FCC Wraps Up 2020 with December Meeting Focusing on Supply Chain Security and Equipment Marketing

Kelley Drye & Warren LLP

The FCC released the agenda for its December Open Meeting, scheduled for December 10, 2020 on November 19, 2020, but the agency has made several changes since. The last meeting of the year will lead with a Report and Order on securing the communications supply chain that would require Eligible Telecommunications Carriers (“ETCs”) receiving federal universal service funding to remove and replace equipment and services identified as a risk to national security from their networks. The supply chain rulemaking would establish procedures and requirements for affected providers to seek reimbursement of their removal and replacement costs. The Commission will also consider a Notice of Proposed Rulemaking (“NPRM”) that would propose to modernize the marketing and importation rules for regulated equipment. Additionally, the December meeting will include an Order that would amend the invoice filing deadline rule for the E-Rate Program, which supports communications services for schools and libraries, and an Order on Reconsideration clarifying the agency’s interpretation of the Telephone Consumer Protection Act (“TCPA”), although the draft texts of these two items have not been released.

The December meeting may be the first attended by recently-confirmed Republican FCC Commissioner Nathan Simington, who will replace outgoing Commissioner Michael O’Rielly after today’s confirmation vote in the U.S. Senate. In addition, Chairman Pai recently announced that he intends to leave the FCC on Inauguration Day, January 20, 2021. As a result, the January 2021 FCC open meeting will be his last meeting before the change in administration.

You will find more details about the most significant items on the December meeting agenda after the break.

Securing the Communications Supply Chain – The draft Report and Order would require ETCs receiving Universal Service Fund support to remove and replace covered equipment and services posing a national security risk from their networks. It would also establish a reimbursement program to subsidize smaller carriers to remove and replace covered equipment, specifically those providers with two million or fewer customers, once Congress appropriates the estimated $1.6 billion needed to reimburse eligible providers for such costs. The draft Order would establish the procedures and criteria for publishing a list of covered communications equipment or services, and would adopt a reporting requirement for all providers of advanced communications services to annually report on covered equipment and services in their networks.

Modernizing Equipment Marketing and Importation Rules – The draft NPRM would propose updates to the Commission’s marketing and importation rules under its equipment authorization program. The proposed rules would permit, prior to equipment authorization, conditional sales of radiofrequency devices to consumers under certain circumstances. The NPRM also would propose to allow a limited number of radiofrequency devices subject to Certification to be imported into the U.S. prior to equipment authorization for certain pre-sale activities, including packaging and shipping devices, and loading devices with specific software.

TCPA Order on Reconsideration – The draft Order on Reconsideration would clarify the Commission’s previous interpretation of the TCPA that permitted government and government contractor calls without consumers’ prior express consent. The draft item would address long-standing questions regarding a 2016 Declaratory Ruling that first set guardrails on the government and government contractor exemption. The draft text of this item has not been publicly released.

Modernizing the E-Rate Program – The draft Order would amend the E-Rate invoice filing deadline rule to ensure program participants have sufficient time to complete the invoice payment process. Specifically, the Order would address situations where USAC issues a revised E-Rate funding commitment letter, in which case the FCC will allow recipients additional time to complete the work identified in the revised funding commitment. The draft text of this item has not been publicly released.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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