By Kelcee Griffis

Law360 (August 12, 2020, 7:55 PM EDT) -- Lobbyists brought the heat to the Federal Communications Commission this summer, weighing in on a crackdown against Chinese network equipment, cable infrastructure and access fees, coronavirus relief, and challenges to the rollback of Obama-era net neutrality regulations.

According to nine weeks of FCC records, attorneys submitted a total of 480 ex parte filings, which are disclosures that parties lobbying the agency must file to detail conversations and meetings with commissioners and staff.

Here's a look at the top groups that lobbied the FCC from June 1 through July 31 and a sampling of what they discussed.

USTelecom

Wireline trade group USTelecom tied for busiest lobbyist during the month of July, filing 13 ex partes, some of which urged the commission to shoot down a challenge to its reversal of net neutrality regulations and clarify terms of a crackdown on network equipment made by Chinese companies.

In a July 30 letter, USTelecom outlined arguments to rebuff advocacy groups' request that the FCC apply precedent obligating it to launch an entirely new rulemaking in response to the D.C. Circuit's limited remand of the case over net neutrality rules. 

On July 1, groups including Public Knowledge and Common Cause told the agency it must freshly explore the entire issue of deregulating consumer network protections instead of following up on its past work.

However, USTelecom said the groups are misapplying the recent Supreme Court precedent, known as DHS v. Regents, in a "deliberate attempt to manufacture new procedural requirements." The precedent does not impose any new requirements on the FCC's net neutrality proceeding, the trade group argued.

"By issuing a public notice that sought public comment on all of the points addressed in the remand and collecting that public comment, the commission has more than 'compl[ied] with the procedural requirements for new agency action' that apply here," USTelecom wrote.

The group also said it's trying to suss out the "interplay" between a May survey the FCC required carriers to complete and a law barring U.S. telecoms from working with Chinese tech companies.

The FCC is overseeing aspects of the law, known as the Secure and Trusted Communications Act, which include maintaining a roster of blacklisted entities that may not benefit from federal subsidies and ensuring the equipment reimbursement program doesn't fall victim to fraud.

USTelecom suggested that the FCC solicit more input on how information that carriers have already been sharing with the commission might overlap with new national security disclosures required under the law.

"Including this line of questioning will allow the commission to develop the appropriate fulsome record on this important topic," the group said.

NCTA

Cable and internet advocacy group NCTA tied with USTelecom for most active lobbyist in July, also logging 13 filings that touched on sharing infrastructure costs and reducing regulatory burdens on cable companies.

On July 20, NCTA asked the FCC to make a determination that owners of utility poles in areas without internet access must share the cost of replacing the poles when they're damaged, saying it is unreasonable for telecommunications companies to bear the full cost.

"The cost of replacing utility poles, and delays by some pole owners in processing applications and conducting pole replacements, pose significant obstacles to the extension of broadband networks to unserved areas," the group wrote, noting that "the commission's existing regulations require all parties who benefit from a modification of a pole owner's facilities to share proportionately in the cost of the modification."

It would only make sense to extend that approach to utilities and the broadband companies that rent infrastructure space from them, NCTA said.

The group also asked the FCC to relax the leased-access regime, which requires cable operators to reserve channel capacity for independent programmers that wish to lease a spot in the lineups.

"The leased-access regime imposes costs on cable operators whether or not they receive requests for carriage, as operators must maintain network infrastructure and train employees in the event a leased access programmer ever seeks carriage," NCTA said.

It also argued that the underpinning purpose for maintaining a leased-access regime — providing startup programmers with an outlet — is rapidly being replaced by easily accessible online platforms.

"The constitutional foundation for the leased-access regime is in substantial doubt in light of marketplace changes that have eroded the original justification for leased access," NCTA wrote.

The FCC ultimately voted to approve new rules to give cable operators more flexibility in setting the rates they charge independent programmers, based on the underlying assumption the leased-access regime may become outdated due to the competition offered by broadband platforms. Democratic commissioner Geoffrey Starks said he disagreed with this assessment.

WTA

Rural broadband advocacy group WTA topped the charts as the most active lobbyist in June, filing 10 ex partes asking for a break on making regulatory contributions to the FCC's Universal Service Fund, given the strain rural broadband companies are facing amid the coronavirus pandemic.

According to WTA, many of its members have offered free service installations, suspended billing requirements and provided economically hard-hit customers with other grace periods. However, WTA said these gestures of goodwill are making it increasingly difficult for providers to serve their customers, much less make required USF contributions, which fund rural and low-income internet access initiatives.

Providers "have gone to extraordinary lengths and expense to meet the broadband needs of their service areas during this unprecedented worldwide crisis and are suffering substantial and increasing financial hardships as they continue to serve more and more of their customers who are becoming unable to pay their monthly service bills," the group said.

If the FCC gives WTA's members the requested break, the fund would be short by about $36 million, which WTA said amounts to less than one-half of 1 percent of the USF's annual budget.

--Additional reporting by Nadia Dreid. Editing by Philip Shea.

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