Acting Chairwoman Jessica Rosenworcel has announced that at its next monthly public meeting on June 17, the Federal Communications Commission (“FCC”) will kick off a process to change its equipment authorization rules and competitive bidding procedures to address national security threats.

The draft Notice of Proposed Rulemaking (“NPRM”), released Thursday, proposes changes to the FCC’s rules on equipment authorization that could restrict and revoke the authorization of devices determined to pose a threat to national security—effectively banning them from the U.S. marketplace.  The NPRM also proposes updates that would effectively require parties bidding for spectrum licenses or FCC broadband funding to certify that they will not rely on financial support from entities designated by the FCC as a national security threat.

The FCC, Congress, and the Executive Branch each have adopted strategies designed to protect the supply chain for communications equipment and services from national security threats in recent years.  For example, over the past couple years the FCC has taken steps to prevent recipients of Universal Service Fund (USF) funding (e.g., for building and sustaining broadband networks in rural areas) from using these funds to purchase any equipment or services from suppliers deemed to pose an unacceptable risk to national security or the security and safety of U.S. persons (the “Covered List”).  The current version of the Covered List can be found here.

The NPRM seeks comment on actions that the FCC can take in its equipment authorization program, which currently considers the radiofrequency emissions capability of equipment, to reduce threats to the country’s communications system by equipment included on the Covered List.  Specifically, the NPRM proposes revising Part 2 of the FCC’s equipment authorization rules and procedures to prohibit authorization of “covered” equipment and revoke existing equipment authorizations of “covered” equipment.  This action would represent a substantial expansion of the FCC’s role in national security, enabling the agency to effectively bar certain foreign manufacturers from selling devices and equipment in the U.S. market—regardless of whether the manufacturer relies on U.S. government funding.

The NPRM also requests comment on whether parties that seek to bid for spectrum licenses or broadband funding in the FCC’s “competitive bidding” process should be required to certify that their bids do not, and will not, depend on the financial support of an entity that the FCC has designated as a national security threat to the integrity of the communications networks or supply chain.  The NPRM asks commenters to consider whether such support could influence the applicant or impact auction outcomes in ways that pose risks to national security.

The FCC also released a draft Notice of Inquiry (“NOI”) requesting comment on how it can use its equipment authorization program to incentivize manufacturers who are building devices that will connect to U.S. networks to consider cybersecurity standards and guidelines.  In particular, the FCC seeks comment on whether it should encourage manufacturers of Internet of Things (IoT) devices to follow the guidance of the NIST IoT Report as a standard.  The NOI would not directly lead to new rules, but it could generate ideas that would inform a future, formal rule proposal in this area.  Given that any such future rules would apply to all device manufacturers and not just those developed by parties deemed to pose a security threat, the adoption of the NOI in June would be a notable step.

The FCC will vote on the draft NPRM and NOI at its June 2021 open meeting.

Photo of Matthew DelNero Matthew DelNero

Matt DelNero provides expert regulatory counsel to companies of all sizes in the telecommunications, technology and media sectors. As a former senior official with the FCC and longtime private practitioner, Matt helps clients achieve their goals and navigate complex regulatory and public policy…

Matt DelNero provides expert regulatory counsel to companies of all sizes in the telecommunications, technology and media sectors. As a former senior official with the FCC and longtime private practitioner, Matt helps clients achieve their goals and navigate complex regulatory and public policy challenges.

Matt serves as co-chair of Covington’s Technology & Communications Regulation (“TechComm”) Practice Group and co-chair of the firm’s Diversity & Inclusion initiative.

Matt advises clients on the full range of issues impacting telecommunications, technology and media providers today, including:

  • Structuring and securing FCC and other regulatory approvals for media and telecommunications transactions.
  • Conducting regulatory due diligence for transactions in the telecommunications, media, and technology sectors.
  • Obtaining approval for foreign investment in broadcasters and telecommunications providers.
  • Universal Service Fund (USF) programs, including the FCC’s Rural Digital Opportunities Fund (RDOF).
  • FCC enforcement actions and inquiries.
  • Online video accessibility, including under the Communications and Video Accessibility Act (CVAA) and Americans with Disabilities Act (ADA).
  • Equipment authorizations for IoT and other devices.
  • Spectrum policy and auctions, including for 5G.
  • Privacy and data protection, with a focus on telecommunications and broadband providers.

Matt also maintains an active pro bono practice representing LGBTQ+ asylum seekers, as well as veterans petitioning for discharge upgrades—including discharges under ‘Don’t Ask, Don’t Tell’ and predecessor policies that targeted LGBTQ+ servicemembers.

Prior to rejoining Covington in January 2017, Matt served as Chief of the FCC’s Wireline Competition Bureau. He played a leading role in development of policies around net neutrality, broadband privacy, and broadband deployment and affordability under the federal Universal Service Fund (USF).

Chambers USA has recognized Matt as a “go-to attorney for complex matters before the FCC and other federal agencies, drawing on impressive former government experience.”

Photo of Madeline Salinas Madeline Salinas

Madeline Salinas counsels national and multinational companies across industries on data privacy, content moderation, and advertising issues.

Madeline advises clients on compliance with federal and state privacy frameworks, and counsels clients on navigating the rapidly evolving legal landscape. She regularly assists clients in…

Madeline Salinas counsels national and multinational companies across industries on data privacy, content moderation, and advertising issues.

Madeline advises clients on compliance with federal and state privacy frameworks, and counsels clients on navigating the rapidly evolving legal landscape. She regularly assists clients in designing cutting-edge products and services, developing privacy notices and consent forms, strategically engaging with state legislatures, and participating in rulemaking proceedings of state and federal agencies. In particular, Madeline has experience advising clients on compliance with laws implicating children’s privacy.

Madeline also partners with clients in developing content moderation policies and designing products and services that facilitate sharing of user-generated content, analyzing the evolving legal landscape and public policy considerations related to content moderation.

As part of her practice, Madeline represents clients in consumer protection enforcement actions brought by the Federal Trade Commission on topics related to data privacy and advertising.