing regulatory authority
with respect to non-cable communications services provided over a cable
system''); id. (``This legislation does not affect existing regulatory
authority over the use of a cable system to provide non-cable
communications services, such as private line transmission or voice
communication, that compete with services provided by telephone
companies.''); id. at 4697 (``The Committee intends that state and
Federal authority over non-cable communications services under the
status quo shall be unaffected by the provisions of Title VI. This
approach protects cable companies from unnecessary regulation, while
reserving for state and Federal officials the authority they need to
address the issue of competition between telephone and cable companies.
. . .''); id. at 4698 (``The Committee does not intend to address the
question of regulatory jurisdiction over non-cable communications
services provided over cable systems. The intent of the Committee is
not to address the jurisdictional question at all.''); id. at 4700
(``It is the intent that, with respect to non-cable communications
services, both the power of any state public utility commission and the
power of the FCC be unaffected by the provisions of Title VI. Thus,
Title VI is neutral with respect to such authority.'').
\272\ This interpretation is reinforced by both the text of section
621(b)(3) of the Act and its legislative history (relating to the
provision of telecommunications services by cable operators), which
Congress added to Title VI through the Telecommunications Act of 1996:
The intent of [section 621(b)(3)(A)] is to ensure that regulation
of telecommunications services, which traditionally has been regulated
at the Federal and State level, remains a Federal and State regulatory
activity. The Committee is aware that some [LFAs] have attempted to
expand their authority over the provision of cable service to include
telecommunications service offered by cable operators. Since 1934, the
regulation of interstate and foreign telecommunications services has
been reserved to the Commission; the State regulatory agencies have
regulated intrastate services. It is the Committee's intention that
when an entity, whether a cable operator or some other entity, enters
the telephone exchange service business, such entity should be subject
to the appropriate regulations of Federal and State regulators.
1996 Act House Report, H.R. Rep. No. 104-204, 104th Cong., 1st
Sess. 86, 93 (1995) (emphasis added). The fact that section 621(b)(3)
seeks to protect incumbent cable operators from LFA regulation under
Title VI when they provide certain non-cable services, i.e.,
telecommunications services, further undermines LFAs' assertion that
the common carrier exception in section 602(7)(C) was intended to
shield from LFA regulation only the provision of non-cable services by
new entrants.
\273\ Second Report and Order, 22 FCC Rcd at 19640, para. 17;
Montgomery County, 863 F.3d at 493. See also Second FNPRM, 33 FCC Rcd
at 8965-66, para. 26 (tentatively concluding that the mixed-use rule
``prohibits LFAs from regulating the provision of any services other
than cable services offered over the cable systems of incumbent cable
operators that are common carriers, or from regulating any facilities
and equipment used in the provision of any services other than cable
services offered over the cable systems of incumbent cable operators
that are common carriers. . ..''). Certain LFA advocates appear to
concede that the Act precludes LFAs from regulating under Title VI a
cable operator's provision of telecommunications services via its cable
system. See, e.g., NATOA et al. Comments at 16-17 (stating that the
definition of cable system ``establishes that Title VI does not
authorize LFAs to regulate the telecommunications services provided
over what is otherwise a cable system''); Anne Arundel County et al.
Comments at 37-38 (recognizing that various provisions in section 621
preclude LFA regulation of telecommunications services by cable
operators, but stating that ``[a]s long as a local government possesses
authority to regulate telecommunications from a source other than Title
VI franchise authority, none of these provisions prohibit it''). See
also Montgomery County, 863 F.3d at 492 (``The Local Regulators admit
that the FCC's mixed-use decision is `defensible as applied to Title II
carriers,' since the Act expressly states that [LFAs] may regulate
Title II carriers only to the extent they provide cable services.'').
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72. The Mixed-Use Rule Prohibits LFAs From Regulating Under Title
VI the Non-Cable Services, Facilities, and Equipment of Incumbent Cable
Operators That Are Not Common Carriers. We also adopt our tentative
conclusion that LFAs are precluded from using their Title VI
franchising authority to regulate the non-cable services (e.g.,
information services such as broadband Internet access) of incumbent
cable operators that do not provide telecommunications services.\274\
As directed by the court, we explain herein our statutory bases for
concluding that LFAs lack authority under Title VI to regulate non-
cable services of incumbent cable operators that do not provide
telecommunications services.
---------------------------------------------------------------------------
\274\ Second FNPRM, 33 FCC Rcd at 8966-67, para. 27.
---------------------------------------------------------------------------
73. Section 624 of the Act, which principally governs franchising
authority regulation of services, facilities, and equipment, provides
in subsection (a) that ``[a] franchising authority may not regulate the
services, facilities, and equipment provided by a cable operator except
to the extent consistent with [Title VI of the Act].'' \275\ The
subsequent provision, section 624(b)(1), provides that franchising
authorities ``may not . . . establish requirements for video
programming or other information services.'' \276\ Although the term
``information service'' is not defined in section 624, the legislative
history of that provision distinguishes ``information service'' from
``cable service.'' \277\ In particular, the legislative history
explains that ``[a]ll services offered by a cable system that go beyond
providing generally-available video programming or other programming
are not cable services'' and ``a cable service may not include `active
information services' such as at-home shopping and banking that allows
transactions between subscribers and cable operators or third
parties.'' \278\
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\275\ 47 U.S.C. Sec. 544(a) (emphasis added).
\276\ Id. Sec. 544(b)(1) (emphasis added). While the preamble to
section 624(b) specifically limits the provision to franchises
``granted after the effective date of this title'' and therefore
appears to grandfather local regulation of information services that
may have occurred prior to 1984, when Title VI took effect, we note
that very few franchises in effect today were granted prior to that
year.
\277\ 1984 Cable Act House Report, 1984 U.S.C.C.A.N. at 4679.
\278\ Id. (emphasis added). See also id. at 4681 (``Some examples
of non-cable services would be: shop-at-home and bank-at-home services,
electronic mail, one-way and two-way transmission of non-video data and
information not offered to all subscribers, data processing, video-
conferencing, and all voice communications.''); id. (``Many commercial
information services today offer a package of services, some of which
(such as news services and stock listings) would be cable services and
some of which (such as electronic mail and data processing) would not
be cable services....[T]he combined offering of a non-cable shop-at-
home service with service that by itself met all the conditions for
being a cable service would not transform the shop-at-home service into
a cable service, or transform the cable service into a non-cable
communications service.'') (emphasis added).
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74. We find significant that the description of the term
``information services'' in the legislative history (i.e., ``services
providing subscribers with the capacity to engage in transactions or to
store, transfer, forward, manipulate, or otherwise process information
or data [which] would not be cable services'')\279\ aligns closely with
the 1996 Telecommunications Act's definition of ``information service''
codified in section 3(24) of the Act (i.e., ``the offering of a
capability for generating, acquiring, storing, transforming,
processing, retrieving, utilizing, or making available information via
telecommunications'').\280\ We conclude, therefore, that for purposes
of applying section 624(b), interpreting the term ``information
services'' to have the meaning set forth in section 3(24) of the Act is
most consistent with Congressional intent.\281\ Because the Commission
has determined that broadband Internet access service is an
``information service'' under section 3(24),\282\ we likewise find that
section 624(b)(1) precludes LFAs from regulating broadband Internet
access provided via the cable systems of incumbent cable operators that
are not common carriers. Moreover, even if the definition set forth in
section 3(24) was not the intended definition of ``information
services'' for purposes of section 624(b)(1), the highly analogous
descriptions of this term in the legislative history of the 1984 Act
also would apply to broadband Internet access service.\283\ Thus, in
either case, LFAs may not lawfully impose fees for the provision of
information services (such as broadband Internet access) via a
franchised cable system or require a franchise (or other authorization)
for the provision of information services via such cable system.\284\
We also clarify that LFAs and other state and local governmental
units\285\ cannot impose additional requirements on mixed-use ``cable
systems'' in a manner inconsistent with this Order and the Act under
the pretense that they are merely regulating facilities and equipment
rather than information services.\286\
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\279\ Id. at 4679.
\280\ 47 U.S.C. Sec. 153(24).
\281\ Second FNPRM, 33 FCC Rcd at 8966-67, para. 27. The fact that
the ``information services'' definition in section 3(24) of the Act was
enacted as part of the 1996 Act--more than ten years after Congress
passed section 624(b)--supports our conclusion that LFAs lack authority
under section 624(b)(1) to regulate information services. The absence
in Title VI of specific references to the section 3(24) definition of
``information service'' suggests only that Congress, in passing the
1996 Act, did not wish to re-open the 1984 Cable Act; it does not
indicate that Congress intended to grant LFAs general authority to
regulate information services.
\282\ The Commission in 2018 reinstated the ``information service''
classification of broadband Internet access service. Restoring Internet
Freedom Order, WC Docket No. 17-108, Declaratory Ruling, Report and
Order, and Order, 33 FCC Rcd at 320-321, paras. 26-29 (2018) (Restoring
Internet Freedom Order).
\283\ 1984 Cable Act House Report, 1984 U.S.C.C.A.N. at 4680-81.
\284\ Application of the mixed-use rule to broadband Internet
access service is not tied to the Commission's classification of
broadband as an information service. Under the Commission's prior
conclusion in 2015 that broadband Internet access service is a Title II
telecommunications service, the mixed-use rule would apply based on the
provisions of Title VI for the reasons explained above in paragraphs
66-71.
\285\ See infra section III.C.
\286\ For this reason, we reject assertions that section 624's
grant of authority to ``establish'' and ``enforce'' certain
requirements for facilities and equipment would permit LFAs to bypass
the statutory prohibition on regulation of information services. See,
e.g., Anne Arundel County et al. July 24, 2019 Ex Parte at 9.
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75. Although we recognize that a later provision, section
624(b)(2)(B), permits franchising authorities to enforce requirements
for ``broad categories of video programming or other services,'' \287\
when read together with the specific injunction against regulation of
``information services'' in section 624(b)(1), we find that it would be
unreasonable to construe section 624(b)(2)(B) as authorizing LFA
regulation of information services when (b)(1) precludes franchising
authorities from regulating such services.\288\ As we noted in the
Second FNPRM, the legislative history explains that section 624(b)(2)'s
grant of authority ``to enforce requirements. . .for broad categories
of video programming or other services'' \289\ was intended merely to
``assure[] the franchising authority that commitments made in an arms-
length situation will be met,'' while protecting the cable operator
from ``being forced to provide specific programming or items of value
which are not utilized in the operation of the cable system.'' \290\
Reading these provisions together, it is apparent that Congress
intended to permit LFAs to enforce franchise requirements governing
``other services'' under (b)(2), but only to the extent they are
otherwise permitted to establish such requirements under (b)(1).\291\
Because LFAs lack authority to regulate information services under
section 624(b)(1), they may not lawfully enforce provisions of a
franchise agreement permitting such regulation under section 624(b)(2),
even if such provisions resulted from arms-length negotiations between
the cable operator and LFA.\292\ That is, the grant of authority to
``enforce'' certain requirements under section 624(b)(2)(B) does not
give franchising authorities an independent right to impose
requirements that they otherwise may not ``establish'' under section
624(b)(1).\293\ We thus reject claims to the contrary.\294\
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\287\ 47 U.S.C. Sec. 544(b)(2)(B) (emphasis added).
\288\ Second FNPRM, 33 FCC Rcd at 8967-68, para. 28. We note
further that the limitation on the ability of franchising authorities
to establish requirements under section 624(b)(1) extends specifically
to ``information services,'' whereas the authority granted to
franchising authorities in section 624(b)(2) makes no mention of
``information services.'' Id. n.135.
\289\ 47 U.S.C. Sec. 544(b)(2)(B).
\290\ Second FNPRM, 33 FCC Rcd at 8967-68, para. 28, n. 135, citing
1984 Cable Act House Report, 1984 U.S.C.C.A.N. at 4706.
\291\ Although the legislative history provides examples of ``broad
categories of video programming,'' id. at 4705-06 (stating that the
franchising authority may enforce provisions for children's
programming, news and public affairs programming, sports programming
and other broad categories of programming), it does not specify what
services are encompassed within the phrase ``other services'' for
purposes of applying section 624(b)(2)(B). Although the phrase ``other
services'' is ambiguous, it would be unreasonable to conclude that
Congress intended for it to include services, such as information
services, that franchising authorities are not empowered to regulate
under section 624. Rather, we find it more reasonable to construe the
phrase as referring to services that franchising authorities lawfully
could require under Title VI, such as the provision of PEG channels and
I-Net capacity. We, therefore, reject Anne Arundel County et al.'s
assertion that the term ``other service'' in section 624(b)(2)(B)
includes information services. Anne Arundel County et al. Comments at
38-39, n. 111.
\292\ We thus disagree with City Coalition's contention that ``[i]f
. . . a cable operator agrees to undertake obligations regarding
information services though arms-length negotiation--be they
obligations regarding facilities that are not part of the cable system
or obligations regarding noncable services--then a LFA may enforce
those obligations.'' City Coalition Comments at 22.
\293\ NCTA Reply at 28 (``Although . . . Section 624(b) discusses
[the prohibition on LFA regulation of information services] in the
context of cable franchise proposals and renewals, the prohibition
would lose all practical meaning if franchising authorities were able
to circumvent it simply by waiting to impose . . . requirements on non-
cable services until after cable franchise negotiations concluded. . .
.'').
\294\ Anne Arundel County et al. July 24, 2019 Ex Parte at 8-9.
---------------------------------------------------------------------------
76. As discussed above, Congress in the 1984 Cable Act intended to
preserve the status quo with respect to federal, state, and local
jurisdiction over non-cable services, which lends further support to
our conclusion that LFAs may not use their cable franchising authority
to regulate information services provided over a cable system.\295\
Because information services that are interstate historically have
fallen outside the lawful regulatory purview of state and local
authorities,\296\ including LFAs, construing section 624(b) to bring
those services within the scope of permissible LFA authority under
Title VI would be fundamentally at odds with Congressional intent. For
this reason, we reject City of Philadelphia et al.'s contention that
our application of the mixed-use rule is barred by the Act because
``[t]he `regulatory and jurisdictional status quo' in 1984 . . .
included [LFAs'] use of the franchise and franchise agreement to
regulate . . . cable systems that [Congress] recognized were carrying
both cable services and non-cable communications services.'' \297\ The
statutory design as reflected in other provisions of Title VI
reinforces our conclusion that LFAs are precluded under section
624(b)(1) from regulating non-cable services provided over the cable
systems of incumbent cable operators that are not common carriers.\298\
LFAs, therefore, may not lawfully regulate the non-cable services of
such cable operators, including information services (such as broadband
Internet access), private carrier services (such as certain types of
business data services), and interconnected VoIP service.\299\ For
example, this precludes LFAs from not only requiring such a cable
operator to pay fees or secure a franchise to provide broadband service
via its franchised cable system, but also requiring it to meet
prescribed service quality or performance standards for broadband
service carried over that cable system.
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\295\ 1984 Cable Act House Report, 1984 U.S.C.C.A.N. at 4666.
\296\ Id. at 4700 (``The FCC [under section 621(d)(1)] may require
a cable operator to file informational tariffs for enhanced services
which are under the FCC's jurisdiction when offered by common carriers.
States would not have the authority to require cable operators to file
[such] tariffs for . . .enhanced services which are interstate in
character. . . .''). The Commission has determined that the term
``information service'' has essentially the same meaning as the term
``enhanced service'' for purposes of applying the Act. See, e.g.,
Implementation of the Non-Accounting Safeguards of Sections 271 and 272
of the Communications Act of 1934, As Amended, CC Docket No. 96-149, 11
FCC Rcd 21905, 21955, para. 102 (1996); Federal-State Joint Board on
Universal Service, CC Docket No. 96-45, Report to Congress, 13 FCC Rcd
11501, 11511, para. 21 (1998). See also 1996 Act Conference Report, S.
Rep. 104-230 at 18 (Feb. 1, 1996) (stating that the 1996 Act ``defines
`information service' similar to the FCC definition of `enhanced
services' ''); NCTA v. Brand X Internet Svcs., 545 U.S. 967, 992-994
(2005). Moreover, even assuming that LFAs at the time Congress passed
the 1984 Cable Act used their cable franchising authority to regulate
non-cable services as City of Philadelphia et al. asserts, the
provisions of section 624 plainly evidence Congressional intent to
treat pre-and post-Act cable franchises differently. Compare 47 U.S.C.
Sec. 544(b) (authorizing franchising authorities, in the case of
franchises granted after the effective date of Title VI, to take
certain actions ``to the extent related to the establishment or
operation of the cable system'') (emphasis added) with 47 U.S.C.
Sec. 544(c) (authorizing franchising authorities, in the case of
franchises effective under prior law, to enforce requirements for the
provision of services, facilities, and equipment ``whether or not
related to the establishment or operation of the cable system'')
(emphasis added).
\297\ City of Philadelphia et al. Comments at 50-51.
\298\ See, e.g., 47 U.S.C. Sec. 542(b) (limiting the franchise fees
that a franchising authority may assess on a cable operator to ``[five]
percent of such cable operator's gross revenues derived . . . from the
operation of the cable system to provide cable services'') (emphasis
added); id. Sec. 541(b)(3)(B) (barring a franchising authority from
``impos[ing] any requirement [under Title VI] that has the purpose or
effect of prohibiting, limiting, restricting, or conditioning the
provision of a telecommunications service by a cable operator''); id.
Sec. 541(b)(3)(D) (barring a franchising authority from ``requir[ing] a
cable operator to provide any telecommunications services or
facilities'' as a condition of the grant or renewal of a franchise,
with certain exceptions). We discuss section 622(b) of the Act, id.
Sec. 542(b), in greater detail in section C.
\299\ Although interconnected VoIP service has not been classified
by the Commission, LFA regulation of this service is prohibited under
the mixed-use rule, as clarified in this Order, regardless of whether
it is deemed a telecommunications service or an information service.
---------------------------------------------------------------------------
77. We find unconvincing arguments that the statute compels a
broader reading of LFAs' authority under Title VI to regulate cable
operators' non-cable services, facilities, and equipment. Anne Arundel
County et al. maintains, for example, that because section 624(a)
grants LFAs authority to regulate a ``cable operator,'' a term the Act
defines as ``[a] person . . . who provides cable service over a cable
system,'' \300\ LFAs generally are authorized to regulate any of the
services provided by a ``cable operator'' over a ``cable system,''
including non-cable services.\301\ Anne Arundel County et al. contends
further that under section 624(b), LFAs ``to the extent related to the
establishment or operation of a cable system . . . may establish
requirements for facilities and equipment'' \302\ and argues that the
Act cannot be construed as limiting LFAs' jurisdiction to cable
services since it permits LFAs to require, for example, build out and
institutional networks.\303\ We disagree with these arguments.
Although, as Anne Arundel County et al. and others note,\304\ the Act
in certain circumstances permits LFAs to impose on cable operators
certain requirements that are not strictly related to the provision of
cable service,\305\ such circumstances constitute limited exceptions to
the general prohibition on LFA regulation of non-cable services
contained in section 624.\306\ They also do not override the specific
prohibition on regulation of information services set forth in section
624(b)(1). This interpretation accords with one of the 1984 Cable Act's
principal purposes to ``continue[] reliance on the local franchising
process as the primary means of cable television regulation, while
defining and limiting the authority that a franchising authority may
exercise through the franchise process.'' \307\
---------------------------------------------------------------------------
\300\ Id. Sec. 522(5)(A).
\301\ See, e.g., Anne Arundel County et al. Comments at 37, n. 105.
Insofar as Anne Arundel County et al. is arguing that ``once a cable
operator, always a cable operator,'' and ``once a cable system, always
a cable system,'' i.e., that when a cable operator deploys facilities,
those facilities remain part of a cable system even when used to
provide non-cable services, we disagree with that assertion. Consistent
with our interpretation of section 602(7)(C) above, we find that a more
reasonable reading of the statute is that the nature of facilities
(i.e., ``cable system'' or not) depends on how the facilities are used,
not on whether the provider offered cable service at the time the
facilities were deployed.
\302\ Anne Arundel County et al. Comments at 37.
\303\ Id. See also Anne Arundel County et al. July 24, 2019 Ex
Parte at 9, n.26 (noting that section 632(a) of the Act, 47 U.S.C.
Sec. 552(a), permits franchising authorities to establish and enforce
``construction schedules and other construction-related performance
requirements, of the cable operator'').
\304\ See, e.g., id.; City Coalition Comments at 21-22; City of New
York Comments at 11-12.
\305\ See, e.g., 47 U.S.C. Sec. 531(b), (f) (permitting franchising
authorities, among other things, to require channel capacity on
institutional networks); id. Sec. 551(g) (providing that ``[n]othing in
[Title VI] shall be construed to prohibit any State or any franchising
authority from enacting or enforcing laws consistent with this section
for the protection of subscriber privacy'').
\306\ See id. Sec. 544(a) (``[A] franchising authority may not
regulate the services, facilities, and equipment provided by a cable
operator except to the extent consistent with this subchapter '')
(emphasis added); id. Sec. 541(b)(3)(D) (``[A] franchising authority
may not require a cable operator to provide any telecommunications
service or facilities, other than institutional networks, as a
condition of the initial grant of a franchise, a franchise renewal, or
transfer of a franchise.'') (emphasis added). See also id.
Sec. 541(b)(3)(A)-(C). NATOA et al. agree that the grant to LFAs of
authority to require I-Nets is an exception from the general injunction
in section 621(b)(3)(D) against requiring cable operators to provide
telecommunications services or facilities. NATOA et al. Comments at 18,
n.52. NATOA et al. also appear to concede that section 624(b) precludes
LFAs from regulating under Title VI information services provided over
cable systems. Id. at 18, n.53 (``To the extent [the Commission's
conclusion] is that Title VI does not grant LFAs authority over the
information services provided over cable systems (other than as
expressly provided in the Act . . .) . . . we agree that Title VI does
not expressly grant such authority.'').
\307\ 1984 Cable Act House Report, 1984 U.S.C.C.A.N. at 4656
(emphasis added).
---------------------------------------------------------------------------
78. We also conclude, contrary to the assertions of some
commenters,\308\ that it would conflict with Congress's goals in the
Act to permit LFAs to treat incumbent cable operators that are not
common carriers differently from incumbent cable operators and new
entrants that are common carriers in their provision of information
services, including broadband Internet access service.\309\ As we noted
in the Second FNPRM, incumbent and new entrant cable operators (whether
or not they are also common carriers) often compete in the same markets
and offer nearly identical services to consumers.\310\ Thus, to allow
LFAs to regulate the latter group of providers more strictly, such as
by subjecting them to franchise and fee requirements for the provision
of non-cable services,\311\ could place them at a competitive
disadvantage.\312\ A report submitted by NCTA asserts, for example,
that two fixed broadband providers may build out their networks
differently, with one utilizing wireless backhaul and the other using
landline backhaul, but ``if one has inputs subjected to [fees] and the
other does . . . treatment can distort competition between the two,
even when the services provided . . . are indistinguishable to the
consumer.'' \313\ The distortion to competition that stems from
``hampering a subset of competitors,'' \314\ in turn, reduces the
incentives of those competitors to invest in cable system upgrades for
the provision of both cable and non-cable services, which could thwart
the 1996 Act's goals to promote competition among communications
providers and secure lower prices and higher quality services for
consumers.\315\ Such regulations, moreover, impede the Commission's
development of a ``consistent regulatory framework across all broadband
platforms,'' \316\ which is ``[o]ne of the cornerstones of [federal]
broadband policy.'' \317\
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\308\ See, e.g., NATOA et al. Comments at 20-21.
\309\ Second FNPRM, 33 FCC Rcd at 8969, para. 30.
\310\ Id.
\311\ In section III.C., we discuss franchise and fee requirements
imposed by state and local governments, including LFAs, on franchised
cable operators' provision of non-cable services. We find that such
requirements are preempted under section 636(c) of the Act.
\312\ As NCTA notes, under the First Report and Order, LFAs may not
lawfully require a telecommunications carrier with a preexisting right
to access public rights-of-way for the provision of telecommunications
services, to secure a Title VI franchise to provide non-cable services
over its network. We agree with NCTA that a cable operator with a
preexisting right to access public rights-of-way for the provision of
cable service likewise should not be required to obtain a separate
authorization to provide non-cable services over its cable system,
given that there is no incremental burden on the rights-of-way. NCTA
May 3, 2019 Ex Parte at 6.
\313\ NCTA Reply App. 1, Report of Jonathan Orszag and Allan
Shampine at 11 (Orszag/Shampine Analysis).
\314\ Id.
\315\ Second FNPRM, 33 FCC Rcd at 8969, para. 30. See also Orszag/
Shampine Analysis at 6 (estimating that even modest reductions in
network improvements as a consequence of reduced incentives to invest
easily could result in consumer welfare losses exceeding $40 billion by
2023); ICLE July 18, 2019 Ex Parte at 19 (``[T]here is little economic
sense in arbitrarily distinguishing between new entrants and
incumbents. If the taxation of new broadband entrants under cable
franchising rules would decrease their incentive to deploy, then the
taxation of incumbent cable providers offering broadband services would
similarly decrease their incentive to expand, upgrade, or make other
broadband network investments.''). We find no record basis for
concluding that these concerns are raised only with respect to
incumbent cable operators, and not new entrants. Second FNPRM, 33 FCC
Rcd at 8969, para. 30, n.145 (seeking comment on whether concerns
regarding regulatory disparity apply to new entrants that are not
common carriers).
\316\ Communications Assistance for Law Enforcement Act and
Broadband Access and Services, ET Docket No. 04-295, First Report and
Order and Further Notice of Proposed Rulemaking, 20 FCC Rcd 14989,
para. 33 (2005).
\317\ Id. See also Appropriate Framework for Broadband Access to
the Internet Over Wireline Facilities, CC Docket No. 02-33, Report and
Order and Notice of Proposed Rulemaking, 20 FCC Rcd 14852, paras. 1, 17
(2005) (recognizing the benefits of ``crafting an analytical framework
that is consistent, to the extent possible, across multiple platforms
that support competing services,'' and thus adopting a framework that
``regulat[es] like services in a similar functional manner.''). The
fact that section 602(7)(C) excludes from the term ``cable system'' a
facility of a common carrier subject to Title II of the Act, 47 U.S.C.
Sec. 522(7)(C), does not persuade us that Congress intended to permit
LFAs to regulate incumbent cable operators that are not common carriers
differently from incumbent cable operators and new entrants that are
common carriers in their provision of non-cable services. Rather, given
Congress's desire in the Act to ensure ``competitively neutral and
nondiscriminatory'' regulation, see, e.g., 47 U.S.C. Sec. 253(c), we
find that section 602(7)(C)'s carve out of Title II facilities from the
definition of ``cable system'' merely evinces Congressional intent to
preclude franchising authorities from regulating any telecommunications
services carried over a cable system.
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79. We also are not convinced by arguments that interpreting the
Act to bar LFAs from regulating non-cable facilities and equipment
placed in public rights-of-way would pose a safety risk to the public
because cable operators would have unfettered discretion to install
non-cable facilities without review or approval by local
authorities.\318\ Section 636(a) of the Act specifically provides that
``[n]othing in [Title VI] shall be construed to affect any authority of
any State, political subdivision, or agency thereof, or franchising
authority, regarding matters of public health, safety, and welfare, to
the extent consistent with the express provisions of [Title VI].''\319\
This provision, which is an express exception to Title VI's general
prohibition on franchising authority regulation of non-cable facilities
and equipment, thus permits LFAs to impose requirements on non-cable
facilities and equipment designed to protect public safety, so long as
such requirements otherwise are consistent with the provisions of Title
VI.\320\
---------------------------------------------------------------------------
\318\ See, e.g., City Coalition Comments at 24-25; City of
Philadelphia et al. Comments at 44; King County Comments at 9-10; City
of Lakewood Comments at 2; Massachusetts Municipal Association Comments
at 2.
\319\ 47 U.S.C. Sec. 556(a).
\320\ See NCTA Mar. 13, 2019 Ex Parte at 11 (asserting that the
mixed-use rule would not ``authorize cable operators to place new
installations in public [rights-of-way] without limit'' or prevent a
locality from addressing ``legitimate public safety and welfare issues,
such as road closures and traffic management during installation and
maintenance of cable plant and enforcement of building and electrical
codes'').
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C. Preemption of Other Conflicting State and Local Regulation
80. As noted above, Title VI does not permit franchising
authorities to extract fees or impose franchise or other requirements
on cable operators insofar as they are providing services other than
cable services. Ample record evidence shows, however, that some states
and localities are purporting to assert authority to do so outside the
limited scope of their authority under Title VI. These efforts appear
to have followed the decision by the Supreme Court of Oregon in City of
Eugene v. Comcast,\321\ which upheld a local government's imposition of
an additional seven percent ``telecommunications'' license fee on the
provision of broadband services over a franchised cable system with
mixed use facilities. To address this problem, we now expressly preempt
any state or local requirement, whether or not imposed by a franchising
authority, that would impose obligations on franchised cable operators
beyond what Title VI allows.\322\ Specifically, we preempt (1) any
imposition of fees on a franchised cable operator or any affiliate
using the same facilities franchised to the cable operator\323\ that
exceeds the formula set forth in section 622(b) of the Act and the
rulings we adopt today, whether styled as a ``franchise'' fee, ``right-
of-access'' fee, or a fee on non-cable (e.g., telecommunications or
broadband) services, and (2) any requirement that a cable operator with
a Title VI franchise secure an additional franchise or other
authorization to provide non-cable services via its cable system.\324\
We base these conclusions on Congress's express decision to preempt
state and local laws that conflict with Title VI of the Communications
Act (section 636(c)), the text and structure of Title VI and the Act as
a whole, Congressional and Commission policies (including the policy of
nonregulation of information services), and the Supremacy Clause of the
U.S. Constitution.\325\
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\321\ City of Eugene v. Comcast of Or. II, Inc., 375 P.3d 446 (Or.
2016) (Eugene).
\322\ Such preemption applies to the imposition of duplicative
taxes, fees, assessments, or other requirements on affiliates of the
cable operator that utilize the cable system to provide non-cable
services. NCTA July 18, 2019 Ex Parte at 5.
\323\ For example, a cable operator may provide voice or broadband
services through affiliates, and an LFA could not impose duplicative
fees on those affiliates.
\324\ We do not set forth an exhaustive list of state and local
laws and legal requirements that are deemed expressly preempted.
Rather, we simply clarify that state and local laws and other legal
requirements are preempted to the extent that they conflict with the
Act and the Commission's implementing rules and policies. As discussed
in paragraph 105 below, such preempted requirements include those
expressly approved in Eugene.
\325\ Contrary to some assertions in the record, we find that the
Second FNPRM provided adequate notice to interested parties that the
Commission could exercise its preemption authority under section 636(c)
to address local regulation of non-cable services outside Title VI.
See, e.g., NATOA et al. July 24, 2019 Ex Parte at 10, City of Eugene
July 24, 2019 Ex Parte at 2-4. In support of its tentative conclusion
that ``[s]ection 624(b) of the Act prohibits LFAs from using their
franchising authority to regulate the provision of information
services, including broadband Internet access service,'' the Second
FNPRM specifically cited section 636(c) and set forth the text of that
provision nearly verbatim. Second FNPRM, 33 FCC Rcd at 8966-67, para.
27, n. 126. In addition, the Commission in the Second FNPRM tentatively
concluded that preempted ``entry and exit restrictions'' include
requirements that an incumbent cable operator obtain a franchise to
provide broadband Internet access service and that LFAs therefore are
expressly preempted from imposing such requirements. Id. at 8968, para.
29. The Commission sought comment on that tentative conclusion and on
``whether there are other regulations imposed by LFAs on incumbent
cable operators' provision of broadband Internet access service that
should be considered entry and exit restrictions, or other types of
economic or public utility-type regulations, preempted by the
Commission.'' Id. Such regulations include duplicative fee and
franchise requirements imposed by franchising authorities such as the
City of Eugene, which is a ``governmental entity empowered by . . .
[s]tate [ ] or local law to grant a [cable franchise].'' 47 U.S.C.
Sec. 522(10). Indeed, the fact that multiple LFA advocates recognized
that the Second FNPRM could be read to seek comment on the Commission's
authority to preempt requirements imposed outside Title VI contradicts
claims that the Second FNPRM did not adequately apprise parties of the
possible scope of the Commission's preemption ruling. See, e.g., CAPA
Comments at 17; City Coalition Comments at 21-22; NATOA et al. Comments
at 13-15; Free Press Reply at 7-8. Moreover, the fact that cable
commenters in this proceeding referenced section 636(c) as a potential
basis for our preemption ruling, see, e.g., ACA Comments at 14; NCTA
Comments at 36; ACA Reply at 5, demonstrates that such ruling is a
``logical outgrowth'' of the Second FNPRM. Covad Communications Co. v.
FCC, 450 F.3d at 528, 548 (D.C. Cir. 2006), citing Small Refiner Lead
Phase-Down Task Force v. EPA, 705 F.2d 506, 548-49 (D.C. Cir. 1983)
(``Whether the `logical outgrowth' test is satisfied depends on whether
the affected party `should have anticipated' the agency's final course
in light of the initial notice.'').
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81. Authority to Preempt. Congress has the authority to preempt
state law under Article VI of the U.S. Constitution. While Congress's
intent to preempt sometimes needs to be discerned or implied from a
purported conflict between Federal and state law, here Congress spoke
directly to its intent to preempt state and local requirements that are
inconsistent with Title VI. This express preemption extends beyond the
actions of any state or local franchising authority. Section 636(c) of
the Act provides that ``any provision of law of any State, political
subdivision, or agency thereof, or franchising authority, or any
provision of any franchise granted by such authority, which is
inconsistent with this chapter shall be deemed to be preempted and
superseded.'' \326\ The reference in section 636(c) to ``this chapter''
means that Congress intended to preempt any state or local law (or any
franchise provision) that is inconsistent with any provision of the
Communications Act, whether or not codified in Title VI.\327\ Moreover,
section 636(c) applies broadly to ``any [inconsistent] provision of
law'' of ``any State, political subdivision, or agency thereof.'' \328\
That means that Congress intended that states and localities could not
``end-run'' the Act's limitations by using other governmental entities
or other sources of authority to accomplish indirectly what franchising
authorities are prohibited from doing directly.\329\
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\326\ 47 U.S.C. Sec. 556(c). For purposes of this provision, the
term ``State'' has the meaning given such term in section 3 of the Act.
Id. Section 3, in turn, provides that ``the term `State' includes the
District of Columbia and the Territories and possessions.'' Id.
Sec. 153(47).
\327\ Id. Sec. 556(c). Section 636(c)'s reference to ``this
chapter'' is to the Communications Act of 1934, as amended, which is
codified in Chapter 5 of Title 47 of the United States Code. Section
636(c)'s reference to ``this chapter'' stands in contrast to other
provisions in section 636, which reference ``this subchapter,'' or
Title VI of the Act. Compare 47 U.S.C. Sec. 556(c) with id.
Sec. 556(a), (b).
\328\ Id. Sec. 556(c) (emphasis added). Contrary to some LFAs'
assertion, see Anne Arundel County, et al. July 24, 2019 Ex Parte at 6,
given that Congress in section 636(c) expressly preempted certain state
and local laws, we need not find that Federal preemption of laws
governing intrastate telecommunications services is permissible under
the ``impossibility exception.'' Nevertheless, we find that the
impossibility doctrine further supports our decision herein. See Min.
Pub. Util. Comm'n v. FCC, 483 F.3d 570, 578 (8th Cir. 2007) (``the
`impossibility exception' of 47 U.S.C. Sec. 152(b) allows the FCC to
preempt state regulation of a service if (1) it is not possible to
separate the interstate and intrastate aspects of the service, and (2)
Federal regulation is necessary to further a valid Federal regulatory
objective, i.e., state regulation would conflict with Federal
regulatory policies.'').
\329\ Contrary to the suggestion of the City of Eugene, our
preemption authority does not depend on Section 706 of the Act. See
City of Eugene July 24, 2019 Ex Parte at 5.
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82. Where Congress provides an express preemption provision such as
section 636(c), the Commission has delegated authority to identify the
scope of the subject matter expressly preempted and assess whether a
state's law falls within that scope.\330\ The Commission may,
therefore, expressly bar states and localities from acting in a manner
that is inconsistent with both the Act and the Commission's
interpretations of the Act, so long as those interpretations are
valid.\331\ We therefore disagree with assertions that the Commission
lacks authority to preempt non-cable regulations imposed by states and
localities pursuant to non-Title VI sources of legal authority.\332\
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\330\ First Report and Order, 22 FCC Rcd at 5157, para. 128.
\331\ See, e.g., Liberty Cablevision of Puerto Rico, Inc. v.
Municipality of Caguas, 417 F.3d 216, 219-221 (1st Cir. 2005) (finding
municipal ordinances that imposed franchise fees on cable operators
were preempted under section 636(c) where inconsistent with section 622
of the Communications Act). The Commission bears the responsibility of
determining the scope of the subject matter expressly preempted by
section 636(c). See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 519
(1992); Capital Cities Cable v. Crisp, 467 U.S. 691, 699 (1984).
\332\ See, e.g., NATOA et al. Comments at 14-18; NATOA et al. Reply
at 13; City of Philadelphia et al. Reply at 22-23; NATOA Mar. 15, 2019
Ex Parte at 2; Anne Arundel County et al. Comments at 37-39. See also
City of Eugene Sept. 19, 2018 Ex Parte at 29-31, citing Gregory v.
Ashcroft, 501 U.S. 452, 460-61 (1991) (asserting that if Congress
intends to preempt a power traditionally exercised by state or local
governments, it must make such intent unmistakably clear in the
language of the statute).
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83. Scope of Preemption. The Commission's task, then, in
interpreting the scope of preemption under section 636(c) is to
determine whether specific state or local requirements are inconsistent
with Title VI or other provisions in the Communications Act. Looking at
the provisions of Title VI and the Act as a whole, we have little
trouble concluding that Congress did not intend to permit states,
municipalities, or franchising authorities to impose fees or other
requirements on cable operators beyond those specified under Title VI,
under the guise of regulating ``non-cable services'' or otherwise
restricting a cable operator's construction, operation, or management
of facilities in the rights-of-way.
84. As an initial matter, we note that Title VI establishes a
framework that reflects the basic terms of a bargain--a cable operator
may apply for and obtain a franchise to access and operate facilities
in the local rights-of-way, and in exchange, a franchising authority
may impose fees and other requirements as set forth and circumscribed
in the Act. So long as the cable operator pays its fees and complies
with the other terms of its franchise, it has a license to operate and
manage its cable system free from the specter of compliance with any
new, additional, or unspecified conditions (by franchise or otherwise)
for its use of the same rights-of-way.
85. The substantive provisions of Title VI make the terms of this
bargain clear. For starters, section 621(a)(1) provides franchising
authorities with the right to grant franchises, and section 621(a)(2)
explains that such franchises ``shall be construed to authorize the
construction of a cable system over public rights-of-way . . .'' \333\
A ``cable operator,'' in turn, may not provide ``cable service'' unless
the cable operator has obtained such a franchise.\334\ Other provisions
make clear that a franchise does not merely authorize the construction
of a cable system, but also the ``management and operation of such a
cable system,\335\ including the installation of Wi-Fi and small cell
antennas attached to the cable system.'' \336\
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\333\ 47 U.S.C. Sec. 541(a)(2).
\334\ Id. Sec. 541(b)(1).
\335\ Id. Sec. 522(5). See also id. Sec. 544(b) (establishing
limitations on rules for ``establishment or operation of a cable
system''). We therefore reject LFA assertions that the absence in
section 621(a)(2) of an express grant of authority to ``operate'' a
cable system evinces Congress's intent that a Title VI franchise bestow
only the right to construct, but not to operate, a cable system over
public rights-of-way. See, e.g., Anne Arundel County et al. Comments at
43.
\336\ NCTA May 3, 2019 Ex Parte at 2 (urging the Commission to
clarify that the Act precludes duplicative authorizations and fees
imposed for access to rights-of-way to deploy Wi-Fi and small cell
antennas attached to, or part of, the cable system); NCTA June 11, 2018
Ex Parte at 2 (asserting that certain localities have refused to
authorize permits allowing installation of Wi-Fi equipment on cable
facilities on the basis that the equipment does not support cable
service, even though the equipment is used, in part, to allow cable
subscribers to watch subscription video programming).
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86. The right to construct, manage, and operate a ``cable system''
does not mean merely the right to provide cable service.\337\ Numerous
provisions in Title VI evidence Congress's knowledge and understanding
that cable systems would carry non-cable services--including
telecommunications and information services. The definition of ``cable
system,'' for example, anticipates that some facilities may carry both
telecommunications and cable services.\338\ With respect to information
services, section 601 of the Act provides that one of Title VI's
purposes is to ``assure that cable communications provide and are
encouraged to provide the widest possible diversity of information
sources and services to the public.'' \339\ And, as we have already
seen, Congress expressly provided in section 624(b) for ``mixed-use''
facilities that carry both cable services and ``video programming or
other information services.'' \340\
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\337\ As noted, under section 621(a)(2), ``[a]ny franchise shall be
construed to authorize the construction of a cable system over public
rights-of-way.'' 47 U.S.C. Sec. 541(a)(2). Because the ``construction
of a cable system'' includes the installation of facilities and
equipment needed to provide both cable and non-cable services, such as
wireless broadband and Wi-Fi services, the grant of a Title VI
franchise bestows the right to place facilities and equipment in
rights-of-way to provide such services.
\338\ See, e.g., 47 U.S.C. Sec. 522(7)(C) (providing that a ``cable
system'' shall extend to the facility of a common carrier providing a
Title II service only ``to the extent such facility is used in the
transmission of video programming directly to subscribers . . .'').
\339\ Id. Sec. 521(4).
\340\ Id. Sec. 544(b)(1).
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87. The legislative history reinforces the conclusion that Congress
understood that a franchised ``cable system'' would carry both cable
and non-cable services. The House Report, for example, explains that
``[t]he term `cable system' is not limited to a facility that provides
only cable service which includes video programming. Quite the
contrary, many cable systems provide a wide variety of cable services
and other communications services as well. A facility would be a cable
system if it were designed to include the provision of cable services
(including video programming) along with communications services other
than cable service.'' \341\
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\341\ 1984 Cable Act House Report, 1984 U.S.C.C.A.N. at 4681
(``[C]able operators are permitted under the provisions of [the Cable
Act] to provide any mixture of cable and non-cable service they
choose.''). See also Heritage Cablevision Assocs. of Dallas, L.P. v.
Texas Utils. Elec. Co., 6 FCC Rcd 7099, 7104, para. 24 (1991) (``[T]he
House report accompanying the Cable Act clearly defeats [the] claim
that a cable operator's facilities cease being a `cable system' merely
because they carry non-cable communications services in addition to
video entertainment.''), aff'd, Texas Utils. Elec. Co. v. FCC, 997 F.2d
925, 931-932 (D.C. Cir. 1993).
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88. The point is that Congress was well aware that ``cable
systems'' would be used to carry a variety of cable and non-cable
services. It follows that Congress could have, if it wanted, provided
significant leeway for states, localities, and franchising authorities
to tax or provide other regulatory restrictions on a cable system's
provision of non-cable services in exchange for the cable operator
receiving access to the rights-of-way. But as it turns out, the balance
of Title VI makes clear that Congress sharply circumscribed the
authority of state or local governments to regulate the terms of this
exchange. Today, we make clear that, under section 636(c), states,
localities, and franchising authorities may not impose fees or
restrictions on cable operators for the provision of non-cable services
in connection with access to such rights-of-way, except as expressly
authorized in the Act. We provide further explanation in two critical
areas to clarify that these categories of state and local restrictions
are preempted: (a) additional franchise fees beyond those authorized in
Section 622 and (b) additional franchises or regulatory restrictions on
a cable operator's construction, management, or operation of a cable
system in the rights-of-way.
89. Additional fees. Both Congress and the Commission have
recognized that the franchise fee is the core consideration that
franchising authorities receive in exchange for the cable operator's
right to access and use the rights-of-way.\342\ As explained in detail
above, Congress carefully circumscribed how this fee should be
calculated: It provided that ``the franchise fees paid by a cable
operator with respect to any cable system shall not exceed 5 percent of
such cable operator's gross revenues derived in such period from the
operation of the cable system to provide cable services''. \343\ We
must assume that Congress's careful choice of words was intentional.
While the fee would apply to the ``cable operator'' with respect to any
``cable system,'' it would only apply to revenue obtained from ``cable
services,'' not non-cable services that Congress understood could
provide additional sources of revenue.
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\342\ 47 U.S.C. Sec. 542. See also 1984 Cable Act House Report,
1984 U.S.C.C.A.N. at 4663 (recognizing local government's entitlement
to ``assess the cable operator a fee for the operator's use of public
ways'' and establishing ``the authority of a city to collect a
franchise fee''); First Report and Order, 22 FCC Rcd at 5161, para. 135
(stating that ``Congress enacted the cable franchise fee as the
consideration given in exchange for the right to use the public
ways'').
\343\ 47 U.S.C. Sec. 542(b) (emphasis added).
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90. We find additional support for this conclusion in Congress's
broad definition of the term ``franchise fee,'' which covers ``any tax,
fee, or assessment of any kind imposed by a franchising authority or
other governmental entity on a cable operator or cable subscriber or
both, solely because of their status as such.'' \344\ This broad
definition was intended to limit the imposition of any tax, fee, or
assessment of any kind--including fees purportedly for provision of
non-cable services or for, access to, use of, or the value of the
rights of way\345\--to five percent of the cable operator's revenue
from cable services.\346\ And its language reinforces the text of
section 636(c) by making clear that a different state or local
``governmental entity'' cannot end-run the cap by imposing fees for
access to any public right of way within the franchise area or in
instances of overlapping jurisdiction.\347\
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\344\ Id. Sec. 542(g)(1).
\345\ NCTA Apr. 19, 2019 Ex Parte at 2-3 (claiming that some
governmental entities, such as the state of California, are imposing
fees that exceed the five percent cap by styling such fees as a ``tax''
that nominally applies to other users of the rights-of-way, but whose
valuation is inextricably linked to the provision of video services).
\346\ State and local advocates do not appear to dispute that
section 622(b) limits franchise fees to five percent of a cable
operator's gross revenues derived from the provision of cable service
only. See, e.g., NATOA et al. Comments at 21-22; CAPA Reply at 20. See
also City of New York Comments at 13. Rather, their claims, as
discussed herein, are that fees on broadband and telecommunications
services are not ``franchise fees'' at all--claims that we show are
belied by the text, structure, and purposes of Title VI.
\347\ See, e.g., NCTA Apr. 19, 2019 Ex Parte at 1-2, citing Liberty
Cablevision, 417 F.3d at 223; NCTA July 3, 2019 Ex Parte at 2
(asserting that the state of Maryland has begun to require franchised
cable operators to enter into separate ``resource sharing agreements''
with the state's Department of Information Technology that impose
duplicative fees and other requirements for continued access to rights-
of-way).
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91. In reaching this conclusion, we read the phrase ``solely
because of their status as such'' as protective language intended to
place a ceiling on any sort of fee that a franchising authority might
impose on a cable operator qua cable operator or qua franchisee--that
is, any fee assessed in exchange for the right to construct, manage, or
operate a cable system in the rights-of-way. We therefore reject the
claim of some commenters that this language permits localities to
charge additional fees so long as the cable operator also acts as a
telecommunications provider or Internet service provider, or so long as
the state or locality can articulate some non-cable related rationale
for its actions.\348\ This alternate rationale flies in the face of
statutory text. As noted above, a ``cable operator'' is defined not
only as a person or entity that provides cable service, but also one
that ``controls or is responsible for, through any arrangement, the
management and operation of such a cable system.'' \349\ The management
or operation of a cable system includes the maintenance of the system
to provide non-cable services--which Congress understood would be
supplied over the same cable facilities.\350\ Because a fee that a
state or locality imposes on a cable operator's provision of non-cable
services relates to the ``manage[ment] and operat[ion]'' of its cable
system, such fee is imposed on the cable operator ``solely because of
[its] status'' as a cable operator and is capped by section 622.\351\
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\348\ CAPA Reply at 20-21. See also NATOA et al. July 24, 2019 Ex
Parte at 25-28 (asserting that the Act does not preclude local
governments from exercising generally-applicable rights-of-way
authority over a cable operator's provision of non-cable services).
\349\ 47 U.S.C. Sec. 522(5) (emphasis added).
\350\ Id. As NCTA notes, a service provider may have status as a
cable operator either because of its provision of cable service or
because of its operation of a cable system. NCTA Mar. 13, 2019 Ex Parte
at 12, n.64, citing 47 U.S.C. Sec. 522(5). A service provider that is
operating a cable system to provide broadband Internet access service
thus is providing such service ``solely because of'' its status as a
cable operator. 47 U.S.C. Sec. 542(g)(1).
\351\ Id.
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92. The structure of section 622 as a whole provides further
support for our reading. The language ``solely because of their status
as such'' operates to distinguish fees imposed on cable operators for
access to the rights-of-way (``franchise fees''), which are capped,
from ``any tax, fee, or assessment of general applicability,'' which
are not.\352\ Section 622 thus envisions two mutually exclusive
categories of assessments--(1) fees imposed on cable operators for
access to the rights-of-way in their capacity as franchisees (that is,
``solely because of their status as such'') and (2) broad-based taxes.
Understood in this manner, any assessment on a cable operator for
constructing, managing, or operating its cable system in the rights-of-
way is subject to the five-percent cap--even if other non-cable service
providers (e.g., telecommunications or broadband providers) are subject
to the same or similar access fees.\353\ This is because the definition
of ``franchise fee'' in section 622(g)(1) centers on why the fee is
imposed on a cable operator, i.e., ``solely because of [its] status''
as a franchisee, and not to whom the fee is imposed, i.e., ``solely
applicable'' to a cable operator.\354\ The entire category of
``franchise fees'' is subject to the five-percent cap, in distinction
to generally-applicable taxes whose validity must be shown, at least in
part, by their application to broader classes of entities or citizens
beyond providers of cable and non-cable communications services.\355\
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\352\ Williams v. Taylor, 529 U.S. 362, 404 (2000) (holding that,
where possible, every word in a statute should be given meaning).
\353\ See NCTA Mar. 13, 2019 Ex Parte at 12-13. Although a
``franchise fee'' does not include ``any tax, fee, or assessment of
general applicability,'' we note that this exception excludes a tax,
fee, or assessment ``which is unduly discriminatory against cable
operators or cable subscribers.'' 47 U.S.C. Sec. 542(g)(2)(A). Even if
``telecommunications'' fees such as those at issue in Eugene could
reasonably be characterized as fees of general applicability by virtue
of their application to providers other than cable operators, we find
that such fees would be ``unduly discriminatory''--and thus constitute
``franchise fees''--as applied to franchised cable operators. This is
because such fees are assessed on cable operators in addition to the
five percent franchise fees such operators must pay for use of public
rights-of-way. That is, cable operators must pay twice for access to
rights-of-way (i.e., one fee for cable service and a second fee for
non-cable service), whereas non-cable providers must pay only once for
such access (i.e., for non-cable service). NCTA Mar. 13, 2019 Ex Parte
at 13. We, therefore, conclude that interpreting the Act to preclude
localities from assessing fees on cable operators' use of rights-of-way
to provide non-cable services would be ``competitively neutral and
nondiscriminatory,'' contrary to the suggestion of some commenters.
See, e.g., NATOA et al. July 24, 2019 Ex Parte at 9.
\354\ See NCTA Mar. 13, 2019 Ex Parte at 12-13.
\355\ We thus disagree with assertions that Congress did not intend
for franchise fees to cover cable operators' use of public property for
the provision of services other than cable services. See, e.g., AWC
Reply at 9 (``Congress determined . . . that a fair compensation for
the use of the rights-of-way for the purpose of providing cable service
can be up to [five percent] of cable gross revenues. . . . [T]he right
to occupy this limited and valuable public property for other purposes
was never intended to be compensated by the provisions of the Cable
Act.'').
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93. The legislative history and purposes of the 1984 Cable Act
support this broad and exclusive interpretation of the term ``franchise
fees.'' It reveals, for example, that Congress initially established
the section 622(b) cap on franchise fees out of concern that local
authorities could use such fees as a revenue-raising mechanism.\356\ A
reading of section 622 that would permit states and localities to
circumvent the five percent cap by imposing unbounded fees on ``non-
cable services'' would frustrate the Congressional purpose behind the
cap and effectively render it meaningless. The legislative history
behind the 1996 amendments to section 622(b) make this intent explicit.
Prior to 1996, section 622 provided, in relevant part, that ``the
franchise fees paid by a cable operator with respect to any cable
system shall not exceed [five percent] of such cable operator's gross
revenues derived . . . from the operation of the cable system.'' \357\
The House Report accompanying the 1996 amendment,\358\ which explained
the addition of the key limitation ``for the provision of cable
services'' in section 622(b), provides that:
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\356\ S. Rep. No. 98-67, at 25 (1983) (``The committee feels it is
necessary to impose such a franchise fee ceiling because without a
check on such fees, local governments may be tempted to solve their
fiscal problems by what would amount to a discriminatory tax not levied
on cable's competitors.''). See also 129 Cong. Rec. S8254 (daily ed.
June 13, 1983) (statement of Sen. Goldwater) (stating that the purpose
of the cap was to prevent franchising authorities from ``taxing private
cable operators to death as a means of raising revenues for other
concerns'').
\357\ 47 U.S.C. Sec. 542(b) (Supp. I 1992), amended by 47 U.S.C.
Sec. 542(b) (Supp. II 1996).
\358\ The conference agreement adopted the House version of this
provision. See H.R. Rep. No. 104-458, at 180 (1996) (Conf. Rep.).
Franchising authorities may collect franchise fees under
[section 622 of the Act] solely on the basis of the revenues
derived by an operator from the provision of cable service. . .
. This section does not restrict the right of franchising
authorities to collect franchise fees on revenues from cable
services and cable-related services, such as, but not limited
to, revenue from the installation of cable service, equipment
used to receive cable service, advertising over video channels,
compensation received from video programmers, and other sources
related to the provision of cable service over the cable
system.\359\
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\359\ H.R. Rep. No. 204, 104th Cong., 1st Sess. 93 (1995) (emphasis
added). We note that the Senate Report similarly clarifies that this
amendment to section 622 ``was intended to make clear that the
franchise fee provision is not intended to reach revenues that a cable
operator derives from providing new telecommunications services over
its system that are different from the cable-related revenues operators
have traditionally derived from their systems.'' S. Rep. 104-23, at 36
(1995).
94. If, as CAPA asserts, Congress had intended the term ``cable
operator'' as used in section 622(b) to refer to an entity only to the
extent such entity provides cable service, there would have been no
need for Congress to amend section 622(b) in this manner.\360\
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\360\ See CAPA Reply at 20-21.
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95. Although, as LFA advocates note,\361\ section 621(d)(2) of the
Act provides that ``[n]othing in [Title VI] shall be construed to
affect the authority of any State to regulate any cable operator to the
extent that such operator provides any communication service other than
cable service, whether offered on a common carrier or private contract
basis,'' \362\ this provision is not an affirmative grant to states of
authority to regulate non-cable services that they historically have
not been empowered to regulate. First, the term ``State'' in section
621(d) does not extend to LFAs; it is defined by reference to section 3
of the Communications Act. The legislative history makes clear that
this was a reference to the division of regulatory authority between
the ``state public utility commission and. . .the FCC.'' \363\ Second,
this provision merely reflects Congress's intent in the 1984 Cable Act
to preserve the status quo with respect to Federal and state
jurisdiction over non-cable services.\364\ As noted, under the then-
existing status quo, the Commission had jurisdiction to regulate
interstate services; states had jurisdiction to regulate intrastate
services.\365\ Because the Commission historically has concluded that
information service is jurisdictionally interstate,\366\ it
traditionally has fallen outside the proper regulatory sphere of state
and local authorities.\367\ Moreover, the Commission has long
recognized the impossibility of separately regulating interstate and
intrastate information services.\368\ Thus, neither a state nor its
political subdivisions may lawfully regulate such service under section
621(d)(2) by requiring a cable operator with a Title VI franchise to
pay a fee or secure a franchise or other authorization to provide
broadband Internet access service over its cable system. To conclude
otherwise would contravene Congress's intent in Title VI to maintain
the jurisdictional status quo with respect to federal, state, and local
regulation of non-cable services.\369\
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\361\ Anne Arundel County et al. July 24, 2019 Ex Parte at 5-6.
\362\ 47 U.S.C. Sec. 541(d)(2).
\363\ 1984 Cable Act House Report, 1984 U.S.C.C.A.N. at 4700.
\364\ NCTA July 25, 2019 Ex Parte at 5-6.
\365\ 1984 Cable Act House Report, 1984 U.S.C.C.A.N. at 4666.
\366\ Restoring Internet Freedom Order, 33 FCC Rcd at 430, para.
199 (reaffirming the Commission's view that Internet access service is
jurisdictionally interstate because a substantial portion of Internet
traffic involves accessing interstate or foreign websites).
\367\ The Commission recognized as much when it stated:
[T]he Commission has independent authority to displace state and
local regulations in accordance with the longstanding Federal policy of
nonregulation for information services. For more than a decade prior to
the 1996 Act, the Commission consistently preempted state regulation of
information services (which were then known as ``enhanced services'').
When Congress adopted the Commission's regulatory framework and its
deregulatory approach to information services in the 1996 Act, it thus
embraced our longstanding policy of preempting state laws that
interfere with our Federal policy of nonregulation.
Restoring Internet Freedom Order, id. at 431, para. 202, citing
Petition for Declaratory Ruling that Pulver.com's Free World Dialup Is
Neither Telecommunications Nor a Telecommunications Service, Memorandum
Opinion and Order, 19 FCC Rcd 3307, 3316-23, paras. 15-25 (2004)
(discussing the Federal policy of nonregulation for information
services). Because broadband Internet access service is
jurisdictionally interstate whether classified as a telecommunications
or an information service, regulatory authority over such service
resides exclusively with the Commission.
\368\ See California v. FCC, 39 F.3d 919 (9th Cir 1994); Petition
for Emergency Relief and Declaratory Ruling Filed by the BellSouth
Corp., 7 FCC Rcd 1619 (1992).
\369\ We also reject claims that section 621(d)(1)'s grant to
states of authority to require the filing of tariffs by cable operators
for the provision of certain non-cable services reflects Congress's
intent to permit state regulation of those services. Anne Arundel
County et al. July 24, 2019 Ex Parte at 5. As explained in section
III.B. above, that provision was intended only to permit states to
require tariffs for services that they otherwise were authorized to
regulate, such as telecommunications services that are purely
intrastate. See 1984 Cable Act House Report, 1984 U.S.C.C.A.N. at 4698
(``A regulatory agency [under section 621(d)] may require a cable
operator to file an informational tariff for a non-cable communications
service only if the agency has jurisdiction over a common carrier's
provision of such a service.'').
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96. We find unpersuasive NATOA et al.'s selective reading of the
legislative history to conclude that Congress intended to permit states
and localities to require franchised cable operators to pay additional
rights-of-way fees for the provision of non-cable services. NATOA et
al. note that the House Conference Report accompanying the 1996
amendment stated that ``to the extent permissible under state and local
law, communications services, including those provided by a cable
company, shall be subject to the authority of a local government to, in
a nondiscriminatory and competitively neutral way, manage its public
rights-of-way and charge fair and reasonable fees.'' \370\ Although the
cited legislative history is relevant to our interpretation of the
statute,\371\ we do not read this language so broadly as permitting
states and localities to charge redundant or duplicative fees on cable
franchisees that are subject to the five-percent cap--a reading that
would, as we have explained, eviscerate the cap entirely. Rather, we
conclude that, under section 636(c), and taking into account the
provisions of Title VI as a whole, any fees that exceed the five-
percent cap, as formulated in section 622, are not ``fair and
reasonable.'' \372\
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\370\ NATOA Mar. 15, 2019 Ex Parte at 2, citing H.R. Conf. Rep. No.
104-458, at 209 (1996), reprinted in 1996 U.S.C.C.A.N. 124, 223
(emphasis added).
\371\ As some LFA advocates note, Anne Arundel County et al. July
25, 2019 Ex Parte at 10, n.29, the Commission previously noted in
passing that, while a cable operator is not required to pay cable
franchise fees on revenues from non-cable services, this rule ``does
not apply to non-cable franchise fee requirements, such as any lawful
fees related to the provision of telecommunications service.'' Second
Report and Order, 22 FCC Rcd at 19638, para. 11, n.31. For the reasons
explained below, we would deem an LFA's assessment of a cable operator
twice for accessing public rights-of-way (once as a cable operator and
again as a telecommunications provider) to be unlawful as not ``fair
and reasonable'' nor ``competitively neutral and nondiscriminatory.''
See infra note 372. See also 47 U.S.C. Sec. 253(c). To the extent our
earlier statement may suggest any broader application, we disavow it
based on the record before us and the arguments made throughout this
item.
\372\ We disagree with LFA assertions that this interpretation is
inconsistent with section 253 of the Act and the Commission's 2018
Wireless Infrastructure Order. Anne Arundel County et al. July 24, 2019
Ex Parte at 10, n.29, citing Accelerating Wireless Broadband Deployment
by Removing Barriers to Infrastructure Investment, Declaratory Ruling
and Third Report and Order, 33 FCC Rcd 9088, n. 130 (2018). Although
section 253 permits states and localities to require ``fair and
reasonable'' compensation from telecommunications providers on a
``competitively neutral and nondiscriminatory basis'' for use of public
rights-of-way, 47 U.S.C. Sec. 253(c), as explained above, we find that
imposing fees on cable operators beyond what Title VI allows is neither
``fair and reasonable'' nor ``competitively neutral and
nondiscriminatory.'' Moreover, although the Commission in the Wireless
Infrastructure Order concluded, among other things, that fees to use
the rights-of-way to deploy small cells for the provision of
telecommunications must be cost-based and no greater than those charged
to ``similarly situated'' entities for comparable uses of the rights-
of-way, we do not believe that our approach today introduces any
inconsistency. Rather, as NCTA notes, we merely recognize that under
the Act, cable operators must compensate local governments for
accessing public rights-of-way under a statutory framework different
from that applicable to telecommunications providers, and that Congress
did not intend for them to be assessed twice for the provision of cable
service or the facilities used in the provision of such service. NCTA
July 25, 2019 Ex Parte at 6-7. Any difference in approach, therefore,
follows from different standards established by Congress in Sections II
and VI of the Act.
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97. Consistent with Congress's intent, as early as 2002, the
Commission has construed section 622(b) to permit franchising
authorities to include in the revenue base for franchise fee
calculations only those revenues derived from the provision of cable
service.\373\ Thus, if a cable operator generates additional revenue by
providing non-cable services over its cable system, such additional
revenue may not be included in the gross revenues for purposes of
calculating the cable franchise fee.\374\
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\373\ In the Cable Modem Declaratory Ruling, for example, the
Commission stated:
We note that section 622(b) provides that `the franchise fees paid
by a cable operator with respect to any cable system shall not exceed
[five percent] of such cable operator's gross revenues derived . .
.from the operation of the cable system to provide cable services.'
Given that we have found cable modem service to be an information
service, revenue from cable modem service would not be included in the
calculation of gross revenues from which the franchise fee ceiling is
determined.
Inquiry Concerning High-Speed Access to the Internet Over Cable and
Other Facilities, Declaratory Ruling and Notice of Proposed Rulemaking,
17 FCC Rcd 4798, 4851, para. 105 (2002) (citations omitted) (Cable
Modem Declaratory Ruling).
\374\ In the First Report and Order, the Commission affirmed its
2002 interpretation of section 622(b):
We clarify that a cable operator is not required to pay franchise
fees on revenues from non-cable services. Section 622(b) provides that
the `franchise fees paid by a cable operator with respect to any cable
system shall not exceed [five percent] of such cable operator's gross
revenues derived ... from the operation of the cable system to provide
cable services'. The Commission [has] determined that a franchise
authority may not assess franchise fees on non-cable services, such as
cable modem service...Although [the Cable Modem Declaratory Ruling]
related specifically to Internet access service revenues, the same
would be true for other `non-cable' service revenues. Thus, Internet
access services, including broadband data services, and any other non-
cable services are not subject to `cable services' fees.
First Report and Order, 22 FCC Rcd at 5146, para. 98 (emphasis in
original) (citations omitted).
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98. As courts have recognized, the Commission is charged with ``the
ultimate responsibility for ensuring a `national policy' with respect
to franchise fees.'' \375\ We exercise that authority today by making
clear that states, localities, and cable franchising authorities are
preempted from charging franchised cable operators more than five
percent of their gross revenue from cable services. This cap applies to
any attempt to impose a ``tax, fee, or assessment of any kind'' that is
not subject to one of the enumerated exemptions in section 622(g)(2) on
a cable operator's non-cable services or its ability to construct,
manage, or operate its cable system in the rights-of-way.
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\375\ ACLU v. FCC, 823 F.2d 1554, 1574 (D.C. Cir. 1987).
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99. Additional Franchises or Other Requirements. Congress also made
clear that states, localities, and franchising authorities lack
authority to require additional franchises or place additional
nonmonetary conditions on a cable operator's provision of non-cable
services that are not expressly authorized in the Act. Several
provisions state explicitly that franchising authorities may not
regulate franchised ``cable systems'' to the extent that they provide
telecommunications services.\376\ In addition, as we noted above,
section 624(b)(1) precludes franchising authorities from
``establish[ing] requirements for video programming or other
information services.'' \377\ In the mixed-use rule we adopt today, we
reasonably construed this provision to prohibit LFAs from regulating
information services provided over cable systems.\378\
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\376\ See, e.g., 47 U.S.C. Sec. 541(b)(3)(B) (``A franchising
authority may not impose any requirement under this subchapter that has
the purpose or effect of prohibiting, limiting, restricting, or
conditioning the provision of a telecommunications service by a cable
operator or an affiliate thereof''); id. Sec. 541(D) (A franchising
authority may not impose any requirement under this subchapter that has
the purpose or effect of prohibiting, limiting, restricting, or
conditioning the provision of a telecommunications service by a cable
operator or an affiliate thereof). See also Montgomery County, 863 F.3d
at 492 (``The Act also makes clear that local franchising authorities
can regulate so called `Title II carriers' (basically, providers of
phone services) only to the extent that Title II carriers provide cable
services.'').
\377\ 47 U.S.C. Sec. 544(b)(1).
\378\ See supra paras. 72-76.
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100. As noted above, section 636(c) operates to preempt state and
local requirements that would use non-Title VI authority to accomplish
indirectly what franchising authorities are prohibited from doing
directly. Consistent with this reasoning, we conclude that any state or
local law or legal requirement that obligates a cable operator
franchised under Title VI to obtain a separate, additional franchise
(or other authorization) or imposes requirements beyond those permitted
by Title VI to provide cable or non-cable services, including
telecommunications and information services, over its cable system
conflicts with the Act and thus also is expressly preempted by section
636(c). The mixed-use rule we adopt today represents a reasonable
interpretation of the relevant provisions of Title VI as well as a
balanced accommodation of the various policy interests that Congress
entrusted to the Commission; therefore, it too has preemptive effect
under section 636(c).\379\
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\379\ We reject arguments that the Commission lacks authority to
preempt state and local regulation of information services without
asserting ancillary jurisdiction over information services. See, e.g.,
Public Knowledge Comments at 1; Common Frequency Comments at 5
(claiming that if the Commission has no authority to regulate
information services, then it has no ability to preempt conflicting
state and local regulation). Because we are relying on express
preemption authority under section 636(c), there is no reason for us to
rely upon ancillary authority in this proceeding.
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101. Public Policy. Apart from our analysis of the text and
structure of the Act and our longstanding delegated authority to
preempt state regulations that are inconsistent with the Act, our
preemption decisions today are also consistent with Congress's and the
Commission's public policy goals and an appropriate response to
problems that are apparent in the record.
102. Recognizing that excessive regulation at the local level could
limit the potential of cable systems to deliver a broad array of
services, Congress expressed its intent to ``minimize unnecessary
regulation that would impose an undue economic burden on cable
systems'' \380\ and ``assure that cable communications provide and are
encouraged to provide the widest possible diversity of information
sources and services to the public.'' \381\ More generally, section
230(b) of the Act expresses Congress's intent ``to preserve the vibrant
and competitive free market that presently exists for the Internet and
other interactive computer services, unfettered by Federal or State
regulation.'' \382\ Accordingly, the Commission has previously
preempted state and local regulations that would conflict with this
Federal policy of nonregulation of information services.\383\ These
longstanding Federal policies provide further support for our decision
today to read Title VI as prohibiting states, localities, and
franchising authorities from imposing fees and obligations on cable
operators beyond those expressly set forth in that Title.
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\380\ 47 U.S.C. Sec. 521(6).
\381\ Id. Sec. 521(4).
\382\ Id. Sec. 230(b)(2). ``Interactive computer services'' are
defined, in relevant part, as ``any information service, system, or
access software provider that provides or enables computer access by
multiple users to a computer server, including specifically a service
or system that provides access to the Internet. . . .'' Id.
Sec. 230(f)(2).
\383\ See, e.g., Cable Modem Declaratory Ruling, 17 FCC Rcd at
4850, para. 102; Restoring Internet Freedom Order, 33 FCC Rcd at 426-
28, paras. 194-95. See also Charter Advanced Services (MN), LLC v.
Lange, No. 17-2290 (8th Cir. filed Sept. 7, 2018) (noting that ``[a]ny
[local] regulation of an information service conflicts with the Federal
policy of nonregulation'' and is therefore preempted).
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103. Our preemption decision today will advance these Federal
policies by preventing further abuses of state and local authorities of
the kind manifested in the record in this proceeding. In recent years,
governmental entities at the local level increasingly have sought to
regulate non-cable services provided over mixed-use cable systems
franchised under Title VI, particularly broadband Internet access
service.\384\ Such governmental entities have included not only state
and local franchising authorities acting pursuant to the cable
franchising provisions of Title VI, but also state and local entities
purportedly acting pursuant to their police powers to regulate public
rights-of-way or other powers derived from sources outside Title VI.
Although the record reveals that such regulation takes many different
forms, NCTA and other industry advocates have expressed acute concerns
about two particular kinds of state and local regulation: (1)
requirements obligating cable operators with a Title VI franchise that
are subject to the franchise fee requirement in section 622(b) of the
Act to pay additional fees for the provision of non-cable services
(such as broadband Internet access) via their cable systems; and (2)
requirements obligating cable operators with a Title VI franchise to
secure an additional franchise (or other authorization) to provide non-
cable services over their cable systems.\385\ Our preemption decisions
today are carefully tailored to address these problems and prevent
states and localities from continuing to circumvent the carefully
calibrated terms of Title VI through these and similar kinds of
regulations.
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\384\ See, e.g., NCTA Comments at 26-28; NCTA Reply, Appendix; NCTA
Mar. 13, 2019 Ex Parte at 10; NCTA June 11, 2018 Ex Parte at 4-5.
\385\ NCTA Comments at 26-28; Altice Reply at 14.
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104. We disagree with those commenters who attempt to minimize the
harm posed by the state and local requirements that we preempt today.
We disagree, for example, that cable industry claims regarding the
impact of duplicative fee and franchise requirements on broadband
deployment are belied by the industry's substantial investments to date
in broadband infrastructure, and that such requirements thus will not
adversely affect broadband investment going forward.\386\ As the record
reflects, even if cable operators were to continue to invest, such
investments likely would be higher absent such requirements, and even
small decreases in investment can have a substantial adverse impact on
consumer welfare.\387\ We also are persuaded that the imposition of
duplicative requirements may deter investment in new infrastructure and
services irrespective of whether or to what extent a cable operator
passes on those costs to consumers.\388\ Contrary to the assertions of
some commenters,\389\ we also believe that such requirements impede
Congress's goal to accelerate deployment of ``advanced
telecommunications capability to all Americans.'' \390\
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\386\ See, e.g., City of New York Reply at 2-3 (asserting that
restricting LFA authority to regulate incumbent cable operators'
provision of non-cable services will not facilitate broadband
deployment). See also Anne Arundel County et al. Reply at Exh. 5; Anne
Arundel County et al. July 24, 2019 Ex Parte and Atts. (submitting
analyses purporting to show that rights-of-way fees and practices at
the local level have a minor impact on cable operators' broadband
deployment decisions). Although LFAs also submitted an engineering
analysis of public rights-of-way processes, id., because this study is
from 2011 and does not address cable franchise fees, it has no bearing
on our findings herein. NCTA July 25, 2019 Ex Parte at 11-12.
\387\ Orszag/Shampine Analysis at 17.
\388\ Id. at 13 (claiming that LFAs' imposition of fees on non-
cable services would deter investment in new infrastructure and
services regardless of whether cable operators can pass some or all of
those costs through to consumers). See also Americans for Tax Reform
May 8, 2019 Ex Parte, Att. (using a two-stage investment model to show
how local authorities' extra-statutory exactions deter investment by
incumbent and new entrant cable operators).
\389\ See, e.g., AWC Reply at 11-13.
\390\ 47 U.S.C. Sec. 1302. MMTC asserts, for example, that the
adverse effects of such local regulations are likely to be felt most
acutely by consumers, particularly small businesses and people in low
income communities. MMTC Apr. 25, 2019 Ex Parte at 1. In particular,
MMTC asserts that:
[D]uplicative fees . . . are most burdensome to lower-income
households that spend a far larger share of their income on broadband
than wealthier families. . . . [and] small, minority businesses. . . .
Increased broadband access costs can be especially problematic for the
unemployed or underemployed who become shut out from the very tools
they need to pursue new skills and opportunities.
Id. at 1-2.
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105. Other Legal Considerations. In reaching our decision today, we
agree with the majority of courts that have found that a Title VI
franchise authorizes a cable operator to provide non-cable services
without additional franchises or fee payments to state or local
authorities.\391\ In so doing, we repudiate the reasoning in a 2016
decision by the Supreme Court of Oregon in City of Eugene v.
Comcast,\392\ which appears to have prompted an increasing number of
states and municipalities to impose fees on franchised cable operators'
provision of non-cable services.\393\ In Eugene, the court upheld the
city's imposition of a separate, additional ``telecommunications''
license fee on the provision of broadband services over a franchised
cable system, reasoning that the fee was not imposed pursuant to the
city's Title VI cable franchising authority, but rather, under the
city's authority as a local government to impose fees for access to
rights-of-way for the provision of telecommunications services. For the
reasons stated above, we conclude that Eugene fundamentally misreads
the text, structure, and legislative history of the Act, and clarify
that any state or local regulation that imposes on a cable operator
fees for the provision of non-cable services over a cable system
franchised under Title VI conflicts with section 622(b) of the Act and
is preempted under section 636(c).\394\
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\391\ See, e.g., Comcast Cable of Plano, Inc. v. City of Plano, 315
S.W.3d 673, 681 (Tex. App. 2010); City of Chicago v. Comcast Cable
Holdings, LLC, 231 Ill.2d 399, 412-413 (2008). See also City of
Minneapolis v. Time Warner Cable, Inc., No. CIV.05-994 ADM/AJB, 2005 WL
3036645, at *5-6 (D. Minn. Nov. 10, 2005); City of Chicago v. AT&T
Broadband, Inc., No. 02-C-7517, 2003 WL 22057905, at *6 (N.D. Ill.
Sept. 4, 2003); Parish of Jefferson v. Cox Communications La., LLC, No.
02-3344, 2003 WL 21634440, at *4-8 (E.D. La. July 3, 2003). See also
NCTA June 11, 2018 Ex Parte at 3, n.9.
\392\ See Eugene, 375 P.3d 446. The regulations at issue in Eugene
included that: (i) Comcast's franchise agreement for the provision of
cable services over the city's public rights-of-way did not give it the
right to provide cable modem service over those rights-of-way; (ii) the
Communications Act did not give Comcast an independent right to provide
cable modem service over the city's public rights-of-way; (iii) the Act
did not preclude the city from assessing fees on revenues derived from
Comcast's provision of cable modem service over public rights-of-way;
and (iv) such fees did not constitute franchise fees under section
622(b) of the Act. See id. at 453-463.
\393\ NCTA asserts that in the wake of Eugene, a multitude of
cities in Oregon have adopted or reinterpreted ordinances to impose
fees on gross revenues derived from the provision of broadband
services, in addition to those already imposed under cable franchises.
NCTA Comments at 26-27; NCTA Mar. 13, 2019 Ex Parte at 9, 11-12. NCTA
notes that multiple communities in Ohio also have passed ordinances
requiring that cable operators secure a ``Certificate of Registration''
in addition to a state-issued cable franchise before offering non-cable
services, and that such certificates require payment of additional fees
as a condition of occupying rights-of-way. NCTA Comments at 27. NCTA
asserts further that such duplicative fees are imposed not only at the
local level, but also at the state level. Id.
\394\ Such regulation includes not only requirements imposed by a
state or locality acting pursuant to the cable franchising provisions
of Title VI, but also requirements imposed by a state or locality
purportedly acting pursuant to any powers granted outside Title VI.
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106. As noted above, although Sections 602(7)(C) and 624(b)(1) by
their terms circumscribe franchising authority regulation of non-cable
services pursuant to Title VI, section 636(c) makes clear that state
and local authorities may not end-run the provisions of Title VI simply
by asserting some other source of authority--such as their police
powers to regulate access to public rights-of-way--to accomplish what
Title VI prohibits. To be sure, section 636(a) provides that
``[n]othing in [Title VI] shall be construed to affect any authority of
any State, political subdivision, or agency thereof, or franchising
authority, regarding matters of public health, safety, and welfare, to
the extent consistent with the express provisions of [Title VI].''
\395\ While we recognize that states and municipalities possess
authority to manage rights-of-way that is distinct from their cable
franchising authority under Title VI,\396\ states and localities may
not exercise that authority in a manner that conflicts with Federal
law. As the U.S. Supreme Court has found, ``[w]hen Federal officials
determine, as the FCC has here, that restrictive regulation of a
particular area is not in the public interest, [s]tates are not
permitted to use their police power to enact such . . . regulation.''
\397\
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\395\ 47 U.S.C. Sec. 556(a).
\396\ See, e.g., MassAccess Reply at 11-12 (asserting that ``[t]he
authority and police powers vested in state and municipal governments
encompass significantly more than those in the Cable Act. . . . [and]
arise from a number of sources, including . . . municipal law, state
law, common law, and [f]ederal statutes and regulations''); City of
Philadelphia et al. Comments at 16-17 (claiming that local governments
do not derive their authority over Title I and Title II services from
Federal law, but rather, sources such as state law, state
constitutions, municipal charters, and state common law). See also Anne
Arundel County et al. Comments at 37-39; Free Press Reply at 7; Anne
Arundel County et al. July 24, 2019 Ex Parte at 5.
\397\ Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 708
(1984).
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107. Our decision today still leaves meaningful room for states to
exercise their traditional police powers under section 636(a).\398\
While we do not have occasion today to delineate all the categories of
state and local rules saved by that provision, we note that states and
localities under section 636(a) may lawfully engage in rights-of-way
management (e.g., road closures necessitated by cable plant
installation, enforcement of building and electrical codes) so long as
such regulation otherwise is consistent with Title VI.\399\ Similarly,
we do not preempt state regulation of telecommunications services that
are purely intrastate, such as requirements that a cable operator
obtain a certificate of public convenience and necessity to provide
such services. State regulation of intrastate telecommunications
services is permissible so long as it is consistent with the Act and
the Commission's implementing rules and policies.\400\ We also do not
disturb or displace the traditional role of states in generally
policing such matters as fraud, taxation, and general commercial
dealings, so long as the administration of such laws does not interfere
with Federal regulatory objectives.\401\
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\398\ Given the robust scope that we retain in this Order for the
operation of section 636(a), we reject the City of Eugene's assertion
that we have not engaged in ``meaningful discussion'' of this
provision. City of Eugene July 24, 2019 Ex Parte at 4.
\399\ See NCTA Mar. 13, 2019 Ex Parte at 11.
\400\ We note, for example, that section 253(a) of the Act
prohibits state or local statutes, regulations, or other legal
requirements that prohibit or have the effect of prohibiting the
ability of any entity to provide ``any interstate or intrastate
telecommunications service.'' 47 U.S.C. Sec. 253(a) (emphasis added).
\401\ See Restoring Internet Freedom Order, 33 FCC Rcd at 428,
para. 196.
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108. We also find unconvincing Anne Arundel County et al.'s
argument that the Commission's preemption of state and local management
of public rights-of-way violates the Tenth Amendment to the U.S.
Constitution by ``direct[ing] local governments to surrender their
property and management rights to generate additional funds for use in
the expanded deployment of broadband.'' \402\ In particular, Anne
Arundel County et al. contends that by preventing states and localities
from overseeing use of their rights-of-way, the Commission effectively
is commanding them to grant rights-of-way access on terms established
by the Commission, rather than state or local governments.\403\ That
argument fails for multiple reasons.
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\402\ Anne Arundel County et al. Reply at 14-15.
\403\ Id.
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109. The Tenth Amendment provides that ``[t]he powers not delegated
to the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people.''
\404\ We find that Anne Arundel County et al. has failed to demonstrate
any violation of the Tenth Amendment.\405\ As the Supreme Court has
stated, ``[i]f a power is delegated to Congress in the Constitution,
the Tenth Amendment expressly disclaims any reservation of that power
to the States.'' \406\ Therefore, when Congress acts within the scope
of its authority under the Commerce Clause, no Tenth Amendment issue
arises.\407\ Regulation of interstate telecommunications and
information services, and cable services, is within Congress' authority
under the Commerce Clause.\408\ Thus, because our authority derives
from a proper exercise of Congressional power, the Tenth Amendment
poses no obstacle to our preemption of state and local laws and other
legal requirements.\409\
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\404\ U.S. Const. Amend. X.
\405\ Montgomery County, Md. v. FCC, 811 F.3d 121, 127-129 (4th
Cir. 2015).
\406\ See New York v. U.S., 505 U.S. 144, 156 (1992).
\407\ See id. at 157-58.
\408\ MCI Telecommunications Corp. v. Bell Atlantic, 271 F.3d 491,
503 (3rd. Cir. 2001) (``The Telecommunications Act of 1996 was clearly
a congressional exercise of its Commerce Clause power.'').
\409\ See Qwest Broadband Services, Inc. v. City of Boulder, 151
F.Supp.2d 1236, 1245 (``[T]he inquiries under the Commerce Clause and
the Tenth Amendment are mirror images, and a holding that a
Congressional enactment does not violate the Commerce Clause is
dispositive of a Tenth Amendment challenge) (citing United States v.
Baer, 235 F.3d 561, 563 n.6 (10th Cir. 2000)).
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110. We also find no merit to arguments that the Commission's
preemption of certain state and local requirements constitutes an
improper ``commandeering'' of state governmental power.\410\ The
Supreme Court has recognized that ``where Congress has the authority to
regulate private activity under the Commerce Clause,'' Congress has the
``power to offer States the choice of regulating that activity
according to Federal standards or having state law preempted by Federal
regulation.'' \411\ Title VI provides that a franchising authority
``may award'' franchises ``in accordance with this title.'' \412\ It
thus simply establishes limitations on the scope of that authority when
and if exercised. Here, we are simply requiring that, should state and
local governments decide to open their rights-of-way to providers of
interstate communication services within the Commission's jurisdiction,
they do so in accordance with Federal standards. As noted, Congress in
Section 636(c) expressly authorized Commission preemption of state and
local laws and other legal requirements that conflict with Federal
standards.\413\ Because the Commission has the constitutional authority
to adopt such standards, and because those standards do not require
that state or local governments take or decline to take any particular
action, we conclude that our preemption decisions in this Order do not
violate the Tenth Amendment.\414\
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\410\ See Michigan Municipal League Comments at 25; Anne Arundel
County et al. Comments at 51.
\411\ See New York v. U.S., 505 U.S. at 167.
\412\ 47 U.S.C. Sec. 541(a)(1).
\413\ Id. Sec. 556(c).
\414\ We also conclude that our actions do not violate the Fifth
Amendment to the U.S. Constitution. See, e.g., City of Eugene Sept. 19,
2018 Ex Parte at 30. The ``takings'' clause of the Fifth Amendment
provides: ``[N]or shall private property be taken for public use,
without just compensation.'' U.S. Const. Amend. V. First, our actions
herein do not result in a Fifth Amendment taking. Courts have held that
municipalities generally do not have a compensable ``ownership''
interest in public rights-of-way, but rather hold the public streets
and sidewalks in trust for the public. Liberty Cablevision, 417 F.3d at
222. Moreover, even if there was a taking, Congress provided for ``just
compensation'' through cable franchise fees. See U.S. v. Riverside
Bayview Homes, 474 U.S. 121, 128 (1985) (the Fifth Amendment does not
prohibit takings, only uncompensated ones). Section 622(h)(2) of the
Act provides that a franchising authority may recover a franchise fee
of up to five percent of a cable operator's annual gross revenues
derived from the provision of cable service. 47 U.S.C. Sec. 542(h)(2).
Congress intended that the cable franchise fee serve as the
consideration given in exchange for a cable operator's right to use
public rights-of-way. See 1984 Cable Act House Report, 1984
U.S.C.C.A.N. at 4663 (recognizing the local government's authority to
``assess the cable operator a fee for the operator's use of public
ways'' and establishing ``the authority of a city to collect a
franchise fee of up to [five percent] of an operator's annual gross
revenues''). Our actions herein do not eviscerate the ability of local
authorities to impose such franchise fees. Rather, our actions simply
ensure that local authorities do not impose duplicative fees for the
same use of rights-of-way by mixed use facilities of cable operators,
contrary to express statutory provisions and policy goals set forth in
the Act.
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D. State Franchising Regulations
111. As proposed in the Second FNPRM, we find that the conclusions
set forth in this Order, as well as the Commission's decisions in the
First Report and Order\415\ and Second Report and Order,\416\ as
clarified in the Order on Reconsideration,\417\ apply to franchising
actions taken at the state level and state regulations that impose
requirements on local franchising. In the First Report and Order, the
Commission declined to ``address the reasonableness of demands made by
state level franchising authorities'' or to extend the ``findings and
regulations'' adopted in its section 621 orders to actions taken at the
state level.\418\ It noted that many state franchising laws had only
been in effect for a short time and that the Commission lacked a
sufficient record regarding their effect.\419\ In the Order on
Reconsideration, the Commission indicated that if any interested
parties believed the Commission should revisit the issue in the future,
they could present the Commission with evidence that the findings in
the First Report and Order and Second Report and Order ``are of
practical relevance to the franchising process at the state-level and
therefore should be applied or extended accordingly.''\420\
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\415\ In the First Report and Order, the Commission adopted time
limits for LFAs to render a final decision on a new entrant's franchise
application and established a remedy for applicants that do not receive
a decision within the applicable time frame; concluded that it was
unlawful for LFAs to refuse to grant a franchise to a new entrant on
the basis of unreasonable build-out mandates; clarified which revenue-
generating services should be included in a new entrant's franchise fee
revenue base and which franchise-related costs should and should not be
included within the statutory five percent franchise fee cap; concluded
that LFAs may not make unreasonable demands of new entrants relating to
PEG channels and I-Nets; adopted the mixed-use network ruling for new
entrants; and preempted local franchising laws, regulations, and
agreements to the extent they conflict with the rules adopted in that
order. First Report and Order, 22 FCC Rcd at 5134-40, paras. 66-81; id.
at 5143-44, paras. 89-90; id. at 5144-51, paras. 94-109; id. at 5151-
54, paras. 110-120; id. at 5155-56, paras. 121-24; id. at 5157-64,
paras. 125-38.
\416\ In the Second Report and Order, the Commission extended to
incumbent cable operators the rulings in the First Report and Order
relating to franchise fees and mixed-use networks and the PEG and I-Net
rulings that were deemed applicable to incumbent cable operators, i.e.,
the findings that the non-capital costs of PEG requirements must be
offset from the cable operator's franchise fee payments, that it is not
necessary to adopt standard terms for PEG channels, and that it is not
per se unreasonable for LFAs to require the payment of ongoing costs to
support PEG, so long as such support costs as applicable are subject to
the franchise fee cap. Second Report and Order, 22 FCC Rcd at 19637-41,
paras. 10-17.
\417\ Order on Reconsideration, 30 FCC Rcd at 812-13, para. 7.
\418\ First Report and Order, 22 FCC Rcd at 5102, n.2.
\419\ See id.; Order on Reconsideration, 30 FCC Rcd at 812-13,
para. 7.
\420\ Order on Reconsideration, 30 FCC Rcd at 812-13, para 7.
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112. In the Second FNPRM, we again asked whether the Commission
should apply the decisions in this proceeding to franchising actions
and regulations taken at the state level.\421\ As we noted, more than
ten years have passed since the Commission first considered whether to
apply its decisions interpreting section 621 to state-level franchising
actions and state regulations. The decade of experience with the state-
franchising process, along with comments responding to the questions
related to this issue raised in the Second FNPRM, provide us with an
adequate record regarding the effect of state involvement in the
franchising process.
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\421\ Second FNPRM, 33 FCC Rcd at 8971-72, para. 32. (``We seek
comment on whether to apply the proposals and tentative conclusions set
forth herein, as well as the Commission's decisions in the First Report
and Order and Second Report and Order, as clarified in the Order on
Reconsideration, to franchising actions taken at the state level and
state regulations that impose requirements on local franchising.'').
---------------------------------------------------------------------------
113. We now find that the better reading of the Cable Act's text
and purpose is that that the rules and decisions adopted in this Order,
as well as those adopted in the First Report and Order and Second
Report and Order, should fully apply to state-level franchising actions
and regulations. First, we see no statutory basis for distinguishing
between state-and local-level franchising actions. Nor do we think such
a distinction would further Congress's goals: unreasonable demands by
state-level franchising authorities can impede competition and
investment just as unreasonable demands by local authorities can. While
we need not opine on the reasonableness of specific state actions
raised by commenters, we find that there is evidence in the record that
state franchising actions--alone or cumulatively with local franchising
actions--in some cases impose burdens beyond what the Cable Act
allows.\422\ We see no reason--statutory or otherwise--why the Cable
Act would prohibit these actions at the local level but permit them at
the state level.
---------------------------------------------------------------------------
\422\ See, e.g., NCTA Comments at 62-64; Altice Reply at 5-6; NCTA
Apr. 19, 2019 Ex Parte at 2.
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114. The Cable Act does not distinguish between state and local
franchising authorities. Section 621(a) and the other cable franchising
provisions of Title VI circumscribe the power of ``franchising
authorities'' to regulate services provided over cable systems.\423\
The Cable Act defines ``franchising authority'' as ``any governmental
entity empowered by Federal, State or local law to grant a franchise.''
\424\ In other words, the provisions of Title VI that apply to
``franchising authorities'' apply equally to any entity ``empowered by.
. .law''--including state law--``to grant a franchise.'' Many states
have left franchising to local authorities, making those authorities
subject to the limits imposed under Title VI.\425\ Twenty-three states,
however, have empowered a state-level entity, such as a state public
utility commission, to grant cable franchise authorizations, rendering
them ``franchising authorities'' under Title VI.\426\ Bolstering the
conclusion that Congress intended the Cable Act to govern state-level
action is section 636 of the Cable Act, which expressly preempts ``any
provision of law of any State, political subdivision, or agency
thereof, or franchising authority, or any provision of any franchise
granted by such authority'' that conflicts with the Cable Act.\427\
Limiting the Commission's rulings to local-level action would call for
some plausible interpretation of these provisions; those opposing the
extension of the Commission's rulings to state franchising authorities
offer none. Accordingly, we find that the Cable Act does not
distinguish between state-and local-level franchising actions, and that
the Commission's rulings should therefore apply equally to both.
---------------------------------------------------------------------------
\423\ 47 U.S.C. Sec. 541(a)(1) (``A franchising authority may
award, in accordance with the provisions of this subchapter, 1 or more
franchises within its jurisdiction; except that a franchising authority
may not grant an exclusive franchise and may not unreasonably refuse to
award an additional competitive franchise.'' (emphases added)).
\424\ Id. Sec. 522(10).
\425\ See, e.g., Md. Code Ann., Local Gov't Sec. 1-708(c) (``The
governing body of a county or municipality may. . .grant a franchise
for a cable television system that uses a public right-of-way '').
\426\ See Ark. Code Ann. Sec. 23-19-203 (provider must elect either
a local franchise or a state-issued certificate of franchise
authority); Cal. Pub. Util. Code Sec. 5840(a); Conn. Gen. Stat. Ann.
Sec. 16-331(a); Del. Code Ann. tit. 26, Sec. Sec. 601 (state-issued
franchises outside of municipalities), 608 (municipal franchises
subject to PUC review); Fla. Stat. Sec. 610.102; Ga. Code Ann. Sec. 36-
76-3 (provider must elect either a local franchise or a state-issued
authorization); 220 Ill. Comp. Stat. Ann. Sec. 5/21-301(a)(provider
must elect either a local franchise or a state-issued authorization);
Ind. Code Sec. 8-1-34-16(a); Iowa Code Sec. 477A.2; Kan. Stat. Ann.
Sec. 12-2023(a); Haw. Rev. Stat. Sec. 440G-6; La. Rev. Stat.
Sec. Sec. 45:1364, 45:1377 (state is franchising authority except in
home rule charter communities); Mich. Gen. Laws Sec. 484.3305
(franchises are granted by local government, but only on uniform terms
set by statute); Mo. Rev. Stat. Sec. 67.2679.4; Nev. Rev. Stat.
Sec. 711.410; N.J. Stat. Ann. Sec. Sec. 48:5A-9, 48:5A-15, 48:5A-16
(provider must elect either a local franchise or a state-issued
certificate of franchise authority); N.C. Gen. Stat. Ann. Sec. 66-351;
Ohio Rev. Code Ann. Sec. 1332.24(A)(2); S.C. Code Sec. Sec. 58-12-
300(5), 58-12-310; Tenn. Code Ann. Sec. 7-59-304(a) (provider must
elect either a local franchise or a state-issued certificate of
franchise authority); Tex. Util. Code Ann. Sec. 66.001; Vt. Stat. Ann.
tit. 30, Sec. 502(b); Wis. Stat. Ann. Sec. 66.0420(4).
\427\ 47 U.S.C. Sec. 556(c) (emphasis added). As we explain above,
this preemption does not extend to state regulation of intrastate
telecommunications services or regulation related to matters of public
health, safety, and welfare that otherwise is consistent with the Act,
and nothing in this Order is intended to disturb the traditional role
that states have played in these regards. See supra para. 79 and infra
para. 117.
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115. In addition, we find unavailing claims in the record that the
Commission should limit its decisions to local authorities for policy
reasons. To the contrary, we find that extending the Commission's
rulings to state level franchising actions and regulations furthers the
goals of the Cable Act. Unreasonable barriers to entry imposed by any
franchising authority--state or local--frustrate the goals of
competition and deployment. In the First Report and Order, we found
that removing regulatory obstacles posed by local franchising
authorities would further these goals.\428\ We now find that this
policy rationale applies with equal force to franchising actions taken
at the state level.
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\428\ First Report and Order, 22 FCC Rcd at 5102, para. 1 (``We
find that the current operation of the local franchising process in
many jurisdictions constitutes an unreasonable barrier to entry that
impedes the achievement of the interrelated Federal goals of enhanced
cable competition and accelerated broadband deployment.'').
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116. We disagree that extending the Commission's rulings to state-
level franchising and regulation, however, will eliminate the benefits
of state-level action. We are not persuaded that extending the
Commission's rulings to state-level actions would prevent--or even
discourage--state-level franchising and regulation. Indeed, applying
the Commission's rulings to state-level action will merely ensure that
the same rules that apply to LFAs also apply at the state level.\429\
This consistency is itself beneficial, ensuring that various statutory
provisions--such as sections 621 and 622--are interpreted uniformly
throughout the country. As one commenter notes, ``state-level cable
regulations may be modeled on the Federal act, and so, allowing
disparate interpretations of the same language could lead to confusion
among consumers, regulators, and franchisees.'' \430\
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\429\ For these reasons, we disagree with commenters who argue that
applying the Commission's rules at the state level is contrary to the
Cable Act's purpose of ``assur[ing] that cable systems are responsive
to the needs and interests of the local community.'' 47 U.S.C.
Sec. 521(2). The City of Philadelphia, for example, argues that
extending the Commission's rules to state-level actions would ``unduly
restrict state and local governments from addressing local and
hyperlocal cable-related issues.'' See City of Philadelphia et al.
Comments at vii. For the reasons discussed above, we are not convinced
that applying our rules to state franchising authorities will impede
the ability of state and local authorities to address local issues.
Rather, by doing so, we ensure that the goals of the Cable Act, as
determined by Congress, including ``encourag[ing] the growth and
development of cable systems,'' are fully realized. 47 U.S.C.
Sec. 521(2).
\430\ Comments of Verizon at 11-12.
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117. Nor should applying our interpretations of the Cable Act to
state-level actions interfere with states' authority to enact general
taxes and regulations. Some commenters express concern that the
Commission's rulings would disturb state franchising laws that apply
more broadly than the Cable Act.\431\ While we decline here to opine on
the application of the Cable Act to specific state laws, we note that
these concerns are largely settled by section 622, which excludes ``any
tax, fee, or assessment of general applicability'' from the definition
of franchise fees.\432\ Other provisions of the Act similarly make
clear that the Act does not affect state authority regarding matters of
public health, safety, and welfare, to the extent that states exercise
that authority consistent with the express provisions of the Cable
Act.\433\
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\431\ See, e.g., Anne Arundel County et al. Comments at 45; City
and County of San Francisco Comments at 8-9. For example, California's
Digital Infrastructure and Video Competition Act (DIVCA) assesses an
annual administrative fee and authorizes LFAs to assess on both cable
operators and non-cable video franchise holders, up to a one-percent
fee on gross revenues for PEG, in addition to a state franchise fee of
five percent of gross revenues. Cal. Pub. Util. Code Sec. Sec. 441
(providing for the annual determination of franchise fees), 5830(f),
(h) (establishing that DIVCA applies to all ``holders of a state
franchise'' that authorizes the ``operation of any network in the
right-of-way capable of providing video service to subscribers''). See
also City and County of San Francisco Comments at 8-9. The Eastern
District of California found that DIVCA was a law of ``general
applicability'' for the purposes of section 622 in Comcast of
Sacramento. 250 F. Supp. 3d at 624, vacated and remanded Comcast of
Sacramento I, LLC v. Sacramento Metro. Cable Television Comm'n, No. 17-
16847, 2019 WL 2018280, at *7 (9th Cir. May 8, 2019).
\432\ See, e.g., Anne Arundel County et al. Comments at 45 (quoting
47 U.S.C. Sec. 542(g)(2)(A)).
\433\ 47 U.S.C. Sec. 556(a) (``Nothing in this subchapter shall be
construed to affect any authority of any State, political subdivision,
or agency thereof, or franchising authority, regarding matters of
public health, safety, and welfare, to the extent consistent with the
express provisions of this subchapter.'').
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118. Finally, some commenters assert that extending the
Commission's rulings to state-level actions would ``upend carefully
balanced policy decisions by the states.'' \434\ According to
commenters, local governments might wish to refuse these benefits if
they come at the expense of franchise fees--but they will be unable to
do so where they are mandated by state law.\435\
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\434\ Anne Arundel County et al. Comments at 45-48. In Illinois,
for example, state law requires that cable operators provide ``line
drops and free basic service to public buildings.'' See City Coalition
Comments at 26 (citing 220 ILCS 5/22-501(f)). The Illinois statute
defines a ``service line drop'' as ``the point of connection between a
premises and the cable or video network that enables the premises to
receive cable service or video service.'' 220 ILCS 5/22-501.
\435\ See id. Similarly, one commenter claims that DIVCA reflected
a legislative compromise between cable operators and franchising
authorities that would be upset if the Commission's rules were extended
to state level actions. Anne Arundel County et al. Comments at 46-47
(``For the Commission to import, wholesale, its determinations under
Section 621 into the California state franchise would upset state
policy and undermine the very goal of the Commission to ease entry by
new entrants.'').
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119. We are not convinced that these concerns justify limiting the
Commission's rulings to local-level actions. Again, our conclusion in
this section will disturb existing state laws only to the extent that
they conflict with the Cable Act and the Commission's rulings
implementing the Act. While this may upset some preexisting legislative
compromises, it will also root out state laws that impose demands and
conditions that Congress and the Commission have found to be
unreasonable. Further, ensuring that the Cable Act is applied uniformly
between state and local franchising authorities is necessary to further
the goals of the Act, and more importantly, is consistent with the
language of the Act. As some commenters have noted, if the Commission
does not apply these requirements to state franchises, states could
pass laws circumventing the Cable Act's limitations on LFAs.\436\ That
result would thwart Congress's intent in imposing those limitations.
For these reasons, we conclude that the benefits of extending the
Commission's rulings and interpretations to state-level actions
outweigh any burdens caused by upsetting existing state-level policy
decisions.
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\436\ NCTA Reply at 29-30 & n.100.
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IV. PROCEDURAL MATTERS
120. Final Regulatory Flexibility Act Analysis. As required by the
Regulatory Flexibility Act of 1980, as amended (RFA),\437\ the
Commission has prepared a Final Regulatory Flexibility Act Analysis
(FRFA) relating to this Order. The FRFA is set forth in the Appendix.
---------------------------------------------------------------------------
\437\ See 5 U.S.C. Sec. 603. The RFA, see 5 U.S.C. Sec. 601, et.
seq., has been amended by the Small Business Regulatory Enforcement
Fairness Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat.
847 (1996). The SBREFA was enacted as Title II of the Contract with
America Advancement Act of 1996 (CWAAA).
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121. Paperwork Reduction Analysis. This document does not contain
new or revised information collection requirements subject to the
Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C.
Sec. Sec. 3501-3520). In addition, therefore, it does not contain any
new or modified ``information burden for small business concerns with
fewer than 25 employees'' pursuant to the Small Business Paperwork
Relief Act of 2002, Public Law 107-198, 44 U.S.C. Sec. 3506(c)(4).
122. Congressional Review Act. The Commission will send a copy of
this Order to Congress and the Government Accountability Office
pursuant to the Congressional Review Act, see 5 U.S.C.
Sec. 801(a)(1)(A).
123. Additional Information. For additional information on this
proceeding, contact Maria Mullarkey or Raelynn Remy of the Media
Bureau, Policy Division, at [email protected],
[email protected] or (202) 418-2120.
V. ORDERING CLAUSES
124. Accordingly, IT IS ORDERED that, pursuant to the authority
found in sections 1, 4(i), 201(b), 230, 303, 602, 621, 622, 624, and
636 of the Communications Act of 1934, as amended, 47 U.S.C.
Sec. Sec. 151, 154(i), 201(b), 230, 303, 522, 541, 542, 544, and 556,
this Third Report and Order IS ADOPTED.
125. IT IS FURTHER ORDERED that the the Commission's rules ARE
HEREBY AMENDED as set forth in Appendix A and such rule amendments
shall be effective 30 days after publication in the Federal Register.
126. IT IS FURTHER ORDERED that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, SHALL SEND a
copy of this Third Report and Order, including the Final Regulatory
Flexibility Act Analysis, to the Chief Counsel for Advocacy of the
Small Business Administration.
127. IT IS FURTHER ORDERED that, pursuant to section 801(a)(1)(A)
of the Congressional Review Act, 5 U.S.C. Sec. 801(a)(1)(A), the
Commission SHALL SEND a copy of the Third Report and Order to Congress
and the Government Accountability Office.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
______
APPENDIX A
Final Rules
Part 76 of Title 47 of the U.S. Code of Federal Regulations is
amended to read as follows: PART 76--MULTICHANNEL VIDEO AND CABLE
TELEVISION SERVICE
1. The authority citation for Part 76 continues to read as follows:
AUTHORITY: 47 U.S.C. 151, 152, 153, 154, 201, 230, 301, 302, 302a,
303, 303a, 307, 308, 309, 312, 315, 317, 325, 338, 339, 340, 341, 503,
521, 522, 531, 532, 534, 535, 536, 537, 541, 542, 543, 544, 544a, 545,
548, 549, 552, 554, 556, 558, 560, 561, 571, 572, 573.
2. Revise Subpart C to read as follows:
Subpart C--Cable Franchising
3. Add new Section 76.42 to read as follows:
Sec. 76.42--In-Kind Contributions.
(a) In-kind, cable-related contributions are ``franchise fees''
subject to the five percent cap set forth in 47 U.S.C. 542(b). Such
contributions, which count toward the five percent cap at their fair
market value, include any non-monetary contributions related to the
provision of cable service by a cable operator as a condition or
requirement of a local franchise, including but not limited to:
(1) Costs attributable to the provision of free or discounted cable
service to public buildings, including buildings leased by or under
control of the franchising authority;
(2) Costs in support of public, educational, or governmental access
facilities, with the exception of capital costs; and
(3) Costs attributable to the construction of institutional
networks.
(b) In-kind, cable-related contributions do not include the costs
of complying with build-out and customer service requirements.
4. Add new Section 76.43 to read as follows:
Sec. 76.43--Mixed-Use Rule.
A franchising authority may not regulate the provision of any
services other than cable services offered over the cable system of a
cable operator, with the exception of channel capacity on institutional
networks.
______
APPENDIX B
Final Regulatory Flexibility Analysis
1. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA),\1\ an Initial Regulatory Flexibility Analysis (IRFA) was
incorporated in the Second Further Notice of Proposed Rulemaking
(Second FNPRM) in this proceeding.\2\ The Federal Communications
Commission (Commission) sought written public comment on the proposals
in the Second FNPRM, including comment on the IRFA. The Commission
received one comment on the IRFA. This present Final Regulatory
Flexibility Analysis (FRFA) conforms to the RFA.\3\
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\1\ See 5 U.S.C. Sec. 603. The RFA, 5 U.S.C. Sec. Sec. 601-612, has
been amended by the Small Business Regulatory Enforcement Fairness Act
of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996).
The SBREFA was enacted as Title II of the Contract with America
Advancement Act of 1996 (CWAAA).
\2\ See Implementation of Section 621(a)(1) of the Cable
Communications Policy Act of 1984 as Amended by the Cable Television
Consumer Protection and Competition Act of 1992, Second Further Notice
of Proposed Rulemaking, MB Docket No. 05-311, 33 FCC Rcd 8952, 8953-9
(2018) (Second FNPRM).
\3\ See 5 U.S.C. Sec. 604.
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A. Need for, and Objectives of, the Report and Order
2. In the Report and Order, we interpret sections of the
Communications Act of 1934, as amended (the Act) that govern how local
franchising authorities (LFAs) may regulate cable operators and cable
television services, with specific focus on issues remanded from the
United States Court of Appeals for the Sixth Circuit (Sixth Circuit) in
Montgomery County, Md. et al., v. FCC (Montgomery County).\4\ Section
621(a)(1) of the Act prohibits LFAs from unreasonably refusing to award
competitive franchises for the provision of cable television
services.\5\ To better define what constitutes ``unreasonable'' acts by
an LFA, the Commission adopted rules implementing section 621(a)(1),
including rules governing the treatment of certain costs and fees
charged to cable operators by LFAs and LFAs' regulation of cable
operators' ``mixed-use'' networks.\6\
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\4\ Montgomery County, Md. et al., v. FCC, 863 F.3d 485 (6th Cir.
2017).
\5\ 47 U.S.C. Sec. 541(a)(1).
\6\ Implementation of Section 621(a)(1) of the Cable Communications
Policy Act of 1984 as Amended by the Cable Television Consumer
Protection and Competition Act of 1992, Report and Order and Further
Notice of Proposed Rulemaking, 22 FCC Rcd 5101 (2007) (First Report and
Order), aff'd sub nom. Alliance for Community Media et al., v. FCC, 529
F.3d 763 (6th Cir. 2008) (Alliance), cert. denied, 557 U.S. 904 (2009);
Implementation of Section 621(a)(1) of the Cable Communications Policy
Act of 1984 as Amended by the Cable Television Consumer Protection and
Competition Act of 1992, Second Report and Order, 22 FCC Rcd 19633
(2007) (Second Report and Order), recon. Granted in part, denied in
part; Implementation of Section 621(a)(1) of the Cable Communications
Policy Act of 1984 as Amended by the Cable Television Consumer
Protection and Competition Act of 1992, Order on Reconsideration, 30
FCC Rcd 810 (2015) (Order on Reconsideration); Second FNPRM, 33 FCC Rcd
8952 (2018).
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3. In Montgomery County, the court directed the Commission on
remand to provide an explanation for its decision to treat cable-
related, in-kind contributions charged to cable operators by LFAs as
``franchise fees'' subject to the statutory five percent cap on such
fees set forth in section 622(g) of the Act.\7\ The court also directed
the Commission to provide a statutory basis for its decision to extend
its ``mixed-use'' ruling--which prohibits LFAs from regulating the
provision of services other than cable services offered over cable
systems used to provide both cable services and non-cable services--to
incumbent cable operators that are not common carriers.\8\ This Order
seeks to explain and establish the statutory basis for the Commission's
interpretation of the Act in order to better fulfill the Commission's
goals of eliminating regulatory obstacles in the marketplace for cable
services and encouraging broadband investment and deployment by cable
operators.
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\7\ Montgomery County, 863 F.3d at 491-92.
\8\ Id. at 493.
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4. In this Order, we first conclude that cable-related, ``in-kind''
contributions required by a cable franchise agreement are franchise
fees subject to the statutory five percent cap on franchise fees set
forth in section 622 of the Act.\9\ We base this conclusion on the
broad definition of franchise fee in section 622, which is not limited
to monetary contributions. We interpret the Act's limited exceptions to
the definition of franchise fee, including an exemption for capital
costs related to public, educational, and governmental access (PEG)
channels, such as equipment costs or those associated with building a
facility.\10\ We also reaffirm that this rule applies to both new
entrants and incumbent cable operators. Second, we conclude that under
the Act, LFAs may not regulate the provision of most non-cable
services, including broadband Internet access service, offered over a
cable system by an incumbent cable operator that is not a common
carrier. Finally, we conclude that Commission guidance concerning LFAs'
regulation of cable operators should apply to state-level franchising
actions and regulations that impose requirements on local franchising.
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\9\ 47 U.S.C. Sec. 542.
\10\ Id.
---------------------------------------------------------------------------
B. Legal Basis
5. The authority for the action taken in this rulemaking is
contained in Sections 1, 4(i), 201(b), 230, 303, 602, 621, 622, 624,
and 636 of the Communications Act of 1934, as amended, 47 U.S.C.
Sec. Sec. 151, 154(i), 201, 230, 303, 522, 541, 542, 544, and 556.
C. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA
6. Only one commenter, the City of Newton Massachusetts, submitted
a comment that specifically responded to the IRFA.\11\ The City of
Newton suggests that a transition period of at least six years is
needed to satisfy the Commission's Regulatory Flexibility Act
obligation to minimize significant financial impacts on small
communities and non-profit organizations. This City of Newton argues
that this transition period is needed to allow time for affected
parties to: (1) identify cable-related in kind contributions which
count against the franchise fee cap; (2) reach agreement on the
valuation of cable-related in-kind contributions; (3) resolve any
disputes with respect to those issues; and (4) adjust their contractual
commitments in light of any prospective reduction in franchise fee
revenues (and the timing of those reductions).
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\11\ Letter from Ruthanne Fuller, Mayor and Issuing Authority, and
Alan D. Mandl, Assistant City Solicitor, City of Newton, Massachusetts,
to Chairman Pai and Commissioners Carr, O'Rielly and Rosenworcel, FCC,
MB Docket No. 05-311, at 7 (filed Nov. 14, 2018) (City of Newton
Letter); City of Newton Comments at 3-4.
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D. Description and Estimate of the Number of Small Entities to Which
the Rules Will Apply
7. The RFA directs agencies to provide a description of, and where
feasible, an estimate of the number of small entities that may be
affected by the rules.\12\ The RFA generally defines the term ``small
entity'' as having the same meaning as the terms ``small business,''
``small organization,'' and ``small governmental jurisdiction.'' \13\
In addition, the term ``small business'' has the same meaning as the
term ``small business concern'' under the Small Business Act.\14\ A
small business concern is one which: (1) is independently owned and
operated; (2) is not dominant in its field of operation; and (3)
satisfies any additional criteria established by the SBA.\15\ Below, we
provide a description of such small entities, as well as an estimate of
the number of such small entities, where feasible.
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\12\ 5 U.S.C. Sec. 603(b)(3).
\13\ Id. Sec. 601(6).
\14\ Id. Sec. 601(3) (incorporating by reference the definition of
``small-business concern'' in 15 U.S.C. Sec. 632). Pursuant to 5 U.S.C.
Sec. 601(3), the statutory definition of a small business applies
``unless an agency, after consultation with the Office of Advocacy of
the Small Business Administration and after opportunity for public
comment, establishes one or more definitions of such term which are
appropriate to the activities of the agency and publishes such
definition(s) in the Federal Register.'' 5 U.S.C. Sec. 601(3).
\15\ 15 U.S.C. Sec. 632.
---------------------------------------------------------------------------
8. Small Businesses, Small Organizations, Small Governmental
Jurisdictions. Our actions, over time, may affect small entities that
are not easily categorized at present. We therefore describe three
broad groups of small entities that could be affected under these
rules.\16\ First, while we do use industry specific size standards for
small businesses in the regulatory flexibility analysis, according to
data from the SBA's Office of Advocacy, in general a small business is
an independent business having fewer than 500 employees.\17\ These
types of small businesses represent 99.9 percent of all businesses in
the United States which translates to 28.8 million businesses.\18\
---------------------------------------------------------------------------
\16\ See 5 U.S.C. Sec. 601(3)-(6).
\17\ See SBA, Office of Advocacy, ``Frequently Asked Questions,
Question 1--What is a small business?'' https://www.sba.gov/sites/
default/files/advocacy/SB-FAQ-2016_WEB.pdf (June 2016).
\18\ See SBA, Office of Advocacy, ``Frequently Asked Questions,
Question 2--How many small businesses are there in the U.S.?'' https://
www.sba.gov/sites/default/files/advocacy/SB-FAQ-2016_WEB.pdf (June
2016).
---------------------------------------------------------------------------
9. Next, the type of small entity described as a ``small
organization'' is generally ``any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.''
\19\ Nationwide, as of August 2016, there were approximately 356,494
small organizations based on registration and tax data filed by
nonprofits with the Internal Revenue Service (IRS).\20\
---------------------------------------------------------------------------
\19\ 5 U.S.C. Sec. 601(4).
\20\ Data from the Urban Institute, National Center for Charitable
Statistics (NCCS) reporting on nonprofit organizations registered with
the IRS was used to estimate the number of small organizations. Reports
generated using the NCCS online database indicated that as of August
2016 there were 356,494 registered nonprofits with total revenues of
less than $100,000. Of this number, 326,897 entities filed tax returns
with 65,113 registered nonprofits reporting total revenues of $50,000
or less. See https://nccs.urban.org/sites/all/nccs-archive/html//
tablewiz/tw.php where the report showing this data can be generated by
selecting the following data fields: Show: ``Registered Nonprofit
Organizations''; By: ``Total Revenue Level (years 1995, Aug. to 2016,
Aug.)''; and For: ``2016, Aug.''.
---------------------------------------------------------------------------
10. Finally, the small entity described as a ``small governmental
jurisdiction'' is defined generally as ``governments of cities,
counties, towns, townships, villages, school districts, or special
districts, with a population of less than fifty-thousand.'' \21\ U.S.
Census Bureau data from the 2012 Census of Governments\22\ indicate
that there were 90,056 local governmental jurisdictions consisting of
General and Specific Purpose governments in the United States.\23\ Of
this number there were 37,132 General Purpose governments (county,\24\
municipal and town or township\25\) with populations of less than
50,000 and 12,184 Special Purpose governments (independent school
districts\26\ and special districts\27\) with populations of less than
50,000. The 2012 U.S. Census Bureau data for the types of governments
in the local government category show that most of these governments
have populations of less than 50,000.\28\ Based on these data, we
estimate that at least 49,316 local government jurisdictions fall in
the category of ``small government jurisdictions.'' \29\
---------------------------------------------------------------------------
\21\ 5 U.S.C. Sec. 601(5).
\22\ See 13 U.S.C. Sec. 161. The Census of Governments is conducted
every five (5) years compiling data for years ending with ``2'' and
``7''. See also Program Description Census of Government. https://
factfinder.census.gov/faces/affhelp/jsf/pages/
metadata.xhtml?lang=en&type=program
&id=program.en.COG#
\23\ See U.S. Census Bureau, 2012 Census of Governments, Local
Governments by Type and State: 2012--United States-States https://
factfinder.census.gov/faces/tableservices/jsf/pages/
productview.xhtml?pid=COG_2012_ORG02.US01&prodType=table. Local
governmental jurisdictions are classified in two categories--General
purpose (county, municipal, and town or township) and Special purpose
(special districts and independent school districts).
\24\ See id., County Governments by Population-Size Group and
State: 2012--United States-States. https://factfinder.census.gov/faces/
tableservices/jsf/pages/productview.xhtml?pid=COG
_2012_ORG06.US01&prodType=table. There were 2,114 county governments
with populations of less than 50,000.
\25\ See id., Subcounty General-Purpose Governments by Population-
Size Group and State: 2012-United States-States. https://
factfinder.census.gov/faces/tableservices/jsf/pages/product
view.xhtml?pid=COG_2012_ORG07.US01&prodType=table. There were 18,811
municipal and 16,207 town/township governments with populations of less
than 50,000.
\26\ See id., Elementary and Secondary School Systems by
Enrollment-Size Group and State: 2012--United States-States. https://
factfinder.census.gov/faces/tableservices/jsf/pages/product
view.xhtml?pid=COG_2012_ORG11.US01&prodType=table. There were 12,184
independent school districts with enrollment populations of less than
50,000.
\27\ See id., Special District Governments by Function and State:
2012--United States-States. https://factfinder.census.gov/faces/
tableservices/jsf/pages/productview.xhtml?pid=COG_2012
_ORG09.US01&prodType=table. The U.S. Census Bureau data did not provide
a population breakout for special district governments.
\28\ See id., County Governments by Population-Size Group and
State: 2012--United States-States. https://factfinder.census.gov/faces/
tableservices/jsf/pages/productview.xhtml?pid=COG
_2012_ORG06.US01&prodType=table; Subcounty General-Purpose Governments
by Population-Size Group and State: 2012--United States-States. https:/
/factfinder.census.gov/faces/tableservices/jsf/pages/
productview.xhtml?pid=COG_2012_ORG07.US01&prodType=table; and
Elementary and Secondary School Systems by Enrollment-Size Group and
State: 2012--United States-States. https://factfinder.census.gov/faces/
tableservices/jsf/pages/productview.xhtml
?pid=COG_2012_ORG11.US01&prodType=table. While U.S. Census Bureau data
did not provide a population breakout for special district governments,
if the population of less than 50,000 for this category of local
government is consistent with the other types of local governments, the
majority of the 38,266 special district governments have populations of
less than 50,000.
\29\ Id.
---------------------------------------------------------------------------
11. Wired Telecommunications Carriers. The U.S. Census Bureau
defines this industry as ``establishments primarily engaged in
operating and/or providing access to transmission facilities and
infrastructure that they own and/or lease for the transmission of
voice, data, text, sound, and video using wired communications
networks. Transmission facilities may be based on a single technology
or a combination of technologies. Establishments in this industry use
the wired telecommunications network facilities that they operate to
provide a variety of services, such as wired telephony services,
including VoIP services, wired (cable) audio and video programming
distribution, and wired broadband Internet services. By exception,
establishments providing satellite television distribution services
using facilities and infrastructure that they operate are included in
this industry.'' \30\ The SBA has developed a small business size
standard for Wired Telecommunications Carriers, which consists of all
such companies having 1,500 or fewer employees.\31\ U.S. Census data
for 2012 show there were 3,117 firms that operated that year.\32\ Of
this total, 3,083 operated with fewer than 1,000 employees.\33\ Thus,
under this size standard, the majority of firms in this industry can be
considered small.
---------------------------------------------------------------------------
\30\ See 13 CFR Sec. 120.201. The U.S Census Bureau uses the NAICS
code 517110 for the Wired Telecommunications Carrier category. See
https://factfinder.census.gov/faces/nav/jsf/pages/
searchresults.xhtml?refresh=t#none.
\31\ Id. Sec. 201.121.
\32\ See U.S. Census Bureau, 2012 Economic Census of the United
States, Table No. EC1251SSSZ5, Information: Subject Series--Estab &
Firm Size: Employment Size of Firms: 2012. (517110 Wired
Telecommunications Carriers). https://factfinder.census.gov/bkmk/table/
1.0/en/ECN/2012_US/51SSSZ5//naics 517110.
\33\ Id.
---------------------------------------------------------------------------
12. Cable Companies and Systems (Rate Regulation Standard). The
Commission has developed its own small business size standards for
cable rate regulation. Under the Commission's rules, a ``small cable
company'' is one serving 400,000 or fewer subscribers nationwide.\34\
Industry data indicate that of 4,600 cable operators nationwide, all
but nine are small under this size standard.\35\ In addition, under the
Commission's rules, a ``small system'' is a cable system serving 15,000
or fewer subscribers.\36\ Industry data indicate that of 4,600 systems
nationwide, 3,900 have fewer than 15,000 subscribers, based on the same
records.\37\ Thus, under this second size standard, the Commission
believes that most cable systems are small.
---------------------------------------------------------------------------
\34\ 47 CFR Sec. 76.901(e). The Commission determined that this
size standard equates approximately to a size standard of $100 million
or less in annual revenues. Implementations of Sections of the 1992
Cable Act: Rate Regulation, Sixth Report and Order and Eleventh Order
on Reconsideration, 10 FCC Rcd 7393, 7408 (1995).
\35\ The number of active, registered cable systems comes from the
Commission's Cable Operations and Licensing System (COALS) database on
August 15, 2015. See FCC, Cable Operations and Licensing Systems
(COALS). www.fcc.gov/coals (last visited June 21, 2019).
\36\ 47 CFR Sec. 76.901(c).
\37\ See FCC, Cable Operations and Licensing Systems (COALS).
www.fcc.gov/coals.
---------------------------------------------------------------------------
13. Cable System Operators. The Act also contains a size standard
for small cable system operators, which is ``a cable operator that,
directly or through an affiliate, serves in the aggregate fewer than
one-percent of all subscribers in the United States and is not
affiliated with any; entity or entities whose gross annual revenues in
the aggregate exceed $250,000.'' \38\ There are approximately
52,403,705 cable subscribers in the United States today.\39\
Accordingly, an operator serving fewer than 524,037 subscribers shall
be deemed a small operator, if its annual revenues, when combined with
the total revenues of all its affiliates, do not exceed $250 million in
the aggregate.\40\ Based on the available data, we find that all but
nine independent cable operators are affiliated with entities whose
gross annual revenues exceed $250 million.\41\ Although it seems
certain that some of these cable system operators are affiliated with
entities whose gross annual revenues exceed $250 million, we note that
the Commission neither requests nor collects information on whether
cable system operators are affiliated with entities whose gross annual
revenues exceed $250 million,\42\ and therefore we are unable to
estimate more accurately the number of cable system operators that
would qualify as small under the definition in the Communications Act.
---------------------------------------------------------------------------
\38\ 47 U.S.C. Sec. 543(m)(2). See also 47 CFR Sec. 76.901(f).
\39\ See SNL Kagan at https://www.snl.com/interactivex/
MultichannelIndustryBenchmarks
.aspx.
\40\ 47 CFR Sec. 76.901(f); See FCC Announces New Subscriber Count
for the Definition of Small Cable Operator, Public Notice, 16 FCC Rcd
2225 (Cable Services Bur. 2001).
\41\ See SNL Kagan at https://www.snl.com/interactivex/
TopCableMSOs.aspx.
\42\ The Commission does receive such information on a case-by-case
basis if a cable operator appeals a local franchise authority's finding
that the operator does not qualify as a small cable operator pursuant
to Sec. 76.901(f) of the Commission's rules.
---------------------------------------------------------------------------
14. Open Video Services. Open Video Service (OVS) systems provide
subscription services\43\ and the OVS framework is one of four
statutorily recognized options for the provision of video programming
services by local exchange carriers.\44\ The OVS framework provides
opportunities for the distribution of video programming other than
through cable systems. Because OVS operators provide subscription
services, OVS falls within the SBA small business size standard
covering cable services or ``Wired Telecommunications Carriers.'' \45\
The SBA has developed a small business size standard for this category
which covers all such firms having 1,500 or fewer employees.\46\
According to the 2012 U.S. Census, there were 3,117 firms considered
Wired Telecommunications Carriers in 2012, of which 3,083 operated with
fewer than 1,000 employees.\47\ Based on these data, most of these
firms can be considered small. In addition, we note that the Commission
has certified approximately 45 OVS operators to serve 116 areas,
although most of these operators are not yet providing service.\48\
Broadband Service Providers (BSPs) are currently the only significant
holders of OVS certifications or local OVS franchises.\49\ At least one
OVS operator, Affiliates of Residential Communications Network, Inc.
(RCN), has sufficient revenues to ensure they do not qualify as a small
business entity. However, the Commission does not have financial or
employment information for the other entities which are not yet
operational. Thus, the Commission concludes that up to 44 OVS operators
(those remaining) could potentially qualify as small businesses that
may be affected by the rules and policies adopted herein.
---------------------------------------------------------------------------
\43\ See 47 U.S.C. Sec. 573.
\44\ Id. Sec. 571(a)(3)-(4). Annual Assessment of the Status of
Competition in the Market for the Delivery of Video Programming,
Thirteenth Annual Report, 24 FCC Rcd 542, 606, Para. 135 (2009) (13th
Annual Report).
\45\ 13 CFR Sec. 201.121. The U.S Census Bureau uses the NAICS code
517110 for the Wired Telecommunications Carrier category. See https://
factfinder.census.gov/faces/nav/jsf/pages/search
results.xhtml?refresh=t#none.
\46\ Id.
\47\ See U.S. Census Bureau, 2012 Economic Census of the United
States, Table No. EC1251SSSZ5, Information: Subject Series--Estab &
Firm Size: Employment Size of Firms: 2012 (517110 Wired
Telecommunications Carriers). https://factfinder.census.gov/bkmk/table/
1.0/en/ECN/2012_US/51SSSZ5//naics 517110.
\48\ A list of OVS certifications may be found at https://
www.fcc.gov/general/current-filings-certification-open-video-
systems#block-menu-block-4.
\49\ See 13th Annual Report, 24 FCC Rcd at 606-07, para. 135. BSPs
are newer firms that are building state-of-the-art facilities-based
networks to provide video, voice, and data services over a single
network.
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E. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
15. The rules adopted in this Order will impose no additional
reporting or recordkeeping requirements. We expect the compliance
requirements--namely, modifying and renewing cable franchise agreements
to comport with the law--will have only a de minimis effect on small
entities. As ACA explains, ``most franchising authorities understand
the limits of their authority and do not impose unlawful requirements
on [small cable operators].'' \50\ LFAs will continue to review and
make decisions on applications for cable franchises as they already do,
and any modifications to the local franchising process resulting from
these rules will further streamline that process. The rules will
streamline the local franchising process by providing guidance as to:
the appropriate treatment of cable-related, in-kind contributions
demanded by LFAs for purposes of the statutory five percent franchise
fee cap, what constitutes ``cable-related, in-kind contributions,'' and
how such contributions are to be valued. The rules will also streamline
the local franchising process by making clear that LFAs may not use
their video franchising authority to regulate the provision of certain
non-cable services offered over cable systems by incumbent cable
operators. The same can be said of franchising at the state level. The
rules will help streamline the franchising process by ensuring that
applicable statutory provisions are interpreted uniformly throughout
the country.
---------------------------------------------------------------------------
\50\ Letter from Ross Lieberman, Senior Vice President, Government
Affairs ACA Connects--America's Communications Association, to Marlene
Dortch, Secretary, FCC, at 1 (July 25, 2019).
---------------------------------------------------------------------------
F. Steps Taken to Minimize Significant Economic Impact on Small
Entities and Significant Alternatives Considered
16. The RFA requires an agency to describe any significant
alternatives it has considered in reaching its proposed approach, which
may include the following four alternatives (among others): ``(1) the
establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance and reporting requirements under the rule for such small
entities; (3) the use of performance, rather than design standards; and
(4) an exemption from coverage of the rule, or any part thereof, for
small entities.'' \51\
---------------------------------------------------------------------------
\51\ 5 U.S.C. Sec. 603(c)(1)-(4).
---------------------------------------------------------------------------
17. To the extent that these rules are matters of statutory
interpretation, we find that the adopted rules are statutorily mandated
and therefore no meaningful alternatives exist.\52\ Moreover, as noted
above, the rules are expected to have only a de minimis effect on small
entities. The rules will also streamline the local franchising process
by providing additional guidance to LFAs.
---------------------------------------------------------------------------
\52\ For this reason, we disagree with NATOA et al. that our
actions will affect service to senior citizens, or to schools,
libraries, and other public buildings and that this analysis is
inadequate. See Letter from Joseph Van Eaton et al., Counsel to Anne
Arundel County, et al. to Marlene H. Dortch, Secretary, FCC at 2 (July
24, 2019). This argument is essentially that the statutory cap does not
afford local governments enough money to serve their constituents, and
we do not have the authority to amend the statute.
---------------------------------------------------------------------------
18. Treating cable-related, in-kind contributions as ``franchise
fees'' subject to the statutory five percent franchise fee cap will
benefit small cable operators by ensuring that LFAs do not circumvent
the statutory five percent cap by demanding, for example, unlimited
free or discounted services. This in turn will help to ensure that
local franchising requirements do not deter small cable operators from
investing in new services and facilities. Similarly, applying these
rules at the state level helps to ensure that such deterrence does not
come from state-level franchising requirements either. Finally,
applying the Commission's mixed-use rule to all incumbent cable
operators helps to ensure that all small cable operators may compete on
a level playing field because incumbent cable operators will now be
subject to the same rule that applies to competitive cable operators.
We disagree with the City of Newton's argument that we should afford
small entities six years to implement these changes--the issues that
City of Newton raises are matters of statutory interpretation, and the
Communications Act does not provide for the implementation period that
the City of Newton requests.
G. Federal Rules that May Duplicate, Overlap, or Conflict with the
Proposed Rules
19. None.
H. Report to Congress
20. The Commission will send a copy of the Report and Order,
including this FRFA, in a report to be sent to Congress and the
Government Accountability Office pursuant to the Congressional Review
Act.\53\ In addition, the Commission will send a copy of the Report and
Order, including this FRFA, to the Chief Counsel for Advocacy of the
Small Business Administration. The Report and Order and FRFA (or
summaries thereof) will also be published in the Federal Register.\54\
---------------------------------------------------------------------------
\53\ See id. Sec. 801(a)(1)(A).
\54\ See id. Sec. 604(b).
---------------------------------------------------------------------------
______
STATEMENT OF CHAIRMAN AJIT PAI
Re: Implementation of Section 621(a)(1) of the Cable Communications
Policy Act of 1984 as Amended by the Cable Television Consumer
Protection and Competition Act of 1992, MB Docket No. 05-311.
As Scott Turow famously said in One L: The Turbulent True Story of
a First Year at Harvard Law School, reading law is ``something like
stirring concrete with [your] eyelashes.'' And in few areas of law is
the stirring more difficult than statutory interpretation. The canons
of statutory construction are not plot points in John Grisham
thrillers, and I doubt they will feature in next year's Legally Blonde
3. But as an agency charged with implementing the laws passed by
Congress, statutory construction is fundamental to the Commission's
work.
Thankfully, some issues of statutory interpretation are more
straightforward than others. For example, today we decide that ``in-
kind'' contributions made by cable operators for the non-capital costs
of public, educational, and government (PEG) access channels count
against the five percent cap on franchise fees set forth in Section 622
of the Communications Act (the Act).\1\ I understand that many PEG
operators are unhappy with this outcome. But it is the inevitable
result of the statute passed by Congress.
---------------------------------------------------------------------------
\1\ 47 U.S.C. Sec. 542(b).
---------------------------------------------------------------------------
Here's why. The statute plainly defines a ``franchise fee'' to
include ``any tax, fee, or assessment of any kind.''\2\ It then sets
forth two exceptions to that definition related to PEG channels. For
franchises in effect back in 1984, when the statute was passed, there
is a broad exemption for ``payments which are required by the franchise
to be made by the cable operator during the term of such franchise for,
or in support or the use of, public, educational, or government access
facilities.'' \3\ But for franchises granted later, the exemption is
much narrower, covering only ``capital costs which are required by the
franchise to be incurred by the cable operator for public, educational,
or governmental access facilities.'' \4\
---------------------------------------------------------------------------
\2\ 47 U.S.C. Sec. 542(g)(1) (emphasis added).
\3\ 47 U.S.C. Sec. 542(g)(2)(B).
\4\ 47 U.S.C. Sec. 542(g)(2)(C).
---------------------------------------------------------------------------
This legal framework tells us two things. First, given these
specific exemptions, the five percent cap (and associated franchise fee
definition) does not include a general exemption from cable-related,
in-kind contributions. Congress could have--but did not--create one.
And the specific exemptions would be unnecessary if there were such a
general exemption. The Supreme Court has made clear that it is ``
`reluctan[t] to treat statutory terms as surplusage' in any setting.''
\5\ So are we.
---------------------------------------------------------------------------
\5\ Duncan v. Walker, 533 U.S. 167, 174 (2001), quoting Babbitt v.
Sweet Home Chapter, Communities for Great Ore., 515 U.S. 687, 698
(1995).
---------------------------------------------------------------------------
Second, with respect to post-1984 franchises, capital costs are the
only PEG costs that are exempt from the definition of franchise fees.
Understandably, PEG operators and many local governments in this
proceeding would like to benefit from the broader exclusion. But that's
not what the statute says. The broader exemption by its plain terms
only applies to franchises in existence back in 1984. Congress was
clearly aware of the distinction between existing and post-1984
franchises when it established these exemptions, and we don't have the
authority to rewrite the statute to expand the narrower, post-1984 one.
This is Statutory Interpretation 101.
To be sure, all of the issues of statutory construction addressed
in this item aren't as easy as this one. But in each instance, we
carefully parse the statute and arrive at the right result. For
example, we correctly affirm that local franchising authorities (LFAs)
may not regulate the provision of most non-cable services, including
broadband Internet access service, offered over a cable system. And we
find that the Act preempts any state or local regulation of a cable
operator's non-cable services that would impose obligations on
franchised cable operators beyond what Title VI of the Act allows.
Obviously, some local governments that are eager to keep biting the
regulatory apple object to this outcome. But the question of preemption
is squarely addressed by the statute. Section 636(c) of the Act
explicitly provides that ``any provision of law of any State, political
subdivision, or agency thereof, or franchising authority, or any
provision of any franchise granted by such authority, which is
inconsistent with this Act shall be deemed to be preempted and
superseded.'' \6\
---------------------------------------------------------------------------
\6\ 47 U.S.C. Sec. 556(c) (emphasis added).
---------------------------------------------------------------------------
Now, let us suppose--and I know it seems improbable, but bear with
me here--that some are not convinced by legal arguments and simply want
to allow contributions the statute explicitly forbids, and permit
regulations that it explicitly does not permit. The solution is simple:
change the law. The job of administrative agencies like ours is not to
rewrite laws set forth by Congress. It is to implement those laws. As
the Supreme Court has opined, ``[u]nder our system of government,
Congress makes laws and the President, acting at times through
agencies. . . ., `faithfully execute[s]' them. The power of executing
the laws . . . does not include a power to revise clear statutory
terms.'' \7\
---------------------------------------------------------------------------
\7\ Utility Air Regulatory Group v. EPA, 573 U.S. 302, 327 (2014).
---------------------------------------------------------------------------
Looking beyond the law, today's Third Report and Order is good for
American consumers. That's because costs imposed by LFAs through in-
kind contributions and fees imposed on broadband Internet access
service get passed on to consumers. LFAs have not cracked the secret to
a free lunch. Moreover, every dollar paid in excessive fees is a dollar
that by definition cannot and will not be invested in upgrading and
expanding networks. This discourages the deployment of new services
like faster home broadband or better Wi-Fi or Internet of Things
networks. So, by simply insisting that LFAs comply with the law, we
will reduce costs for consumers and expedite the deployment of next-
generation services. Good law and good policy.
Thank you to the dedicated staff who worked on this important item:
from the Media Bureau, Michelle Carey, Martha Heller, Maria Mullarkey,
Brendan Murray, Raelynn Remy, and Holly Saurer; and from the Office of
General Counsel, Susan Aaron, Michael Carlson, Maureen Flood, Thomas
Johnson, and Bill Richardson. When it comes to stirring the concrete of
statutory construction, you bring a cement mixer to the task rather
than eyelashes.
______
STATEMENT OF COMMISSIONER MICHAEL O'RIELLY
Re: Implementation of Section 621(a)(1) of the Cable Communications
Policy Act of 1984 as Amended by the Cable Television Consumer
Protection and Competition Act of 1992, MB Docket No. 05-311.
As I've stated many times since we began the media modernization
effort, the video marketplace is changing dramatically, and each step
we have taken to update anachronistic and clunky regulations makes it
slightly easier for regulated industries to compete with their
unregulated competitors. Though much work remains, I look forward to
continuing the effort. At the same time, and as we see in the
background of today's item, it is unsurprising that other stakeholders,
such as franchise authorities, also feel their own pressures due to the
changing market dynamics, whether budgetary or political. They too seek
ways to either continue their past practices unabated or seek ways to
maximize returns on their regulatory roles. However, Title VI of the
Communications Act places important restraints on their reach, and
unauthorized expansion of the statute is flatly wrong and must be held
in check. The courts have agreed, and I am pleased that today we make
strides toward answering the Sixth Circuit, by addressing three main
areas raised in or affected by its remand.
First, the Order rightly counts cable-related ``in-kind''
contributions against the statutory cap. Failing to do so would
effectively render the statute's restraints meaningless, or nearly so.
Critics may argue that local franchise authorities have the weaker
position when dealing at arm's length with video providers, but the
record and experience show otherwise. There are numerous examples of
where video providers lack the ability to say no to ``voluntary''
waivers of the five percent cap, having no recourse but to agree to all
manner of in-kind contributions, ranging from providing all the
necessary equipment to produce PEG programming in New York City, to
supplying transport lines to cover ice cream socials in Minnesota.
There are many examples in the record, but the point is: failure to
agree to such terms could result in jeopardizing the franchise, and
that is a risk many companies simply cannot afford to take. The
Commission's role is to interpret and enforce the statute based on the
record, and today we appropriately define cable-related in-kind
contributions to prevent end-runs around the statutory cap.
Second, the Order also correctly preempts state-level franchise
authorities who would seek to obliterate the statutory boundaries that
are in place. Unfair and unreasonable fees and contributions beyond
five percent of gross revenues for cable services conflict with the
law, whether the franchisor is a state or local actor. The statute
itself explicitly refuses to restrict states from exercising
jurisdiction over cable services. In fact, about half of all states
have authorized state-level franchise authorities. There is no good
legal or policy reason for restraining the activities of local
franchisors while allowing state authorities to continue unbounded, and
I thank the Chairman for including this matter in the NPRM so that we
could go to Order today on it.
Third, there are two issues regarding PEG contributions that could
receive further attention as the record more fully develops. While I
would have preferred a narrower definition of ``capital costs,''
limiting such contributions to construction-related costs for PEG
facilities, the item does acknowledge today that the current record has
room to grow, leaving us the option to revisit this matter in the
future. Similarly, we clearly acknowledge the need to resolve the PEG
channel capacity cost question and expressly commit to doing so within
the next year. This is a vital endeavor, so I thank the Chairman for
working with me on this matter and look forward to the admittedly
complex and rigorous undertaking.
Separately, and perhaps most significantly, the item properly
rejects the ability of state or local governments to impose franchise
fees on non-cable services. Inappropriate court determinations, such as
the Eugene, Oregon, franchise case, have wrongly tried to open the door
to the imposition of such fees on other services offered by what have
traditionally been called cable operators. However, the statute is
quite clear on the matter and the item appropriately clarifies that
franchises authorities can only regulate cable services. Today's action
closes off potential revenues for franchise authorities from non-cable
services, which is the right statutory reading. Further, allowing these
entities to usurp the statute by imposing fees on the offering of
broadband services would ignore the resulting harm to consumers. For
instance, Congress has recognized multiple times that allowing
governmental fees and taxes does affect Internet adoption rates. Given
that almost everyone recognizes the importance of broadband
availability, deterring its use would be at best, counterproductive.
Moreover, without such a limitation, there appears to be no outer limit
to the types of non-cable services for which a cable operator could be
forced to pay fees. Today, it's broadband in the cross-hairs, but
tomorrow it could be cloud services or over-the-top video services, for
example.
Finally, I'll end with two points regarding the judicial and
legislative implications of today's item. On the matter of applying
today's Order to existing franchise agreements, I worry that we are
punting too much of the burden to the overworked courts and would be
better served by delineating a clear process under the Commission's
purview. However, I support the efforts of my colleague Commissioner
Carr to make Section 636 controlling, which will at a minimum provide a
clearer starting point for negotiations. I would also note that I
support my colleague's effort to clarify that the provisions of this
Order cannot be waived. We will be closely watching to ensure that no
franchise authorities seek to make an end run around the reforms
contained in this Order by demanding that franchisees waive any of the
provisions. Regarding the need for legislation, I hope that Congress
will take note of our effort today and consider launching an ambitious,
but much needed, review of Title VI in its entirety. We are bringing
the regulations more in line with the statute today, but the whole
ecosystem would be well-served by a wholesale rewrite of the statute
and an acknowledgement of the current market realities.
But, this item shouldn't and won't be the end of our work to
eliminate outdated rules and scale back inappropriate actions by state
and local franchise authorities. For our media modernization
initiative, I will be submitting soon a new round of ideas for the
Chairman's consideration. On a larger scale, I am hard at work on a
blog outlining the fundamental overhaul needed to address our outdated
franchising regime and the need to further curtail ``creatively
harmful'' efforts by franchise authorities.
I approve.
______
STATEMENT OF COMMISSIONER BRENDAN CARR
Re: Implementation of Section 621(a)(1) of the Cable Communications
Policy Act of 1984 as Amended by the Cable Television Consumer
Protection and Competition Act of 1992, MB Docket No. 05-311.
If you tax something, you get less of it. Yet politicians around
the country have been treating Americans' cable and broadband bills as
a piggy bank to line government coffers. Those illegal taxes only raise
our costs, make it harder to access the Internet, and curb competition.
Today, we vote to end this outlier conduct.
Doing so is not only required by Federal law. It's the right thing
to do. Policymakers at all levels of government should be making it
easier and less expensive to build out broadband infrastructure. That
is why this FCC has been eliminating regulatory costs and cutting red
tape. It's so that next-gen networks can be built, increasing
competition and choice.
Regulatory reform matters--and not just in some abstract or
theoretical sense. We know it from our own experience.
Take this Commission's actions to get the government out of the way
so the private sector can build 5G. We modernized the Federal historic
and environmental rules that apply to small cells. We addressed outlier
conduct at the state and local level by tackling high fees and long
delays in the permitting process. Combined, those two decisions cut
about $3.6 billion in red tape that had slowed down broadband builds
and limited competition.
In fact, those and other FCC reforms are already delivering
results. Internet speeds are up nearly 40 percent. Americans saw more
fiber broadband built to their homes last year than ever before. The
number of small cells put up increased from 13,000 in 2017 to more than
60,000 in 2018. Investment in broadband networks is back on the rise.
And the U.S. now has the world's largest 5G deployment.
We know the opportunity that broadband enables--from creating jobs
to improving access to high-quality healthcare and education. That's
why, as policymakers and regulators, we must always view broadband as
an opportunity for consumers--not tax collectors.
That brings us to today's Order. Congress recognized decades ago
that excessive taxes and in-kind demands, which have the same effect,
could threaten innovative services and lead to higher prices. That's
why Congress capped franchise fees at five percent of cable revenue.
Congress wanted to encourage voice and Internet service offered over
cable systems by shielding those services from taxes and regulations.
The Commission knows well that outlier fees and restrictions limit
buildout. We saw that with small cells, where cities like New York and
San Jose leveraged their monopolies over the rights of way to demand
exorbitant fees and concessions wholly unrelated to the cost of rights
of ways. And we're seeing a similar dynamic here with cable
franchising.
Some local franchising authorities have taken advantage of their
roles as regulators to force providers to offer free service to
municipal liquor stores and government-owned golf courses. Others have
imposed broadband and voice taxes on top of existing franchise fees.
And others have required providers to obtain entirely separate
franchises to provide Wi-Fi and cellular backhaul even though they're
already authorized under existing franchise laws.
This abusive behavior has consequences. Money that could otherwise
be spent on network deployments and upgrades is instead diverted to the
government's own pockets. Ultimately, consumers take the hit--whether
it's a higher-priced cable bill or decreased investment and competition
in their communities. An economic analysis in our record shows that
without reform, illegal taxes will reduce consumer welfare by $40
billion by 2023.
So I'm glad we take these steps today to crack down on bad actors
who seek to tax broadband and thus provide less access and competition
for all of us. I'm also glad my colleagues agreed to some edits that
have strengthened this item to further protect consumers from harm.
First, we now make clear that illegal franchise terms are per se
preempted under the statute and by this Order, which will help bring
franchises into compliance more quickly. Consumers shouldn't have to
pay higher prices while protracted negotiations take place. Their cable
bills should simply reflect the law. Second, we make clear that Wi-Fi
and wireless services provided over the cable system are exempt from
duplicative fees, which will encourage providers to invest more in
these 5G-ready services. Third, we affirm that franchising authorities
may not ask cable operators to voluntarily waive these regulatory
reforms as a negotiating tactic or to perform an end-run around the
statutory franchise fee cap. And finally, we ensure that in-kind
contributions requested by franchise authorities are calculated at
their fair market value, because consumers shouldn't have to pay more
for cable services than the governments who represent them.
These and other edits I requested help ensure consumers are
protected from higher prices and that more money is spent on the
investments needed to bring more broadband to more Americans. So I want
to thank my colleagues for expanding the relief that we provide in this
decision. I also want to thank the Media Bureau for its work on the
item. It has my support.
______
STATEMENT OF COMMISSIONER JESSICA ROSENWORCEL, DISSENTING
Re: Implementation of Section 621(a)(1) of the Cable Communications
Policy Act of 1984 as Amended by the Cable Television Consumer
Protection and Competition Act of 1992, MB Docket No. 05-311.
Do just a bit of research on the state of local journalism in this
country and you will see stark headlines with words like ``decline,''
``shrink,'' and ``crisis.''
These headlines are not fake news. According to the Associated
Press, more than 1,400 cities and towns across the United States have
lost a newspaper during the last decade and a half. This trend extends
beyond newspapers. Over roughly the last decade, newsroom employment--
the reporters, editors, photographers, and videographers who work day-
in and day-out to publish, broadcast, and report local news in this
country have declined by 25 percent.
This downsizing deserves attention. While national news is on many
of our screens, local journalism is disappearing. This has
consequences. The loss of a local outlet means there is no one to
report on the day's events. Coverage of the school board doesn't take
place. Highlights from the local football game go unreported.
Investigations into property assessments and local corruption fall by
the wayside. But these are the facts that keep us informed as citizens
and provide us with the news we need to help make decisions about our
lives, our communities, and our democracy.
I think this context matters--and this context is important for
today's decision. Because this agency should seize opportunities to
reinvigorate local newsgathering and community coverage. In fact, that
has traditionally been a hallmark of Federal Communications Commission
media policy. But on that score, today's decision misses the mark.
That's because it cuts at public, educational, and governmental
channels across the country. It goes beyond placing reasonable limits
on contributions subject to the statutory franchise fee and jeopardizes
the day-to-day costs, like staff and overhead, required to run such
stations.
I'm not the only one with this concern. Take a look at the record.
We've heard from thousands of communities across the country worried we
are cutting the operations of so many local channels. I am saddened
that this agency refuses to listen.
I think their pleas fell on deaf ears because this agency has
convinced itself that by making these changes, we will see more
broadband. They insist that funding these local stations and related
efforts damages the ability of our Nation's broadband providers to
extend their networks to communities without high-speed service. But
comb through the text of this decision. You will not find a single
commitment made to providing more broadband service in remote
communities. There is no enforceable obligation to expand broadband
capacity. There is no agreement that any savings from today's action is
pushed into new network deployment. I fear this absence speaks volumes.
That's because in the final analysis, this decision is part of a
broader trend at this agency. Washington is cutting local authorities
out of the picture when it comes to infrastructure. You see it here, in
the way we limit local public, educational, and governmental channels
and public safety services like I-Nets. You see it in the way we cut
local officials out of decisions about wireless facilities deployed in
their own backyards. You see it the way that just last month we
preempted a local law designed to increase broadband competition in a
city where residents were crying out for more choices for Internet
access.
I don't think this is the way to govern. I believe the way we are
proceeding is at odds with our long legal history and tradition of dual
sovereignty in the United States. I think instead of speeding our way
to the digital future, it is slowing us down, increasing our division
and diminishing the dignity of local institutions. I dissent.
______
STATEMENT OF COMMISSIONER GEOFFREY STARKS, DISSENTING
Re: Implementation of Section 621(a)(1) of the Cable Communications
Policy Act of 1984 as Amended by the Cable Television Consumer
Protection and Competition Act of 1992, MB Docket No. 05-311.
One of our primary responsibilities at the Commission is to ensure
that spectrum, a scarce public resource that underscores our
broadcasting industry and our wireless communications, is distributed
equitably and in the public interest. However, spectrum is not the only
public resource integral to the deployment of our communications
networks. Access to public real estate and property is similarly
critical. Specifically, public rights-of-way managed by states and
municipalities fuel the build-out of our networks. Providers need
access to this resource to dig trenches to lay conduit and reach homes.
For many decades, state, municipal, or local governing bodies have
been recognized as the arbiters of the use of this valuable public
resource. This recognition formed the basis of the Cable Act,\1\ which
spawned our local franchising rules and allowed providers to come
freely to local franchising authorities to negotiate the use of public
rights-of-way. Historically, LFAs have sought and cable providers have
agreed to a fee for the use of this public property, along with other
public interest terms. In return, providers have been able to run
profitable businesses, acquiring new customers and reaping hundreds of
billions of dollars in revenue.
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\1\ Cable Communications Policy Act of 1984, Pub. L. No. 98-549, 98
Stat. 2779 (1984).
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I dissent from today's item because it threatens the ability of
states and municipalities to manage their local affairs through an
improper reading of the statute. The expansive and unprecedented
reading of the term ``franchise fee'' in today's item significantly
devalues the use of public rights-of-way and could, within months,
threaten settled and longstanding franchise agreements across the
country. In doing so, it puts at risk the careful balance developed
over many decades between the interests of providers and the local
communities that they serve.
Thousands of federal, state, and local leaders have submitted
substantive comments in our docket, pointing out how our action today
will frustrate other important goals of the statute, and target certain
terms negotiated into franchise agreements that are of great importance
to local communities.\2\ From free or discounted services to schools or
government buildings, to institutional networks, or I-Nets, which are
viewed as critical infrastructure by many cities and relied upon to
support government functions and public safety communications, much is
at stake. Additionally, the item itself recognizes that it will shake
the very foundation of another statutory priority, the provision of
public, educational, or governmental, or PEG, stations, which the item
notes provide critical and unique local service to communities across
the country.\3\
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\2\ See, e.g., Letter from Sen. E. Markey et al., to Ajit Pai,
Chairman, FCC (July 29, 2019); Letter from Sen. K. Gillibrand and Sen.
C. Schumer, to Ajit Pai, Chairman, FCC (July 25, 2019); Letter from
Sen. C. Van Hollen, to Ajit Pai, Chairman, FCC (June 12, 2019); Letter
from Rep. Y. Clarke, to Ajit Pai, Chairman, FCC (May 9, 2019); Letter
from Sen. M. Hirono, to Ajit Pai, Chairman, FCC (Dec. 18, 2018); Letter
from Rep. G. Moore, to Ajit Pai, Chairman, FCC, at 2 (Dec. 14, 2018);
Letter from Rep. E. Engel, to Ajit Pai, Chairman, FCC (Dec. 13, 2018);
Reply Comments of CAPA et al., at 9; Comments of King County,
Washington, at 9; City Coalition Comments at 17-18; Comments of NATOA
et al. at 10.
\3\ Implementation of Section 621(a)(1) of the Cable Communications
Policy Act of 1984 as Amended by the Cable Television Consumer
Protection and Competition Act of 1992, MB Docket No. 05-311, Draft
Third Report and Order, para. 50 (adopted Aug. 1, 2019) (Third Report
and Order).
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Perhaps the most significant departure in today's item is the
expansive new reading of the term ``franchise fee'' for the purposes of
the statutory cap on LFAs' collection of such fees. The term will now
broadly include ``cable-related, in-kind contributions.'' \4\ This new
interpretation of the statute will upend decades of settled regulatory
determinations and innumerable franchise agreements currently in place
across the country, and cause a seismic shift in the relationship
between LFAs and providers, maximizing providers' leverage and
minimizing the ability of LFAs to secure adequate service to their
local communities.
---------------------------------------------------------------------------
\4\ Third Report and Order at paras. 13-15.
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The Commission's unilateral decision to avoid the words and intent
of our statute and expand the definition of ``franchise fee'' in this
proceeding is puzzling. As numerous commenters have extensively noted,
and I agree, our mandate seems clear.\5\ Section 622 of the Act caps
franchise fees at five percent of a cable operator's gross revenues
from the provisioning of cable services.\6\ The term ``franchise fee''
is given a relatively straightforward definition in the statute: ``any
tax, fee, or assessment of any kind.'' \7\
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\5\ See, e.g., NATOA et al. July 24, 2019 Ex Parte at 2; Anne
Arundel County et al. July 24, 2019 Ex Parte at 8; Comments of City of
Philadelphia et al. at 22 (Nov. 14, 2018); Comments of Charles County,
Maryland, at 7 (Nov. 14, 2018); Reply Comments of Anne Arundel County,
Maryland et al., at 6 (Dec. 14, 2018).
\6\ 47 U.S.C. Sec. 542.
\7\ Id. Sec. 542(g)(1).
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And, if the plain meaning of the words used raised any question
about whether we are talking about money or some other type of
contribution, the legislative history included a strikingly clear
clarification: ``[i]n general, this section defines as a franchise fee
only monetary payments made by the cable operator and does not include
as a `fee' any franchise requirements for the provision of services,
facilities or equipment.'' \8\ On this issue, it is exceedingly clear--
we are talking about money.
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\8\ 1984 U.S.C.C.A.N. 4751, 4753; H.R. Rep. No. 98-934 at 65 (1984)
(emphasis added).
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It is true that the Sixth Circuit returned this issue to us on
procedural grounds with dicta considering whether the term ``franchise
fee'' can include ``noncash exactions'' in narrow instances.\9\
However, in almost the same breath the Court noted, notwithstanding its
brief exploration of the definitions of the words at issue, ``[t]hat
the term `franchise fee' can include noncash exactions, of course, does
not mean that it necessarily does include every one of them.'' \10\ The
item's reliance on that brief discussion to support today's line-
drawing exercise, in the face of a clearly worded statute and clearly
stated congressional intent, is inappropriate.\11\
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\9\ Montgomery County, Md. et al., v. FCC, 863 F.3d 485, 490-91
(6th Cir. 2017).
\10\ Id. (emphasis in original).
\11\ Id.
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What does this really mean for communities across the country? It
means that freely negotiated franchise terms, agreed to by cable
providers in addition to franchise fees, in arm's length negotiations
with LFAs all across the country, will almost immediately be treated
differently now than they have for 35 years. And as a result, the value
of local public rights-of-way will be immediately diminished limiting
the ability of local authorities to raise revenue and support important
programs. At its core, this means that difficult choices will need to
be made by local leaders, contrary to the public interest, due to the
Commission's misreading of the statute. For instance:
The City of Medford, Massachusetts told us that they will
need to decide whether to ``divert resources away from core
municipal and school services to maintain existing PEG
programming, suffer a dramatic reduction in the scope of PEG
channels, or lose them altogether.'' \12\
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\12\ Letter from Stephanie M. Burke, Mayor, City of Medford, MA, to
Ajit Pai, Chairman, FCC (July 25, 2019).
Durango, Colorado worries that reductions in funding will
likely mean its PEG channels will be cut altogether, leaving
the city without a way to warn citizens when a disaster
strikes. PEG channels were used to alert citizens when 3
million gallons of mining sludge leaked into a major river
which flows through the middle of the town. A PEG station's
drone was used to obtain video and track the progress of the
spill by local emergency management officials. Later, PEG
channels were used to advise of evacuations and road closures
when a massive wildfire broke out nine miles north of the city.
Reductions in funding will likely mean PEG channels will be cut
all together, leaving the city without a way to warn citizens
when a disaster strikes.\13\
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\13\ Association of Washington Cities et al. April 3, 2019 Ex
Parte.
I was in New York City earlier this week meeting with city
officials and was told that they worry greatly about the impact
of today's item on the future of the city's I-Net, a network
that has become so integral to city services that it will be
nearly impossible to replace. FDNY uses the I-Net for
``critical public safety communications'' among other things,
and every city agency is plugged into it in some fashion.\14\
---------------------------------------------------------------------------
\14\ City of New York July 25, 2019 Ex Parte at 1.
Our record is clear: the services negotiated in local franchising
agreements are incredibly important, and reflect the significant value
associated with permission to use public rights-of-way. When it comes
to PEG channels, I can't say it any better than the item already does:
``A significant number of comments in the record stressed [the benefits
of PEG stations], which include providing access to the legislative
process of the local governments, reporting on local issues, providing
a forum for local candidates for office, and providing a platform for
local communities--including minority communities.'' \15\ Free or
discounted service to cash-strapped schools, provision of critical I-
Nets, discounts to vulnerable communities--all of these franchise terms
advance the public interest and are a small imposition given the value
received by providers in franchise negotiations. Our action today is
unnecessary, unsupported by law or precedent, and risks causing grave
harm to local communities.
---------------------------------------------------------------------------
\15\ Third Report and Order at para 50.
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In short, today's item jeopardizes the public interest and
threatens to significantly alter the ability of state and local
governments to determine how best to serve their communities. This item
will undoubtedly end up back in litigation, and I believe the court
will find that the majority's decision is at odds with clear
congressional direction. I dissent.
______
Response to Written Questions Submitted by Hon. Edward Markey to
Hon. Ajit Pai
IP-CTS and Automated Speech Recognition. Automated speech
recognition (ASR) has great promise for Internet Protocol Captioned
Telephone Service (IP-CTS). However, I understand that current ASR
engines vary in quality and accuracy, and I am concerned that nascent
technologies might be certified for IP-CTS use without adequate
testing. I believe that we need to be careful about implementing this
service before it is fully ready.
Question 1. Chairman Pai, what testing is being done to ensure that
ASR services can handle 911 and related public safety calls? Given that
ASR engines vary in quality and accuracy, will you commit to ensure
such testing will occur before certifying an ASR-only provider?
Question 2. Do you agree that we need to ensure ASR-only providers
can handle 911 and related public safety calls before such technology
is FCC approved? In your view, has the FCC done enough adequate testing
of all types of ASR engines?
Answers. I agree that IP CTS is a critical service for individuals
with hearing loss. As you know, the vast majority of captioned
telephone services already rely on automated speech recognition.
However, those services previously have required the interposition of a
communications assistant between the caller and the speech recognition
software to ``revoice'' a caller's words. This interposition slows
transcription, reduces the privacy of calls for callers, and increases
the costs of IP CTS. That's why the Commission took steps to modernize
IP CTS in June 2018 when we authorized the use of automated speech
recognition without a communications assistant. We found that such
automated speech recognition has become a viable alternative with its
improvements in accuracy, speed, and privacy. Additionally, consumers
will continue to be able to select a provider based on quality of
service and available methods, as automated speech recognition will not
be the sole means of offering IP CTS. Finally, I want to stress that
nothing regarding our reforms allows substandard service: Providers
using automated speech recognition must continue to meet the
Commission's minimum standards and report data to the Commission to
help us determine if further measures are necessary. Importantly, all
certified IP CTS providers (including those using ASR) must demonstrate
that their services support 911 emergency calling and meet the
applicable emergency call handling requirements.
Protecting the C-Band for Public Radio. The Public Radio Satellite
System relies on C-Band frequencies to distribute news, programming,
and public safety information to nearly 1,300 interconnected local
public radio stations and millions of Americans across the country.
Question 3. Can you assure me that any plans to transition C-Band
spectrum for new wirelesses services will not impair the vital role
that public radio plays in our news, educational programming, and
emergency services?
Answer. Rest assured that protecting vital incumbent services in
the C-Band is a focus as the Commission moves forward to put this
valuable spectrum resource to its highest and best use for all
Americans. To that end, the Commission's Notice of Proposed Rulemaking
sought extensive comment on how to protect incumbents in the band. The
item asked numerous questions regarding how current end users will be
protected, regardless of the transition approach ultimately adopted,
including the provision of filters and technical assistance, relocation
of earth stations, and adequate compensation for any costs incurred by
incumbents. Further, the Commission recently collected additional
information from earth stations that will provide a detailed picture of
the number and location of earth stations in the band to ensure that
licensed or registered earth stations are protected from harmful
interference. The Commission will conduct a thorough review of this
record and will aim to move forward in a way that protects these
important interests, including the need for continued distribution of
programming to American consumers.
Energy Efficiency. The Commission recently issued a Notice of
Proposed Rulemaking to allow unlicensed, indoor ``Wi-Fi'' use of the
6GHz band. Yet we also know that energy-efficiency building codes
established by the Department of Energy directly impact wireless
penetration of a building's outer envelope.
Question 4. Chairman Pai, has the Commission consulted with the
Department of Energy (DOE) on this rulemaking? Has the Commission and
DOE considered establishing a working group between the two agencies to
address how these two goals--improving connectivity and energy-
efficiency in buildings--intersect with one another?
Answer. While we have not spoken directly with DoE representatives
on this matter, the Leading Builders of America are an active
participant in this proceeding, having submitted comments and held
several meetings with Commission staff. The Leading Builders have
provided information regarding new building energy efficiency and its
effect on RF signals. To the extent that we need additional
information, we won't hesitate to contact the experts at DoE.
______
Response to Written Questions Submitted by Hon. Tom Udall to
Hon. Ajit Pai
Question 1. There was a significant outage of the CenturyLink
broadband network, which caused the Verizon Wireless to also go out,
right after Christmas last year that impacted many New Mexicans,
including essential business operations because businesses were unable
to process credit card payments. Is the FCC currently reviewing this
outage? Has the FCC issued any guidance or taken any enforcement
actions against companies that fail to maintain resilient networks?
Answer. As I have emphasized, Americans must have access to
essential communications networks in times of emergencies, including
natural disasters. Maintaining and restoring these vital networks must
be a priority. The Commission has completed its investigation of the
December 27, 2018, CenturyLink network outage, and a final report will
be released very soon. I should also note that the Commission does not
comment on potential enforcement matters.
Question 2. I along with other members of this Committee have been
vocal about the need for a dedicated tribal broadband fund. I am aware
that there have been incremental changes, including lifting the
operating expenses caps for some tribal carriers. But these are
insufficient to truly meet the need for serving tribal lands. The FCC
recently published a report that had been mandated in the 2018 RAY BAUM
Act. The report discussed the 25 percent discount given to tribal-
serving carriers in the Alternative Connect America Cost Model or A-CAM
methodology, and stated that a fund for legacy carriers is out for
public comment. Mr. Chairman, our communities are tired of waiting for
comments. They want action. When will the FCC move on this proposal?
Answer. Having been to Tribal areas where access is challenging--
like the Rosebud Sioux Reservation in South Dakota to the Navajo Nation
in Arizona--I have made closing the digital divide on Tribal lands a
priority and the Commission has taken significant steps toward that
goal. In last year's CAF II reverse auction, winning bidders committed
to serve 76,710 rural homes and businesses on Tribal lands, and
Tribally owned carriers--like the Northern Arapaho Tribe, which is
receiving more than $4.1 million to deploy gigabit-speed fiber to 849
homes and businesses on the Wind River Reservation in Wyoming--won bids
totaling more than $30 million in broadband support. And as you noted,
we proposed a 25 percent Tribal broadband factor for the second A-CAM
offer, which generated significant interest from carriers serving
Tribal lands, and we sought comment on incorporating a similar Tribal
support factor into our existing support mechanism for legacy carriers.
This month, the Commission voted to propose the Rural Digital
Opportunity Fund, a $20 billion investment in high-speed broadband for
rural Americans, and we sought comment on several steps to target new
funding to Tribal lands, including applying the Tribal Broadband Factor
to increase support available, prioritizing support to areas that lack
even 10/1 Mbps broadband, and offering a Tribal bidding credit to
induce participation on Tribal lands. I look forward to working with
you and my colleagues to ensure that those in Indian Country get access
to the digital opportunities they need and deserve.
Question 3. Tribal communities continue to lag behind the rest of
the country in the deployment of broadband. The GAO found that
inaccuracies in FCC broadband data have led to underestimates of the
magnitude of the digital divide on tribal lands. So we may not even
have a clear picture as to how wide that gap really is given the
current data collection regime. What changes is the FCC considering as
part of its efforts to modernize FCC form 477 in order to specifically
address the under-reporting in Tribal communities? What are some ways
that the FCC can look outside the beltway to engage on this issue?
Answer. Obtaining and using precise, accurate, up-to-date broadband
deployment data is critical to accomplishing the goal of making
broadband available to all Americans, including Tribal communities. We
need to understand where broadband is available and where it is not to
target our efforts and direct funding to areas that are most in need,
such as many rural, Tribal areas.
That is why the Commission began a top-to-bottom review of our
broadband deployment data collection to ensure that that data will be
more precise, granular, and ultimately useful to the Commission and the
public. Along those lines, the Commission adopted a Report and Order on
August 1 to create the Digital Opportunity Data Collection, a new
approach to mapping fixed broadband in which providers submit
geospatial polygons depicting their broadband deployment and thereby
yielding more granular and more precise broadband maps. That Report and
Order also provides for regular updates of the filed data to ensure
that the maps we rely on are current. The Report and Order also adopted
a mechanism for verifying those maps through crowdsourcing--feedback
directly from the public. Through this new tool, Tribal governmental
entities (among others) will be able to submit information disputing
providers' fixed broadband availability data, leveraging their
experience concerning service (or the lack thereof).
The concurrently-adopted Further Notice of Proposed Rulemaking
seeks comment on how best to incorporate input of Tribal governments on
broadband coverage maps. For example, the Further Notice proposes
outreach directly with Tribal governments to facilitate their
involvement in the dispute process and to provide technical assistance
to them as needed. The item also seeks comment on any additional issues
specific to Tribal governments that we should consider in connection
with any disputes concerning coverage data. Finally, it seeks comment
on whether we should expand these proposals to include other Tribal
entities, such as inter-Tribal organizations.
Question 4. President Trump is trying to use existing emergency
authorities in an unprecedented way when he cannot get Congress or our
allies and trading partners to do what he wants them to do. He has also
been very clear that he sees the media as ``the enemy of the people''
and levies daily attacks on a variety of FCC-regulated media
organizations and other media owners, threatening them with
retaliation.
Existing law gives the president the ability to declare an
emergency and close down parts of the Internet and take over broadcast
networks to transmit messages. We expect that this would only occur in
the direst circumstances such as war or extreme natural disasters. But
there is no guarantee that is the case with this--or any other
President.
Would the commission work with Congress and provide technical
assistance to better reform our emergency laws regarding communications
technology to ensure that emergency authority is not abused by any
President for political or personal purposes?
Answer. As with all proposed legislation implicating the
Communications Act, the Commission can supply technical assistance
should Congress wish to engage with respect to concrete legislative
proposals.
Question 5. Millions of Americans rely on their local public radio
station for news, educational and cultural programming, emergency
alerts and public safety information--including in rural, remote and
tribal areas. Many public radio stations are the only local news
organizations in their communities, and provide unique programming and
information tailored to their communities' needs and tastes. The public
radio satellite system relies on C-Band spectrum to distribute national
and regional programming to and among the local stations. In parts of
New Mexico and other rural and tribal areas, there are few alternative
sources of news, public safety information, and regional programming--
and no workable alternatives to satellite as a means to distribute
public radio programming.
As the FCC considers plans to transition C-Band spectrum for 5G and
commercial wireless services, please detail how the agency will ensure
the C-Band spectrum and satellite service necessary for local public
radio stations to continue to provide vital news, programming, and
public safety services to America's rural and tribal communities.
Answer. Rest assured that protecting vital incumbent services in
the C-Band is a focus as the Commission moves forward to put this
valuable spectrum resource to its highest and best use for all
Americans. To that end, the Commission's Notice of Proposed Rulemaking
sought extensive comment on how to protect incumbents in the band. The
item asked numerous questions regarding how current end users will be
protected, regardless of the transition approach ultimately adopted,
including the provision of filters and technical assistance, relocation
of earth stations, and adequate compensation for any costs incurred by
incumbents. Further, the Commission recently collected additional
information from earth stations that will provide a detailed picture of
the number and location of earth stations in the band to ensure that
licensed or registered earth stations are protected from harmful
interference. The Commission will conduct a thorough review of this
record and will aim to move forward in a way that protects these
important interests, including the need for continued distribution of
programming to American consumers in rural and Tribal communities.
Question 6. I understand that some Connect America Fund deployments
that have been delayed, potentially creating buildout compliance
issues, due to bureaucratic issues. Have you heard of these types of
issues? What steps can be taken to help streamline the process to
enable providers to meet FCC deadlines and more importantly ensure that
those living on tribal lands can more quickly experience the benefits
of broadband?
Answer. I understand that Commission staff has had conversations
with Frontier Communications, a CAF Phase II recipient, about its
ability to deploy broadband on Navajo Nation lands. Frontier informed
Commission staff that the delays are due to gaining access to the
necessary rights-of-way, which are matters controlled at the state,
local, or Tribal level or through another Federal agency that (of
course) operates independent of the Commission's jurisdiction. Staff
have encouraged the relevant parties to come to the table to
efficiently find a resolution so that those living on Tribal lands may
soon enjoy the benefits of broadband.
______
Response to Written Questions Submitted by Hon. Tammy Baldwin to
Hon. Ajit Pai
Question 1. I understand from stakeholders in Wisconsin that USAC
has issued guidance on the treatment of A-CAM locations that are home-
based businesses which conflicts with the FCC's rules. Such confusion
among A-CAM recipients on what qualifies as a ``location'' is leaving
many rural broadband providers in an uncertain position regarding
meeting the agreed-upon service targets for broadband deployments and
is having a chilling effect on companies considering taking an A-CAM II
offer.
It is my understanding that a Petition has been filed seeking
clarification or Declaratory Ruling that the guidance issued by USAC
will not supersede FCC rules. Can you provide an update on when the FCC
will clarify its treatment of home-based businesses by asking USAC to
update its guidance and, if not, when the FCC will seek comment on the
Petition?
Answer. As you note, Northeast Iowa Telephone Co. and the Western
Iowa Telephone Association recently filed a joint petition concerning
the definition of ``location'' under the Alternative Connect America
Cost Model for residences that also include a home-based business. On
June 20, 2019, the Wireline Competition Bureau sought comment on the
petition. The record closed on July 25, and Commission staff is now
carefully reviewing that record.
Question 2. Congress passed the National Suicide Hotline
Improvement Act (P.L. 115-233) last year, which tasks the Federal
Communications Commission (FCC) with studying the feasibility of
transitioning the 1-800 number to a single-use N11 code. Furthermore,
it asks FCC to consider recommendations surrounding improved
infrastructure and operations. As you may know, the lesbian, gay,
bisexual, transgender and queer (LGBTQ) community, particularly LGBTQ
youth, is disproportionately affected. Lesbian, gay and bisexual youth
seriously contemplate suicide at almost three times the rate of
heterosexual youth, while more than a third of transgender adults
reported making a suicide attempt prior to the age of 25.
Given that the LGBTQ population is at a heightened risk for
suicide, I am requesting a status update on the following:
a. What is FCC doing to address the concerns raised by over 100
commenters to its open docket to consider the need for specialization
of services for LGBTQ populations in relation to implementation of the
Hotline Improvement Act?
b. Has FCC considered, as an infrastructure or operational
improvement, the mandatory training of counselors for identifying and
responding to LGBTQ youth in crisis, or the set-up of an Integrated
Voice Response (IVR) to send LGBTQ callers to organizations with
particular expertise in serving these communities?
c. Does FCC plan to vote on these recommendations and allow
Commissioners to make amendments to the report?
Answer. The Commission's Wireline Competition Bureau and Office of
Economics and Analytics submitted the report required under the
National Suicide Hotline Improvement Act of 2018 to Congress on August
14, 2019. The report reflects consultation with the Department of
Health and Human Services' Substance Abuse and Mental Health Services
Administration (SAMHSA), the Department of Veterans Affairs (VA), and
the North American Numbering Council, as required under the statute.
The report finds that (1) designating a 3-digit dialing code
dedicated solely for the purpose of a national suicide prevention and
mental health crisis hotline would likely make it easier for Americans
in crisis to access potentially life-saving resources; and (2) the
Commission should initiate a rulemaking proceeding to consider
designating 988 as the 3-digit code to be used for this important
purpose.
The report also recognizes that suicide rates are higher across
various at-risk populations and that some commenters have advocated for
the need for specialized hotline services for such populations,
including LGBTQ youth and Veterans. As you and other commenters have
indicated, these specialized services could include establishing an
interactive voice response system to a group that has the resources and
expertise to best serve LGBTQ youth and for specialty partners across
all at-risk groups to assist SAMHSA in conducting further training to
increase the ability for existing counselors to best serve callers. The
report finds that the need for specialized hotline services for at-risk
populations, including LGBTQ youth and Veterans, should be a factor for
(1) SAMHSA, the VA, and Congress when considering any improvements to
the National Suicide Prevention Lifeline; and (2) the Commission as it
considers designating a 3-digit dialing code for a national suicide
prevention and mental health crisis hotline.
I appreciate the importance of such a hotline for LGBTQ individuals
and have met with various stakeholders, including The Trevor Project,
to hear their views. I am committed to launching a rulemaking
proceeding in which the Commission would consider designating a 3-digit
number--specifically, 988--for a national suicide prevention and mental
health crisis hotline. All interested stakeholders will be invited to
fully participate and provide further public comment in that
proceeding.
______
Response to Written Questions Submitted by Hon. Tammy Duckworth to
Hon. Ajit Pai
Question 1. Regarding 5.9 GHz band use, what is the Commission
doing to make sure it gathers all the engineering and economic
information it needs to decide between the various proposals on the
record?
Answer. For two decades, the Commission's rules have only permitted
one technology--Dedicated Short-Range Communications or DSRC--to be
used in the 5.9 GHz band. Given the importance of ensuring that
spectrum use is maximized, the Commission, in 2013, began exploring the
possibility of expanding the 5.9 GHz band to include unlicensed
devices. Since that time, the Commission has built an extensive record
from a variety of stakeholders, including automotive companies and
unlicensed device advocates. The Commission has explored the
feasibility of a variety of band sharing proposals to determine the
best course of action for this spectrum band.
In 2016, the Commission released a Public Notice to refresh the
record, gather specific comment on various proposed sharing plans,
solicit prototype unlicensed devices for testing, and seek comment on a
three-phase test plan for those prototype devices. Subsequently, the
FCC, along with NTIA and the U.S. Department of Transportation,
collaborated on executing Phase I of the test plan. In 2018, the
Commission's Office of Engineering and Technology released its Phase I
Test Report and solicited comments. The Commission continues to work
with DOT and NTIA on Phase II (limited field testing) and Phase III
(``real-world'' testing). Additionally, the Commission continues to
engage stakeholders and attend related fora to ensure it has the most
up-to-date and relevant information regarding vehicular and unlicensed
device needs so it can make the best decision for ongoing and future
use of this spectrum.
Question 2. Regarding the Rural Digital Opportunity Fund, can you
provide a more specific timeline regarding when the FCC plans to the
auction? Are there any specific issues or obstacles to implementation?
Answer. On August 1, the Commission adopted a Notice of Proposed
Rulemaking proposing to establish the Rural Digital Opportunity Fund.
This modernized approach for connecting the hardest-to-serve corners of
our country will be the biggest step the Commission has yet taken to
close the digital divide, including the gaps I've seen for myself in
places like downstate Illinois.
Building on the success of the CAF Phase II auction, the Rural
Digital Opportunity Fund would make available more than $20 billion to
support up to gigabit-speed service to millions of unserved Americans
through a competitive auction that will ensure that unserved Americans
will be covered for the lowest cost possible. It would target support
to areas that lack access to fixed voice and 25/3 Mbps broadband and
would be implemented through a two-phase approach. Phase I would
allocate support to wholly unserved census blocks--those areas where
existing data show there is no service at all--while Phase II would
allocate support to unserved locations in partially unserved census
blocks once the Commission has more granular broadband availability
data, along with areas not won in Phase I. Our aim is to begin the
auction process for Phase I next year. The primary issues regarding
implementation involve administrative steps required to finalize the
auction process (that is, moving from a Notice of Proposed Rulemaking
to a final Order) and complexities with respect to designing and
conducting the auction. I am confident in the ability of FCC career
staff to enable us to conduct a successful auction that will bring
millions more Americans online.
Question 3. In the FCC's E-rate and Rural Health Care programs,
long-term consortium contracts are an effective method for ensuring
broadband providers meet buildout and service obligations to all
covered anchor institutions. Has the FCC considered whether long-term
contracts between rural governments (i.e., county-level or municipal)
and broadband providers could be similarly effective in solving the
residential broadband gap?
Answer. Although the Commission has not previously examined such
contracts, that is an interesting idea that may be worth exploring.
______
Response to Written Questions Submitted by Hon. Jon Tester to
Hon. Ajit Pai
Question 1. The FCC's Captioned Telephone Services gives folks
independence to connect with the world. I support the FCC's intention
to ensure this program can handle the influx in participates, however I
am concerned about using an automatic speech recognition to replace
humans. What is the Commission doing to ensure this technology is
adequate and the quality of this service does not decrease?
Answer. I agree that IP CTS is a critical service for individuals
with hearing loss. As you know, the vast majority of captioned
telephone services already rely on automated speech recognition.
However, those services have previously required the interposition of a
communications assistant between the caller and the speech recognition
software to ``revoice'' a caller's words. This interposition slows
transcription, reduces the privacy of calls for callers, and increases
the costs of IP CTS. That's why the Commission took steps to modernize
IP CTS in June 2018 when we authorized the use of automated speech
recognition without a communications assistant. We found that such
automated speech recognition has become a viable alternative with its
improvements in accuracy, speed, and privacy. Additionally, consumers
will continue to be able to select a provider based on quality of
service and other available methods, as automated speech recognition
will not be the sole means of offering IP CTS. Finally, I want to
stress that nothing regarding our reforms allows substandard service:
Providers using automated speech recognition must continue to meet the
Commission's minimum standards and report data to the Commission to
help us determine if further measures are necessary.
Question 2. I am also concerned that reforms to this program would
require candidates to travel to their State equipment distributor to
receive certification instead of from their physician. As you move
forward, will you take into consideration what impact this will have on
folks in rural America?
Answer. Yes. Coming from rural Kansas, I am always mindful of the
impact of our decisions on rural Americans.
Question 3. According to your Report on Broadband Deployment in
Indian Country, less than half of homes on rural reservations have
access to that same level of broadband service. What are your
recommendations for Congress on how to help?
Answer. Although broadband deployment to Tribal lands has increased
in recent years, it is clear that more work needs to be done to bridge
the broadband gap in Indian Country. While we did not provide specific
recommendations for Congress in our recent report, the Commission has
taken measures to ensure that Americans living on Tribal lands have
access to broadband. We recently authorized more than $4.1 million in
CAF II auction support over ten years to the Northern Arapaho Tribe to
deploy gigabit-speed broadband to 849 rural homes and small businesses
on the Wind River Reservation in Wyoming. And earlier this month, the
Commission proposed the Rural Digital Opportunity Fund, a $20 billion
reverse auction that would help deploy broadband for millions of
unserved Americans that included proposals to ensure that sufficient
funding is directed to Tribal lands, such as using a Tribal Broadband
Factor and Tribal bidding credits and prioritizing support to areas
that do not yet have access to 10/1 Mbps services. We are ready to work
with your office and others in Congress to continue to address this
important issue.
Question 4. Consultations play such an important role, is the FCC's
office of Native Affairs and Policy adequately staffed?
Answer. Yes. Within the Bureau, the Office of Native Affairs and
Policy (ONAP) greatly benefits from the synergies with other components
of the Consumer and Governmental Affairs Bureau (where ONAP itself is
located), including routine coordination with intergovernmental staff
in the Office of Intergovernmental Affairs and other Bureau-level
specialists. In addition, ONAP regularly coordinates with subject-
matter experts in the Wireless Telecommunications Bureau, the Wireline
Competition Bureau, and the Media Bureau, as well as the Office of
Engineering, Office of Economics and Analytics, and Office of Managing
Director on items of significant Tribal interest.
Question 5. Do you have any updates on the progress of the Native
Nations Communications Task Force?
Answer. I personally have met with the Task Force and informed them
of our shared goal to boost connectivity on Tribal lands. The Task
Force held its most recent in-person meeting on June 11 in Oklahoma,
and has additional meetings planned for November 5-6. The Task Force
continues to work on its mission to provide guidance, expertise, and
recommendations to specific requests from the Commission on a range of
communications issues that directly or indirectly affect Tribal
governments and their people.
Question 6. Do you believe we need to remove existing Huawei
equipment from our telecommunications infrastructure?
Answer. The Commission has an ongoing proceeding involving the
Universal Service Fund to evaluate the steps necessary to secure the
integrity of our communications supply chain and ensure the security of
equipment already installed by domestic communications providers. We
have not yet made any final decisions in this proceeding, but I can
assure you of my strong belief that we must protect the national
security interests involving our communications infrastructure.
______
Response to Written Questions Submitted by Hon. Jacky Rosen to
Hon. Ajit Pai
IP CAPTIONED TELEPHONE SERVICE. One area where telecommunications
technology is making a real impact is with our most vulnerable
populations, from our seniors to our disabled veterans to our hard of
hearing and deaf population. As a member of the Special Committee on
Aging I am especially concerned with the 38,000 deaf and hard of
hearing people in my state of Nevada. With a growing aging population,
not in just my state, but across the country, many will rely on IP
Captioned Telephone Service to communicate. This service allows a
person with hearing loss to talk normally into the phone, while reading
captions of what the person on the other end of the line is saying in
real time. My office has heard from consumers who are concerned that as
these services move toward automated technologies, the replacement of
humans with fully automated speech recognition may result in an
inferior service.
Question 1. Chairman Pai, is the FCC currently testing the
automated service in real-world conditions? Will you commit to
additional study and testing to ensure accuracy of the service?
Answer. I agree that IP CTS is a critical service for individuals
with hearing loss. As you know, the vast majority of captioned
telephone services already rely on automated speech recognition.
However, those services previously have required the interposition of a
communications assistant between the caller and the speech recognition
software to ``revoice'' a caller's words. This interposition slows
transcription, reduces the privacy of calls for callers, and increases
the costs of IP CTS. That's why the Commission took steps to modernize
IP CTS in June 2018 when we authorized the use of automated speech
recognition without a communications assistant. We found that such
automated speech recognition has become a viable alternative with its
improvements in accuracy, speed, and privacy. Additionally, consumers
will continue to be able to select a provider based on quality of
service and available methods, as automated speech recognition will not
be the sole means of offering IP CTS. Finally, I want to stress that
nothing regarding our reforms allows substandard service: Providers
using automated speech recognition must continue to meet the
Commission's minimum standards and report data to the Commission to
help us determine if further measures are necessary.
SMART TRANSPORTATION IN NEVADA. As we look to find new applications
for emerging technologies, one promising area of development is in the
growth of ``smart'' transportation systems, including vehicle-to-
vehicle and vehicle-to-infrastructure communications such as Dedicated
Short Range Communications or DSRC. As you may know, there are three
operational DSRC connected vehicle projects underway in Nevada,
including one in Washoe County and two in Las Vegas. These cities have
already made significant investments in vehicle-to-vehicle
communications.
Chairman Pai, you recently announced that the FCC plans to take a
``fresh look'' at the 5.9-gigahertz spectrum that is reserved
exclusively for automotive safety, with the potential to open up this
band for unlicensed Wi-Fi use. Back in 2016, the FCC made a commitment
to complete three phases of harmful interference testing to determine
if sharing the band with unlicensed Wi-Fi is possible. It is my
understanding that the FCC completed the first phase, which showed that
Wi-Fi use in the band did indeed cause harmful interference to DSRC.
Since then, there has not been any additional testing.
Question 2. Can one of the panelists tell us where the FCC is on
Phases II and III of the testing, why these phases have not yet been
completed, and if the FCC plans to continue working with the Department
of Transportation to complete the testing prior to making any changes
to the 5.9-gigahertz band?
Question 3. If interference is found in this band, what does the
FCC propose to do to mitigate the impact on vehicle-to-vehicle
communications?
Answers. The Phase I tests performed at the FCC Laboratory showed
that the Wi-Fi device features that are designed to avoid causing
harmful interference to DSRC performed as claimed. The Department of
Transportation is responsible for conducting Phases II and III of the
testing.
In the meantime, automotive stakeholders have asked the Commission
to allow deployment of C-V2X technology in this spectrum--a technology
not authorized by the Commission's rules nor part of the agreed testing
protocols. Given the lack of widespread deployment of the DSRC
technology and the importance of maximizing the use of this prime
spectrum, the Commission is considering taking a fresh look that would
gather stakeholder input to ensure that we have the most up-to-date
information.
______
Response to Written Questions Submitted by Hon. Roger Wicker to
Hon. Jessica Rosenworcel
Question 1. Senator Johnson asked the panel about the interagency
coordination problems regarding the U.S. position on interference in
the 24 GHz band. In response you stated, ``I can be a little less
diplomatic. I have not been in the meetings that the chairman has
referred to, but I can tell you this; the situation we have is
embarrassing. We have to resolve these issues before we put the
spectrum to market in an auction.'' Did you vote to adopt the final
procedures for Auction 102 on August 3, 2018?
Answer. Yes.
Question 2. When I asked Commissioner Starks if he was satisfied
with the Commission's analysis regarding spectrum interference
Commissioner Starks stated, ``The last thing that I would say is that I
do have confidence in the Office of Engineering and Technology at the
FCC, but I haven't personally studied this issue.'' Do you share
Commissioner Starks' confidence in the Office of Engineering and
Technology at the FCC?
Answer. Yes.
______
Response to Written Question Submitted by Hon. Todd Young to
Hon. Jessica Rosenworcel
Question. Currently, millions of rural Americans lack access to
fixed high-speed broadband, which in today's economy is perceived as
basic infrastructure. In the FCC's 2019 Broadband Deployment Report,
the FCC concluded that broadband is being deployed to all Americans,
including rural Americans, in a timely fashion. The report also
asserted that FCC policies are promoting investments and removing
burdensome barriers.
With that said, according to a preliminary analysis, which was
released on Monday by USTelecom, U.S. broadband provider investments
increased by approximately $3 billion to total roughly $75 billion in
2018.
Given the ongoing growth in private investments, what are the FCC's
priorities moving forward to ensure U.S. broadband providers have the
resources they need in the free market for continued investments in
rural America? Additionally, how will the FCC continue to update its
mapping to provide an accurate account of high-speed service?
Answer. Broadband is the essential infrastructure of the digital
age. It supports all aspects of modern commercial and civic life. As
you suggest, there are many communications companies--large and small--
that have done significant work to deploy high-speed service across the
country. However, there remain too many places, especially in rural
communities, where broadband is unavailable.
In a report released this year, the FCC announced that 21.3 million
Americans lack access to broadband, including 16.8 million in rural
areas. That's unacceptable.
What is worse, however, is that these numbers likely overstate the
reach of high-speed service across the country. That's because there
are serious problems with the data the FCC uses to assess the state of
broadband deployment. The methodology used to determine the presence of
service is both overbroad and imprecise. Under the present data
collection system used by the FCC, if a service provider claims that
they serve a single customer in a census block, the agency assumes that
there is service throughout the census block. As a result, the FCC's
claim that there are only 21.3 million people in the United States
without access to broadband is just not credible. As further evidence,
consider that another recent analysis reported in the New York Times
that concluded that as many as 162 million people across the country do
not use Internet service at broadband speeds.
Unfortunately, the inaccurate data used in the FCC's broadband
report earlier this year is the same data that is used to populate the
agency's broadband maps. These maps, as you may know, have been
criticized--by consumers, carriers, and members of Congress--for
failing to provide an accurate picture of where broadband is and is not
across the country.
I believe we cannot manage what we do not measure. If we lack the
data needed to develop accurate maps, we will not be able to target
policy solutions effectively. The FCC distributes billions of dollars
each year to help accelerate the build out of broadband to connect all
of our communities. These funds are an especially critical part of
ensuring the deployment of high-speed service in rural communities. But
it's fundamentally irresponsible for the FCC to continue to send these
dollars out without having a truly accurate picture of where those
resources should go.
Going forward, the FCC must make it a top priority to update its
maps and improve the accuracy of the information it collects. In doing
so, I think the agency should mobilize all resources it has at its
disposal. In other words, instead of limiting our efforts to
information collected from the carriers, the FCC should explore other
ways of refining and improving our broadband data. This should include
a process for stakeholders to challenge data submitted to the agency.
In addition, the FCC should enlist the assistance of the Universal
Service Administrative Company and the agency's own field offices
around the country to perform spot checks on data submitted to the
agency. It also should incorporate crowdsourcing. So many Americans
have stories to tell about where service is lacking in their
communities. We need to develop ways to incorporate what they know and
their desire to help refine our data--by developing a way for the
public to participate in the improvement of our maps.
______
Response to Written Questions Submitted by Hon. Amy Klobuchar to
Hon. Jessica Rosenworcel
Question 1. I have repeatedly raised concerns about the harmful
effects of the proposed merger of T-Mobile and Sprint--which would
combine two of the four remaining nationwide wireless carriers--and
have called on the Commission and the Justice Department to reject it.
At the hearing, you testified that you have never seen a merger
transaction dealt with like this--you said that you still have not
received economic analysis or legal analysis on the transaction, yet
some of your colleagues have already announced their support for the
merger. Can you elaborate on your concerns regarding the FCC's review
process for this merger?
Answer. On May 20, 2019, the Chairman of the FCC announced in a
press release that this ``transaction is in the public interest'' and
that he would ``recommend to [his] colleagues that the FCC approve
it.'' Shortly thereafter, two of my colleagues followed his lead and
announced their support for the merger.
At the time of these announcements, no economic, legal, or
engineering analysis from the agency regarding this transaction had
been shared with my office at the FCC. More than two months later, I
still have not received such analysis in any draft decision concerning
the merits of this merger. I remain skeptical that this combination is
good for consumers, good for competition, or good for the economy.
Moreover, in light of substantial changes to the original
transaction made through negotiation with the Department of Justice, I
believe that before the FCC votes on this merger, the public should
have the opportunity to weigh in and comment. Too much here has been
done behind closed doors.
Question 2. One in five rural households in my state lack access to
high-speed Internet service, and the FCC's maps do not report this
accurately in my state or across the country. I introduced the
Improving Broadband Mapping Act with Senators Capito, Manchin, and
Hoeven to direct the FCC to establish rules to improve its data
collection process to determine where broadband service is available.
Can you explain how using consumer-reported data, as well as state and
local municipalities' data, could help the FCC to create more accurate
coverage maps?
Answer. To build better broadband maps, the FCC needs to reach out
beyond Washington. Traditionally, the agency has relied on carrier-
supplied data and maps to determine where service is and is not across
the country. It is essential that we improve upon this effort by
incorporating input from consumers and state and local authorities. To
this end, I believe the FCC should explore how crowdsourcing can inform
our maps. This may be accomplished on our website or by incorporating
the data that comes in to the FCC via its speed test app, which has
been downloaded more than 200,000 times. In addition, we need to find
ways to incorporate the data-gathering done by state and local
authorities and provide them with a process to challenge service
information they believe may be incorrect at the FCC. We also should
explore how the FCC's regional offices and the universal service fund
administrator can spot check and audit carrier-submitted data in the
field. Finally, we should be open to creative ways to improve the data
that informs our maps, including tracking service via postal trucks in
rural areas.
______
Response to Written Questions Submitted by Hon. Edward Markey to
Hon. Jessica Rosenworcel
IP-CTS and Automated Speech Recognition. Automated speech
recognition (ASR) has great promise for Internet Protocol Captioned
Telephone Service (IP-CTS). However, I understand that current ASR
engines vary in quality and accuracy, and I am concerned that nascent
technologies might be certified for IP-CTS use without adequate
testing. I believe that we need to be careful about implementing this
service before it is fully ready.
Question 1. Do you agree that we need to ensure ASR-only providers
can handle 911 and related public safety calls before such technology
is FCC approved? In your view, has the FCC done enough adequate testing
of all types of ASR engines?
Answer. For individuals with hearing loss, access to Internet
Protocol Captioned Telephone Service can significantly enhance their
ability to communicate and participate in modern life. With IP CTS,
those with residual hearing can use their own voice to speak during a
call but then read captions on their device when the called party
responds. This means that people with hearing loss can do the things so
many of us take for granted--picking up the phone and seeking emergency
help; securing a job; making a doctor's appointment; following up with
a child's teacher; and connecting with family and friends.
As you suggest, automated speech recognition (ASR) holds promise
for IP CTS. But I believe the FCC got it backwards when it declared
that IP CTS using ASR was eligible for compensation from the
Telecommunications Relay Service fund before setting forth standards
for ASR that would ensure functional equivalency under the Americans
with Disabilities Act. As I said at the time of this decision, the
FCC's action put the cart before the horse by introducing ASR into the
IP CTS program before we address our most basic regulatory
responsibilities. Naturally, one of these responsibilities involves how
911 and public safety calls will be handled. While this is a topic of
discussion in the FCC's ongoing rulemaking, I agree that the agency
will need to ensure that IP CTS using ASR can demonstrate that it can
handle 911 and related public safety calls.
Protecting the C-Band for Public Radio. The Public Radio Satellite
System relies on C-Band frequencies to distribute news, programming,
and public safety information to nearly 1,300 interconnected local
public radio stations and millions of Americans across the country.
Question 2. Can you assure me that any plans to transition C-Band
spectrum for new wirelesses services will not impair the vital role
that public radio plays in our news, educational programming, and
emergency services?
Answer. In the Public Broadcasting Act, Congress found that it ``is
in the public interest to encourage the growth and development of
public radio and television broadcasting, including the use of such
media for instructional, educational, and cultural purposes.'' I
wholeheartedly agree.
Today C-Band spectrum is used to deliver more than 450,000 hours of
news, music, and cultural programming to 1,278 public radio stations
throughout the United States. This programming reaches roughly 95
percent of the United States population.
The FCC is exploring a range of mechanisms to open up a portion of
the C-Band for new mobile use. This is important, because the United
States has been slow, relative to our international peers, at bringing
mid-band spectrum to market for the next generation of wireless
service, known as 5G. Identifying sources of these airwaves that may be
viable for new wireless use is a necessary part of the United States
reclaiming leadership in 5G deployment. However, as we explore
opportunities in the C-band, we must acknowledge that these frequencies
are in use today by television and radio broadcasters and cable
operators responsible for delivering programming to more than 100
million households. Consequently, I believe the FCC will need to
addresses the challenges associated with introducing new mobile
activity in this band while taking into consideration the significance
of present use. I also believe we need to be creative as we assess this
band and preserve opportunities for public radio as we move forward.
______
Response to Written Questions Submitted by Hon. Tom Udall to
Hon. Jessica Rosenworcel
Question 1. Has the FCC has done enough to push companies into
building resilient networks or even publishing best practices to help
prevent future outages?
Answer. When communications outages occur, so much of modern life
grinds to a halt. This is not just an inconvenience, it can be a threat
to our economic and national security.
In light of this, I believe the FCC must do a better job studying
what went wrong during outages in the past in order to better prepare
for network failures in the future. To this end, I am disappointed that
the agency has been slow to issue reports on the performance and
resiliency of networks in the wake of disasters like the 2017 hurricane
season. Likewise, I am concerned that the agency has yet to issue a
report assessing the nationwide CenturyLink outage in late 2018, which
included some locations in New Mexico. Consequently, I believe the FCC
should investigate and issue a timely report following every major
network outage. I also believe the agency should annually issue a
general report on outages in order to assess trends, areas of concern,
and develop best practices.
As a related matter, the Government Accountability Office issued a
report in 2018 criticizing the FCC with respect to its work on network
resiliency. The GAO recommended the FCC develop specific and measurable
objectives for its wireless resiliency framework, which was developed
to strengthen communications networks during emergencies. Since that
time, the FCC has issued four public notices, seeking comment on the
framework, its implementation, and its effectiveness. In addition, on
November 5, 2018, the agency's Public Safety and Homeland Security
Bureau sent letters to carriers that had committed to the principles of
the framework and asked that they provide post-disaster action reports
from the 2017 and 2018 hurricane seasons. I believe that with the
information filed in response to these letters and public notices, the
FCC should update this framework and address the deficiencies
identified by GAO. At the same time, the agency should modernize its
reporting requirements for network outages. While today our policies
require outage reporting for traditional telephony, no comparable
reporting is required for broadband.
Question 2. Tribal communities continue to lag behind the rest of
the country in the deployment of broadband. The GAO found that
inaccuracies in FCC broadband data have led to underestimates of the
magnitude of the digital divide on tribal lands. So we may not even
have a clear picture as to how wide that gap really is given the
current data collection regime. What changes is the FCC considering as
part of its efforts to modernize FCC form 477 in order to specifically
address the under-reporting in Tribal communities? What are some ways
that the FCC can look outside the beltway to engage on this issue?
Answer. Native Americans should not be the last Americans to
benefit from the power of the digital age. Unfortunately, as you note,
the FCC has been criticized by the Government Accountability Office for
its faulty data regarding the state of broadband access on Tribal
lands. To make matters worse, in the FCC's recently released Report on
Tribal Deployment in Indian Country the agency did not address the
GAO's concerns.
However, the FCC adopted a rulemaking on August 1, 2019 seeking
comment on ways to improve data collection, including how best to
incorporate the input of Tribal governments in broadband coverage maps.
This is a positive development. There are also things we can do now
while this rulemaking is ongoing. To this end, I believe the FCC should
work with its Native Nations Communications Task Force to come up with
a plan to collect better broadband data on Tribal lands. This effort
could include sharing existing data with members of the Task Force for
community assessment followed by in-person consultations to witness the
state of deployment in their Tribal areas firsthand.
Question 3. President Trump is trying to use existing emergency
authorities in an unprecedented way when he cannot get Congress or our
allies and trading partners to do what he wants them to do. He has also
been very clear that he sees the media as ``the enemy of the people''
and levies daily attacks on a variety of FCC-regulated media
organizations and other media owners, threatening them with
retaliation.
Existing law gives the president the ability to declare an
emergency and close down parts of the Internet and take over broadcast
networks to transmit messages. We expect that this would only occur in
the direst circumstances such as war or extreme natural disasters. But
there is no guarantee that is the case with this--or any other
President.
Would the commission work with Congress and provide technical
assistance to better reform our emergency laws regarding communications
technology to ensure that emergency authority is not abused by any
President for political or personal purposes?
Answer. Section 706 of the Communications Act allows the President
of the United States to shut down or take control of ``any facility or
station for wire communication'' upon proclamation ``that there exists
a state or threat of war involving the United States.'' While at one
point ``wire communication'' meant telephone calls or telegrams, today
this language might be interpreted to cover the internet. As a result,
Section 706 could serve as an Internet ``kill switch'' in the United
States, available to the president in times of war or emergency.
It is difficult to understate the potential impact of such action
or the potential for abuse. The ambiguity in this statute could be used
to disrupt political discourse, hinder political activity, or infringe
on constitutional rights. This is alarming.
I commit to working with Congress and providing technical
assistance, as needed, to reform our emergency laws regarding
communications technology in order to ensure that this emergency
authority is not abused by any President for political or personal
purposes.
Question 4. Millions of Americans rely on their local public radio
station for news, educational and cultural programming, emergency
alerts and public safety information--including in rural, remote and
tribal areas. Many public radio stations are the only local news
organizations in their communities, and provide unique programming and
information tailored to their communities' needs and tastes. The public
radio satellite system relies on C-Band spectrum to distribute national
and regional programming to and among the local stations. In parts of
New Mexico and other rural and tribal areas, there are few alternative
sources of news, public safety information, and regional programming--
and no workable alternatives to satellite as a means to distribute
public radio programming.
As the FCC considers plans to transition C-Band spectrum for 5G and
commercial wireless services, please detail how the agency will ensure
the C-Band spectrum and satellite service necessary for local public
radio stations to continue to provide vital news, programming, and
public safety services to America's rural and tribal communities.
Answer. In the Public Broadcasting Act, Congress found that it ``is
in the public interest to encourage the growth and development of
public radio and television broadcasting, including the use of such
media for instructional, educational, and cultural purposes.'' I
wholeheartedly agree.
Today C-Band spectrum is used to deliver more than 450,000 hours of
news, music, and cultural programming to 1,278 public radio stations
throughout the United States. This programming reaches roughly 95
percent of the United States population.
The FCC is exploring a range of mechanisms to open up a portion of
the C-Band for new mobile use. This is important, because the United
States has been slow, relative to our international peers, at bringing
mid-band spectrum to market for the next generation of wireless
service, known as 5G. Identifying sources of these airwaves that may be
viable for new wireless use is a necessary part of the United States
reclaiming leadership in 5G deployment. However, as we explore
opportunities in the C-band, we must acknowledge that these frequencies
are in use today by television and radio broadcasters and cable
operators responsible for delivering programming to more than 100
million households. Consequently, I believe the FCC will need to
addresses the challenges associated with introducing new mobile
activity in this band while taking into consideration the significance
of present use. I also believe we need to be creative as we assess this
band and preserve opportunities for public radio as we move forward.
______
Response to Written Questions Submitted by Hon. Jon Tester to
Hon. Jessica Rosenworcel
Question 1. The FCC's Captioned Telephone Services gives folks
independence to connect with the world. I support the FCC's intention
to ensure this program can handle the influx in participates, however I
am concerned about using an automatic speech recognition to replace
humans. What is the Commission doing to ensure this technology is
adequate and the quality of this service does not decrease?
Answer. For individuals with hearing loss, access to Internet
Protocol Captioned Telephone Service can significantly enhance their
ability to communicate and participate in modern life. With IP CTS,
those with residual hearing can use their own voice to speak during a
call but then read captions on their device when the called party
responds. This means that people with hearing loss can do the things so
many of us take for granted--picking up the phone and seeking emergency
help; securing a job; making a doctor's appointment; following up with
a child's teacher; and connecting with family and friends.
Automated speech recognition (ASR) holds promise for IP CTS. But I
believe the FCC got it backwards when it declared that IP CTS using ASR
was eligible for compensation from the Telecommunications Relay Service
fund before setting forth standards for ASR that would ensure
functional equivalency under the Americans with Disabilities Act. As I
said at the time of our decision, the FCC's action put the cart before
the horse by introducing ASR into the IP CTS program before we address
our most basic regulatory responsibilities. As the FCC proceeds and
evaluates the use of ASR in connection with this service, it must
ensure that it lives up to the functional equivalency standard required
by the law.
Question 2. I am also concerned that reforms to this program would
require candidates to travel to their State equipment distributor to
receive certification instead of from their physician. As you move
forward, will you take into consideration what impact this will have on
folks in rural America?
Answer. Yes, absolutely.
Question 3. According to your Report on Broadband Deployment in
Indian Country, less than half of homes on rural reservations have
access to that same level of broadband service. What are your
recommendations for Congress on how to help?
Answer. I believe that Native Americans should not be the last
Americans to benefit from the power of the digital age. Yet, as you
note, less than half of homes on rural reservations have access to
broadband service. There is clearly more work to do--and both the FCC
and Congress can help.
At the outset, it has been nearly two decades since the FCC
released its Statement of Policy establishing a government-to-
government relationship between the agency and federally-recognized
Tribes. I believe refreshing this statement and updating its principles
of consultation would be a worthwhile exercise. It would set the stage
for greater cooperation, consistent with our Federal trust
responsibility.
The FCC recently released a Report on Broadband Deployment in
Indian Country. Under the law, it is now required to conduct a
proceeding to address the unserved areas identified in the report. This
proceeding is an opportunity to get the data right and implement
policies to address the inadequate state of broadband on Tribal lands.
On August 1, 2019, the FCC adopted a rulemaking seeking comment on
ways to improve its broadband data collection. As part of this effort,
the agency asked how best to incorporate the input of Tribal
governments in order to improve broadband coverage maps.
Congress should monitor these efforts closely. Congress also should
direct the FCC to improve its outreach efforts with Tribes to increase
the likelihood that broadband connections are available at anchor
institutions--schools, libraries, and health centers--on Tribal lands.
While funds for these institutions are available via the E-Rate and
Rural Health Care program, not all Tribal communities make full use of
this resource. Finally, Congress may wish to allocate funds from future
spectrum auctions to directly provide enhanced universal service
support to carriers serving Tribal lands.
Question 4. Consultations plays such an important role, is the
FCC's office of Native Affairs and Policy adequately staffed?
Answer. The Chairman is uniquely situated to provide information
about staffing for the FCC's Office of Native Affairs and Policy.
However, I believe the answer to your question is ``no.'' I do not
believe that this office has been given the staffing or authority it
needs to vigorously participate in the full range of FCC proceedings
that impact Tribal communities and Tribal lands.
Question 5. Do you have any updates on the progress of the Native
Nations Communications Task Force?
Answer. On February 8, 2018, the Native Nations Task Force was
renewed for a new, three-year term and renamed the Native Nations
Communications Task Force. On October 24, 2018, the Chairman of the FCC
appointed the members of this Task Force.
Although the Chairman is uniquely situated to provide an update as
to the progress of the Task Force, I believe it can play a significant
role in the agency's work to expand communications on Tribal lands. To
this end, I would seek guidance from the Task Force on three subjects.
First, I would ask for their assistance with the ongoing effort to
improve data regarding the state of broadband on Tribal lands. Second,
I would seek their assistance with the recent remand from the courts
involving the FCC's decision in 2017 to limit the availability of
Lifeline support on Tribal lands. I did not support this decision, but
I think any subsequent effort from the agency regarding this program
and its availability in Tribal communities would benefit from the
participation of the Task Force. Third, I would seek their continued
input on the use of spectrum on Tribal lands. The FCC recently changed
its policies concerning Educational Broadband Service, creating a new
opportunity for Tribal communities to seek spectrum licenses in the 2.5
GHz band. The Task Force could assist with outreach to Tribes on this
initiative.
Question 6. Do you believe we need to remove existing Huawei
equipment from our telecommunications infrastructure?
Answer. Yes. I understand that the Senate Committee on Commerce,
Science, and Transportation recently approved the United States 5G
Leadership Act, which would make $700 million available to help
communications providers across the country remove insecure equipment
from their existing networks. In addition, this legislation would take
steps to prevent the support of insecure equipment on a going forward
basis.
As we proceed with such policies, I believe that we should consider
the lessons learned from equipment purchases required by the relocation
of broadcast stations in the wake of the 600 MHz incentive auction.
When Congress authorized the FCC to conduct this incentive auction,
it required the agency to reimburse a range of equipment costs incurred
by full power and Class A television licensees that were assigned to
new channels, as well as certain costs incurred by multichannel video
program distributors to continue to carry such stations. Congress later
expanded the list of entities eligible to be reimbursed for auction-
related expenses to include low-power television, translator, and FM
broadcast stations.
Before making the authorized funds available, the FCC required
eligible entities to certify to the agency basic information about
their current broadcasting equipment and detailed cost estimates for
their replacement. Next, the FCC conducted audits, data validations,
and site visits to ensure the accuracy of the information submitted. To
ensure transparency, the FCC made certain equipment eligibility, cost,
and disbursement information available to the public. Finally, the FCC
clarified early in the process that it would only fund comparable
equipment and not upgrades.
In the end, these measures helped maximize the funds available for
reimbursement and reduced waste, fraud, and abuse. I believe this
effort could serve as a model for the removal of insecure equipment and
the implementation of the United States 5G Leadership Act.
______
Response to Written Questions Submitted by Hon. Jacky Rosen to
Hon. Jessica Rosenworcel
BROADBAND FOR LOW-INCOME COMMUNITIES. According to the Pew
Foundation, rural Americans, seniors, racial minorities, and those with
lower incomes are less likely to have broadband service at home.
Nonetheless, the FCC recently proposed making changes to the Lifeline
program, which helps low-income households stay connected. This would
potentially threaten access to broadband for rural, senior, and low-
income Americans. The proposal would bar resellers from participating
in the Lifeline program. That means approximately 86,000 families in
Nevada could be negatively impacted, including 28,000 seniors, 48,000
households with children, 8,000 veteran families, and 600 tribal
families.
Furthermore, if this proposal were to take effect, only one service
provider would meet the FCC's new rule, and that carrier provides
services in only a limited number of states. This could undermine the
ability of rural and low-income Nevadans and other Americans to connect
to loved ones, health services, their employer, or even to public
safety services.
Question 1. Commissioner Rosenworcel, would you please share your
thoughts about this proposal and discuss how we might mitigate the
potential loss of phone and broadband service by millions, especially
those living in rural and tribal areas?
Answer. For more than three decades, the Lifeline program has
provided support for basic communications in low-income households
across the country. However, in a rulemaking adopted in 2017, the FCC
proposed to slash this program from front to back, reducing the number
of participants by as much as 70 percent. In a dissenting statement, I
strongly objected to this proposal. I believe it is at odds with our
statutory duty to support and advance universal service. Moreover,
cutting off communications like this is cruel for the communities that
rely on Lifeline service, including more than 2 million elderly, 1.3
million veterans, 500,000 individuals in Puerto Rico, as well as
residents of many tribal communities. In addition, cutting off Lifeline
service would disproportionately harm those victims of domestic
violence and homeless youth who rely on this program to stay connected
and stay safe. The FCC should not continue in any way, shape, or form
with its proposal to cut participation in the Lifeline program by as
much as 70 percent. Moreover, it should terminate the docket and close
the proceeding entirely.
IP CAPTIONED TELEPHONE SERVICE. One area where telecommunications
technology is making a real impact is with our most vulnerable
populations, from our seniors to our disabled veterans to our hard of
hearing and deaf population. As a member of the Special Committee on
Aging I am especially concerned with the 38,000 deaf and hard of
hearing people in my state of Nevada. With a growing aging population,
not in just my state, but across the country, many will rely on IP
Captioned Telephone Service to communicate. This service allows a
person with hearing loss to talk normally into the phone, while reading
captions of what the person on the other end of the line is saying in
real time. My office has heard from consumers who are concerned that as
these services move toward automated technologies, the replacement of
humans with fully automated speech recognition may result in an
inferior service.
Question 2. Commissioner Rosenworcel what safeguards are needed to
ensure that new and emerging services like automated captioning and
others that record voice data protect consumer privacy?
Answer. For individuals with hearing loss, access to Internet
Protocol Captioned Telephone Service can significantly enhance their
ability to communicate and participate in modern life. With IP CTS,
those with residual hearing can use their own voice to speak during a
call but then read captions on their device when the called party
responds. This means that people with hearing loss can do the things so
many of us take for granted--picking up the phone and seeking emergency
help; securing a job; making a doctor's appointment; following up with
a child's teacher; and connecting with family and friends.
Automated speech recognition (ASR) holds promise for IP CTS. But I
believe the FCC got it backwards when it declared that IP CTS using ASR
was eligible for compensation from the Telecommunications Relay Service
fund before setting standards for ASR that would ensure functional
equivalency under the Americans with Disabilities Act. Moreover, these
standards must be informed by a thoughtful assessment of the
implications for consumer privacy. In particular, the FCC needs to set
forth expectations regarding the protection, retention, storage, and
sharing of any conversations that use ASR.
______
Response to Written Question Submitted by Hon. Ron Johnson to
Hon. Michael O'Rielly
Question. You've talked about the need to improve the FCC's
broadband mapping while also being mindful of the costs of any new data
collection. In reviewing any new mapping proposal, should the FCC try
to balance granularity and complexity with speed and cost? If yes, how
can this balance be achieved?
Answer. Yes, the flaws of the FCC's current Form 477 mapping
approach are well-known, and I have supported legislative efforts to
improve the effectiveness and accuracy of our data. In determining the
appropriate level of data granularity, the FCC must be mindful of the
costs of and our mandate for producing more specific maps. The Chairman
has circulated an item on improving the Commission's Form 477 data for
the August 2019 Open Meeting, and I look forward to examining the
record in that proceeding to ensure that we achieve an appropriate
balance.
______
Response to Written Question Submitted by Hon. Todd Young to
Hon. Michael O'Rielly
Question. Currently, millions of rural Americans lack access to
fixed high-speed broadband, which in today's economy is perceived as
basic infrastructure. In the FCC's 2019 Broadband Deployment Report,
the FCC concluded that broadband is being deployed to all Americans,
including rural Americans, in a timely fashion. The report also
asserted that FCC policies are promoting investments and removing
burdensome barriers.
With that said, according to a preliminary analysis, which was
released on Monday by USTelecom, U.S. broadband provider investments
increased by approximately $3 billion to total roughly $75 billion in
2018.
Given the ongoing growth in private investments, what are the FCC's
priorities moving forward to ensure U.S. broadband providers have the
resources they need in the free market for continued investments in
rural America? Additionally, how will the FCC continue to update its
mapping to provide an accurate account of high-speed service?
Answer. While there is no doubt that rapid and robust progress in
broadband deployment continues, approximately nine million Americans
still lack access to even 10/1 Mbps service, and connecting those
households should be our foremost priority. In turn, I have urged the
Commission to implement the Remote Areas Fund (RAF) auction, in some
form or function, and I look forward to swift action on that front.
Further, it is crucial that the Commission take steps to prevent USF-
funded overbuilding. Unfortunately, insufficient guardrails in the
Commission's USF rules have led to E-Rate-funded overbuilds of CAF-
funded networks. This has undermined the Commission's own investments,
and jeopardized broadband deployment in rural communities. The
Commission must act to eliminate this perverse waste and ensure that
USF support flows only to where it is truly needed.
As part of the Commission's rural broadband efforts, it is
furthermore essential that we fix our broken mapping process. As such,
I look forward to reviewing the item scheduled for our August Open
Meeting, which is focused on improving the Commission's Form 477 data
and achieving an appropriate level of granularity, while being mindful
of costs and our statutory mandate.
______
Response to Written Questions Submitted by Hon. Edward Markey to
Hon. Michael O'Rielly
IP-CTS and Automated Speech Recognition. Automated speech
recognition (ASR) has great promise for Internet Protocol Captioned
Telephone Service (IP-CTS). However, I understand that current ASR
engines vary in quality and accuracy, and I am concerned that nascent
technologies might be certified for IP-CTS use without adequate
testing. I believe that we need to be careful about implementing this
service before it is fully ready.
Question 1. Do you agree that we need to ensure ASR-only providers
can handle 911 and related public safety calls before such technology
is FCC approved? In your view, has the FCC done enough adequate testing
of all types of ASR engines?
Answer. The Commission has made clear that providers using ASR must
meet the Commission's mandatory minimum TRS standards, including the
requirement to demonstrate that their services support 911 emergency
calling and meet the applicable emergency call handling requirements.
Should a draft Order to certify an ASR-only provider be circulated to
the Commission, I will fully examine the applicable record prior to
voting to grant the certification to ensure all requirements are met,
including the provider's ability to meet the applicable 911
requirements.
Protecting the C-Band for Public Radio. The Public Radio Satellite
System relies on C-Band frequencies to distribute news, programming,
and public safety information to nearly 1,300 interconnected local
public radio stations and millions of Americans across the country.
Question 2. Can you assure me that any plans to transition C-Band
spectrum for new wirelesses services will not impair the vital role
that public radio plays in our news, educational programming, and
emergency services?
Answer. Yes. From the beginning, I set forth certain principles
that must be met in order to support the market-based plan to repurpose
some of the C-Band spectrum for next-generation wireless services.
These principles included providing a transparent process; reallocating
more than 200 megahertz; and ensuring that the incumbents would be
accommodated and held harmless. After the many conversations that I
have had with interested parties, I believe it is possible to provide
upwards of 300 or more megahertz for 5G, while still fully protecting
those that currently utilize C-Band satellite services, including local
public radio, in the remaining satellite portion of the band.
______
Response to Written Questions Submitted by Hon. Tom Udall to
Hon. Michael O'Rielly
Question 1. Tribal communities continue to lag behind the rest of
the country in the deployment of broadband. The GAO found that
inaccuracies in FCC broadband data have led to underestimates of the
magnitude of the digital divide on tribal lands. So we may not even
have a clear picture as to how wide that gap really is given the
current data collection regime. What changes is the FCC considering as
part of its efforts to modernize FCC form 477 in order to specifically
address the under-reporting in Tribal communities? What are some ways
that the FCC can look outside the beltway to engage on this issue?
Answer. I fully agree that many Tribal communities face major
obstacles in obtaining access to broadband, and the Commission must
prioritize those unserved areas, as well as non-Tribal areas facing
equally poor or even worse broadband availability. Therefore, in the
Commission's recent Notice of Proposed Rulemaking seeking comment on
creating a framework for the upcoming Rural Digital Opportunity Fund
auction, I asked the Chairman to seek comment on directing added
financial support, via a reserve price bonus or targeted bidding
credits, to areas that are completely unserved. Targeting additional
support to these most disadvantaged areas will ensure that scarce
Universal Service funding is allocated efficiently and based on true
need.
With respect to mapping the availability of broadband, I fully
agree that the Commission's 477 data is deeply flawed in presenting an
adequately granular picture of where service exists. I am hopeful,
however, that the Commission's new Digital Opportunity Data Collection
effort, which will require fixed providers to submit broadband service
polygons, will significantly improve the Commission's mapping process,
and enable the Commission to better focus on those millions of
Americans without service, including those living on Tribal lands.
Question 2. President Trump is trying to use existing emergency
authorities in an unprecedented way when he cannot get Congress or our
allies and trading partners to do what he wants them to do. He has also
been very clear that he sees the media as ``the enemy of the people''
and levies daily attacks on a variety of FCC-regulated media
organizations and other media owners, threatening them with
retaliation.
Existing law gives the president the ability to declare an
emergency and close down parts of the Internet and take over broadcast
networks to transmit messages. We expect that this would only occur in
the direst circumstances such as war or extreme natural disasters. But
there is no guarantee that is the case with this--or any other
President.
Would the commission work with Congress and provide technical
assistance to better reform our emergency laws regarding communications
technology to ensure that emergency authority is not abused by any
President for political or personal purposes?
Answer. I have always tried to maintain an open line of
communication with Congress on any and all issues for which technical
assistance is requested, and this remains true in the context of
emergency communications. I am happy to provide feedback on any
legislative proposals regarding this issue and others.
Question 3. Millions of Americans rely on their local public radio
station for news, educational and cultural programming, emergency
alerts and public safety information--including in rural, remote and
tribal areas. Many public radio stations are the only local news
organizations in their communities, and provide unique programming and
information tailored to their communities' needs and tastes. The public
radio satellite system relies on C-Band spectrum to distribute national
and regional programming to and among the local stations. In parts of
New Mexico and other rural and tribal areas, there are few alternative
sources of news, public safety information, and regional programming--
and no workable alternatives to satellite as a means to distribute
public radio programming.
As the FCC considers plans to transition C-Band spectrum for 5G and
commercial wireless services, please detail how the agency will ensure
the C-Band spectrum and satellite service necessary for local public
radio stations to continue to provide vital news, programming, and
public safety services to America's rural and tribal communities.
Answer. Yes. From the beginning, I set forth certain principles
that must be met in order to support the market-based plan to repurpose
some of the C-Band spectrum for next-generation wireless services.
These principles included providing a transparent process; reallocating
more than 200 megahertz; and ensuring that the incumbents would be
accommodated and held harmless. After the many conversations that I
have had with interested parties, I believe it is possible to provide
upwards of 300 or more megahertz for 5G, while still fully protecting
those that currently utilize C-Band satellite services, including local
public radio, in the remaining satellite portion of the band.
______
Response to Written Questions Submitted by Hon. Jon Tester to
Hon. Michael O'Rielly
Question 1. The FCC's Captioned Telephone Services gives folks
independence to connect with the world. I support the FCC's intention
to ensure this program can handle the influx in participates, however I
am concerned about using an automatic speech recognition to replace
humans. What is the Commission doing to ensure this technology is
adequate and the quality of this service does not decrease?
Answer. I am fully committed to fulfilling our statutory mandate to
provide functionally equivalent service to Americans with disabilities
while minimizing burdens on TRS ratepayers. Thus, I have supported
experimentation with alternative technologies, including ASR. While not
perfect for all IP CTS consumers in all instances, ASR can undoubtedly
be a helpful tool for certain users, and this technology has improved
in recent years. The Commission has made clear that providers opting to
use fully automated ASR must meet the Commission's minimum TRS
standards. Further, the Commission continues to support IP CTS
providers that do not use fully-automated ASR, thus ensuring that non-
ASR options continue to be available to consumers.
Question 2. I am also concerned that reforms to this program would
require candidates to travel to their State equipment distributor to
receive certification instead of from their physician. As you move
forward, will you take into consideration what impact this will have on
folks in rural America?
Answer. While I am committed to preventing the waste of TRS fund
resources and ensuring that IP CTS is only delivered to those who
objectively need it, any changes to certification requirements must be
supported by a fulsome record and ought to be balanced against
potentially disparate burdens on individuals in rural areas. Should a
draft Order requiring a new method of user certification be circulated
to the Commission, I will fully examine the applicable record prior to
voting to approve such a change.
Question 3. According to your Report on Broadband Deployment in
Indian Country, less than half of homes on rural reservations have
access to that same level of broadband service. What are your
recommendations for Congress on how to help?
Answer. Despite a positive overall trend in deploying broadband
across our country, many Tribal and non-Tribal communities continue to
lack access to any form of broadband whatsoever, and I have urged the
Commission to prioritize those unserved areas in awarding Universal
Service support. Similarly, in allocating any new funding for broadband
infrastructure, I would urge Congress to direct that support to
unserved areas--including unserved Tribal communities--rather than
areas where broadband already exists. To appropriately target those
areas, and to prevent wasteful and duplicative funding, I have
encouraged Congress to provide clear directives regarding coordination
to the various agencies and departments that distribute broadband
funding and to maintain oversight over their coordination. Further, I
have recommended that Congress consider the FCC's Universal Service
Fund as a primary means to distribute new funding, given the cost-
effectiveness of the Commission's reverse auction mechanism for
distributing support.
Question 4. Consultations plays such an important role, is the
FCC's office of Native Affairs and Policy adequately staffed?
Answer. Issues related to human resources in the Commission's
bureaus and offices are handled by the Office of Managing Director;
therefore, I must defer to the Commission's Managing Director on this
question. However, I am not aware of specific concerns being raised
regarding the staffing levels for the Office of Native Affairs and
Policy.
Question 5. Do you have any updates on the progress of the Native
Nations Communications Task Force?
Answer. The work of the Native Nations Communications Task Force is
overseen by the Office of Native Affairs and Policy; therefore, I must
defer to the Commission's Office of Native Affairs and Policy on this
question.
Question 6. Do you believe we need to remove existing Huawei
equipment from our telecommunications infrastructure?
Answer. I have spoken at length about attempts by the Chinese
government to monopolize the development of 5G technologies. From using
government-sponsored loans and capital to gain market share in the
wireless manufacturing market and to promote their providers in China
and abroad, to manipulating the international standard-setting process
to favor their companies and technologies, the Chinese government is
trying to establish its global dominance in wireless technologies for
generations to come. As Chinese equipment manufacturers and wireless
providers become more pervasive in global communications systems due to
these unfair advantages, the Chinese government will have access to any
information that touches their equipment or networks. Until we know how
to contain this threat, we must consider ways to limit, and, if
necessary, remove, such equipment from our telecommunications
infrastructure.
______
Response to Written Question Submitted by Hon. Amy Klobuchar to
Hon. Geoffrey Starks
Question. The FCC's elimination of net neutrality rules--which went
into effect last year--threatens the way we communicate with each
other, how companies do business, how consumers buy goods, and even how
our kids learn. I cosponsored the Save the Internet Act--which passed
the House in April--to restore these rules to ensure a free and open
Internet. Can you explain how the repeal of net neutrality has impacted
connectivity in rural America?
Answer. Internet openness is one of the most critical
communications issues facing policy-makers and consumers today and I
believe that consumers need strong legal protections to ensure they
have the access to the Internet they expect, and that providers need
clear and binding rules of the road. The FCC is the only agency with
comprehensive expertise on these communications issues. It needs to be
empowered to make rules and take actions to ensure Internet openness.
I'm in favor of returning to the FCC's 2015 Open Internet framework
to put the FCC and consumers back in the driver's seat. I think that
the FCC's 2015 order established the rules singling out the types of
harmful practices that we want to avoid while providing sufficient
forward-looking flexibility to both the Commission and providers. I am
concerned that the current framework may undermine consumer protections
and may threaten the Internet openness on which our economy and our
democracy, and Americans, both rural and urban, have come to rely.
Slowed or throttled Internet traffic and applications can be
particularity harmful to rural America, which is already faced
broadband connectivity challenges. The FCC reports that over 26 percent
of rural Americans do not have access to high quality fixed broadband.
Provider blocking or throttling of applications and Internet traffic
would stand to make a bad situation worse, making service less reliable
and available in rural areas, and deepening the growing state of
Internet inequality that is leaving many parts of rural America behind.
______
Response to Written Questions Submitted by Hon. Edward Markey to
Hon. Geoffrey Starks
IP-CTS and Automated Speech Recognition. Automated speech
recognition (ASR) has great promise for Internet Protocol Captioned
Telephone Service (IP-CTS). However, I understand that current ASR
engines vary in quality and accuracy, and I am concerned that nascent
technologies might be certified for IP-CTS use without adequate
testing. I believe that we need to be careful about implementing this
service before it is fully ready.
Question 1. Do you agree that we need to ensure ASR-only providers
can handle 911 and related public safety calls before such technology
is FCC approved? In your view, has the FCC done enough adequate testing
of all types of ASR engines?
Answer. Yes. I agree that we need to ensure that all IP-CTS
providers, to include potential automatic speech recognition (ASR)
providers, can handle 911 and related public safety calls. A call to
911 is often the most important call of a person's life, and being able
to quickly and accurately convey and receive information during an
emergency call is critical. It is important that the Commission have a
full and complete understanding of the quality and performance of
services offered by ASR-only providers, and particularly how they
compare to human Communication Assistants, prior to certification.
As I've previously noted, we need to ensure that technology is
seeking to close gaps and level the playing field, and not leaving
folks behind. For many, ASR is life changing. It is cost-effective,
easy to use, and lets folks talk on the phone in their own voice. But
we must ensure that the quality of service is comparable to a live
human being. We need to follow the science, and make our decisions
based on solid studies and good data. We need to ensure that these
services work for everybody before deploying them widely.
Protecting the C-Band for Public Radio. The Public Radio Satellite
System relies on C-Band frequencies to distribute news, programming,
and public safety information to nearly 1,300 interconnected local
public radio stations and millions of Americans across the country.
Question 2. Can you assure me that any plans to transition C-Band
spectrum for new wirelesses services will not impair the vital role
that public radio plays in our news, educational programming, and
emergency services?
Answer. Public radio is one of our most valuable news sources, and
the Public Radio Satellite System provides critical distribution
services for more than 1,200 public radio stations. While the
Commission should make available as much mid-band spectrum as possible
for wireless use, any plan for doing so in the C-Band must protect
incumbent users like public broadcasters.
______
Response to Written Questions Submitted by Hon. Tom Udall to
Hon. Geoffrey Starks
Question 1. Has the FCC has done enough to push companies into
building resilient networks or even publishing best practices to help
prevent future outages?
Answer. No. The FCC ``urges'' and ``encourages'' carriers to follow
best practices for network resiliency, but it has fallen short of
requiring that companies act. Accordingly, carriers are not subject to
enforcement measure or penalties for not taking steps, even basic, well
known and accepted steps, to ensure that networks stay operational or
are able to be restored quickly following. Furthermore, these limited
FCC actions are often reactive, coming in the wake of a storm-related
or other outages, rather than proactive efforts designed to prevent
outages from occurring in the first place.
The FCC's report released this spring on its actions related to
Hurricane Michael finds that carriers fell short of their own
commitments when Hurricane Michael slammed into the Florida Panhandle
last year, and we saw significant communications challenges in Puerto
Rico after Hurricanes Irma and Maria made landfall. This report
confirms that voluntary standards aren't sufficient to ensure that
carriers invest in preparing their networks to be resilient in the face
of hurricanes, which, while devasting, are neither unprecedented nor
unpredictable.
And, just this month, the FCC released a report on the massive
nationwide 911 outage that took place at the end or 2018. Rather than
taking specific actions, this report noted that the FCC would once
again remind carriers of industry best practices and their importance.
The FCC has a duty, codified in the Communications Act, to ensure
that networks are available for purposes of promoting safety of life
and property and for national defense. These are statutory
obligations--they can't be met by encouraging carriers to follow
voluntary standards.
Question 2. Tribal communities continue to lag behind the rest of
the country in the deployment of broadband. The GAO found that
inaccuracies in FCC broadband data have led to underestimates of the
magnitude of the digital divide on tribal lands. So we may not even
have a clear picture as to how wide that gap really is given the
current data collection regime. What changes is the FCC considering as
part of its efforts to modernize FCC form 477 in order to specifically
address the under-reporting in Tribal communities? What are some ways
that the FCC can look outside the beltway to engage on this issue?
Answer. I visited several tribal communities in New Mexico in
August 2019 and had the opportunity to see, first hand, the
connectivity challenges that these communities face. The FCC recently
adopted an order and related rulemaking notice starting the process of
considering changes to its form 477 data collection. The rulemaking
notice asked questions about incorporating information from Tribal
lands in the data collection and about including Tribal input in a
challenge process related to the data collection but did not propose
specific ways that the FCC could take action to address under-reporting
in Tribal communities. I dissented from portions of this order because
it leaves in place some of the most glaring problems with this data
collection at a time when the FCC is proposing to continue using Form
477 data as the basis for Universal Service policymaking.
I believe that the FCC needs to step up its efforts to ensure that
all of its data, including data about Tribal communities, is accurate
in order to make effective, data-driven policies. With regard to ways
the FCC can look outside the beltway to engage on these issues, I
believe constant engagement with Tribes is necessary (and is also
required by law) and I believe that there are opportunities for the FCC
to ensure that the various Federal agencies involved with making
broadband available on Tribal Lands are acting in a streamlined and
coordinated manner.
Question 3. President Trump is trying to use existing emergency
authorities in an unprecedented way when he cannot get Congress or our
allies and trading partners to do what he wants them to do. He has also
been very clear that he sees the media as ``the enemy of the people''
and levies daily attacks on a variety of FCC-regulated media
organizations and other media owners, threatening them with
retaliation.
Existing law gives the president the ability to declare an
emergency and close down parts of the Internet and take over broadcast
networks to transmit messages. We expect that this would only occur in
the direst circumstances such as war or extreme natural disasters. But
there is no guarantee that is the case with this--or any other
President.
Would the commission work with Congress and provide technical
assistance to better reform our emergency laws regarding communications
technology to ensure that emergency authority is not abused by any
President for political or personal purposes?
Answer. I can't speak for the willingness of the Commission to work
with Congress to provide technical assistance to reform our emergency
laws in this manner, but I would certainly work with Congress to
provide technical assistance on efforts to reform our emergency laws or
on any other topic for which my assistance is requested.
Question 4. Millions of Americans rely on their local public radio
station for news, educational and cultural programming, emergency
alerts and public safety information--including in rural, remote and
tribal areas. Many public radio stations are the only local news
organizations in their communities, and provide unique programming and
information tailored to their communities' needs and tastes. The public
radio satellite system relies on C-Band spectrum to distribute national
and regional programming to and among the local stations. In parts of
New Mexico and other rural and tribal areas, there are few alternative
sources of news, public safety information, and regional programming--
and no workable alternatives to satellite as a means to distribute
public radio programming.
As the FCC considers plans to transition C-Band spectrum for 5G and
commercial wireless services, please detail how the agency will ensure
the C-Band spectrum and satellite service necessary for local public
radio stations to continue to provide vital news, programming, and
public safety services to America's rural and tribal communities.
Answer. Public radio is one of our most valuable news sources, and
the Public Radio Satellite System provides critical distribution
services for more than 1,200 public radio stations. While I want to
make available as much mid-band spectrum as possible for wireless use,
I will work with my colleagues to ensure that any plan for doing so in
the C-Band protects incumbent users like public broadcasters.
______
Response to Written Questions Submitted by Hon. Jon Tester to
Hon. Geoffrey Starks
Question 1. The FCC's Captioned Telephone Services gives folks
independence to connect with the world. I support the FCC's intention
to ensure this program can handle the influx in participates, however I
am concerned about using an automatic speech recognition to replace
humans. What is the Commission doing to ensure this technology is
adequate and the quality of this service does not decrease?
Answer. The Chairman of the FCC directs the work of the
Commission's Bureaus and Offices and is in the best position to offer
insight into the ongoing review of requests for certification from
certain IP-CTS providers. The Chairman is also best positioned to speak
to efforts to ensure that automatic speech recognition (ASR) is
adequate and does not represent a decrease in quality from services
that utilize human Communication Assistants (CAs). That being said, I
fully believe that the Commission must have a full and complete
understanding of the quality and performance of ASR providers prior to
granting certification. We need to ensure that technology closes gaps
and levels the playing field, and does not leave folks behind. As
technology improves, ASR has promise to offer high-quality, cost-
effective, and easy to use alternatives to services using CAs. But we
need to ensure that these services work for everybody before deploying
them widely.
Question 2. I am also concerned that reforms to this program would
require candidates to travel to their State equipment distributor to
receive certification instead of from their physician. As you move
forward, will you take into consideration what impact this will have on
folks in rural America?
Answer. The administration of Commission programs designed to bring
communications services to unserved or underserved communities is among
our most mission-critical and important responsibilities. The TRS Fund,
and related programs serving persons who are deaf, hard of hearing,
deaf-blind, or have speech disabilities, are certainly in this
category. While I believe that the integrity of these programs must be
preserved, I don't support setting up needless barriers to
participation for otherwise eligible users. While I am aware of the
proposals mentioned here, I do not have insight into any direction of
Commission staff. I would look very carefully at any final rules that
would negatively impact the ability of any eligible user, including
rural users, to take advantage of these programs and services.
Question 3. According to your Report on Broadband Deployment in
Indian Country, less than half of homes on rural reservations have
access to that same level of broadband service. What are your
recommendations for Congress on how to help?
Answer. The Tribal Broadband Report that the Commission issued in
May of this year noted, as you point out, that Tribal areas of the U.S.
are way behind other areas of the U.S. in terms of broadband
availability and that rural Tribal areas are even farther behind. And,
this report was created using the Commission's frequently-criticized
broadband data, data that has been shown to overstate coverage.
I support measures to help Tribes and Tribal areas with broadband
and other connectivity needs. I think that Tribal bidding credits in
auctions and creative ideas for allowing tribal use of spectrum will be
part of the solution to Tribal connectivity issues. But, the Commission
needs to do better, both in understanding shortcomings in broadband
availability on Tribal lands and in taking steps to make improvements.
Question 4. Consultations plays such an important role, is the
FCC's office of Native Affairs and Policy adequately staffed?
Answer. The Chairman of the FCC is responsible for determinations
regarding the staffing levels of Commission's Bureaus and Offices and
is in the best position to offer insight as to whether the Office of
Native American Policy is adequately staffed to meet requirements that
the Commission consult with Tribal Governments.
Question 5. Do you have any updates on the progress of the Native
Nations Communications Task Force?
Answer. The Chairman of the FCC directs the work of the
Commission's Bureaus and Offices and is in the best position to offer
insight into progress of the Native Nations Communications Task force.
Question 6. Do you believe we need to remove existing Huawei
equipment from our telecommunications infrastructure?
Answer. Yes. I believe that this equipment poses a threat to
national security and that we need to find the equipment, fix the
problems it presents, and, working with Congress, find ways to provide
funding to affected carriers to help them replace the equipment. To
that end, I have proposed that we ``Find it; Fix it; Fund it.'' In June
of this year, I held a ``Find it--Fix it--Fund it'' Workshop at the FCC
to look into these legacy threats which are currently in our networks.
This workshop was the largest and most comprehensive gathering to date
to consider these issues and gave me an opportunity hear directly from
stakeholders and experts. The workshop's ``find'' panel focused on the
scope of the problem--the amounts and types of equipment that pose
threats. The ``fix'' panel looked at proposed solutions, including
mitigation and ``rip and replace.'' And the ``fund'' panel considered
mechanisms of funding a proposed solution. I came away understanding
that we need a clear and definitive approach to solving these problems.
I'm hopeful that Congress will appropriate funding to help carriers
replace insecure equipment already in their networks. Legislation like
the bipartisan 5G Leadership Act, which would allocate $700 million
from spectrum auctions to fund removal of insecure equipment from
communications networks, is a necessary step toward removing the
insecure equipment already in our networks. This is a national problem
that requires a national solution.
______
Response to Written Questions Submitted by Hon. Jacky Rosen to
Hon. Geoffrey Starks
TELEHEALTH. Commissioner Starks, I understand you recently visited
a health clinic in my home state of Nevada, the Amargosa Valley Medical
Center in Nye County. Amargosa Valley has a population of about 1,500
and is in one of the most geographically remote parts of the state, so
my constituents living in this rural town depend on the local clinic
for most of their medical needs. Telehealth is a major aspect of this
service. However, I know that during your visit you took part in a
telehealth demonstration, and the Internet connection deteriorated
significantly at times over the course of that demonstration, and when
the video connection was in use, the rest of the clinic's Internet
services became unavailable. In your recent testimony before the House
Energy & Commerce Committee, you said in reference to your visit, ``we
must do better'', and I completely agree. The uneven deployment of
broadband services in this country can be a matter of life and death
when it comes to telehealth, and we need to do better.
One place we can begin is ensuring that broadband speeds are
adequate to support telemedicine. Nevada's state broadband office has
expressed their concern with the lack of alignment of broadband speeds
across Federal agencies. While the FCC uses a benchmark speed of 25/3,
other agencies, including USDA, use a lower 10/1 benchmark that can
make it seem as if communities are technically being served by
broadband service, even when they do not actually have access to high-
speed Internet sufficient for services like telemedicine.
Question 1. Commissioner Starks, what is the minimum speed needed
to provide adequate telehealth service, including video conferencing
and the sharing of large data files?
Answer. When I saw health care providers in rural Nevada using
telehealth, they were, as you mention in your question, using a
connection that deteriorated over the course of the demonstration, and
use of it slowed down or stopped other Internet services in the clinic.
To me, this connection is not ``adequate''--it barely allowed for a
video connection and I don't think it would have allowed the clinic to
share large data files in a timely manner.
Applications like video conferencing and sharing large data files
require dedicated, high-capacity, symmetrical connections. While
various technologies can support such connections, I believe that a
fiber connection, with its nearly limitless bandwidth and
upgradability, combined with low latency and potential to provide
symmetrical service, is best suited for telehealth applications.
Question 2. To your knowledge, do most rural clinics have access to
the speeds needed to connect patients with doctors in order to provide
services that would otherwise be unavailable without a two or three
hour car trip?
Answer. As you mentioned in your question, some of the clinics I
visited in Nevada have only enough bandwidth to carry a video
conference, and when a video conference is ongoing, other uses of
broadband in the clinic either slow or stop. Unfortunately, I don't
think the demonstration I saw in Nevada was unique or unusual. I heard
a similar story during my recent visit to the San Felipe Pueblo in New
Mexico. On a national scale, the FCC's most recent broadband deployment
report shows that 26.4 percent of people in rural areas of the U.S do
not have access to a broadband connection capable of a 25 Mbps
download, 3Mbps download speed. I expect that the percentage of rural
clinics without sufficient broadband access is even higher because
clinics need higher download and, especially, upload speeds in order to
provide the types of health services that would enable patients to
receive care locally without requiring them to drive to a distant urban
hospital.
Question 3. Should we be investing more in fiber deployment to our
rural communities? And how quickly can this be rolled out?
Answer. Yes. Investments in fiber are investments in the future of
connectivity. Fiber provides extremely fast service and has virtually
limitless capacity--which would future-proof broadband investments,
ensuring that they aren't obsolete in the next decade. Using fiber will
also ensure that broadband infrastructure is able to support multiple
current or future bandwidth intensive applications without causing
connections to slow down. Additionally, fiber can be upgraded without
the need to dig it up or remove it from wherever it is installed.
Several Federal government initiatives, including the FCC's
Universal Service Program and USDA's ReConnect program are already
working to provide support for broadband deployment. But, a significant
Federal investment in broadband infrastructure will be needed to truly
ensure that rural areas are connected with high-capacity, future-proof
fiber, and this investment can't come quickly enough.
______
Response to Written Questions Submitted by Hon. Edward Markey to
Hon. Brendan Carr
IP-CTS and Automated Speech Recognition. Automated speech
recognition (ASR) has great promise for Internet Protocol Captioned
Telephone Service (IP-CTS). However, I understand that current ASR
engines vary in quality and accuracy, and I am concerned that nascent
technologies might be certified for IP-CTS use without adequate
testing. I believe that we need to be careful about implementing this
service before it is fully ready.
Question 1. Do you agree that we need to ensure ASR-only providers
can handle 911 and related public safety calls before such technology
is FCC approved? In your view, has the FCC done enough adequate testing
of all types of ASR engines?
Answer. The FCC has an obligation to ensure that telecommunications
services are available to Americans with hearing loss. One way we do
that is through the funding of IP CTS, which allows an individual who
can speak but who has difficulty hearing over the phone to use an IP-
enabled device simultaneously to listen and read captions of the
conversation. In 2018, the FCC issued a declaratory ruling determining
that the provision of CTS using automatic speech recognition (ASR) is
eligible for Federal support. In doing so, the FCC made sure that such
ASR meets certain quality standards to qualify for funding.
Protecting the C-Band for Public Radio. The Public Radio Satellite
System relies on C-Band frequencies to distribute news, programming,
and public safety information to nearly 1,300 interconnected local
public radio stations and millions of Americans across the country.
Question 2. Can you assure me that any plans to transition C-Band
spectrum for new wirelesses services will not impair the vital role
that public radio plays in our news, educational programming, and
emergency services?
Answer. I have not made a final decision on issues raised in the C-
Band proceeding. In reaching a final decision, it is important to give
due consideration to all stakeholders, including those that operate in
the band.
______
Response to Written Questions Submitted by Hon. Tom Udall to
Hon. Brendan Carr
Question 1. Commissioner Carr, to follow up with my discussion in
Committee will you please list the tribal nations that you have been
able to visit during your travels?
Answer. I have had the great privilege of meeting personally with
dozens of tribal leaders and officials from across the country,
spending time on tribal land to learn more about the challenges of
building out broadband, and hearing firsthand about the opportunity
that broadband can bring to those living in rural and remote
communities. Those consultations and time on tribal land have helped
inform my approach to FCC decisions and underscored the importance of
working quickly to close the digital divide that persists on these
lands.
To give a better sense of the FCC's engagement on these issues, I
want to highlight the meetings and consultations the FCC engaged in for
just one agency decision. In that one case, FCC Commissioners and staff
visited at least nine different states, including Arizona, California,
Connecticut, New Mexico, North Carolina, Oregon, South Dakota,
Virginia, and Wisconsin. This is in addition to consultations at FCC
headquarters and numerous, widely-attended conference calls. One of the
in-person consultations was attended by over 70 representatives of more
than 50 Tribal Nations and organizations. The FCC's work has benefited
greatly from these types of consultations, and my own decisions have
been informed by my time in the roughly 30 states I have visited in
this job over the past two years.
Question 2. Tribal communities continue to lag behind the rest of
the country in the deployment of broadband. The GAO found that
inaccuracies in FCC broadband data have led to underestimates of the
magnitude of the digital divide on tribal lands. So we may not even
have a clear picture as to how wide that gap really is given the
current data collection regime. What changes is the FCC considering as
part of its efforts to modernize FCC form 477 in order to specifically
address the under-reporting in Tribal communities? What are some ways
that the FCC can look outside the beltway to engage on this issue?
Answer. At the FCC's August open meeting, we voted to adopt a
fundamentally different and more granular approach to collecting
broadband deployment information. It is one that does not simply look
to modernize our existing Form 477; it starts an entirely new method of
data collection that builds on feedback and information culled from
outside the beltway. The item specifically directs the agency and USAC
to develop a process to ensure Tribal governments may review and
dispute the broadband coverage data. And due to an edit I made to the
item, we now make clear that USAC should validate carrier submissions
using commercial applications and resources.
Question 3. President Trump is trying to use existing emergency
authorities in an unprecedented way when he cannot get Congress or our
allies and trading partners to do what he wants them to do. He has also
been very clear that he sees the media as ``the enemy of the people''
and levies daily attacks on a variety of FCC-regulated media
organizations and other media owners, threatening them with
retaliation.
Existing law gives the president the ability to declare an
emergency and close down parts of the Internet and take over broadcast
networks to transmit messages. We expect that this would only occur in
the direst circumstances such as war or extreme natural disasters. But
there is no guarantee that is the case with this--or any other
President.
Would the commission work with Congress and provide technical
assistance to better reform our emergency laws regarding communications
technology to ensure that emergency authority is not abused by any
President for political or personal purposes?
Answer. The FCC routinely provides technical assistance to Congress
when it considers legislation, and the Commission will continue to
provide that assistance.
Question 4. Millions of Americans rely on their local public radio
station for news, educational and cultural programming, emergency
alerts and public safety information--including in rural, remote and
tribal areas. Many public radio stations are the only local news
organizations in their communities, and provide unique programming and
information tailored to their communities' needs and tastes. The public
radio satellite system relies on C-Band spectrum to distribute national
and regional programming to and among the local stations. In parts of
New Mexico and other rural and tribal areas, there are few alternative
sources of news, public safety information, and regional programming--
and no workable alternatives to satellite as a means to distribute
public radio programming.
As the FCC considers plans to transition C-Band spectrum for 5G and
commercial wireless services, please detail how the agency will ensure
the C-Band spectrum and satellite service necessary for local public
radio stations to continue to provide vital news, programming, and
public safety services to America's rural and tribal communities.
Answer. I have not made a final decision on issues raised in the C-
Band proceeding. In reaching a final decision, it is important to give
due consideration to all stakeholders, including those that operate in
the band.
______
Response to Written Questions Submitted by Hon. Jon Tester to
Hon. Brendan Carr
Question 1. The FCC's Captioned Telephone Services gives folks
independence to connect with the world. I support the FCC's intention
to ensure this program can handle the influx in participates, however I
am concerned about using an automatic speech recognition to replace
humans. What is the Commission doing to ensure this technology is
adequate and the quality of this service does not decrease?
Answer. The FCC has an obligation to ensure that telecommunications
services are available to Americans with hearing loss. One way we do
that is through the funding of IP CTS, which allows an individual who
can speak but who has difficulty hearing over the phone to use an IP-
enabled device simultaneously to listen and read captions of the
conversation. In 2018, the FCC issued a declaratory ruling determining
that the provision of CTS using automatic speech recognition (ASR) is
eligible for Federal support. In doing so, the FCC made sure that such
ASR meets certain quality standards to qualify for funding.
Question 2. I am also concerned that reforms to this program would
require candidates to travel to their State equipment distributor to
receive certification instead of from their physician. As you move
forward, will you take into consideration what impact this will have on
folks in rural America?
Answer. Yes, the FCC should consider how any reforms to our program
will impact consumers.
Question 3. According to your Report on Broadband Deployment in
Indian Country, less than half of homes on rural reservations have
access to that same level of broadband service. What are your
recommendations for Congress on how to help?
Answer. Closing the digital divide is a top priority at the FCC,
and we have a special concern for the divide that persists across
Indian Country. One way Congress can encourage the deployment of
broadband service is to continue efforts to drive down the regulatory
costs of building infrastructure. At the FCC, we have cut more than $3
billion of red tape by modernizing our environmental and historic
preservation reviews and by setting guardrails on local fees assessed
for use of rights of way. Our partners across the Federal government
could speed approvals for broadband across Federal lands, which
disproportionately affect communities in the West, including Tribes,
and there may be opportunities for Congress to update the relevant
permitting rules in this area.
Question 4. Consultations plays such an important role, is the
FCC's office of Native Affairs and Policy adequately staffed?
Answer. Over the past few years, the FCC has engaged in extensive
consultations with Tribal Nations, especially on infrastructure
matters. In fact, I am not aware of another period of time in which the
FCC has engaged in this number and level of consultations. With respect
to just one infrastructure decision we made last year, for instance,
FCC leadership and staff participated in consultations in at least nine
different states, including Oklahoma, South Dakota, California, New
Mexico, and Arizona. FCC officials attended Tribal conferences, hosted
Tribal representatives at the FCC, and conducted dozens of meetings and
conference calls concerning the relevant subject matters. Those
consultations resulted in significant changes to FCC decisions, and we
are prepared to continue to engage with Tribal Nations with the help of
all relevant staff.
Question 5. Do you have any updates on the progress of the Native
Nations Communications Task Force?
Answer. In February of last year, the Commission issued a Public
Notice announcing the renewal and renaming of the Task Force and
seeking nominations for members from Tribal Nations. In October,
Chairman Pai appointed 19 Tribal members and eight FCC members to the
Task Force. Additional information about the Task Force's work can be
found at this page: https://www.fcc.gov/consumer-governmental-affairs/
about-bureau/office-native-affairs-and-policy/native-nations
Question 6. Do you believe we need to remove existing Huawei
equipment from our telecommunications infrastructure?
Answer. Two months ago, I visited communities across Montana,
including those served by providers that use Huawei equipment. I had
the chance to see some of this equipment in the field and talk with
both providers and public safety officials (including those working on
a military base) about the use and presence of this equipment. Earlier,
in 2018, the FCC sought comment on steps we should take to protect
against national security threats to the communications supply chain.
In voting to launch that proceeding, I asked my colleagues to expand
our inquiry in a number of significant ways. For one, I urged my
colleagues to put a broader set of options on the table for remedying
any threats we identify, including the removal of existing equipment. I
am glad that my colleagues agreed to expand our inquiry by including
this option. That FCC proceeding remains open, and we have not made a
final decision.
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