ORLANDO -- The FCC should extend the Mobility Fund II challenge process by more than three months to fix a deficient process, said a NARUC resolution cleared Monday by the Telecom Committee and Tuesday by the board. At NARUC's annual meeting (see 1811130035), the committee voted unanimously for the resolution after tweaking some language to address other commissioners’ concerns. Idaho Commissioner Paul Kjellander will step down as Telecom Committee chairman to join NARUC leadership, he said Monday.
A federal court rejected a 2014 California law requiring prepaid wireless fees and three California Public Utilities Commission resolutions implementing that law. In a Monday order (in Pacer) granting a MetroPCS motion for summary judgment, the U.S. District Court for Northern California ruled the law and resolutions “conflict with federal law and are therefore preempted and unconstitutional.” MetroPCS asked the court to declare unlawful and stop enforcement of three CPUC resolutions implementing the state's Prepaid Mobile Telephony Service Surcharge Collection Act, which required prepaid wireless customers to pay a surcharge supporting state USF and certain CPUC fees. The company argued the CPUC portion of the surcharge impermissibly assesses interstate voice and broadband data revenue, conflicting with federal law including the Communications Act, the 2000 Mobile Telecom Sourcing Act and the U.S. Constitution's dormant Commerce Clause. The agency said there's no conflict with federal law because the commission used an intrastate allocation factor to remove interstate and international charges from the surcharge base. “The Court agrees with MetroPCS that the usage of a mandatory intrastate allocation factor conflicts with federal law because it deprives carriers of the ability to treat as intrastate for universal service purposes the same revenues that they treat as intrastate for federal USF contributions,” wrote Judge Susan Illston. “By using the intrastate allocation factor as the sole method for assessing the CPUC fees, the CPUC has deprived carriers of the ability to rely on alternative allocation methodologies, such as their actual revenue data.” The court disagreed with CPUC argument that MetroPCS was "judicially estopped" from challenging because it proposed that CPUC adopt an intrastate allocation factor. MetroPCS may challenge because it supported a “reasonable” estimate of the intrastate portion and argued that the CPUC didn’t act reasonably, said Illston. The regulator and MetroPCS parent T-Mobile didn’t comment Tuesday.
The Pennsylvania Public Utility Commission got much support for reverse pre-empting the FCC on pole attachments. In comments this week in docket L-2018-3002672, carriers said reverse pre-emption could speed dispute resolution, and electric companies said having a state regulator in charge could provide more balance than the FCC. Pole owners and riders disagreed on the degree to which the PUC would be able to deviate from FCC rules. Pennsylvania could be the first state in nearly a decade to reverse pre-empt the federal agency (see 1807250039).
The FCC Wireline Bureau sought comment Friday on the implications of a provision in the FY 2019 National Defense Authorization Act that would bar use of money in any USF program to buy equipment or services from companies that “pose a national security threat” to U.S. communications networks or the communications supply chain. The FCC had been expected to deepen its inquiry in light of the NDAA (see 1810190025). The bureau asks specifically about Section 889(b)(1), which bars federal agencies from using “loan or grant funds to procure or obtain, extend or renew a contract to procure or obtain, or enter into a contract (or extend or renew a contract) to procure or obtain equipment, services, or systems” with Huawei, ZTE and other Chinese companies. “Does the prohibition in section 889(b)(1) apply to support provided by the … USF?” the bureau asks. “To the extent the provision is intended to apply to USF, what obligation might it impose upon the Commission? Would the Commission’s proposed rule in the Protecting Against National Security Threats to the Communications Supply Chain NPRM satisfy the intent of section 889(b)(1)?” Comments are due Nov. 16 in docket 18-89, replies Dec. 7.
The FCC approved revised rules for the 3.5 GHz citizens broadband radio service band, as expected (see 1810160068), over a dissent by Commissioner Jessica Rosenworcel. Commissioner Mike O’Rielly, who crafted the revised rules, said changes were necessary to spark interest in the priority access licenses that will be sold as one tier of the band.
The FCC is thought likely to move forward on rules that bar use of money in any USF program to buy equipment or services from companies that “pose a national security threat” to U.S. communications networks or the communications supply chain. Commissioners approved an NPRM 5-0 in April (see 1804170038). CTIA and other carrier groups' comments raised concerns (see 1807050028), but industry officials said the FY 2019 National Defense Authorization Act may require FCC action.
FCC Chairman Ajit Pai will likely face a shift in Capitol Hill oversight scrutiny in 2019 if one or both chambers shift to a Democratic majority in November elections, lawmakers and communications sector officials told us. That appears unlikely to endanger Pai's ability to lead the FCC any more than it has for other chairmen who faced lawmakers amid changing electoral fortunes, former commission officials predicted. Capitol Hill Democrats have had a sometimes-tense relationship with Pai since his chairmanship began in early 2017 (see 1807250043). Democratic leaders are generally eyeing more rigorous oversight of President Donald Trump's administration if they win control of a chamber.
The Pennsylvania Public Utility Commission could regulate pole attachments better than the FCC, commented fiber company NetSpeed, posted Tuesday in docket L-2018-3002672. Comments are due Oct. 29 on a rulemaking on asserting state jurisdiction over pole attachments and creating a forum for dispute resolution (see 1807250039). PUC “expertise regarding electric utilities and electric distribution service will provide a basis for wise regulation that the Federal Communications Commission unavoidably lacks,” NetSpeed said. “One of the drawbacks of the FCC’s pole attachment complaint process is that it typically does not result in a decision for many months.” A speedier process in Pennsylvania would encourage fiber investment, it said. The company supported adopting the existing federal regime there, not a mechanism to automatically adopt federal changes.
The 8th U.S. Circuit Court of Appeals asked Charter Communications to respond to a Minnesota Public Utilities Commission petition for en banc rehearing of the federal court’s ruling that the company's interconnected VoIP is an information service not subject to state regulation. The response should be at most 3,900 words and is due Oct. 29, the court ordered (in Pacer). State commission and state consumer advocates support Minnesota (see 1809280057).
Public Knowledge and the FCC traded words over whether telecom deregulation is hampering service restoration efforts after Hurricane Michael. PK said FCC Chairman Ajit Pai and Florida Gov. Rick Scott (R) failed to "take responsibility for how their radical deregulation of telephone service has contributed to this unfortunate situation." The FCC said it's "disappointing but not surprising that a left-wing special-interest group is making cheap and false political attacks while people in the Florida Panhandle are suffering." Pai plans to visit the area Friday. Verizon Wireless said it continues to make progress restoring service.