Telecom Alert: AT&T Forfeiture Order Vacated; PNT Notice of Inquiry Comments; E-Rate Program Suspensions; Permitting Executive Order; Undersea Cable Review NPRM Comments [Volume XXII, Issue 16]

Fifth Circuit Vacates AT&T Forfeiture Order

Last Friday, the Fifth Circuit vacated the FCC’s Forfeiture Order which fined AT&T over $57 million for violations of Section 222 of the Communications Act regarding unauthorized disclosures of customer location data to third parties. In vacating the order, the Fifth Circuit relied on Supreme Court precedent in SEC v. Jarkesy, which curtailed agency enforcement actions when there was a common law analogue, requiring the right to a jury trial under the Seventh Amendment. Here, the Court found that the FCC’s enforcement of Section 222 was closely analogous to common law negligence, and therefore required treatment by an Article III Court and a jury rather than an agency action. The Court also rejected the FCC’s “public rights” exception, finding that common carrier regulations, including Section 222, are “deeply rooted in common law” and not historically subject to Article III exceptions, such as patents or foreign commerce. For more information, please contact Casey Lide (lide@khlaw.com; 202.434.4186) or Sean Stokes (stokes@khlaw.com; 410.458.1342). 

Commentors Respond to FCC’s NOI on PNT Alternatives

Last month, the FCC released a Notice of Inquiry (NOI) to build a record on developing complementary and alternative PNT technologies to the current Global Positioning System (GPS) to bolster economic and national security. The NOI seeks comment on previously proposed solutions, including space-based PNT systems and terrestrial-based stations, as well as new alternatives using existing RF spectrum. Public television stations and broadcasters, such as America’s Public Television Stations (ATPS) submitted comments in support of datacasting technology via ATSC 3.0 for public safety services as a viable complement to GPS. Other commentors support launching satellites to provide highly elliptical orbit (HEO) solutions to provide cost-effective, space based PNT systems, which use less units than low earth orbit (LEO) constellations. These proposals come in addition to NextNav’s pending petition to reconfigure the lower 900 MHz band to build a secondary PNT network. Comments on the NOI are due by April 28, 2025, and reply comments are due by May 13, 2025. For more information, please contact Wes Wright (wright@khlaw.com; 202.434.4239) or Tim Doughty (doughty@khlaw.com; 202-434-4271).

FCC Suspends Seven Individuals From E-Rate Program

The FCC issued seven notices of suspension to individuals in response to convictions of defrauding the E-Rate program, which provides federal universe service support to schools and libraries. Suspension from the program prohibits these individuals from participating or receiving any benefit associated with the E-rate program. The notices informed each individual that debarment proceedings would commence to prevent the individual from any future participation in the program, for up to three years. Each individual is permitted to contest the proposed debarment within thirty days of their respective notices. For more information, please contact Casey Lide (lide@khlaw.com; 202.434.4186) or Sean Stokes (stokes@khlaw.com; 410.458.1342).

President Signs Permitting Executive Order

President Trump signed an Executive Order (EO) directing federal agencies to implement modern technological solutions when conducting environmental reviews and evaluating the issuance of permits for infrastructure projects. Specifically, the EO directs the Council on Environmental Quality (CEQ) and National Energy Dominance Council (NEDC) to develop guides for agencies to shift to digital permitting and adopt automation throughout all permitting schedules. While the EO did not provide details on how specific agencies should carry out decision-making, the Trump Administration is building upon a previous EO ordering the rescission of ineffective NEPA regulations. For more information, please contact Wes Wright (wright@khlaw.com; 202.434.4239) or Tim Doughty (doughty@khlaw.com; 202-434-4271).

Undersea Cable Review NPRM Faces Industry Opposition

Last year, the FCC launched a comprehensive review of the undersea cable licensing rules, which had not been formally reviewed since 2001. The Notice of Proposed Rulemaking (NPRM) proposed categorical periodic reporting requirements for licensees and shortening the current 25-year license term, as well as new application requirements in the interest of national security. Commentors have requested clarity on the necessity of cybersecurity disclosures in the revised applications, including proposals to disclose exact locations of cable landing stations citing risks of sabotage. Commentors have also raised concerns on how additional reporting requirements would coincide with inter-agency cooperation with NIST, as well as streamlining unnecessary regulations under the FCC’s “Delete-Delete-Delete” initiative. For more information, please contact Wes Wright (wright@khlaw.com; 202.434.4239) or Tim Doughty (doughty@khlaw.com; 202-434-4271).

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