Telecom Alert: FCC Adopts 4.9 GHz Stay; Bill to Close Huawei Loophole; Emergency Alert Improvements; Rural Connectivity Advancement Program; Pipeline Operator Cybersecurity Mandate; Court Upholds Parts of Cable Franchise Order [Vol. XVIII, Issue 22]
FCC Adopts 4.9 GHz Band Stay
The FCC released an Order last week staying the implementation of the new leasing framework for the 4.9 GHz band (Vol. XVIII, Issue 18). The new framework, adopted in September 2020, would allow a single statewide licensee in each state to lease some or all of its spectrum rights in the band to third parties. Leasing would have been permitted regardless of whether the lessee was engaged in public safety operations. Shortly after the new rules were adopted, public safety groups filed petitions for reconsideration urging the FCC to stay the order. Leadership at the FCC has changed since the new leasing framework was adopted and the rules will not go into effect until the Commission has addressed the pending petitions for reconsideration. For more information, please contact Wes Wright (wright@khlaw.com; 202.434.4239).
Bill to Close Huawei Loophole
Last week, Senators Marco Rubio (R-FL) and Ed Markey (D-MA) introduced the Secure Equipment Act of 2021 which would close a loophole that allows equipment from Huawei, ZTE, and others to continue to be used despite the FCC’s determination that those entities pose an unacceptable risk to our national security (Vol. XVIII, Issue 11). The FCC previously adopted rules requiring telecom carriers to remove and replace equipment produced by these entities due to national security concerns; however, those rules only applied to equipment purchased with federal funding. The new bill would instruct the FCC to clarify that it will no longer review or approve any application for equipment authorization for equipment that is on the list of covered communications equipment. For more information, please contact Greg Kunkle (kunkle@khlaw.com; 202.434.4178).
Order to Improve Emergency Alert System
The FCC will consider a Report and Order and Further Notice of Proposed Rulemaking at its June 17 Open Meeting meant to improve the way the public receives emergency alerts on their mobile phones, televisions, and radios. Section 9201 of the National Defense Authorization Act for Fiscal Year 2021 directs the FCC to adopt rules to (1) ensure mobile devices cannot opt out of receiving Wireless Emergency Alerts (“WEA”); (2) establish a state Emergency Alert System (“EAS”) plan checklist; (3) enable reporting of false EAS and WEA alerts; and (4) provide for repeating EAS alerts. The Report and Order would combine the current non-optional class of WEA “Presidential Alerts” with FEMA Administrator Alerts, require certification of annual State Emergency Communications Committees, and clarify how alert originators can repeat their transmissions, among other things. For more information, please contact Wes Wright (wright@khlaw.com; 202.434.4239).
Rural Connectivity Advancement Program Act of 2021
Last week, Senators John Thune (R-S.D.), Maggie Hassan (D-N.H.), Jerry Moran (R-KS), and Catherine Cortez Masto (D-NV) reintroduced the Rural Connectivity Advancement Program (RCAP) Act of 2021, which would dedicate 10% of auction proceeds for broadband deployment. The bill would (1) require the FCC to utilize RCAP funds to address gaps that remain in broadband coverage in high-cost rural areas; (2) allow the Commission to use funds in a technology-neutral manner to address shortfalls of existing USF high-cost programs; (3) require the FCC to consider broadband needs of residents on tribal lands; and (4) require the FCC to produce an annual report on the distribution of funds. For more information, please contact Jim Baller (baller@khlaw.com; 202.434.4175) or Doug Jarrett (jarrett@khlaw.com; 202.434.4180).
New Mandate for Pipeline Operators to Report Cyber Incidents
Following the Colonial Pipeline ransomware attack, the Transportation Security Administration announced a new Security Directive last week that requires certain pipeline operators to report cybersecurity incidents. Under the directive, which applies to the 100 most critical pipeline operators, critical pipeline owners must report confirmed and potential cybersecurity incidents to the DHS Cybersecurity and Infrastructure Security Agency (“CISA”) and designate a Cybersecurity Coordinator to be available 24 hours a day, seven days a week. Operators are required to report any cyber activity on their systems that results in operational disruption within 12 hours, and reports of suspicious cyber activity must be submitted as soon as practicable, but no later than 12 hours after an incident is identified. For more information, please contact Tracy Marshall (marshall@khlaw.com; 202.434.4234).
Sixth Circuit Upholds Portions of FCC Cable Franchise Order
Last week, the United States Court of Appeals for the Sixth Circuit upheld a 2019 FCC determination that “in-kind” noncash cable-related benefits provided by cable television operators as part of their cable franchise obligations, such as the provision of institutional networks, counts towards the five percent statutory cap on franchise fees. The decision was part of a local government appeal of an FCC Third Report and Order, in MB Docket No. 05-311. The Court, however, reversed the FCC’s determination that such in-kind costs should be valued at market-value and instead held that they should be assigned a value equal to the cable operator’s marginal cost in providing them. For more information, please contact Sean Stokes (stokes@khlaw.com; 202.434.4193).