Federal Communications Law and Policy: What to Expect in 2022

by Nancy Werner, General Counsel, NATOA

After years of frenzied federal activity in the communications space, particularly by the Federal Communications Commission, 2021 was a relatively slow year for local governments in terms of battling proposals that would harm community interests and PEG access operations.  On the flip side, this reprieve also meant that little has been done to curb the harmful impacts of past laws and decisions.  So, what will 2022 bring? 

For the immediate future, the answer likely is more gridlock on several local government priorities.  The five-member FCC has been stuck at four Commissioners for a year.  As we await Senate confirmation of Gigi Sohn, President Biden’s nominee for the open Commission seat, the current 2-2 split of Democrats and Republicans on the Commission likely means that Chairwoman Rosenworcel will not have the votes to revisit Commission decisions that were most harmful to local interests, including decisions she opposed as a Commissioner such as the “Section 621 Order” that impacts cable franchise fees and PEG operations.

But there is hope for change.  With respect to the Section 621 Order, last fall a coalition of local governments, including NATOA, asked the Supreme Court to review the Sixth Circuit’s decision upholding portions of the Order.  If the Supreme Court agrees, we could see further judicial undoing of portions of the Order.  Even if the Court does not take the case, the FCC must revise the portion of its rules the Circuit court struck down, which may provide an opportunity to revisit portions of the Order.

Another reason for hope is that Senator Markey and Representative Eshoo have reintroduced the Protecting Community Television Act (S. 3361) (H.R. 6219).  This bill would amend the Cable Act to clarify that franchise fees do not include “in-kind” franchise obligations, essentially undoing the FCC’s misinterpretation of the term “franchise fees” in the Section 621 Order.  Representatives Payne and Watson Colman are cosponsors of the House bill, but as of early January, no other New Jersey members of Congress are cosponsors.  So, your homework assignment for the month is to get the rest of the delegation on board as cosponsors!

While the lack of movement on cable franchise fees and other key issues in 2021 was a disappointment, there were some truly remarkable changes that will continue into 2022.  The federal funds dedicated to closing the digital divide have the potential to bring broadband to historically un- and underserved communities, improving the quality of life for many Americans.  The FCC continues to implement broadband affordability programs established by Congress, including the new Affordable Connectivity Program established in the Infrastructure Investment and Jobs Act (IIJA).  (Homework assignment number two: Help spread the word about these subsidies using information provided in the ACP Outreach Toolkit.)

This year will also bring an unprecedented investment in broadband through grant programs established in the IIJA.  The largest program is the Broadband Equity, Access, and Deployment (BEAD) Program, which appropriates $42.45 billion for states and territories to utilize for broadband deployment, mapping, and adoption projects. This program will be administered by the National Telecommunications and Information Administration (NTIA), which is currently working on a Notice of Funding Opportunity that will provide more details on the program.  Stay tuned! There will, of course, be many unforeseen challenges that come up at the FCC and in Congress in 2022.  NATOA’s mission is to provide our members and Chapters the education, connection and resources needed to respond to these challenges.  We will continue this work, and our advocacy on behalf of local governments and access channels.  Keep up the great work you do every day, and we hope to see you at NATOA’s Annual Conference from August 30-September 1, in Denver, Colorado.