Legislative Activity

House & Senate Leaders Urge Action on European “Safe Harbor” Ruling

Senate Committee on Commerce, Science, and Transportation (Senate Commerce Committee) Chairman John Thune (R-SD) along with Sen. Bill Nelson (D-FL) and Reps. Fred Upton (R-MI) and Frank Pallone (D-NJ) wrote a letter to Secretary of Commerce Penny Pritzker and Federal Trade Commission (FTC) Chairwoman Edith Ramirez urging them to act swiftly in finalizing a new agreement to replace the U.S.-EU Safe Harbor Framework(Safe Harbor) recently struck down by the highest court in the European Union (EU), the European Court of Justice (ECJ). The Safe Harbor framework, the product of negotiations between the US Department of Commerce and the European Commission, was the system by which U.S. companies would self-certify that they conformed to the EU’s Data Protection Directive, which prevents the transfer of personal data to countries outside the EU unless adequate levels of protection could be guaranteed. More than four thousand US companies are certified under the Safe Harbor. In their letter, the members of Congress noted that the invalidation of the Safe Harbor framework creates “significant uncertainty” for businesses that send data between the EU and the US. They called upon the Department of Commerce and the FTC to quickly conclude a successor agreement and to issue interim guidance to businesses that have relied on the Safe Harbor, arguing that these businesses must be able to continue operations even in the absence of the Safe Harbor.

Further information concerning the ECJ decision can be found in a recent alert authored by Squire Patton Boggs.

House Subcommittee Reviews Spectrum Legislation

During an October 7 hearing convened to discuss various issues relating to federal spectrum usage, members of the Communications and Technology Subcommittee (Communications Subcommittee) of the House Energy & Commerce Committee (House Commerce Committee) reviewed a discussion draft of the Spectrum Pipeline Act of 2015. The draft bill would require the Federal Communications Commission (FCC) to submit reports to Congress that contain proposed plans for the auction of certain bands of spectrum to be decided in the future. The plans submitted to Congress would need to contain draft service rules for new flexible-use licenses, proposed plans for the relocation to other frequencies of incumbent federal entities in the affected bands, draft timelines for auctions, and draft plans to balance unlicensed and licensed use. Also considered during the hearing was H.R.1641, the Federal Spectrum Incentives Act of 2015, which is designed to provide financial incentives to encourage government agencies to vacate their existing frequencies and free up spectrum for commercial and other uses. Through consideration of this legislation, the Communications Subcommittee continued to pursue its goal of evaluating current spectrum needs among consumers, industry, and the federal government and how best to reallocate spectrum to meet these needs. Acknowledging that the upcomingbroadcast incentive auction will “free up a wide swath of valuable spectrum for new purposes,” subcommittee Chairman Greg Walden (R-OR) emphasized that substantial legislative action and consideration remains in order to put spectrum to its most efficient use.

This Week’s Hearings:

  • Wednesday, October 21: The Subcommittee on Communications and Technology of the House Commerce Committee will reconvene the hearing entitled “Broadcasting Ownership in the 21st Century,” the first part of which was held on September 25, 2015.

Regulatory Activity

FCC Releases Final Agenda for October Meeting, Seven Items on Agenda

The FCC has released the Final Agenda for its Thursday, October 22 Open Meeting. Seven items are on the FCC’s Final Agenda:

  • Rates for Interstate Inmate Calling Services: The FCC will consider a Second Report and Order and Third Further Notice of Proposed Rulemaking that would, according to the Final Agenda, “adopt a comprehensive reform of intrastate, interstate, and international ICS calls to ensure just, reasonable and fair ICS rates” and also seek comment on additional measures to provide ICS rates that are consistent with “the statute and public interest.” On September 30, the FCC released a Fact Sheetsummarizing the item (which is discussed in our blog post here) and on October 1 Commissioner Clyburn posted to the FCC blog discussing the item.
  • Review of Foreign Ownership Policies for Broadcast: The FCC will consider a Notice of Proposed Rulemaking that would “streamline the foreign ownership review process for broadcast licensees and applicants, and standardize the review process for broadcast, common carrier, and aeronautical licensees and applicants,” per the Tentative Agenda. On October 1, Chairman Wheeler posted to the FCC blog discussing this item.
  • Spectrum Incentive Auctions (Wireless Telecommunications): The FCC will consider a Report and Order addressing “when and in what areas 600 MHz Band wireless licensees will be deemed to ‘commence operations’ for the purposes of establishing when the secondary and unlicensed users must cease operations and vacate the 600 MHz Band in those areas.”
  • Spectrum Incentive Auctions (Office of Engineering and Technology): The FCC will consider a Third Report and Order and First Order on Reconsideration to adopt rules to “govern interservice interference” and set protection criteria for television and wireless operations in the 600 MHz band.
  • Spectrum Incentive Auctions (Media): The FCC will consider a Second Order on Reconsideration to “provide additional flexibility to broadcasters interested in the incentive auction channel sharing option by clarifying that ‘back-up’ channel sharing agreements are permitted under the rules and providing more time for successful incentive auction bidders to transition to shared facilities after the auction.”
  • Structure and Practices of the Video Relay Service Program: The FCC will consider a Further Notice of Proposed Rulemaking (FNPRM) on whether to “modify, in part, the four-year compensation rate plan for video relay service (VRS) and whether to adopt measures that may enhance the functional equivalence of VRS.” In the same item, the FCC will consider an Order that would “modify, in part, the currently applicable VRS compensation rates” pending action on the FNPRM.
  • Use of Spectrum Bands Above 24 GHz for Mobile Radio Services: The FCC will consider a Notice of Proposed Rulemaking that proposes to create “new flexible use service rules in certain bands above 24 GHz to support multiple uses, including mobile wireless.” On October 1, Chairman Wheeler posted to the FCC blog discussing this item.

The FCC’s Open Meeting is scheduled to begin at 10:30 a.m. in the Commission Meeting Room (TW-C305) at FCC Headquarters on 445 12th Street, S.W., Washington, D.C., and will be streamed live at fcc.gov/live.

Comments Due November 20 on Twilio Petition to Reclassify Messaging Under Title II

On August 28, the cloud communications company Twilio, Inc. filed a petition for expedited declaratory ruling asking the FCC to declare that messaging services – including SMS, MMS, and short-code messaging – are telecommunications services governed by Title II of the Communications Act. In its petition, Twilio states that wireless carriers “take the position that they can unilaterally block messages, discriminate on the basis of content, and refuse to interconnect with other messaging services providers.” Twilio argues that under the applicable statute as well as judicial and FCC precedent, messaging services are telecommunications services and are governed by Title II. Twilio posits that “once in Title II, text messages are required [to] be treated as subject to all of Title II, including Sections 201 and 202,” provisions which, according to Twilio’s petition, would “prohibit common carriers’ unjust, unreasonable, and discriminatory practices.”

Per a Public Notice released by the FCC October 13, comments on Twilio’s petition are due November 20, and reply comments are due December 21.

Incentive Auction Bidding Procedures Effective as of October 14; Petitions for Reconsideration Due November 13

On August 11, the FCC released a Public Notice containing the “final procedures for setting the initial spectrum clearing target, qualifying to bid, and bidding in the reverse and forward auctions” of the broadcast incentive auction, which is set to begin March 29, 2016. Per thepublication of those procedures in the Federal Register, the bidding procedures became effective October 14. Also on October 14, the FCC released a Public Notice announcing that, under the FCC’s rules, petitions for reconsideration of the bidding procedures are due November 13.

FCC Releases Application Procedures for Incentive Auction, Sets Opening Bid Prices

On October 15, the FCC released a Public Notice containing the application procedures for the reverse and forward auctions of the broadcast incentive auction, which provide “detailed information, instructions, and deadlines for filing applications, and finalize[] certain post-auction procedures established by the Commission’s prior orders.” Notably, the application procedures establish the deadline by which full power and Class A broadcast television station licensees must submit an application to be eligible to participate in the reverse auction, in which the FCC will purchase spectrum from participants. Applications (to be filed on FCC Form 177) can be filed between 12 p.m. EST on December 1 and 6 p.m. EST on December 18.

On October 16, the FCC released a spreadsheet containing the “opening prices that will be offered to each full power and Class A station eligible to participate in the auction,” according to an accompanying Public Notice.

Gary Epstein, Chair of the FCC’s Incentive Auction Task Force, and Howard Symons, Vice-Chair of the Incentive Auction Task Force, posted to the FCC Blog discussing these items on October 16.