FCC Unanimously Approves Agenda; Rosenworcel Weighs in on Trump Comments

The FCC unanimously approved all its agenda items at Thursday's open meeting, including orders on mandatory outage reporting, mitigating orbital debris and misrouted 911 calls. The agency also announced millions of dollars in proposed pirate radio fines and FCC Chairwoman Jessica Rosenworcel commented on former President Donald Trump's remarks about revoking the “licenses” of CNN and NBC over their coverage of him (see 2401170050). “The First Amendment is something we take seriously and I take seriously,” Rosenworcel said. Commissioner Brendan Carr declined comment on the former president's remarks.

The First Amendment “stands for the proposition that we cannot prohibit speech that is made by other folks in this country,” said Rosenworcel during a post-meeting news conference, adding that the FCC lacks license authority over cable. “I certainly encourage you to ask of all my colleagues,” she told us. During his news conference, Carr said, “As we move into election season, I'm not going to be making comments on every statement from candidates as they're working through this process.” He added, “So in that one in particular, I don't have a general comment.” Carr touted a Yale Journal of Regulation paper he and Commissioner Nathan Simington filed in support of states' legal arguments on social media regulation. The paper “explains why it's entirely consistent with the First Amendment to impose some common sense guardrails" on social media content regulation, Carr said.

Trump’s comments, which concerned the networks' decisions to forego carrying his Iowa victory speech last week, “are just the latest in a long history of making vague threats that don’t represent how the law works,” said veteran First Amendment attorney Robert Corn-Revere, now chief counsel for the Foundation for Individual Rights and Expression. “Threatening to pull a station’s license over what they didn’t cover is absurd.” "Some might say this is just bluster from Trump, but it can have real-world consequences," Stuart Benjamin, co-director of the Center for Innovation Policy at Duke Law School, said in an email. Though the courts would likely reject FCC moves against station licenses for content issues, the threat of having to go through that litigation could chill the speech of some licensees, he said. "The only other president we know of who made such a threat (though he did it privately) was Nixon, and his spokesperson, apparently not wanting to try to defend this threat, denied that Nixon had done so," Benjamin said.

Outage Reporting

The FCC’s outage reporting order makes the agency's disaster information reporting system mandatory for cable, wireline, wireless and VoIP. Previously, making outage reports in DIRS was voluntary. The shift will close “unacceptable” gaps in the FCC’s information gathering during disasters, Rosenworcel said. The order requires those entities to file reports with DIRS each day it's activated in a region in which they operate. It also requires they provide a final summary DIRS report on ongoing outages and mitigation efforts to the commission within 24 hours of DIRS’ deactivation. The order suspends required reports to the network outage reporting system when DIRS is active to spare companies from making two filings.

Along with the order, the outage reporting item includes a further notice that seeks comment on making the system mandatory for other industries: broadcasters, satellite providers and broadband Internet access service providers. In addition, the FNPRM also seeks comment on including FirstNet in the requirement and whether carriers should be required to file after-action reports.

Industry officials have said the outage order will disproportionately affect smaller entities, because larger companies have more resources in a disaster and already consistently participate in DIRS. “In the immediate aftermath of a disaster, these small companies are immersed in the business of assessing damage and restoring service and often must operate in the face of direct impacts on employees and office locations,” said NTCA. “We are disappointed that the new rules will compel the submission of daily regulatory reports rather than permitting companies to focus specifically on restoration activity and on the immediate needs of the community while providing updates on network status when feasible.” The rule change “will simplify reporting and provide both officials and the general public with more complete data on damage to communications infrastructure during disasters and into disaster recovery,” said Public Knowledge in a release. Joseph Torres, Free Press senior adviser-reparative policy and programs, called the FCC's order “a critical step in holding companies accountable to prevent the kinds of tragedies that took place” when two major hurricanes hit Puerto Rico in 2017.

Pirate Penalties

The commission approved five notices of apparent liability proposing more than $3.5 million in forfeitures against five Florida pirate radio broadcasters. The NALs are the result of the agency’s first sweep of the Miami area -- a similar sweep in New York resulted in $6.5 million in proposed fines in November (see 2311150042). “These operators were not just using the public airwaves unlawfully, they were increasing the risk for harmful interference of authorized users and that's just not acceptable,” Rosenworcel said.

The agency proposed a $2.4 million forfeiture -- the maximum available penalty -- against pirate radio operator Fabrice Polynice for allegedly operating his station “Touche Douce” for 22 days in 2023. Polynice, like several of the alleged pirates targeted in the New York sweep, was an FCC target previously, receiving forfeiture orders in 2013 and 2018. Broadcasters have said that the higher fines allowed under the Pirate Act will motivate U.S. attorneys to pursue legal cases against pirates who don’t pay their FCC forfeitures, but the Enforcement Bureau Thursday declined to comment on whether any prosecutors are doing so. The agency also proposed fines of $358,665 each against Brindley Marshall, Wilfrid Salomon and Cameron Brown, and a penalty of $120,000 against Abdias Datis.

Orbital Debris

With applications for more than 56,000 satellites pending before the FCC, "we are going to have to care of our skies and make sure operators clean up after themselves," Rosenworcel said as the commissioners approved the orbital debris recon order, which clarifies aspects of the 2020 orbital debris order. “We’re not going to stop here,” she said, pointing to the in-space servicing, assembly and manufacturing regulatory framework on February’s agenda (see 2401250068). She said that framework includes support for technologies that can help collect and remove debris.

While voting for the orbital debris order, Simington urged the agency to apply the same orbital debris rules to U.S. and foreign-flagged satellite systems. Letting foreign-flagged operators operate subject to rules of their home countries often puts U.S.-licensed operators at a competitive disadvantage because those nations often have less-robust orbital debris rules regimes, he said. Carr said that while he has questioned the FCC's orbital debris regulatory authority, he was able to get the 2020 order to largely line up with the approaches of other agencies and Thursday's order keeps that largely in place.

While some space operators were lobbying on the agency's case-by-case orbital debris review (see 2401190043), the Space Bureau said no significant changes were made to the order.