Washington report: dog days of summer bring plenty of activity
August in Washington usually means both the Senate and House are in their home states and districts spending time with constituents. While that is true for the House, the Senate remained in Washington for the bulk of the month, ostensibly to get through a logjam of nominations and other work.
During this extra time, the Senate Committee on Commerce, Science and Technology held an FCC Oversight Hearing on August 16 in which all four commissioners appeared as witnesses. Democrats seemed anxious to question the chairman and commissioners on hot button issues such as: the FCC’s decision to send the Sinclair/Tribune merger to an administrative law judge and the subsequent reaction, via tweets, from President Donald Trump; the FCC’s Office of Inspector General’s report that the FCC was not the subject of a distributed denial of service attack during the commenting stage of the Restoring Internet Freedom proceeding; and, all manner of issues related to spectrum.
These lines of questioning were familiar to the commissioners as they all were recently witnesses in an FCC Oversight Hearing before the House Energy and Commerce Committee’s Subcommittee on Communications and Technology.
During the House hearing there was a lot of Republican praise of deregulatory efforts by the FCC over the past year, including: the Restoring Internet Freedom Order; BDS reform; and ease of access for pole attachments. Not surprisingly, the Democrats took the opposite tone on the deregulation, arguing that major decisions over the past year have favored large corporations over consumers and the public interest. In an interesting twist, the Democrats repeatedly raised a letter from David Redl, NTIA administrator, cautioning the FCC to make sure deregulatory efforts, such as on copper retirement, will not cause harm to national security interests.
One area there is almost always bipartisan consensus on is the need to focus on rural broadband deployment and this continued to ring true through both the Senate and House oversight hearings. Earlier this summer the House Subcommittee on Communications and Technology held a hearing and discussed some challenges and potential solutions to help with deployment. This hearing focused more on some solutions that are alternatives to a wireline approach, but some common themes to wireline remain, such as the need to ease permitting issues for infrastructure deployment and more accurate broadband mapping.
The discussion on accurate mapping carried through to the oversight hearings where it was widely agreed accurate broadband maps are needed quickly, although it was less clear how the government should go about doing it.
Additionally, Congress continues to have a keen interest in the funding being set aside for rural broadband. People are happy to see funding through the 2018 Omnibus Bill and the potential for more money through additional pending legislation, such as the Farm Bill or appropriations for the Agriculture Department or Department of Commerce. No one, of course, is complaining about additional funds proposed for rural broadband from sources other than USF. However, FCC Commissioner Michael O’Rielly, as well as the other commissioners, have repeatedly stressed the need to coordinate the disbursement of any such funds with the FCC to ensure the money truly goes to unserved areas rather than to overbuild coverage in certain areas.
USF HCF sufficiency and consistency by end of year?
There remains serious concern over the lack of sufficient and predictable funds for the USF High Cost Fund, particularly related to companies that have chosen the legacy route and been subjected to the budget control mechanism.
The sufficiency and certainty of the USF HCF was at the forefront of the Senate Oversight Hearing where Sen. John Thune (R–S.D.), chair of the committee, led with the issue in both his opening statement and his questions to the commissioners. Thune elicited a promise from FCC Chairman Ajit Pai to address both the sufficiency and certainty of the USF HCF by the end of this year and this was a promise raised by multiple senators throughout the remainder of the hearing.
This goes along with other statements and correspondence from Pai where he has noted an intention to act by the end of the year and pointed to steps the FCC has already taken: the March order providing $180 million to mitigate prior year impacts of the BCM, while also increasing funding to A-CAM carriers; and the USF RoR Reform NPRM, which would lead into the promised end of year actions, where the FCC sought comment on ways to ensure sufficient and predictable support over the long term.
Perhaps by that time there will be five sitting commissioners. In the last Washington report it was noted Geoffrey Starks would likely be nominated to replace Commissioner Mignon Clyburn. While the nomination did come to pass, his confirmation (along with a second term for Commissioner Brendan Carr) has been stuck in the aforementioned logjam of nominations, despite sailing through his hearing before the Senate Committee on Commerce, Science and Technology earlier this summer.
There remains much to learn about Starks. During his time working with the FCC’s Enforcement Bureau he dealt with waste, fraud and abuse in USF and he expects to continue those efforts on the Commission per his hearing where he expressed a desire to ensure USF is efficiently and appropriately spent. He also said he wants to: be a voice for the most vulnerable as he works to protect consumers and the public interest; promote robust broadband for all Americans through incentives to help deployments; and focus on advancing telemedicine.
All eyes this fall will be on the pending confirmation hearings for Judge Brett Kavanaugh, Trump’s nominee to replace Justice Anthony Kennedy on the Supreme Court. Those hearings are scheduled to begin on September 4, 2018. All politics of the confirmation proceeding aside, Kavanaugh has experience in telecom matters and administrative law, where he is known to be a critic of the deference courts have been giving to administrative agencies, such as the FCC, over the years. With the looming nominations and confirmations, the fall season in Washington may prove to be as hot as August.