Now that the RAY BAUM’S Act is Law, What's In It?

 You’re reading the Benton Foundation’s Weekly Round-up, a recap of the biggest (or most overlooked) telecommunications stories of the week. The round-up is delivered via e-mail each Friday.

Round-Up for the Week of April 2-6

On March 23, 2018, President Donald Trump signed H.R. 1625, Consolidated Appropriations Act, 2018. H.R. 1625's 2,232 pages make for a great read, but if you're looking for just the telecommunications policy highlights, let's thumb through straight to Division P, the Repack Airwaves Yielding Better Access for Users of Modern Services Act of 2018 or the RAY BAUM’S Act of 2018 which reauthorizes the Federal Communications Commission and does a whole bunch more. The bill completes a process began three years ago.

I. FCC Reauthorization

The act appropriates $333,118,000 for fiscal year (FY) 2019 and $339,610,000 for FY 2020 for the FCC to carry out its functions. The legislation repeals section 710 of the Telecommunications Act of 1996 which contained a duplicative authorization of appropriations. Any money in the account providing FCC appropriations that were collected in excess of the amounts provided for in any previous appropriations acts are to be transferred to the U.S. Treasury for deficit reduction.

The new law also requires the Department of the Treasury to accept upfront bidding deposits for spectrum auctions held by the FCC. The deposits of successful bidders must be used for deficit reduction.

Section 8 of the Communications Act of 1934 authorized the FCC to collect application fees from companies that sought licenses. H.R. 1625 amends that section so that 1) application fees must be assessed at rates to recover costs associated with processing applications and 2) regulatory fees must be assessed to recover the costs of employee pay, other employee benefits, and nondiscretionary costs. Congress must be given notice of adjustments to applications and regulatory fees, but such adjustments are not subject to judicial review. The FCC must assess specified late fees and charge interest on certain fees that are not paid in a timely manner. The FCC may dismiss an application or revoke an instrument of authority held by a licensee for failure to pay fees and penalties in a timely manner.

II. Universal Service Antideficiency Temporary Suspension

The Universal Service Antideficiency Temporary Suspension Act is amended to extend, through December 31, 2019, the waiver of certain limitations on:

1. Expending, obligating, or apportioning appropriations with respect to federal universal service contributions collected or received under the Communications Act of 1934; and
2. Expending or obligating funds attributable to such contributions for universal service support programs.

As background, in 2004 the Universal Service Administration Company realized that the commitment letters sent to E-rate beneficiaries (notifying them whether their funding is approved and in what amount) might be viewed as “obligations” of appropriated funds. Since, the Antideficiency Act does not allow an agency or program to make obligations in excess of available budgetary resources, USAC would need to dramatically increase the program’s cash-on-hand and lessen the program’s investments to provide budgetary authority sufficient to satisfy the Antideficiency Act. The changes meant the loss of millions of dollars annually for the program. So Congress passed a bill granting the Universal Service Fund a one-year exemption from the Antideficiency Act and it renews the exemption each ytear. 

III. Communications In Emgencies

The law requires the FCC, within the next three years, to submit to Congress and publish on the FCC website a study on the public safety benefits, technical feasibility, and cost of providing the public with access to 9-1-1 services during times of emergency when mobile service is unavailable, through:

• telecommunications service provider-owned WiFi access points and other communications technologies operating on unlicensed spectrum, without requiring any login credentials;
• non-telecommunications service provider-owned WiFi access points; and
• other alternative means.

In addition, the law amends the Robert T. Stafford Disaster Relief and Emergency Assistance Act to expand the categories of essential service providers that may access a disaster site to restore and repair essential services in an emergency or major disaster without being denied or impeded by a federal agency. Services to be considered essential are wireline or mobile telephone service, Internet access service, radio or television broadcasting, cable service, or direct broadcast satellite service.

IV. Reporting Requirments

As we reported last month, H.R. 1625 makes changes to the FCC's reporting requirments to Congress. The bill replaces various reporting requirements with a new "communications marketplace report" that the FCC must publish on its website and submit to Congress (specifically to the House and Senate Commerce Committees) every two years.

The FCC must:

1. Assess the state of competition in the communications marketplace, including competition to deliver voice, video, audio, and data services among providers of telecommunications, providers of commercial mobile service, multichannel video programming distributors, broadcast stations, providers of satellite communications, Internet service providers, and other providers of communications services. In assessing the state of competition, the FCC must consider all forms of competition, including the effect of intermodal competition, facilities-based competition, and competition from new and emergent communications services, including the provision of content and communications using the Internet.
2. Assess the state of deployment of communications capabilities, including advanced telecommunications (defined as high-speed, switched, broadband telecommunications) capability, regardless of the technology used for such deployment. In assessing  the state of deployment, the FCC must compile a list of geographical areas that are not served by any provider of advanced telecommunications capability.
3. Assess whether laws, regulations, regulatory practices (whether those of the Federal Government, States, political subdivisions of States, Indian tribes or tribal organizations, or foreign governments), or demonstrated marketplace practices pose a barrier to competitive entry into the communications marketplace or to the competitive expansion of existing providers of communications services;
4. Describe the agenda of the Commission for the next 2-year period for addressing the challenges and opportunities in the communications marketplace that were identified through the assessments; and
5. Describe the actions that the FCC has taken in pursuit of the agenda in the previous report submitted.

In assessing the state of competition and regulatory barriers, the FCC shall consider market entry barriers for entrepreneurs and other small businesses in the communications marketplace.

For anyone scoring at home, this provision:

• Repeals the requirement for the ORBIT Act report
• Repeals the requirement for the Satellite Competition report
• Incorporates the International Broadband Data report into the communications marketplace report
• Eliminates the annual report to Congress on the status of competition in the market for the delivery of video programming
• Incorporates the annual report on cable industry practices into the communications marketplace report
• Eliminates the triennial report on market entry barriers
• Eliminates the annual report on competitive market conditions with respect to commercial mobile services

In addition, the law:

• Eliminates some reporting requirments about waiving FCC commissioners' or staffs' financial conflicts of interest
• Eliminates provisions concerning reimbursements for travel expenses for commissioners and staff
• Eliminates a provision calling for investigation of companies providing both telephone and telegraph services
• Eliminates a 2011 requirement that the FCC report to Congress whether additional legislation is necessary to prohibit the provision of inaccurate caller identification information in technologies that are successor or replacement technologies to telecommunications service or IP-enabled voice service
• Eliminates a 1997 requirement for a report on the use of competitive bidding systems for spectrum licenses
• Eliminates a 2002 requirement for a report on 1) auctions 31 and 44 and 2) describing the progress made by the FCC in the digital television transition and in the assignment and allocation of additional spectrum for advanced mobile communications services that warrants the scheduling of such auctions
• Eliminates a requirement for a report to Congress on when attempting to convert an existing AM daytime-only station into a full-time station
• Modifies an annual report on digital television stations' ancillary or supplementary services 
• Eases a restriction on satellite carriers' carriage of distant television stations 
• Eliminates the requirement for 1) an annual report on the Corporation for Public Broadcasting finances, 2) a 1996 requirement for a CPB report on educational programs and services, and the expansion of public radio services, to unserved and underserved audiences, 3) an annual CPB report on the activities and expenditures of the independent production service, and 4) the needs of minority and diverse audiences, the plans of public broadcasting entities and public telecommunications entities to address such needs, the ways radio and television can be used to help these underrepresented groups, and projections concerning minority employment by public broadcasting entities and public telecommunications entities. Modifies the requirement for an independent CPB audit. 
• Eliminates the need to send to the President and Congress an annual CPB report on equal employment opportunity at the Public Broadcasting Service, National Public Radio, and all public telecommunications entities.
• Eliminates a 1996 requirement for a report on video programming accessibility

V. FCC Inspector General

H.R. 1625 amends the Inspector General Act of 1978 to require the President, with the advice and consent of the Senate, to appoint the FCC Inspector General. Currently, the FCC appoints the FCC Inspector General; on January 10, 2011, then-FCC Chairman Julius Genachowski announced the appointment of David L. Hunt as Inspector General. IG Hunt, we learned in February 2018, opened an investigation into whether current FCC Chairman Ajit Pai and his aides had improperly pushed for rule changes that benefit Sinclair Broadcast Group. Now Hunt will serve just until President Trump names a replacement.

VI. FCC Chief Information Officier

The FCC's Chief Information Officer is now to "have a role in":

1. the decision-making process for annual and multi-year planning, programming, budgeting, and execution decisions, related reporting requirements, and reports related to information technology;
2. the management, governance, and oversight processes related to information technology; and
3. the hiring of personnel with information 6 technology responsibilities.

In addition, the FCC CIO will approve all FCC information technology spending.

VII. Spoofing

The bill expands the prohibition against knowingly transmitting misleading or inaccurate caller identification information to apply to: 1) persons outside the United States if the recipient is within the United States, and 2) text messages. Existing caller identification requirements that apply to calls made using a telecommunications service or IP-enabled voice service are revised to apply to: (1) services interconnected with the public switched telephone network and that furnish voice communications using resources from the North American Numbering Plan; and (2) transmissions from a telephone facsimile machine, computer, or other device to a telephone facsimile machine. 

The FCC must coordinate with the Federal Trade Commission to develop and regularly update education materials that help consumers identify: 1) scams and fraudulent activity that rely upon misleading or inaccurate caller identification information, and 2) existing technologies that consumers can use to protect against such fraud. 

The Government Accountability Office must report on: 1) actions taken, or actions that could be taken, by the FCC or the FTC to combat the fraudulent provision of misleading or inaccurate caller identification information; and 2) any recommendations to combat the fraudulent provision of such information.

VIII. Broadband for Veterans

By March 23, 2019, the FCC must report to Congress on promoting broadband Internet access service for veterans, in particular low-income veterans and veterans residing in rural areas. The FCC will 1) examine such access and how to promote such access and 2) provide findings and recommendations for Congress with respect to such access and how to 16 promote such access. The public will be given the opportunity to inform the report.

IX. Mobile Coverage Data

After the conclusion of the FCC's Mobility Fund Phase II Auction, the FCC will have 180 days to establish a methodology for collecting coverage data for its univeral service programs. The methodology will:

1. contain standard definitions for different 5 available technologies such as 2G, 3G, 4G, and 4G 6 LTE;
2. enhance the consistency and robustness of how the data are collected by different parties;
3. improve the validity and reliability of coverage data; and
4. increase the efficiency of coverage data collection.

X. 9-1-1 Location Accuracy

By September 2019, the FCC must conclude a proceeding to consider adopting rules to ensure that dispatchable location is conveyed with 9-1-1 calls, including calls from multi-line telephone systems, regardless of the technological platform used. "Dispatchable location" means the street address of the calling party and additional information necessary to adequately identify the location of the calling party.

XI. Study on Interagency Process Following Cybersecurity Incidents

By September 2019, The Commerce Department's Assistant Secretary for Communications and Information (currently David J. Redl, must complete a study on how the National Telecommunications and Information Administration, which is led by Redl, can best coordinate the interagency process following cybersecurity incidents.

XII. Tribal Digital Access

By March 2019, the FCC must evaluate broadband coverage in Indian countryand on land held by Alaska Native Corporations. The resulting report is to include an assessment of: 1) the areas that have adequate broadband coverage and 2) unserved areas. By September 2019, the FCC must complete a proceeding to address the unserved areas identified in the report.

XII. Terms of FCC Commissioners

The FCC was created by the Communications Act of 1934 and section of 4 of the act lays out the rules relating to FCC commissioners. H.R. 1625 amends this a subsection concerning the appointment of commissioners; here's the new language:

(c)(1) A commissioner—

(A) shall be appointed for a term of 5 years;

(B)except as provided in subparagraph (C), may continue to serve after the expiration of the fixed term of office of the commissioner until a successor is appointed and has been confirmed and taken the oath of office; and

(C) may not continue to serve after the expiration of the session of Congress that begins after the expiration of the fixed term of office of the commissioner.

(2) Any person chosen to fill a vacancy in the Commission—

(A) shall be appointed for the unexpired term of the commissioner that the person succeeds;

(B) except as provided in subparagraph (C), may continue to serve after the expiration of the fixed term of office of the commissioner that the person succeeds until a successor is appointed and has been confirmed and taken the oath of office; and

(C) may not continue to serve after the expira18 tion of the session of Congress that begins after the expiration of the fixed term of office of the commissioner that the person succeeds.

(3) No vacancy in the Commission shall impair the right of the remaining commissioners to exercise all the powers of the Commission.

XIII. Congress Nixes 14 Year-Old Recommendation from the Federal-State Joint Board on Universal Service

On February 27, 2004, the Federal-State Board on Universal Service -- a body created by Congress in the Telecommunications Act of 1996 to create national consensus on controversial telecommunications issues -- recommended that the FCC limit the scope of Universal Service Fund support for rural households to a single connection, saying it was necessary to preserve the sustainability of the fund. But H.R. 1625 forbides the FCC from implementing that recommendation. 

XIV. FCC Press Releases

Any press release from the FCC regarding the issuance of a notice of apparent liability shall include a disclaimer that such notice should be treated only as an allegation and that the amount of any forfeiture penalty is the maximum penalty that the FCC may impose for the alleged violation.

XV. Spectrum Auction Reports

By September 30, 2018 and every year afterwards, the FCC must make publicly available what systems of competitive bidding for licenses and permits will be used during the next 12-month period, and identify, if possible, the bands of frequencies expected to be auctioned.

By April 1, 2019 and every year afterwards, the FCC must report to Congress justifying the use of spectrum auction proceeds to cover the costs of developing and implementing spectrum auctions. 

XVI. MOBILE NOW Act

The Making Opportunities for Broadband Investment and Limiting Excessive and Needless Obstacles to Wireless Act (known in polite conversation as the MOBILE NOW Act) was rolled into the RAY BAUM'S Act. Here's a quick look at what the MOBILE NOW Act does.

By December 31, 2022, the National Telecommunications and Information Administration must identify at least 255 megahertz of Federal and non-Federal spectrum for mobile and fixed wireless broadband use. Of that total:

1. 100 megahertz below the frequency of 8000 megahertz shall be identified for use on an unlicensed basis
2. 100 megahertz below the frequency of 6000 megahertz shall be identified for use on an exclusive, licensed basis for commercial mobile use
3. 55 megahertz below the frequency of 8000 megahertz shall be identified for use on either a licensed or unlicensed basis, or a combination of licensed and unlicensed

In identifying such spectrum for use, the NTIA and the FCC must consider: (1) the need to preserve critical existing and planned federal government capabilities; (2) the impact on existing state, local, and tribal government capabilities; (3) international implications; (4) appropriate enforcement mechanisms and authorities; and (5) the importance of the deployment of wireless broadband services in rural areas.

By March 2020, the FCC must launch a proceeding to consider service rules to authorize mobile or fixed terrestrial wireless operations, including for advanced mobile service operations, in the radio frequency band between 42000 and 42500 megahertz. The FCC must consider licensed and unlicensed services, as well as shared use of spectrum. 

By March 2020, the NTIA must provide the FCC and Congress an evaluation of the feasibility of allowing commercial wireless services, licensed or unlicensed, to share use of the frequencies between 3100 megahertz and 3550 megahertz. 

By September 2019, the FCC must provide the NTIA and Congress an evaluation of the feasibility of allowing commercial wireless services, licensed or unlicensed, to share use of the frequencies between 3700 megahertz and 4200 megahertz. 

Federal easements, rights-of-way, and leases are streamlined to accellerate communications facilities deployment on Federal property. In addition, the NTIA, working with other Federal agencies. must develop recommendations to further streamline deployment applications by March 2020. By 2022, NTIA must report to Congress on the implementation of those recommendations. 

To facilitate installation of broadband infrastructure, the Department of Transportation must promulgate regulations to ensure that states receiving federal-aid highway funds:

1. identify a broadband utility coordinator to facilitate the broadband infrastructure right-of-way efforts within the state;
2. establish an electronic process to notify broadband infrastructure entities that seek to be included in right-of-way facilitation efforts within the state; and
3. coordinate statewide telecommunication and broadband plans and state and local transportation and land use plans, including strategies to minimize repeated excavations that involve the installation of broadband infrastructure in a right-of-way.

If a State chooses to provide  for the installation of broadband infrastructure in the right-of-way of an applicable Federal-aid highway project, the State department of transportation must carry out any appropriate measures to ensure that any existing  broadband infrastructure entities are not disadvantaged, as compared to other broadband infrastructure entities.

The Administrator of General Services must add to Federal Real Estate Database information on the ability of the Federal real property to support a communications facility installation. By the end of May 2018, the Administrator must seek public comment regarding the inclusion of this information. Within five months, the Administrator will notify agency heads about formatting information for inclusion in the database; the agencies then have three months to deliver the information. The Administrator will also work with the Department of Commerce and the Office of Management and Budget on encouraging state and local governments to provide the same information. By March 2019, the Administrator will report to Congress on the state and local efforts. 

By March 2020, NTIA is supposed to make recommendations to Congress on how to incentivize Federal entities to relinguish or share with Federal or non-Federal users, Federal spectrum for the purpose of allowing commercial wireless broadband services to operate on that Federal spectrum.

By September 2019, the FCC and the NTIA will conduct a bidirectional sharing study to determine the best means of providing Federal entities flexible access to non-Federal spectrum on a shared basis across a range of short-, mid-, and long-range timeframes, including for intermittent purposes like emergency use. 

The FCC is to adopt rules that permit unlicensed services where feasible to use any frequencies that are designated as guard bands to protect frequencies. 

By March 20119, the Government Accountability Office is to conduct a study to evaluate the availability of broadband Internet access using unlicensed spectrum and wireless networks in low-income neighborhoods. 

By March 20119, the FCC is to launch a proceeding to access whether to establish a program, or modify existing programs, under which a licensee that receives a license for the exclusive use of spectrum in a specific geographic area may partition or disaggregate the license by sale or long-term lease in order to make unused spectrum available to an unaffiliated, small carrier to serve a rural area if the FCC finda that the program would promote the availability of advanced tele communications services in rural areas. If a party fails to meet any build out requirements set by the FCC, the right to the spectrum shall be forfeited to the FCC unless the Commission finds that there is good cause for the failure.

It is now the policy of the United States to maximize U.S. spectrum resources to benefit the U.S. people, advance wireless broadband innovation and investment, and make available on an unlicensed basis radio frequency bands sufficient to address consumer demand for unlicensed wireless broadband operations.

By September 2019, the FCC and the NTIA will develop a national plan for making additional radio frequency bands available for unlicensed or licensed by rule operations. The plan must:

• Ensure consumers have access to additional spectrum for unlicensed or licensed operations
• Examine additional ways, with respect to existing and planned databases or spectrum access systems designed to promote spectrum sharing and access to spectrum for unlicensed or licensed by rule operations

The NTIA must recommend reforms to the Spectrum Relocation Fund to address federal entities sharing costs and expenditures under the plan.

The Department of Commerce conduct prize competitions to dramatically accelerate the development and commercialization of technology that improves spectrum efficiency and is capable of cost-effective deployment.

State and local jurisdictions are prohibited from requiring a nonresident person or entity with its principal place of business in the state to collect from, or remit on behalf of, any other person a state or local tax, fee, or surcharge imposed on the purchase or use of any wireless telecommunications service within the state unless the collection or remittance is in connection with a financial transaction in which the purchaser or user upon whom a tax, fee, or surcharge is imposed gives cash, credit, or any other exchange of monetary value or consideration to the person who is required to collect or remit the tax, fee, or surcharge. Any person who is aggrieved by a violation of such prohibition may bring a civil action in U.S. district court for relief.