FCC Releases Jamming and Quadrennial Review Drafts, Other Items Set for Sept. 30 Votes

The jamming FNPRM notes the opposition of the wireless industry, which has a “distinct preference for solutions like [managed access] or detection systems, arguing that those are more effective and present less risk of interference.”

In July 2021, the FCC approved a two-phase process for authorizing interdiction systems to detect contraband devices and a “rule-based process” for disabling them (see 2107130029). Tuesday's draft says that based on the record, the agency has processed more than 1,900 leasing arrangements across 31 states authorizing the use of interdiction systems, but the problem continues to escalate.

“The use of contraband wireless devices, primarily cell phones, by inmates in correctional facilities to engage in criminal activities has been a persistent problem for decades,” the draft argues. Despite state and federal measures, “corrections officials continue to highlight contraband wireless devices as a public safety crisis and advocate for additional ways to combat the evolving methods of smuggling wireless devices into correctional facilities, which increasingly include delivery by drones.”

FCC rules must be consistent with Section 333 of the Communications Act, which prohibits willful or malicious interference with radio communications, the draft says. “We propose to deauthorize, for purposes of Commission licensing, subscriber operation of contraband wireless devices,” it says. “We also propose to leverage our existing leasing process as a preferred approach to licensing jamming solutions, thereby providing correctional officials with additional methods to address a demonstrable public safety threat.”

The FNPRM asks about the potential effects on calls to 911 if signals are jammed. It also asks technical questions about jamming, including about the power levels that should be allowed, out-of-band emissions and field strength limits and market boundaries, and how to resolve interference complaints.

In addition, the draft includes questions on the legal justification of the proposed approach. The agency believes “that a non-exclusive overlay licensing approach complies with section 333 of the Act, as the overlay licensee would be licensed to transmit under section 301 of the Act and would be permitted to cause interference to the operations of subscribers using contraband wireless devices that are no longer authorized under the wireless provider’s license.”

Broadcast Review

The FCC’s draft 2022 quadrennial review NPRM seeks comment on whether the FCC’s few remaining broadcast ownership rules “remain necessary in the public interest.” That includes limits on the number of TV and radio stations a broadcaster can own in a single market, as well as a rule barring mergers among the big four networks. The draft NPRM also seeks comment on how broadcast markets should be defined and on whether the FCC should modify the subcaps on the number of AM or FM stations a single broadcaster can own in a market. The FCC is statutorily required to complete the 2022 QR by the end of the year.

The draft NPRM pays particular attention to the 8th U.S. Circuit Court of Appeals’ recent ruling that the FCC can “loosen regulations but not tighten them” as part of a quadrennial review. The court decided that the FCC “has discretion to interpret ‘competition’ so as to serve the public interest most effectively,” and commenters should take that into consideration in their filings, the draft item says. The NPRM also asks whether there are other public interest goals, beyond competition, that the FCC should consider in reviewing the rules, such as public safety or national security. “Should we consider the continued existence of a nationwide broadcast infrastructure, and its importance for national security purposes, as a policy goal?”

On the dual network rule, the draft NPRM would seek comment on the network-affiliate model and whether “having four independently owned networks remains necessary in the public interest to preserve or promote localism.” FCC Chairman Brendan Carr has targeted ABC, NBC and CBS for investigations and been vocal about boosting local affiliate stations. “What, if any, recent marketplace developments argue in favor of preserving or altering the Dual Network Rule as a necessary check on the ability of Big Four networks to exercise undue power over their affiliates in a way that harms consumers?” the draft asks.

Cutting Red Tape

A wireless siting NPRM addresses a remand last year from the 9th U.S. Circuit Court of Appeals invalidating the FCC’s definition of “qualifying concealment element” in a declaratory ruling approved in June 2020 under former Chairman Ajit Pai (see 2409130056).

In response to the remand, “we seek to clarify the meaning of ‘concealment elements,’ which are used by builders to minimize the visual impact of towers and other wireless infrastructure, and to codify these clarifications” in commission rules, the draft says. It also seeks comment on other changes the FCC could make related to siting conditions “to further streamline wireless permitting proceedings and facilitate the rapid buildout of wireless infrastructure.”

The FCC recognizes “that some state and local governments have taken important steps to modernize their approach to siting requests,” the wireless draft says. “However, in recent years, a number of state and local regulations have inhibited the deployment, densification, and upgrading of wireless networks, resulting in an effective prohibition of 5G wireless services.”

Also on the agenda is a wireline infrastructure notice of inquiry that looks at whether Section 253 of the Communications Act lets the FCC put limits on how long states and local governments take to process applications for access to public rights-of-way and what states and localities charge in fees for that access.

The draft NOI asks about delays that providers run into when seeking to access and use local and state rights-of-way for wireline telecommunications services, as well as the related fees and in-kind services. It says the docket 25-253 proceeding is particularly focused on whether the commission should look at Section 253 of the Communications Act -- which involves preempting state and local laws that serve as barriers to entry for telecom services -- as requiring state and local governments to process applications for accessing and using public rights-of-way in a timely manner and to limit their fees.

The NOI notes that the FCC has determined that frequent, lengthy delays of months or years for permits and applications violate Section 253, but it hasn't addressed at what point delays effectively prohibit telecom service provision. The draft seeks comment on whether the agency should establish time limits for state and local governments to negotiate, review, process and issue right-of-way agreements and permits needed to access and use public rights-of-way for wireline projects.

'Delete'

The draft "Delete" item proposes to repeal 387 wireline rules using the FCC’s new direct final rule process. The targeted rules “plainly no longer serve the public interest because they regulate obsolete technology, are no longer used in practice by the FCC or licensees, or are otherwise outdated or unnecessary,” says an FCC fact sheet on the item. Under the item, entities objecting to the rule deletions would have 20 days to file “significant adverse comments,” or the deletions will automatically take place.

Similar to previous direct final rule items, the draft doesn’t spell out the text of the targeted rules or detail the rationale for eliminating them. Instead, statute citations are listed all together in large, multipage footnotes, with a very brief explanation, such as “(exemption for small entities expired in 2013).” FCC Commissioner Anna Gomez has dissented from previous DFR items citing objections to the process.