The year 2024 was a very busy year for the telecommunications industry. There were many major issues addressed by the FCC and in some cases actions by the FCC have resulted in challenges that now must be addressed by the Courts. The following is a recap of a few of the more significant issues:
* EA-CAM – The EA-CAM support mechanism was adopted on 7/24/23 (Order) and provided a voluntary path to ACAM and Legacy Carriers to receive increased/extended support in exchange for commitments to deploy broadband at speeds of 100/20 in their service territories. The Order requires that EA-CAM support amounts and deployment obligations must be reflective of the most accurate location data from the Broadband Serviceable Location Fabric and Broadband Data Collection process depicting locations and broadband deployment at the time the EA-CAM offers were made and requires adjustments to the EA-CAM offers, if needed, to occur no later than the end of 2025. During 2024 a great deal of discussion occurred between interested parties and the FCC regarding the appropriate versions of the Fabric and BDC data that should be used for the 2025 adjustments. As a result of input from the industry it was decided that adjustments to deployment obligations and support amounts would be based on BDC availability data as of 6/23/23 for locations in the December 2023 Fabric.
Another hot topic of discussion at the FCC in 2024 was the timing of the required broadband deployment. The Order requires EA-CAM carriers to deploy broadband at speeds of 100/20 to 100% of required locations by 2028 purportedly to align the EA-CAM process with the BEAD program. In a Petition for Reconsideration (PFR), NTCA asserted that the BEAD program is not expected to require 100% deployment of broadband at 100/20 until 2030 and requested that the FCC modify the EA-CAM requirements accordingly. NTCA proposed that 100% deployment should not be required until the end of 2029 with a one-year extension where required. To date the FCC has not addressed the PFR.
In another interesting development, in August 2024, the FCC issued a Public Notice seeking comment on a filing by Arvig Enterprises and Bevcomm claiming that their EA-CAM support amounts were understated due to the incorrect classification of Midcontinent Communications (Midco) as an unsubsidized competitor in their service territories. Arvig and Bevcomm assert that Midco does not offer the required voice service anywhere where Midco offers broadband services in their service areas over its fixed wireless network and as such does not meet the definition of an unsubsidized competitor. After the Arvig/Bevcomm filing, several other RLECs have weighed in with similar allegations in multiple states. To date the FCC has not ruled on this issue.
The year 2025 will undoubtedly be another eventful year relative to EA-CAM especially regarding the potential for 2025 adjustments to the EA-CAM support offers and related deployment obligations. It’s our hope that the FCC will address the deployment timeline issue discussed above and that any proposed adjustments to EA-CAM support amounts and deployment obligations will be shared with the affected carriers well in advance of the end of 2025.
* USF Ruled Unconstitutional – In July, 2024, the U.S. Court of Appeals for the 5th Circuit issued a ruling finding that the FCC’s Universal Service Fund (USF) is unconstitutional as it is currently administered. The 5th Circuit found that contributions to the USF by telecommunications carriers and then passed on to end users constitute a tax, not a fee, and Congress impermissibly and unconstitutionally delegated its authority to the FCC to tax. Further the Court found that the FCC impermissibly delegated its authority to USAC which administers the USF. In response to the 5th Circuit’s ruling, the FCC filed a Motion to Stay the Ruling in July 2024 and the Motion for a Stay was granted in August 2024. In granting the Motion for a Stay, the Court stipulated that the Stay of its July 2024 ruling would expire on October 1. 2024 unless the FCC files an appeal with the U.S. Supreme Court on or before September 30, 2024, in which case the Stay will remain in effect until the U.S. Supreme Court renders a ruling. On September 30, 2024, the FCC filed a petition with the U.S. Supreme Court seeking review of the 5th Circuit’s ruling and on November 22, 2024 the FCC petition was granted by the U.S. Supreme Court. There is no definite date for resolution of this issue by the U.S. Supreme Court.
Given the critical importance of the USF, it is our hope that the U.S. Supreme Court will rule favorably on the FCC’s petition in 2025.
* Broadband Title II/Net Neutrality – On April 25, 2024, the FCC adopted the Open Internet Order (Order) which restores FCC regulation of broadband internet access service (BIAS) as a telecommunications service under its Title II authority. The rules adopted in the Order prevent BIAS providers from blocking traffic, slowing down content, or creating pay to play internet fast lanes. The rules also address BIAS outages, network security, internet openness, network resiliency and reliability, transparency, and consumer privacy protections. The Order, however, forbears from rate regulation, tariffing, and unbundling and BIAS providers are not required by the Order to contribute to the Universal Service Fund. Leading up to the adoption of the Order a significant level of comments were filed with the FCC by interested parties (including Republican members of Congress) in opposition to the reclassification of BIAS as a telecommunications service. Many commenters questioned the FCC’s authority to reclassify BIAS under Title II.
After the adoption of the Order, in May 2024, USTA, NCTA, CTIA, and others filed a petition with the FCC seeking a Stay of the Order. In June 2024, the FCC denied the petition. In addition to the petition for a Stay, Petitions for Review of the Order were filed in several U.S. Circuit Courts of Appeal and these Petitions for Review were consolidated at the U.S. Court of Appeals for the Sixth Circuit. The FCC filed a Motion seeking to transfer the proceedings to the D.C. Circuit Court of Appeals and that request was denied. As a result, the Petitions for Review of the Order remain with the Sixth Circuit. In July 2024, the Sixth Circuit issued a temporary Stay of the FCC’s Order and in August, 2024, the Sixth Circuit issued an Order staying the Open Internet Order pending further review and issued a schedule for oral arguments and the filing of briefs.
In the ensuing months many interested parties have filed briefs in this case. The FCC’s brief reinforced its position that BIAS is best classified as a telecommunications service, not an information service, and defended its authority to reclassify BIAS under Title II. Several other interested parties have filed Amicus Briefs in support of the FCC’ s position. Conversely several parties have filed briefs opposing the FCC’s reclassification of BIAS and questioning the FCC’s authority to do so.
As of this writing the case remains in the hands of the Sixth Circuit and the Stay of the Open Internet Order remains in effect. We’ll continue to monitor this issue as we move into 2025.
The year 2024 was a busy and eventful year. In addition to the major issues discussed above, other significant issues addressed on this site during 2024 include the demise of the Affordable Connectivity Plan, Broadband Consumer Labels, and the FCC’s Digital Discrimination Rules to name a few. The year 2025 promises to be just as busy and eventful as 2024 and we will continue to provide timely updates and report on new developments as the year unfolds.
Buckle up tight because 2025 could be a rollercoaster of a year! As always, ICORE wishes you and your families Happy Holidays and a prosperous New Year!
