47 USC 1601 - Determination of communications equipment or services posing national security risks

Collapse to view only § 1601. Determination of communications equipment or services posing national security risks

§ 1601. Determination of communications equipment or services posing national security risks
§ 1602. Prohibition on use of certain Federal subsidies
§ 1603. Secure and Trusted Communications Networks Reimbursement Program
§ 1604. Reports on covered communications equipment or services
§ 1605. Hold harmless
§ 1606. Enforcement
§ 1607. NTIA program for preventing future vulnerabilities
§ 1608. Definitions
§ 1609. Severability

§ 1601. Determination of communications equipment or services posing national security risks

(a) Publication of covered communications equipment or services list

(b) Publication by CommissionThe Commission shall place on the list published under subsection (a) any communications equipment or service, if and only if such equipment or service—

(1) is produced or provided by any entity, if, based exclusively on the determinations described in paragraphs (1) through (4) of subsection (c), such equipment or service produced or provided by such entity poses an unacceptable risk to the national security of the United States or the security and safety of United States persons; and

(2) is capable of—

(A) routing or redirecting user data traffic or permitting visibility into any user data or packets that such equipment or service transmits or otherwise handles;

(B) causing the network of a provider of advanced communications service to be disrupted remotely; or

(C) otherwise posing an unacceptable risk to the national security of the United States or the security and safety of United States persons.

(c) Reliance on certain determinationsIn taking action under subsection (b)(1), the Commission shall place on the list any communications equipment or service that poses an unacceptable risk to the national security of the United States or the security and safety of United States persons based solely on one or more of the following determinations:

(1) A specific determination made by any executive branch interagency body with appropriate national security expertise, including the Federal Acquisition Security Council established under section 1322(a) of title 41.

(2) A specific determination made by the Department of Commerce pursuant to Executive Order No. 13873 (84 Fed. Reg. 22689; relating to securing the information and communications technology and services supply chain).

(3) The communications equipment or service being covered telecommunications equipment or services, as defined in section 889(f)(3) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115–232; 132 Stat. 1918).

(4) A specific determination made by an appropriate national security agency.

(d) Updating of list

(1) In general

(2) Monitoring of determinations

(3) Public notification

(Pub. L. 116–124, § 2, Mar. 12, 2020, 134 Stat. 158.)

§ 1602. Prohibition on use of certain Federal subsidies

(a) In general

(1) Prohibition

A Federal subsidy that is made available through a program administered by the Commission and that provides funds to be used for the capital expenditures necessary for the provision of advanced communications service may not be used to—

(A) purchase, rent, lease, or otherwise obtain any covered communications equipment or service; or

(B) maintain any covered communications equipment or service previously purchased, rented, leased, or otherwise obtained.

(2) Timing

(b) Completion of proceeding

(Pub. L. 116–124, § 3, Mar. 12, 2020, 134 Stat. 159.)

§ 1603. Secure and Trusted Communications Networks Reimbursement Program

(a) In general

(b) EligibilityThe Commission may not make a reimbursement under the Program to a provider of advanced communications service unless the provider—

(1) has 10,000,000 or fewer customers; and

(2) makes all of the certifications required by subsection (d)(4).

(1) In generalA recipient of a reimbursement under the Program shall use reimbursement funds solely for the purposes of—

(A) permanently removing covered communications equipment or services purchased, rented, leased, or otherwise obtained—

(i) as defined in the Report and Order of the Commission in the matter of Protecting Against National Security Threats to the Communications Supply Chain Through FCC Programs (FCC 19–121; WC Docket No. 18–89; adopted November 22, 2019) (in this section referred to as the “Report and Order”); or

(ii) as determined to be covered by both the process of the Report and Order and the Designation Orders of the Commission on June 30, 2020 (DA 20–690; PS Docket No. 19–351; adopted June 30, 2020) (DA 20–691; PS Docket No. 19–352; adopted June 30, 2020) (in this section collectively referred to as the “Designation Orders”);

(B) replacing the covered communications equipment or services removed as described in subparagraph (A) with communications equipment or services that are not covered communications equipment or services; and

(C) disposing of the covered communications equipment or services removed as described in subparagraph (A) in accordance with the requirements under subsection (d)(7).

(2) LimitationsA recipient of a reimbursement under the Program may not—

(A) use reimbursement funds to remove, replace, or dispose of any covered communications equipment or service purchased, rented, leased, or otherwise obtained on or after—

(i) publication of the Report and Order; or

(ii) in the case of covered communications equipment that only became covered pursuant to the Designation Orders, June 30, 2020; or

(B) purchase, rent, lease, or otherwise obtain any covered communications equipment or service, using reimbursement funds or any other funds (including funds derived from private sources).

(d) Implementation

(1) Suggested replacements

(A) Development of list

(B) Neutrality

(2) Application process

(A) In general

(B) Cost estimate

(i) Initial estimate

(ii) UpdatesDuring and after the application review process, the Commission may require an applicant to—(I) update the initial reimbursement cost estimate submitted under clause (i); and(II) submit additional supporting materials substantiating an updated cost estimate submitted under subclause (I).

(3) Application review process

(A) Deadline

(i) In general

(ii) Additional time needed by Commission

(B) Opportunity for applicant to cure deficiency

(4) CertificationsAn applicant for a reimbursement under the Program shall, in the application of the applicant, certify to the Commission that—

(A) as of the date of the submission of the application, the applicant—

(i) has developed a plan for—(I) the permanent removal and replacement of any covered communications equipment or services that are in the communications network of the applicant as of such date; and(II) the disposal of the equipment or services removed as described in subclause (I) in accordance with the requirements under paragraph (7); and

(ii) has developed a specific timeline (subject to paragraph (6)) for the permanent removal, replacement, and disposal of the covered communications equipment or services identified under clause (i), which timeline shall be submitted to the Commission as part of the application; and

(B) beginning on the date of the approval of the application, the applicant—

(i) will not purchase, rent, lease, or otherwise obtain covered communications equipment or services, using reimbursement funds or any other funds (including funds derived from private sources); and

(ii) in developing and tailoring the risk management practices of the applicant, will consult and consider the standards, guidelines, and best practices set forth in the cybersecurity framework developed by the National Institute of Standards and Technology.

(5) Distribution of reimbursement funds

(A) In general

(B) NotificationIf, at any time during the implementation of the Program, the Commission determines that $1,000,000,000 will not be sufficient to fully fund all approved applications for reimbursements under the Program, the Commission shall immediately notify—

(i) the Committee on Energy and Commerce and the Committee on Appropriations of the House of Representatives; and

(ii) the Committee on Commerce, Science, and Transportation and the Committee on Appropriations of the Senate.

(i) first, to approved applicants that have 2,000,000 or fewer customers, for removal and replacement of covered communications equipment, as defined in section 1608 of this title or as designated by the process set forth in the Report and Order;

(ii) after funds have been allocated to all applicants described in clause (i), to approved applicants that are accredited public or private non-commercial educational institutions providing their own facilities-based educational broadband service, as defined in section 27.4 of title 47, Code of Federal Regulations, or any successor regulation, for removal and replacement of covered communications equipment, as defined in section 1608 of this title or as designated by the process set forth in the Report and Order; and

(iii) after funds have been allocated to all applicants described in clause (ii), to any remaining approved applicants determined to be eligible for reimbursement under the Program.

(6) Removal, replacement, and disposal term

(A) Deadline

(B) General extensionThe Commission may grant an extension of the deadline described in subparagraph (A) for 6 months to all recipients of reimbursements under the Program if the Commission—

(i) finds that the supply of replacement communications equipment or services needed by the recipients to achieve the purposes of the Program is inadequate to meet the needs of the recipients; and

(ii) provides notice and a detailed justification for granting the extension to—(I) the Committee on Energy and Commerce of the House of Representatives; and(II) the Committee on Commerce, Science, and Transportation of the Senate.

(i) Petition

(ii) Grant

(7) Disposal of covered communications equipment or services

(8) Status updates

(A) In general

(B) Public posting

(C) Reports to CongressNot less frequently than once every 180 days beginning on the date on which the Commission first makes funds available to a recipient of a reimbursement under the Program, the Commission shall prepare and submit to the Committee on Energy and Commerce of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate a report on—

(i) the implementation of the Program by the Commission; and

(ii) the work by recipients of reimbursements under the Program to permanently remove, replace, and dispose of covered communications equipment or services identified under paragraph (4)(A)(i).

(e) Measures to avoid waste, fraud, and abuse

(1) In general

(2) Spending reports

(3) Audits, reviews, and field investigationsThe Commission shall conduct—

(A) regular audits and reviews of reimbursements under the Program to confirm that recipients of such reimbursements are complying with this chapter; and

(B) random field investigations to ensure that recipients of reimbursements under the Program are performing the work such recipients are required to perform under the commitments made in the applications of such recipients for reimbursements under the Program, including the permanent removal, replacement, and disposal of the covered communications equipment or services identified under subsection (d)(4)(A)(i).

(4) Final certification

(A) In generalThe Commission shall require a recipient of a reimbursement under the Program to submit to the Commission, in a form and at an appropriate time to be determined by the Commission, a certification stating that the recipient—

(i) has fully complied with (or is in the process of complying with) all terms and conditions of the Program;

(ii) has fully complied with (or is in the process of complying with) the commitments made in the application of the recipient for the reimbursement;

(iii) has permanently removed from the communications network of the recipient, replaced, and disposed of (or is in the process of permanently removing, replacing, and disposing of) all covered communications equipment or services that were in the network of the recipient as of the date of the submission of the application of the recipient for the reimbursement; and

(iv) has fully complied with (or is in the process of complying with) the timeline submitted by the recipient under subparagraph (A)(ii) of paragraph (4) of subsection (d) and the other requirements of such paragraph.

(B) Updated certification

(f) Effect of removal of equipment or service from list

(1) In generalIf, after the date on which a recipient of a reimbursement under the Program submits the application for the reimbursement, any covered communications equipment or service that is in the network of the recipient as of such date is removed from the list published under section 1601(a) of this title, the recipient may—

(A) return to the Commission any reimbursement funds received for the removal, replacement, and disposal of such equipment or service and be released from any requirement under this section to remove, replace, or dispose of such equipment or service; or

(B) retain any reimbursement funds received for the removal, replacement, and disposal of such equipment or service and remain subject to the requirements of this section to remove, replace, and dispose of such equipment or service as if such equipment or service continued to be on the list published under section 1601(a) of this title.

(2) Assurances

(g) Rulemaking

(1) Commencement

(2) Completion

(h) Rule of construction regarding timing of reimbursement

(i) Education effortsThe Commission shall engage in education efforts with providers of advanced communications service to—

(1) encourage such providers to participate in the Program; and

(2) assist such providers in submitting applications for the Program.

(j) Separate from Federal universal service programs

(k) Limitation

(Pub. L. 116–124, § 4, Mar. 12, 2020, 134 Stat. 160; Pub. L. 116–260, div. N, title IX, § 901(1), Dec. 27, 2020, 134 Stat. 2120.)

§ 1604. Reports on covered communications equipment or services

(a) In general

Each provider of advanced communications service shall submit an annual report to the Commission, in a form to be determined by the Commission, regarding whether such provider has purchased, rented, leased, or otherwise obtained any covered communications equipment or service on or after—

(1) in the case of any covered communications equipment or service that is on the initial list published under section 1601(a) of this title, August 14, 2018; or

(2) in the case of any covered communications equipment or service that is not on the initial list published under section 1601(a) of this title, the date that is 60 days after the date on which the Commission places such equipment or service on the list required by such section.

(b) Rule of construction

If a provider of advanced communications service indicates in a report under subsection (a) that such provider has purchased, rented, leased, or otherwise obtained any covered communications equipment or service as described in such subsection, such provider shall include in such report—

(1) a detailed justification for such action;

(2) information about whether such covered communications equipment or service has subsequently been removed and replaced pursuant to section 1603 of this title; and

(3) information about whether such provider plans to continue to purchase, rent, lease, or otherwise obtain, or install or use, such covered communications equipment or service and, if so, why.

(d) Proceeding

(Pub. L. 116–124, § 5, Mar. 12, 2020, 134 Stat. 166.)

§ 1605. Hold harmless

In the case of a person who is a winner of the Connect America Fund Phase II auction, has not yet been authorized to receive Connect America Fund Phase II support, and demonstrates an inability to reasonably meet the build-out and service obligations of such person under Connect America Fund Phase II without using equipment or services prohibited under this chapter, such person may withdraw the application of such person for Connect America Fund Phase II support without being found in default or subject to forfeiture. The Commission may set a deadline to make such a withdrawal that is not earlier than the date that is 60 days after March 12, 2020.

(Pub. L. 116–124, § 6, Mar. 12, 2020, 134 Stat. 167.)

§ 1606. Enforcement

(a) Violations

(b) Additional penalties

(1) In general

Except as provided in paragraph (2), in addition to penalties under the Communications Act of 1934, a recipient of a reimbursement under the Program found to have violated section 1603 of this title, the regulations promulgated under such section, or the commitments made by the recipient in the application for the reimbursement—

(A) shall repay to the Commission all reimbursement funds provided to the recipient under the Program;

(B) shall be barred from further participation in the Program;

(C) shall be referred to all appropriate law enforcement agencies or officials for further action under applicable criminal and civil laws; and

(D) may be barred by the Commission from participation in other programs of the Commission, including the Federal universal service support programs established under section 254 of the Communications Act of 1934 (47 U.S.C. 254).

(2) Notice and opportunity to cure

The penalties described in paragraph (1) shall not apply to a recipient of a reimbursement under the Program unless—

(A) the Commission provides the recipient with notice of the violation; and

(B) the recipient fails to cure the violation within 180 days after the Commission provides such notice.

(Pub. L. 116–124, § 7, Mar. 12, 2020, 134 Stat. 167.)

§ 1607. NTIA program for preventing future vulnerabilities

(a) Future vulnerability program

(1) Establishment

(2) ActivitiesIn carrying out the program established under paragraph (1), the Assistant Secretary shall—

(A) conduct regular briefings and other events to share information with trusted providers of advanced communications service and trusted suppliers of communications equipment or services;

(B) engage with trusted providers of advanced communications service and trusted suppliers of communications equipment or services, in particular such providers and suppliers that—

(i) are small businesses; or

(ii) primarily serve rural areas;

(C) not later than 180 days after March 12, 2020, submit to the Committee on Energy and Commerce of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate a plan for—

(i) declassifying material, when feasible, to help share information regarding supply chain security risks with trusted providers of advanced communications service and trusted suppliers of communications equipment or services; and

(ii) expediting and expanding the provision of security clearances to facilitate information sharing regarding supply chain security risks with trusted providers of advanced communications service and trusted suppliers of communications equipment or services; and

(D) ensure that the activities carried out through the program are consistent with and, to the extent practicable, integrated with, ongoing activities of the Department of Homeland Security and the Department of Commerce.

(3) Scope of program

(b) Representation on CSRIC of interests of public and consumers

(1) In general

(2) Initial appointments

(1) Assistant Secretary

(2) Foreign adversary

(3) Supply chain security risk

(4) Trusted

(Pub. L. 116–124, § 8, Mar. 12, 2020, 134 Stat. 168.)

§ 1608. DefinitionsIn this chapter:

(1) Advanced communications service

(2) Appropriate national security agencyThe term “appropriate national security agency” means—

(A) the Department of Homeland Security;

(B) the Department of Defense;

(D) the National Security Agency; and

(E) the Federal Bureau of Investigation.

(3) Commission

(4) Communications equipment or service

(5) Covered communications equipment or service

(6) CustomersThe term “customers” means, with respect to a provider of advanced communications service—

(A) the customers of such provider; and

(B) the customers of any affiliate (as defined in section 153 of this title) of such provider.

(7) Executive branch interagency body

(8) Person

(9) Program

(10) Provider of advanced communications serviceThe term “provider of advanced communications service”—

(A) means a person who provides advanced communications service to United States customers; and

(B) includes—

(i) accredited public or private noncommercial educational institutions, providing their own facilities-based educational broadband service, as defined in section 27.4 of title 47, Code of Federal Regulations, or any successor regulation; and

(ii) health care providers and libraries providing advanced communications service.

(11) Recipient

(12) Reimbursement funds

(Pub. L. 116–124, § 9, Mar. 12, 2020, 134 Stat. 169; Pub. L. 116–260, div. N, title IX, § 901(2), Dec. 27, 2020, 134 Stat. 2121.)

§ 1609. Severability

If any provision of this chapter, or the application of such a provision to any person or circumstance, is held to be unconstitutional, the remaining provisions of this chapter, and the application of such provisions to any person or circumstance, shall not be affected thereby.

(Pub. L. 116–124, § 10, Mar. 12, 2020, 134 Stat. 170.)