On June 5, the Federal Communications Commission (FCC) released a tentative agenda for its next Open Meeting, which is scheduled to take place on Thursday, June 26 at 10:30 AM ET. This release occurred a day before Commissioners Simington and Starks stepped down from their roles at the FCC, leaving the Commission with only two sitting commissioners—Chairman Carr and Commissioner Gomez. A quorum of three commissioners is required in order for the FCC to conduct Commission-level business. While the Commission will be able to continue with bureau-level proceedings, the lack of quorum raises legal and practical questions about the Commission’s ability to adopt new rules, such as the rules contained in the two draft Report and Orders below. Quorum, however, can be regained if Congress can confirm President Trump’s nominee, Olivia Trusty, as a new Republican Commissioner prior to the June Open Meeting. Recognizing this, on June 12, Senate Majority Leader Thune filed a “notice of cloture” that will allow the Senate to debate, and then vote, on Trusty’s nomination by the end of next week. Trusty’s appointment would allow the Commission to act on three items that are expected to be considered at the Open Meeting, which are detailed below:
1. Removing Obsolete and Unworkable Cable Television Rate Rules Report and Order (MB Docket No. 02-144; MM Docket Nos. 92-266, 93-215; CS Docket No. 94-28): In an effort to further the policies outlined by President Trump’s Executive Orders 14192 and 14219 as well as the Commission’s goals in its Delete, Delete, Delete proceeding, this draft Report and Order (R&O) seeks to adopt rules that would streamline the Commission’s Part 76 cable television rate regulations. Pursuant to Section 623 of the Communications Act of 1934, the Commission is required to, among other things, implement rules that ensure that rates charged for the most basic tier of cable service (BST), which must include broadcast signals and any public, educational or government access channels, are reasonable. In 1992, the Commission adopted such rate regulation rules; however, since then many of the Commission’s rules governing cable rate regulation have been rendered obsolete or unworkable due to the sunset of cable programming service tier (CPST) rate regulation and the passage of time. In 2018, the Commission adopted a Further Notice of Proposed Rulemaking (FNPRM) seeking comment on certain proposals that would reduce the administrative burdens on the cable industry, franchising authorities, and the Commission.
This R&O, if adopted, would implement the changes proposed in the FNPRM by: (1) eliminating unnecessary forms and rules; (2) deregulating cable equipment that is not exclusively used to receive the BST; (3) deregulating small cable systems serving 15,000 or fewer subscribers that are owned by small cable companies serving 400,000 or fewer subscribers; (4) declining to extend rate regulation to commercial establishments; (5) modifying Sections 76.980 and 76.984 of the Commission’s rules to acknowledge the sunset of CPST regulation; (6) revising and simplifying the process for cable operators to establish an initial regulated rate after becoming subject to regulation; (7) modifying and simplifying the inter-tier channel movement rules to account for the sunset of CPST regulation; and (8) clarifying the instructions for calculating interest in Module H of Form 1240.
2. Streamlining the Engineering Review for Broadband Data Collection (WC Docket Nos. 19-195, 11-10): This draft item would have the Commission vote on a Fifth R&O that would eliminate the professional engineer certification requirement for the biannual Broadband Data Collection (BDC) filings and instead allow the biannual filings to be certified by a qualified engineer. At present, and consistent with the Broadband Deployment Accuracy and Technological Availability Act, the Commission requires providers to have a corporate officer and either a corporate engineering officer or certified professional engineer to certify the filings made by fixed broadband service providers to report broadband availability on a location-by-location basis and by mobile wireless broadband service providers to report their coverage areas using standardized propagation modeling parameters. However, due to concerns about the unavailability of professional engineers and the unnecessary costs and other burdens the requirements places on filers, the draft R&O would amend Section 1.7004(d) of the Commission’s rules to eliminate the requirement that an engineering certification, to the extent not submitted by a corporate engineering officer, must be submitted by a certified professional engineer and instead require certification by a “qualified engineer.” The R&O also clarifies that a certifying engineer does not necessarily need to be a full-time employee of the broadband service provider but instead could be an independent contractor or third-party consultant. The Commission states that these changes, if adopted, will “alleviate unnecessary regulatory burdens on broadband internet access service providers
3. Modernizing TTY Rules for Individuals with Hearing and Speech Disabilities Notice of Proposed Rulemaking (CG Docket No. 03-123, RM-11931): This draft Notice of Proposed Rulemaking (NPRM) proposes to delete the requirement that traditional, TTY-based telecommunications relay services (TRS) be capable of communicating in ASCII format. The Commission explains that when the initial rules for TRS were being adopted, the ASCII format was widely used to transmit data and text between personal computers over the telephone network. However, today, almost all TTY conversation is transmitted in Baudot. The Commission thus proposes to remove the ASCII requirement stating that doing so will reduce costs, eliminate an outdated regulatory requirement, and update the Commission’s standards for TTY-based TRS to be more consistent with current usage of this relay service. The Commission also tentatively concludes that the ASCII requirement no longer serves the objective of Title IV of the Americans with Disabilities Act of 1990, codified at Section 225 of the Communications Act, which is to make TRS available to the extent possible, and in the most efficient manner.
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