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

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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