On February 26th, Representatives August Pfluger (R-TX) and Josh Gottheimer (D-N.J.) introduced legislation to increase transparency and accountability in the FCC’s review of spectrum license transfers. The legislation is especially appropriate because the FCC is currently going through two regulatory processes to speed the state and local permitting process for wired and wireless deployments, respectively. Shortening regulatory delays has lately attracted more attention as a way to increase the deployment of broadband networks. Its importance can be seen by the push to use nondeployment funds in the Broadband Equity, Access, and Deployment Program to improve the permitting process.
The Keep it Moving Act (H.R. 7742) makes two major changes. First, it would impose strict time limits on the FCC’s license transfer review process. Second, it would require a full Commission vote to deny any application, ensuring licensing decisions are driven by the views of the Commission rather than its staff.
Under the bill a new Section 417 of the Communications Act of 1934 would place time limits on the Commission’s consideration of applications to transfer control or assignment of any license or lease subject to the jurisdiction of the FCC.
Under the Act, within 15 days of receiving an application the FCC must either tell the applicant that the application is complete or provide the information needed to make it complete. If the applicant submits an amended application, the FCC has five days to determine whether it is complete. If the Commission misses the deadline, the application is deemed to be complete.
Once the application is completed, the FCC has 7 days to issue a public notice and invite public comment, if appropriate. The decision that an application is incomplete is considered an appealable decision under the FCC rules. If it is decided that the application was complete, the application is deemed to have been complete 15 days after it was submitted or, if the application was amended, 5 days after the last amendment.
The Act requires the Commission to approve an application within 180 days after the public notice. This does not apply if the FCC issues a formal request for additional information or refers the application to the Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector, in which case the deadline is extended to one year. In the latter case, the Commission may take an additional 90 days to conduct a secondary assessment. If more information is needed for review, the Commission must issue a request by the earlier of 1) 30 days after the end of the public comment period if there was one or b) 120 days after the public notice date. If the Commission decides that a substantial and material question of fact requires a hearing, it then has 15 months from the date of the public notice to issue a final order on the application.
If the FCC does not approve the application within the relevant time period, the applicant may obtain a writ from the appropriate court compelling the Commission to either approve the application or requiring it to justify its denial in court. In the latter case, the FCC must show by clear and convincing evidence that approval of the application is not in the public interest. If an applicant files a major amendment or waiver request with respect to its application, the Commission may extend its deadline by 30 days.
Applications that are currently pending before the FCC are treated as if the application was filed on the date of enactment for purposes of determining deadlines under the Act. These time requirements do not apply to pro forma transactions that do not require Commission approval in advance of the proposed transfer of control. However, the holder of the pro forma license or other authorization must notify the Commission of the transfer within 30 days of its completion.
The Act also requires more involvement on the part of the Commission itself. While the FCC staff may still approve applications pursuant to existing delegations of authority, denying an application or designating it for a hearing will require a Commission vote.
The legislation should provide much more clarity to license reviews, making it easier and faster to get spectrum into the hands that can use it best. Several industry groups, including the Internet & Television Association, CTIA, and the National Association of Broadcasters released statements praising the bill and predicting that it would increase both innovation and deployment of broadband networks.
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