Broadband Law Advisor Blog : Broadband Lawyers & Attorneys : Davis Wright Tremaine Law Firm : National Broadband Plan Adoption & Infrastructure Updates

UPDATE: Our DWT Advisory on the IP Closed Captioning Report and Order is now available here.

This afternoon, the FCC released its long-anticipated Report and Order that sets forth the Commission’s new closed captioning rules for IP-delivered video programming, pursuant to the 21st Century Communications and Video Accessibility Act (CVAA). As we explained when the rules were first proposed in September, the CVAA had directed the FCC to establish how and when certain IP-delivered video programming must be captioned, as well as the closed captioning capabilities for devices used to view video programming. The R&O adopts closed captioning requirements for owners, providers, and distributors of IP-delivered video programming; a safe harbor technical standard and delivery format for IP video captions; a staggered compliance schedule; complaint rules; and requirements for manufacturers of devices used to view the video programming at issue.

We are currently reviewing this comprehensive rulemaking, and will post our in-depth review next week, both here and on our DWT Advisories page.

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On December 30, 2011, the Federal Communications Commission's rules for ensuring the accessibility of Advanced Communication Services (e.g., VoIP, electronic text and interoperable video conferencing services) to persons with disabilities was published in the Federal Register, thus setting the effective date for the rules at January 30, 2012 (30 days from publication).   (We previously discussed the rules as released by the FCC in an earlier post.)   However, full compliance will not be required until October 8, 2013.  The FCC expects covered entities to immediately begin incorporating accessibility features and considerations into their products and services to meet this deadline.

A covered entity's recordkeeping and certification obligations, however, are expected to become effective on January 30, 2013 (subject to OMB approval), with immediate compliance due thereafter.  As discussed in our earlier post, on this date, covered entities (including legacy interconnected VoIP providers) must maintain records of compliance AND certify annually (under oath) to the FCC that such records are being maintained.  The FCC has previously stated that it expects the first certification to be due in April 2013.  Covered entities should begin contemplating policies and procedures for creating, maintaining and, if necessary, disclosing records, and identifying the appropriate person(s) for certifying to the FCC and handling complaints and inquiries.

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The FCC has posted its revised Form 499-A to include "non-interconnected VoIP providers" as a category of required filing entities.  As we discussed previously, new FCC rules now require certain non-interconnected VoIP providers (including one-way services) to (1) register with the FCC by December 31, 2011, and (2) report revenues to the FCC by April 1 each year for purposes of contributing to the federal TRS fund.

The revised 499-A is available on the FCC's website here. 

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In addition to releasing its final "advanced communications services" accessibility rules this weekend (which requires accessibility of VoIP, texting, and video chat on a wide range of devices and communication services, as I discussed earlier here), the FCC also released its Report and Order (available here) requiring certain non-interconnected VoIP providers (including both two-way and one-way VoIP services) to register with the FCC and contribute to the Telecommunications Relay Services (TRS) Fund, similar to how telecommunications carriers and interconnected VoIP providers currently do.  The requirement is significant, in that it further extends the FCC's reach to IP-based services that have been historically free from regulatory oversight.

In general, the new rules only apply to providers that offer non-interconnected VoIP:
(1) on a stand-alone basis for a fee; or
(2) offered with other non-VoIP services (such as on multi-purpose devices) that generate end-user revenue but only if (i) the non-interconnected VoIP service is also available on a stand-alone basis, or (ii) the non-VoIP services are available without the non-interconnected VoIP service feature at a discounted price.

Consequently, all other non-interconnected VoIP providers are not required to register with the FCC or contribute to the TRS fund.

Registration involves submitting an FCC Form 499-A to the Commission by December 31, 2011, and includes obtaining an FCC registration number (which is straightforward) and designating a District of Columbia agent for service of process. While this deadline may seem far away, note that the Form 499-A, in its current form, consists of 45 pages of instructions and forms.

Funding requires an annual revenue reports to the Commission (again, using the Form 499-A), with the first report due April 1, 2012, and then annually thereafter. Non-interconnected VoIP providers may follow the same approach to reporting revenue as interconnected VoIP providers, meaning, such entities may report their interstate revenue based on actual revenue, a traffic study, or the 64.9 percent safe harbor rate.

Look for our DWT Advisory on the TRS Report and Order for further details.

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UPDATE: For more details about the new ACS rules, please read our DWT Advisory, which is now available here.

Over the Columbus Day weekend, the FCC released its final rules (available here) on the accessibility of advanced communications services (ACS).  (ACS includes interconnected and non-interconnected VoIP, electronic messaging services, and interoperable video conferencing services.)  My initial read indicates that the FCC chose to broadly cover all types of ACS.  Indeed, the FCC's final ACS rules narrowly exempt only custom equipment designed for businesses and other enterprise customers, as well as public safety entities.  [UPDATE: The FCC also adopted a temporary exemption for small businesses based on SBA standards.  That exemption expires when the FCC adopts formal small business exemption rules pursuant to further rulemaking proceedings, or Oct. 8, 2013, which is earlier.] Thus, while many niche markets like gaming consoles argued for an exemption or waiver during the rulemaking proceeding, the FCC did not grant such requests, and specifically instructed such entities (including gaming equipment, services, and software; and TVs and Digital Video Players enabled for use on the Internet) to re-file their waiver requests pursuant to the FCC's new waiver process under the final rules.

The broad scope of the final rules means that a wide range of equipment, including tablets, laptops and smartphones, are subject to the FCC's accessibility rules.  Covered providers of ACS include those that offer ACS over their own networks or accessed over other networks, and such providers are responsible for the accessibility of underlying components of their service, including software applications.  The FCC specifically rejected calls for exempting services that only incidentally use ACS.

The FCC's release includes a further notice of proposed rulemaking to further determine certain accessibility issues, including, among other things, the scope of the small entity exemption, the meaning of "interoperable", and the applicability of the rules to video mail.

Look for our DWT Advisory for a more detailed report of the FCC's final rules and further rulemaking proceeding. 

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UPDATE: The FCC has extended the deadline for reply comments to November 1, 2011.  Press release is available here.

The FCC's proposed rules for Internet closed captioning have been published in the Federal Register (available here), which means that the comment periods are set.  As we discussed in our earlier posting about the NPRM (here), the FCC has set very short deadlines for comments and replies, a reflection of the short time frame in which the FCC must adopt final rules (January 2012).  

Feel free to contact us for more information about the issues involved and how they may impact your business.

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In a very late release today, the FCC has issued for comment its proposed rules for closed captioning of IP-delivered videos (NPRM available here).  Pursuant to the 21st Century Communications and Video Accessibility Act (discussed earlier here) and other related events, the FCC is required to adopt final Internet closed captioning rules by January 12, 2011.  This gives the FCC less than four months to solicit and consider comments and replies before issuing its final rules.  Consequently, the FCC has provided a mere 20 days (from publication in the Federal Register) to submit comments, and 10 days to submit reply comments.  Interested parties may want to start drafting their comments now.

As we noted earlier here, the Video Programming Accessibility Advisory Committee had issued its report of recommendations for implementing closed captioning on the Internet.  That report recommended, among other things, an Internet closed captioning standard (SMPTE-TT) and a schedule of tiered compliance deadlines.  

In the NPRM, the FCC has proposed NOT to adopt a technical standard, but has instead proposed to allow parties to negotiate an appropriate interchange format.  The FCC believes that, if SMPTE-TT is indeed the "best interchange format, [then] the industry will settle on that format without Commission intervention and, if it is not [the best], the industry will come to a different agreed-upon format."  The FCC did, however, leave itself the option to adopt a standard under the final rules.  Thus, the FCC has asked whether it should allow parties to comply using "alternate means" rather than an FCC-adopted standard.  

On the other hand, the FCC has proposed to adopt the VPAAC's recommended compliance schedule, which the FCC deemed to be "reasonable."  That schedule, if unchanged under the final rules, would require the following compliance deadlines (measured from the date the final rules are published in the Federal Register):

• Within 6 months: Prerecorded programming that is unedited for Internet distribution;
• Within 12 months: Live or near-live programming;
• Within 18 months: Prerecorded programming that is edited for Internet distribution. 

Other highlights from the NPRM include:

• Proposed procedures for petitioning the Commission for full or partial exemptions under the same "economically burdensome" standard used with respect to television closed captioning;
• Request for comments as to the meaning of "de minimis failure to comply" and relevant factors, including type of failure, reason for failure, frequency of failure (one-time or continuous), and timeframe within which the failure was remedied.

Further details of the NPRM will be provided in our DWT Advisory, which we will release shortly. 

UPDATE: Our DWT Advisory on the IP closed captioning NPRM is now available here.

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UPDATE: Rules published Sept. 23, effective November 20.  Rules now subject to legislative and industry challenges.  Read our DWT Advisory here.

On September 9, 2011, the Office of Management and Budget (OMB) signed off on the new data collection requirements of the FCC’s net neutrality order. This allows the Federal Register to publish the net neutrality regulations, which should occur within the next few weeks. The new rules will become effective 60 days after they are published. In addition, upon publication in the Federal Register, parties can appeal the rules in federal court.  Verizon had appealed the FCC’s net neutrality order to the US Court of Appeals for the DC Circuit earlier this year, well before the OMB had approved the regulations. However, in April 2011 the DC Circuit dismissed the appeal as premature. 

By way of background, the FCC adopted its net neutrality order in December of 2010 (full summary here). One of the regulations adopted in that order requires broadband service providers to disclose their network management practices to consumers. This constitutes a government-mandated data collection triggering the terms of the Paperwork Reduction Act. Under the PRA, the OMB must approve certain data collections imposed by federal agencies prior to their effectiveness. 

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UPDATE: DWT's Advisory on the Video Description rules is now available here.

The FCC has released its Report and Order (available here) reinstating its rules for “video description” pursuant to the Twenty-First Century Communications and Video Accessibility Act (CVAA) that was signed into law last October. The video description rules were first adopted in 2000 but later vacated by the D.C. Court of Appeals for lack of sufficient authority. The CVAA rectified this by expressly authorizing the FCC to reinstate the rules, with some modifications.  (See our discussion of the CVAA here.)

DWT previously discussed the FCC’s rulemaking to reinstate the video description rules back in March (available here), and will again release a detailed analysis of the reinstated rules as adopted in the Report and Order (sign up here to receive a copy of our DWT Advisory). In the meantime, here are some highlights from the Report and Order:
 

• Covered entities: Large-market broadcast affiliates of the top four national networks, and MVPDs with more than 50,000 subscribers, must provide video description.

• Hours Requirement: Covered broadcasters are required to provide 50 hours of video-described prime time or children’s programming, per calendar quarter. Covered MVPDs are required to provide the same number of hours on each of the five “most popular” nonbroadcast networks (this does not include two nonbroadcast networks that primarily air programming recorded less than 24 hours before it is first aired, i.e., ESPN and Fox News).

• Pass Through: All network-affiliated broadcasters (commercial or non-commercial) and all MVPDs must pass through video description provided with programming, but only to the extent that they are technically capable of doing so and when that technical capability is not being used for another purpose related to the programming.

• Compliance: As required under the CVAA, the rules will be reinstated on October 8, 2011. Covered broadcast stations and MVPDs must begin full compliance on July 1, 2012.

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