What will the FCC be tackling next?
Chairman Pai’s theme for the October 27, 2020 Open Meeting is “Halloween Treats,” celebrating what he calls the “great October tradition.” In keeping with his theme, he noted that “[w]hile nobody is quite sure what trick-or-treating will look like in a time of social distancing, I can say for sure that the agenda for the Commission’s October meeting will be filled with treats for consumers and innovators.” Of particular interest to telecommunications providers are items taking the next step in the FCC’s effort to eliminate unbundled network element (UNE) requirements where competition warrants and addressing the Court’s remand of three portions of the FCC’s Restoring Internet Freedom Order. And then there is what the Chairman describes as the “Reese’s Peanut Butter Cup of telecom,” an Order establishing a 5G Fund For Rural America, as well as other items aimed at increasing the availability of 5G. But let’s start with the UNE item.
Modernizing Unbundling and Resale Requirements in an Era of Next-Generation Networks and Services
Rules adopted as the result of the 1996 Telecommunications Act require that ILECs make portions of their networks available to competitors on an unbundled basis at regulated, cost-based rates. The FCC has been incrementally chipping away at these elements over the last 24 years, proposing in late 2019 to remove UNE requirements for certain DS1, DS3, and DSO loops, dark fiber transport, and OSS standalone operations support system (OSS). In August of this year, a compromise proposal was filed by members of the telecommunications industry representing both ILECs and CLECs. The FCC’s order would largely adopt that proposal. As such it would:
- Eliminate unbundling requirements, subject to transition periods described below, for:
- enterprise DS1 and DS3 loops in areas with sufficient evidence of competition;
- broadband-capable DS0 loops and subloops in the most densely populated areas;
- voice-grade narrowband loops nationwide;
- multiunit premises subloops and network interface devices nationwide; and
- OSS nationwide except for the purposes of managing other unbundled network elements, number portability, and interconnection.
- Preserve the unbundling requirements for DS0 loops in less densely populated areas and DS1 and DS3 loops in areas without sufficient evidence of competition.
- Eliminate unbundling requirements for dark fiber transport provisioned from wire centers within a half-mile of competitive fiber networks, but provide an eight-year transition period for existing circuits so as to avoid stranding investment and last-mile deployment by competitive LECs that may harm consumers.
- Forbear from the Avoided-Cost Resale obligation where it continues to exist, subject to a three-year transition period.
For UNE DS1 Loop obligations, there would be a two-part transition of 24 months for new orders and 42 months for existing UNE DS1 Loops. For existing UNE DS3 Loops there would be a single transition period of 36 months with no additional period for placing new orders. For DS0 Loops and associated UNE Copper Subloops obligations, there would be a two-part transition under which CLEC could order new UNE DS0 Loops for an additional 24 months after the effective date of the order and a 48-month grandfathering period for all CLEC customers. During the 48-month transition period, all UNE DS0 Loops (including any new UNE DS0 Loops ordered during the first 24 months) must be transitioned to alternative arrangements. During months 37-48 ILECs will be entitled to raise rates by up to 25%; after month 48 they could charge market-based rates. Carriers remain free to negotiate a different arrangement. Most of the other unbundling obligations will be transitioned over a three year period with no new orders.
Restoring Internet Freedom aka Open Internet/Net Neutrality
In 2017, the FCC reclassified broadband internet access service (BIAS) as an information service. The Order was appealed to the US Court of Appeals for the DC Circuit which largely upheld the order but remanded three discrete issues for further consideration: the effect of the order on public safety; the regulation of pole attachments; and the federal Lifeline program. In response to the remand, the FCC would affirm its earlier decision, finding that:
- Its reclassification does not adversely affect public safety;
- The benefits of the light-touch regulation associated with re-classification “far outweigh the limited potential negative effects resulting from the loss of section 224 pole attachment rights for broadband-only Internet Service Providers;” and
- It has authority under §254 of the Communications Act to provide Lifeline support to eligible telecommunications carriers that provide broadband service over broadband-capable networks that are also used for voice service.
Establishing A 5G Fund
The FCC proposes to create the 5G Fund to close the mobile digital divide and support 5G networks in rural areas. Funding would be awarded through a two-phase reverse auction targeting support for deploying 5G networks in areas without an unsubsidized provider of either 4G LTE or 5G mobile broadband. The presence of an unsubsidized provider would be determined using the new, granular, mobile coverage maps that will be developed through the FCC’s Digital Opportunity Data Collection. The Fund would have a 10-year term of support and a budget of $9 billion. In Phase I, up to $8 billion would be available with $680 million set aside for bidders offering to serve Tribal lands; in Phase II, at least $1 billion would target deployment facilitating adoption of precision agriculture technologies.
Winning bidders would be required to deploy networks providing 5G mobile broadband at speeds of at least 35/3 Mbps and meet interim deployment milestones beginning in year three and a final deployment milestone by the end of year six. Mobile carriers receiving frozen legacy support would be required to use an increasing percentage of their support to deploy 5G in their existing service areas offering the same performance levels as 5G Fund winning bidders.
State/Local Approval of Wireless Equipment Modifications
The Spectrum Act provides that state and local government review may not deny, and must approve, eligible facilities requests to modify existing wireless towers or base stations that do not substantially change the physical dimensions of the structure. The FCC would revise its rules implementing this Act to provide for streamlined state and local review of modifications that involve limited ground excavation or deployment. This will facilitate the collocation of antennas and associated equipment on existing infrastructure (but still preserve the ability of state and local governments to manage and protect local land-use interests). Specifically, the item would:
- Amend the FCC’s rules to provide that requests to modify an existing tower outside the public rights-of-way that entails ground excavation or deployment of up to 30 feet in any direction outside the boundary of a site will be eligible for streamlined processing.
- Clarify that the site boundaries from which limited expansion is measured appropriately reflect prior state or local government review and approval.
Unlicensed White Space Device Operations in the Television Bands
Unlicensed white space devices deliver valuable wireless services, including broadband data to rural areas. They operate in channels 2-35 of the VHF and UHF broadcast TV bands, a spectral region that has excellent propagation characteristics particularly attractive for delivering wireless communications services over long distances, varying terrain, and into and within buildings. The FCC’s rules allow unlicensed white space devices to operate at locations where frequencies are not in use by licensed services or protected entities. Wireless Internet Service Providers use fixed white space devices to provide Internet connectivity to schools, libraries, and rural households.
The order being considered would:
- Increase the maximum permissible power for fixed white space devices operating in “less congested” areas (generally rural and unserved areas) in the TV bands from 10 watts to 16 watts EIRP.
- Double from 250 meters to 500 meters the maximum permissible antenna height above average terrain for fixed white space devices in “less congested” areas, subject to a coordination procedure with TV broadcasters.
- Eliminate the limit on antenna height above ground in most circumstances.
- Increase the minimum required separation distances from protected services and protected entities in the TV bands for white space devices operating with higher power and height above average terrain.
- Allow higher power mobile operations in “less congested” areas within defined “geo-fenced” areas.
- Provide flexibility for new and innovative narrowband white space devices to operate in the band so that users can more fully benefit from Internet of Things (IOT) applications.
Is the agenda a trick, a treat, or a bit of both? You decide. 
