On October 26, 2018, the Wireline Competition Bureau (“Bureau”) released a Public Notice seeking comment on the applicability of sections of the National Defense Authorization Act for Fiscal Year 2019 (“2019 NDAA”) to the Commission’s Protecting Against National Security Threats to the Communications Supply Chain Notice of Proposed Rulemaking (“Supply Chain NPRM”) (DA 18-1099; WC Docket No. 18-89).

Section 889(b)(1) of the 2019 NDAA prohibits the head of an executive agency from expending funds to obtain or procure equipment, services, or systems that use covered telecommunications equipment. The 2019 NDAA generally defines “covered telecommunications equipment” as telecommunications equipment and/or video surveillance equipment produced by Huawei Technologies Company, ZTE Corporation, Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company, and any affiliates or subsidiaries thereof, as well as any such equipment or services produced or provided by an entity that the Secretary of Defense reasonably believes to be an entity owned or controlled by, or connected to, the government of a covered foreign country.

The Bureau seeks comment on § 889(b)(1) and its relevance to the Supply Chain NPRM, and specifically asks for comment on the following:

  • Whether Section 889(b)(1) applies to support provided by the Universal Service Fund (“USF”) and if so, any resulting USF obligations;
  • Whether the proposed rules in Supply Chain NPRM satisfy the intent of Section 889(b)(1), what authority, if any,
  • §889 grants to the FCC to adopt the proposed rule or any proposed alternatives;
  • Whether the list of companies, and any potential additions, in the 2019 NDAA should serve as a basis for determining which entities pose a threat to national security;
  • Whether Section 889(b)(1) applies to other Commission funding programs, particularly the Telecommunications Relay Service Fund
  • How the Bureau should interpret Section 889(b)(1) in light of Sections 889(b)(2) and 889(b)(3) of the NDAA, which provides that heads of executive agencies administering loan, grant, or subsidy programs shall implement §889(b)(1) and prioritize available funding and technical support to assist affected entities;
  • How to implement §889(b)(3), which states that nothing in §889(b) prohibits executive agency heads from procuring with an entity to provide a service that connects to third-party facilities (i.e., backhaul, roaming, interconnection agreements) or covers equipment that cannot route or redirect user data traffic into any user data/packets that such equipment transmits or handles.

Comments are due November 16, 2018.

Reply Comments are due December 7, 2018.

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