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Reading the Tea Leaves on Some Timely Topics in Telecom Law in 2022


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The new year is upon us. I hope that this one brings us way closer to what we knew as normal — politics aside. Like each new year, I hope that you’ll join me in looking to 2022 with optimism and hope. When it comes to communications regulations, I don’t know anyone who doesn’t look forward to seeing an end to pesky unsolicited robocalls offering extended car warranties or other mostly worthless goods and services. I also believe that there’s a real hope that new funding for widespread broadband deployment is here, and now it’s simply a question of spending the money and building the required infrastructure. With recent FCC changes, we have reason to be optimistic on these fronts and others.
With the successful nomination of Jessica Rosenworcel as FCC commissioner, and Democrat and fierce consumer advocate Gigi Sohn expected to be confirmed as the fifth commissioner, the FCC might be ready to flex its regulatory muscle in some not unexpected but slightly modified ways in the new year. Specifically, the FCC has already taken significant and dramatic steps to enforce existing robocall rules. In addition, the issue of Net Neutrality is very likely to re-emerge as an important policy achievement. In addition, we might see revisions to the Universal Service Fund (USF) assessment methodology, which collects funds from carriers and their customers and allocates them for subsidies for broadband and other services delivered to schools and libraries, rural health care entities, lifeline service and the provision of service at reasonable cost (whatever that means) to high-cost areas of the country.
It is fair to assume that the pointlessly politicized issue of Net Neutrality will return, to be acted upon with new vigor and intensity, particularly as another wave of COVID hits the globe. People who have limited — if any — broadband access are once again behind the eight ball. Finally, for all sorts of good reasons, the entire mechanism of the USF, from the assessment to the allocation of collected fees is already under thoughtful review with revisions anticipated during the current administration.
Robocall Enforcement
Few people enjoy receiving robocalls. Free speech advocates aside, unsolicited and annoying calls coming at (always) inopportune moments are the reason that people often don’t pick up important calls because the calling number shown isn’t familiar. This is an issue that the FCC has tried to tackle from several different directions, and with some — although not overwhelming — success.
But recent activities, including first the implementation of the STIR/SHAKEN rules for large providers combined with the recent decision to speed up the compliance date for smaller providers for verifying the accuracy of caller id information, are an indicator of how seriously the FCC is taking the issue. Robocallers that opt to disregard the FCC’s compliance obligations should expect to face some steep fines. Earlier this year, a company that sent out close to one billion robocalls received a record $225 million fine. Other 2021 FCC actions, including the creation of a Robocall Response Team and a public outreach to Federal Trade Commission, U.S. Department of Justice, and National Association of State Attorneys General representatives, were designed to combat the widespread battle against those entities — both domestic and foreign — who generate and transmit unsolicited robocalls.
Collectively, these actions, with more to come, may provide sufficient incentive for bad actors to stop acting badly. I know it might be wishful thinking, but after all, it is the holiday season, and as such, hope springs eternal. If hope isn’t enough, take comfort that a fierce anti-robocall advocate now sits in the chairman’s seat, and she — along with other commissioners — are ready, willing, able, and perhaps even looking forward to enforcing the rules with a vengeance.
The Return of Net Neutrality
As you drive by libraries, know that when all else fails, these institutions and numerous other commercial, educational, and governmental entities are doing their part to provide Internet access to the underserved 24/7. With this in mind, the recently passed infrastructure program will be investing $1,041,074,000 over 10 years in its fifth round of funding for new broadband deployments through the Rural Digital Opportunity Fund. This allocation represents the largest funding wave yet, with 69 broadband providers committing to deliver broadband service to 518,088 locations in 32 states, according to the FCC’s recently released document.
By the way, if you’ve noticed that your email is coming in clumps these days instead of one email at a time, that’s likely because your Internet service provider is throttling your email. While most of us can only read one email at a time anyway, it doesn’t make the throttling any less annoying. Email throttling, paid prioritization of traffic, and content blocking and restriction remain legal since the previous administration opted to rescind the Net Neutrality rules put in place under the Obama Administration. Having lost power and Internet access for 36 hours last week, I know from firsthand experience how challenging it is to be without the Internet for a brief period of time. Imagine trying to do schoolwork or work-work without reliable access at all. Net Neutrality needs to be recognized once and for all for what it has become — a utility!
USF Reform
In mid-December, the FCC announced that the proposed first quarter contribution factor for the USF would be 25.2%. The latest announcement reflects a potentially substantial decrease over the past four quarters (31.8% for Q1 2021, 33.4% for Q2 2021, 31.8% for Q3 2021, and 29.1% for Q4 2021). The USF has nonetheless placed the burden of supporting worthy programs on some but not all providers and ultimately consumers. Some consumers end up paying for the underlying technology itself, including Internet access and voice traffic, which means they can pay up to an extra 50% beyond the price quoted to cover a myriad of taxes, surcharges, and fees. Adding insult to injury, these surcharges and fees are subject to sales tax.
The Reforming Broadband Connectivity Act of 2021 — which may break a record for being one of the shortest bills ever at three pages — was introduced by Senator Amy Klobuchar and John Thune. The bill directs the FCC to assess the necessity of expanding the USF contribution base (see above) and requests that the FCC consider how funding mechanism changes would impact consumers. The bill has been referred to committee (Senate Committee on Commerce, Science and Transportation) for review, and while it may never see the light of day, the fact that it has been sponsored across the aisle and thus should have bipartisan support provides some opportunity for optimism.
And on this optimistic note, I want to end the year with best wishes for all, but particularly for those who read these posts through to the end! Happy 2022!