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

Yesterday, the FCC announced it will adopt an order altering its regulations governing pole attachments at its April 7 meeting. It appears that this order will address most of the outstanding issues left over from its May 2010 order on pole attachments, including attachment rates for telecom carriers, and access and enforcement issues, which we summarized here. 

In addition, it appears that the FCC will address pending petitions for reconsideration filed in response to its May 2010 order. Those petitions ask the FCC to clarify or reverse parts of the order dealing with utility obligations to allow third party attachers to employ boxing and bracketing techniques on a non-discriminatory basis, and whether pole replacements are properly understood as an expansion of capacity or a routine outside plant construction technique. 

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Following its release of the most recent intercarrier compensation and USF reform proposal (NPRM), the FCC has announced that it will convene the first of several “public workshops to identify solutions to key issues in the USF/ICC proceeding.”  (See Public Notice)

This first workshop will be held at the FCC’s offices in Washington, D.C. on Wednesday, April 6th. The Commission will focus only on intercarrier compensation reform proposals at this workshop. Specific panelists or an agenda have not yet been released. The Commission is expected to focus on a number of the issues already teed up in the NPRM, including potential resolution of issues like VoIP compensation, phantom traffic, access stimulation and other similar issues.

Notably, in announcing this workshop the five Commissioners posted a joint blog entry (available here ) announcing their intent to “mov[e] to an Order within a few months” of closing the record in May of this year. Issuance of an order within that timeframe would be extraordinary, especially in light of the speed at which prior members of the FCC have addressed ICC reform issues. Whether the Commission can follow through on this aggressive timeline is, of course, a question as yet unanswered. Suffice it to say, many eyes will be watching.
 

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As the Internet becomes a bigger part of Americans’ lives, the days when it could remain “unfettered by Federal or State regulation” appear to be drawing to a close. A recent illustration is the 21st Century Communications and Video Accessibility Act (Accessibility Act), which President Obama signed into law last October.

The Accessibility Act is intended to help bridge the growing divide between modern communications services and the ability of individuals with hearing and/or vision impairments to access those services. In doing so, a new statutory category of service called “non-interconnected VoIP” was created. While the statute itself does not say much about what constitutes a “non-interconnected VoIP” service, the FCC’s interpretation of the law, as discussed in two recent notices of proposed rulemaking proceedings (available here and here) adopted last week, signals a potential for comprehensive registration, reporting, enforcement, contribution and other compliance obligations on an extremely broad range of VoIP services that, prior to enactment of the Accessibility Act, had been subject to little, if any, FCC regulation or oversight.

Consequently, “one-way” VoIP services, as well as “multi-purpose” services like online games, Internet customer service, and private internal enterprise systems, all of which have some degree of integrated VoIP functionality, are now potentially subject to regulation of one kind or another by the FCC.

(Continue reading Advisory here....)

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By Maria T. Browne and Brendan Holland

On March 3, 2011, the Federal Communications Commission (FCC) initiated a rule making proceeding to reinstate its prior video description rules with certain modifications, as required by the Twenty-First Century Communications and Video Accessibility Act of 2010 (Act). The proposed rules would require large market broadcast affiliates of the top four national networks and most cable operators and DBS providers to provide programming with audio narrated descriptions of a television program’s key visual elements beginning as soon as first quarter 2012. Davis Wright Tremaine previously summarized the Act in our earlier advisory available here.

The Notice of Proposed Rule Making (NPRM) takes the first step toward restoring the video description regulations that the FCC previously adopted in 2000, but which were subsequently vacated by the U.S. Court of Appeals for the D.C. Circuit. Now with explicit Congressional authorization, the FCC seeks to restore the video description rules by Oct. 8, 2011, as required by the Act. The FCC proposes a quick implementation, with the video description and pass-through rules beginning Jan. 1, 2012. The most significant elements of the reinstated video description rules are:

(Continue reading here....)

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Today, the FCC adopted a Notice of Proposed Rulemaking to implement Section 716 of the 21st Century Communications and Video Accessibility Act.  Section 716 requires providers and equipment manufacturers to make "advanced communications services" accessible to and usable by persons with disabilities.  The Act defines "advanced communications services" to include both interconnected and non-interconnected VoIP (eg, Vonage and other over-the-top VoIP services), electronic messaging serfvices (text messaging), and "interoperable video conferencing services."  Section 716 is intended to complement the existing accessibility obligations of telecommunications and interconnected VoIP providers under Section 255 of the Communications Act, however, the new Accessibility Act broadens the scope of covered entities and imposes a stricter standard for compliance.

While Section 716 established the general accessibility obligations for service providers and equipment manufacturers, the NPRM sheds light on certain issues that were not so clear under the statutory language.  For example, the NPRM proposes that non-interconnected VoIP includes any service offerings with a "purely incidental VoIP component" thus potentially capturing gaming consoles and other services that some commentors have argued should not be regulated since the "core" functions do not involve VoIP.  In addition, the NPRM explains that the statutory definition of "interoperable video conferencing services" includes more recent video chat services (Skype, Google Video Chat) and related equipment (iPhone, Droid). 

Network providers, even those that do not directly offer advanced communications (and thus would not be directly regulated under Section 716) are nevertheless subject to the law because Section 716 prohibits network providers from impairing or impeding the accessibility of information incorporated into transmissions, ie, networks must ensure that closed captioning and other accessibility features are passed through when transitioned from one medium to another.

The NPRM does recognize, however, that Section 716 provides that services subject to Section 255 as of October 7, 2010, are not subject to Section 716.  The FCC seeks comment on whether this means interconnected VoIP and equipment will remain subject to Section 255 only, and requests further comment on how to treat hybrid devices that allow the use of both Section 255 and Section 716 services.

Per Section 716, the NPRM has also proposed new recordkeeping obligations that affect both providers subject to Section 716 as well as those regulated under Section 255 of the Communications Act (accessibility obligations for telecommunications carriers and interconnected VoIP).  These new recordkeeping obligations will take effect one year after the FCC's new rules are adopted as final.

Comments are due 30 days from when the NPRM is published in the Federal Register.  The rules must be finalized by October 8, 2011.

For more informatiom about how Section 716 may affect you, please contact Brian Hurh or anyone else at the Broadband Law Advisor.  We will also post a more detailed analysis of the NPRM in a DWT Advisory, so please check back or email us to request a copy when it is released.

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