Today's Regulatory Mix: Pennsylvania Supreme Court Affirms Lower Court Ruling Reversing PUC's DAS Order, FCC Chairman Circulates Order to Ensure Predictable Increases in Mobile Broadband Provided Through Lifeline Program

Pennsylvania Supreme Court Affirms Lower Court Ruling Reversing PUC’s DAS Order

In June 2018, the Commonwealth Court of Pennsylvania reversed the Pennsylvania Public Utility Commission’s (PUC) March 2017 Distributed Antennae Systems (DAS) Order.  The Court determined that DAS network operators’ transport service is a telecommunications service under PA law even though Wireless Service Providers (WSP) use it to transmit a service not regulated by the PUC (i.e. CMRS).  The Court decided that DAS network operators are a public utility, reversed the PUC’s March 2017 decision, and returned jurisdiction to the PUC to issue certificates of public convenience (CPC) to providers of DAS.

Now, in a recent decision, the Supreme Court of Pennsylvania affirmed the lower court’s ruling that DAS networks are public utilities under PA law.  The Supreme Court concluded that the lower court did not err in holding that the PUC’s interpretation of a clear and unambiguous statutory provision was not entitled to deference.  Further, the Supreme Court decided that the lower Court properly concluded that DAS network service meets the definition of “public utility” and is not excluded from that definition as it does not furnish CMRS service.

Inteserra Briefing Service subscribers see Briefing dated 6/15/18.

FCC Chairman Circulates Order to Ensure Predictable Increases in Mobile Broadband Provided Through Lifeline Program

In a news release, the FCC announced the circulation of an order that would improve the way the FCC calculates annual updates to the minimum service standard for mobile broadband service provided through the Lifeline program.  The draft order would revise the FCC’s existing methodology to ensure predictable, reasonable yearly updates to the standard so that Lifeline subscribers can receive robust yet affordable mobile broadband service.  Under the revised methodology, the Lifeline program’s minimum service standard for mobile broadband data capacity would increase, effective December 1, 2020, from 3 GB to 4.5 GB per month.  Absent this reform, the standard would increase from 3 GB to 11.75 GB per month.

“The Lifeline program plays an important role in ensuring that low-income Americans have access to affordable broadband service,” Chairman Pai said.  “And as the communications marketplace continually evolves, it’s critical that minimum standards for Lifeline service increase so that Lifeline subscribers do not receive second-class service compared to other consumers.  But the formula the FCC adopted back in 2016 to update the minimum standard for Lifeline mobile broadband data capacity is flawed.  It results in drastic year-over-year increases that could impact the ability of Lifeline carriers to continue providing affordable service.  Last year, the first time the formula was applied, the current Commission had to step

in to avoid this outcome. Now, I’ve circulated an order that would permanently clean up the mess caused by the 2016 order.  I hope that my colleagues will vote for this order, which will provide much-needed certainty to Lifeline subscribers and providers alike.”

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The Regulatory Mix, Inteserra’s blog of telecom related regulatory activities, is a snapshot of PUC, FCC, legislative, and occasionally court issues that our regulatory monitoring team uncovers each day. Depending on their significance, some items may be the subject of an Inteserra Briefing.