NTCA, RWA Have FCC Network Security Draft Concerns
Concerns mounted Friday about a draft order to bar companies that may pose a national security threat to U.S. interests from having USF money paying for their equipment when used in American telecom networks. Wireless and wireline interests sought changes. Huawei, which could be subject to the ban, retorted. And a professor whose report was cited in the draft expressed some surprise at that inclusion, while defending his report from the company's criticism.
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FCC Chairman Ajit Pai's proposal in designating Huawei a covered company cites "self-published 'expert'" Donald Clarke's report, the company said in docket 18-89. "The Clarke Report provides an inaccurate analysis of Chinese law that is both misguided, and unsupported by evidence." Huawei filed what it called a rebuttal by legal expert Jihong Chen. The FCC declined to comment.
George Washington University Law School Weaver Research Professor Clarke hadn't known his report was used in the draft. "It was not intended for submission as an expert declaration in any official proceedings," he emailed us. Though he hadn't written the document specifically for this context nor been paid for it or approached by a stakeholder to write it, he sees the use as appropriate, he said later by phone.
Clarke defended his memo from criticism. "I didn’t provide citations to the legal and political science literature in support of those views because ... the memo was not intended for submission as an expert declaration," the professor emailed. "It was something I put together quickly because I was getting asked for comments by a number of people. But none of my statements about the Chinese government not being meaningfully constrained by law are especially controversial in the scholarly community. People debate about whether China is on the road to the rule of law. Virtually nobody claims it is actually there."
A Rural Wireless Association lawyer recounted sharing RWA concerns (see 1911050053) with FCC aides and staff about wording of a circulating item to ban Chinese telecom vendor equipment from networks funded by the USF (see 1910300036). NTCA's own filing posted later Friday.
"The problem with the Draft Order is the uncertainty surrounding how the FCC and the Universal Service Administrative Company will interpret the meaning of the words 'maintain' or 'support'" on USF money for a carrier’s network when audits are conducted, RWA said. The agency should "clarify its intent," the association asked in meetings with aides to Commissioners Mike O’Rielly, Jessica Rosenworcel and Geoffrey Starks and with Chief Kris Monteith and other Wireline Bureau staff.
The group wants the italicized words added: "No universal service support may be used to purchase or obtain any additional equipment or new services produced or provided by any company posing a national security threat to the integrity of communications networks or the communications supply chain." That would make "clear that an impacted USF recipient could not purchase or obtain additional equipment or new services from Huawei or ZTE, but would be able to maintain existing equipment and the services needed to keep the existing equipment operational until it can be replaced and destroyed."
NTCA welcomes the plan to pair a ban with consideration of ways to find and fund nixing such gear and services. But "to the extent that software patches, spares, or maintenance efforts are needed to ensure existing equipment remains operational, a 'prospective' ban ... would effectively become a mandate for removal and replacement of all covered equipment much sooner than any financial assistance would become available," it said. "A ban on any support or maintenance functions altogether would literally prevent operators from keeping existing service running in the event of a failure of covered equipment or natural disaster."