FCC Approves 5G Fund NPRM Over Partial Dissents by Democrats

Commissioners approved an NPRM Thursday on the proposed 5G Fund over partial dissents by Commissioners Jessica Rosenworcel and Geoffrey Starks, as expected (see 2004200063). Both said the NPRM offers a false choice and the FCC can’t rely on bad maps or wait until 2023 or later to start offering support. Commissioner Mike O’Rielly supported the NPRM, but also had concerns. Members met via teleconference, for the second month during COVID-19.

The NPRM offers two alternatives. An auction for phase I could start next year “defining eligible areas based on current data sources that identify areas as particularly rural and thus in the greatest need of universal service support.” The second is delaying phase I “until at least 2023, after collecting and processing improved mobile broadband coverage data through the Commission’s new Digital Opportunity Data Collection.” The draft noted that a March broadband data law (see 2003240049) doesn’t fund completing mobile coverage maps.

“We need money before maps,” Chairman Ajit Pai told reporters, answering our query. “We cannot fulfill the requirements” of the data law “without additional funding,” he said. Pai said he made that point to Congress several times. He said FCC staff has made clear that gathering data and dealing with challenges and other logistics would add at least 18-24 months to the auction process, even if the FCC gets funds from Congress. “Here is the staff assessment, it’s not me making it up,” he said.

The agency's chief conceded that absent an appropriation, the FCC would have to find the money under the new law. “The amount required … would be substantial,” he said. “That has to come out of somewhere.”

Pai announced the creation of the 5G Fund nearly five months ago (see 1912040027). Little work has been done on the maps that will be needed to get support right, Starks said at the meeting. “Imagine how much closer to a well-targeted 5G Fund we would be if we had committed the necessary resources, on that day, to producing and finalizing accurate maps, full speed ahead,” he said: “If you need a longer horizon, consider where we would be if we had fully committed to the effort in December 2018” when Pai “announced the investigation into carriers submitting inaccurate coverage data.” The FCC has been “deprioritizing and dragging out the mapping process,” he said.

Rosenworcel said she supports the 5G fund in principle but dissented “in all other respects.” The rulemaking “suggests we can either provide funds for more wireless service fast or we can do it accurately,” she said: “That’s crazy. We need to do both. If we’re going to spend billions in public funds on improving wireless service in rural America, it’s not too much to ask that we do it with speed and get it right.” The FCC failed “to hold anyone accountable after our staff found some of our largest carriers filed inaccurate mapping data with this agency,” Rosenworcel said. “It seems that by doubling the money and wiping the slate clean, the FCC hopes that no one will take notice,” she said: “That’s not right.”

O’Rielly told reporters he has concerns. Using current data “doesn’t match up” with the mapping law “that we’re obligated to follow,” he said, responding to our question: “It’s good for the NPRM stage. It asks a lot of questions” including how long it would take to develop data. O’Rielly questioned the timing of getting better maps, saying they can be accurate and timely. “Congress has told us it is a high priority,” he said.

Reaction

The NPRM is “nothing short of disappointing,” said Competitive Carriers Association President Steve Berry. “There is no reason why we should limit ourselves to two inadequate options; we can, and should, do both,” he said. It’s “unclear why the FCC insists it can’t generate maps with accurate data by 2023, when Congress requires the FCC to update the form it uses to collect broadband deployment data from carriers no later -- and preferably earlier -- than March of 2021,” said Jenna Leventoff, Public Knowledge senior policy counsel.

“There is still a lot of work ahead,” said Commissioner Brendan Carr: “We want every community in the country to have a fair shot at next-gen connectivity. And there are many Americans in rural areas where there is no business case for building 5G networks.” It's a "physical impossibility to move forward immediately with data that we don’t have,” Carr told reporters.

The 5G Fund “is great news for the millions of Americans living and working in rural and underserved communities who do not have access to a reliable mobile broadband connection,” said Senate Commerce Committee Chairman Roger Wicker, R-Miss. “However, it is important to distribute funding based on accurate data to ensure underserved areas are not misrepresented. I am working with my colleagues to make sure the Commission has the resources needed to implement” the Broadband Deployment Accuracy and Technological Availability Act broadband mapping legislative package (S-1822). Lawmakers on the House and Senate Commerce committees are eyeing including broadband mapping money in the next major COVID-19 legislative package (see 2004210060).

Sen. Joe Manchin, D-W.Va., earlier led a letter to Pai urging the FCC to ensure it implements S-1822’s “commonsense, bipartisan reforms” before the 5G Fund auction. Absent major changes, the order “will leave millions of people behind if you conduct an auction that relies on old, outdated coverage data to determine who can and cannot participate,” Manchin and three other senators wrote Pai. “Failure to” prioritize S-1822’s mobile mapping provisions will prevent the law’s intended revisions “from impacting” USF funding “until 2031 at the earliest. We assure you that that was not our intent.” The FCC has been seeking $65 million to implement S-1822 (see 2003230066).

FCC Meeting Notebook

Commissioners voted unanimously to approve technical rules to allow increased use of directional antennas and FM boosters for low-power FM stations, as expected (see 2004220065). “I remain sympathetic to the commenters who voiced concern regarding the potential deployment of more directional antennas by LPFM stations and have to trust that proofs of performance will provide adequate insurance against misuse,” said O’Rielly, the only commissioner to release a statement on the item. O’Rielly said he will “watch closely as these rules are implemented.”

The full commission also approved 5-0 an NPRM seeking comment on expansion of video description rules to additional markets (see 2004220065). The Media Bureau’s 2019 report to Congress on video description “demonstrated the benefit of expanding the video description regulations beyond the top 60 markets,” said a release. O’Rielly took issue with a proposal in the NPRM to change terminology for video description to “audio description,” which would bring rules in line with the way descriptive audio feeds are named in other settings -- such as stage performances. That “may seem like a small, and even widely-agreed upon, modification, but the implications of making such a change should be acknowledged,” said O’Rielly. “Is regulatory fiat greater than the law?”

Pai discussed possible actions the FCC could take to help broadcasters affected by COVID-19. The agency doesn’t have the ability to provide funds to broadcasters, but could allow stations to enter into payment plans for FCC fees, or allow AM broadcasters to reduce power to save on electric bills, Pai told reporters following the meeting. Broadcasters with possible solutions are welcome to bring suggestions to the agency, he said, answering our query. The chairman declined to provide a timeline or specifics on how the agency will determine when FCC employees could begin going back to work or when its headquarters will be reopened. The “bottom line” is employee safety, Pai said. He said he will take input from federal and local agencies into account in making such a decision, but he couldn’t yet say which agencies. “The FCC staff’s safety is always my top priority,” Pai said.

O’Rielly is disappointed about NTIA’s lack of action on the 3.1-3.55 GHz band. NTIA hasn't released its report on the band. Charles Cooper, associate administrator-NTIA Office of Spectrum Management, said Wednesday the lower part of the band presents “challenges that still need to be overcome" (see 2004220059). “I’m a little dismayed on where we are,” O’Rielly told reporters Thursday, answering our query: “From my understanding, they just codified or clarified what they already were pushing for.” NTIA’s stance seems to be “we might be able to do something on the top 100 [MHz], but anything below that is not in the cards.” NTIA’s position is “problematic for the future of American leadership in 5G and wireless services,” he said. “We’re sort of always working, in pretty high gear, on spectrum bands,” Carr said.

Carr told reporters he's aware of concerns raised by infrastructure companies that COVID-19 is slowing permitting and construction of new wireless facilities (see 2004130050). Carr has had a number of recent calls with tower crews and cable techs and “heard directly from them about what they are personally doing during COVID-19” and from industry on broader concerns. “We’re in a tough time across the board,” he said: “We all need to be reasonable in our approach. Internet infrastructure is important.” Local and state officials are trying to find ways to make sure projects get built, he said: “We do want infrastructure built to keep moving forward.” Carr said he hasn’t decided whether to seek action on CTIA and Wireless Infrastructure Association proposals seeking more changes to wireless infrastructure rules designed to accelerate siting of towers and other 5G facilities (see 1910300027). “There is additional progress that we can make and I look forward to doing that,” he said.

The FCC has received hundreds of applications for telehealth COVID-19 projects, estimated Carr. He noted his estimate is based on his sense of the volume of applications, and he didn’t have exact figures. Agency staff is working on the issue and “knocking those out quickly,“ he said in response to our question. He noted that about 18 such applications have been approved, and such requests have come from areas hard hit by the pandemic, citing New York, Michigan and New Orleans. Carr is the commission's point person on telehealth. The commission indeed "received hundreds of applications" as of Thursday, a spokesperson emailed us. He said the Wireline Bureau has awarded $9.5 million to 17 healthcare providers (see 2004230028).