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

By Maria Browne

Last week, the Federal Communications Commission’s proceeding to  consider proposed improvements to the structure and efficiency of the video relay service (“VRS”) program was published in the Federal Register, thus setting the deadline for initial comments by March 2, 2012, and replies  by March 19, 2012.

VRS allows persons with hearing or speech disabilities or who are deaf-blind to use American Sign Language to communicate in near real time through a communications assistant, via video over a broadband Internet connection. The stated goal of the FCC’s proposals is “to ensure that VRS provides functionally equivalent communications services to its users – particularly given advances in commercially-available technology – and remains immune from the waste, fraud, and abuse that has threatened its long-term viability.”

The FCC identified two fundamental flaws with the existing VRS program: (1) no real opportunity for VRS providers to compete for other providers’ VRS users, and (2) VRS users’ lack of access to off-the-shelf VRS access technology. The FCC has proposed numerous options to address these problems including

• Using the TRS Fund to provide discounted broadband Internet access to the VRS user community;
• Revising the compensation structure for marketing of VRS services;
• Creating VRS access technology standards that are conceptually similar to the part 68 standards for traditional CPE;
• Mandating off the shelf VRS technology;
• Funding iTRS access technology with TRS fund;
• Changing the current compensation mechanism to reduce incentives for fraud and abuse; and
• Establishment of a VRS user database.

 

 

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By Maria T. Browne, Brendan Holland, Brian J. Hurh, and Ronald G. London

The Federal Communications Commission (FCC) has adopted a Report and Order (R&O) establishing rules for the closed captioning of video programming delivered via Internet protocol (i.e., IP video), as required by the 21st Century Communications and Video Accessibility Act (CVAA). As discussed in our advisory on the CVAA and our overview of the Report by the Video Programming Accessibility Advisory Committee (VPAAC) making recommendations for FCC implementation, the CVAA compelled the FCC to adopt rules that require captioning of IP video programming that was published or exhibited with captions on TV after the effective date of such regulations (covered IP video).

 

The new rules govern TV stations, cable systems, broadcast and cable networks and virtually every other professional video program producer who is now, or will be in the future, making programming available online. The rules also impose new requirements on hardware (such as set-top boxes, PCs, smartphones DVD players, Blu-ray and tablets) designed to receive or play back video programming transmitted simultaneously with sound and integrated software. With rules that are so wide-reaching, everyone involved in these businesses needs to understand what the new rules entail.

 

(Continuing reading the DWT Advisory.)

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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: 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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The Video Programming Accessibility Advisory Committee has released its report to the FCC on closed captioning of IP-video programming (available here), as required by the 21st Century Communications and Video Accessibility Act passed last October.  As we explained earlier here, the Accessibility Act requires that, once a television program is published or exhibited on television with closed captions, any subsequent distribution of that programming on the Internet must include closed captions.

The Accessibility Act requires that the FCC revise its closed captioning rules within 6 months of the Committee's report, thus, new FCC closed captioning rules must be in place no later than January 13, 2012.  (The report is dated July 13, 2011, though it appears to have been released July 11.)  The report proposes the following compliance schedule based on the date the FCC's revised rules are published in the Federal Register:

• Within 6 months: programming that has been prerecorded and unedited for Internet distribution;
• Within 12 months: live and near-live programming
• Within 18 months: programming that has been prerecorded and substantially edited for Internet distribution.

In addition, the report sets forth the Committee's recommendations for performance objectives, technical requirements, and technical capabilities and procedures related to closed captioning on the Internet.   The report also contains a discussion on new technological developments such as emerging protocols and other innovations that may affect the delivery of Internet closed captioning in the future.

 

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As David Oxenford wrote on our sister site, the Broadcast Law Blog, the FCC has granted an extension of time to submit comments in its proceeding to re-institute video description rules for television programming.  Comments are now due April 28th, and Reply Comments are due by May 27th.  A copy of the FCC's recent Order extending the deadline is available here.  As we wrote about earlier (here), this rule making proceeding seeks to reinstate the Commission's prior video description rules with certain modifications, as required by the Twenty-First Century Communications and Video Accessibility Act of 2010 (the CVAA). 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.

(Continue reading here...)

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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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Yesterday the FCC released a tentative agenda for its March 3rd open meeting that includes seven matters for discussion, including rules for video description and advanced communications services, as required under the recent federal disability legislation known as the Twenty-First Century Communications and Video Accessibility Act (CVAA). (See earlier DWT Advisory on the CVAA here.)

The Commission intends to adopt an NPRM proposing rules to implement the CVAA requirement that providers of "advanced communications services" and manufacturers of equipment used for such services make their products accessible to people with disabilities.  While the CVAA (and presumably the rules) broadly defines "advanced communications services" to include interconnected VoIP (as defined by FCC rules), non-interconnected VoIP, electronic messaging service (i.e., text messaging), and interoperable video conferencing service, the CVAA exempts current services and equipment that, as of the day prior to CVAA date of enactment - Oct. 8, 2010 - were subject to Section 255 of the Communications Act, which similarly deals with the accessibility of "telecommunications" services and equipment, including interconnected VoIP.

The agenda also indicates that the Commission intends to adopt an NPRM to reinstate the video description rules previously adopted by the Commission in 2000.  As we discussed earlier here, the video description rules were adopted by the FCC but then struck down by the D.C. Circuit.  The CVAA requires these rules to be reinstated by October 2011, although actual compliance will be subject to a phase-in schedule.

For more information about these and other requirements under the CVAA, including a timeline of relevant dates and deadlines, please read our DWT Advisory here.

Other matters that will be discussed at the meeting include rules to streamline and clarify retransmission consent negotiations, a lifeline/link up reform and modernization NPRM, and several matters regarding Native Nations issues (eg, spectrum and radio use on Tribal Lands).

 

 

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 On Dec. 23, 2010, the Federal Communications Commission (FCC) released its Report and Order (R&O), and the text of the net neutrality rules it adopted on Dec. 21, 2010. The rules are summarized in our prior advisory, but the R&O contains many important details and nuances. (For the full text of the order, see Report and Order).

 

Transparency

The R&O offers a detailed illustration of the wide ranging disclosure that wireline and wireless providers must provide of commercial terms, performance, and network management practices. The sample disclosure includes “typical frequency of congestion” for networks that manage congestion; how any specialized services may affect the last-mile capacity available for, and the performance of, broadband Internet access service; third-party device and application approval procedures for mobile broadband providers; security mechanisms; details on any inspection of network traffic, and the storage or transfer of such data; and practices for resolving end-user and edge provider complaints and questions. 

(Continue reading)

 

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This morning at its monthly open meeting, the Federal Communications Commission adopted net neutrality rules which largely adopt existing Internet traffic and management practices, impose new non-discrimination and transparency rules, but leave room for specialized or managed services and usage based billing. The order is notable for basing jurisdiction mostly on Title I and ancillary jurisdiction, rather than reclassifying broadband as a Title II common carrier service. (The order has not yet been released but we will include a link here once it is made available to the public, along with a DWT Advisory analyzing the order in more detail.  UPDATE: Fairly detailed press release is available on the FCC website, as well as the Commissioners' statements.)

As expected, the vote was adopted on a 3-2 partisan vote. Democratic Commissioners justified the order as a compromise necessary for maintaining the Internet as an open platform where innovation may occur without seeking permission, while providing certainty conducive to investment at the edge as well as in the broadband network core. In vigorous dissent, Republican Commissioners questioned any need for departing from the successful history of building and maintaining an open Internet by leaving it largely free of government regulation.
 

Continue Reading...

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Yesterday the FCC announced the membership of the two advisory committees mandated by the recent Twenty-First Century Communications and Video Accessibility Act of 2010, which requires the FCC to promulgate rules on accessibility of devices for use by the disabled, Internet closed-captioning and video description.

The FCC named 45 members to the Video Programming and Emergency Access Advisory Committee, the advisory committee in charge of developing recommendations on closed captioning of Internet programming; accessibility of devices capable of receiving Internet video programming; video description and emergency information over Internet or digital broadcast television; accessibility of user interfaces on video programming devices (remotes); and accessible programming guides and menus.  The members include representatives from video programmers (CBS, TBS, Disney-ABC), video/cable operators (Cox, Bright House, AT&T, DirecTV), technology companies (Microsoft, Google) and manufacturers (Sony, Motorola, LG), as well as industry associations (NCTA, NAB, MPAA).  The committee's first meeting will be held January 13, 2011, and is open to the public.  The committee must make its recommendations on Internet closed-captioning issues by July 13, 2011 (assuming the January 13 meeting is held as scheduled), and recommendations on the remaining issues (including video description) are due April 8, 2012.

The FCC also announced 32 members to the Emergency Access Advisory Committee, which is charged with determining the most effective and efficient technologies and methods to access Next Generation 911 emergency services.  Richard Ray of the City of Los Angeles Department on Disability, and David Dzumba of the Telecommunications Industry Association, were named co-chairs.  The committee's first meeting will be held January 14, 2011, and is open to the public.

 

 

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Earlier today, Chairman Genachowski held a press conference to deliver his remarks on his proposed Open Internet rules, which are scheduled for vote at the FCC's December 21 open meeting.  The Chairman prefaced his summary of the rules by noting that they are in principle rooted in policy statements of past "Republican" Chairmen Powell and Martin, is consistent with President Obama's goal of keeping the Internet "open and free", and builds upon the framework first developed by Rep. Waxman earlier this year. 

In summary, the Chairman outlined the basic concepts of his proposal that grants consumers and innovators the right to:

1. Transparency, including basic information about how networks are managed;
2. Send and receive lawful Internet traffic (ie, prohibit blocking), and use devices (that are not harmful to the network) of their own choosing; and
3. A level playing field, including a bar to unreasonable discrimination in content transmission;

The rules also recognize providers' right to "reasonable" network management that will give providers the flexibility to address congestion and "illegal" traffic, as well as maintain incentives to build-out and innovate broadband networks.

The Chairman made clear that the rules do not adopt the "reclassification" option that would have reclassified broadband as a Title II service.

Also, the Chairman's rules draw a distinction between mobile and fixed broadband services.  The Chairman acknowledged that mobile services are still at an early stage of development, but are rapidly evolving so that the FCC will be prepared to act in the event that anti-competitive or anti-consumer practices arise.

UPDATE: The FCC has just released a statement by Commissioner McDowell condemning the Chairman's proposal.  His brief statement is available here.

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Last night the FCC released its tentative agenda for its next open meeting to be held December 21.  Two items are scheduled for consideration, the first being an Order (not a rulemaking or inquiry) adopting Open Internet rules, also known as net neutrality.  The text summarizing the agenda item is as follows:

Open Internet Order: An Order adopting basic rules of the road to preserve the open Internet as a platform for innovation, investment, competition, and free expression. These rules would protect consumers’ and innovators’ right to know basic information about broadband service, right to send and receive lawful Internet traffic, and right to a level playing field, while providing broadband Internet access providers with the flexibility to reasonably manage their networks.

Chairman Genachowski also circulated his proposal to the other FCC Commissioners late last night In anticipation of the December meeting to vote on the Order. 

The FCC website indicates that the Chairman will deliver remarks on his proposal, which is expected to begin at 10:30 am today.  A live webcast is available on the FCC's website at http://reboot.fcc.gov/live/.

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Earlier today the FCC's Consumer and Governmental Affairs Bureau released a Public Notice seeking comment on a broad range of topics related to the implementation of Section 105 of the Twenty-First Century Communications and Video Accessibility Act (Accessibility Act, copy available here).  Section 105 of the Accessibility Act requires the Commission to adopt rules defining the program eligibility standards for relay service support for the distribution of "specialized customer premises equipment designed to make telecommunications service, Internet access service, and advanced communications, including interexchange services and advanced telecommunications and information services, accessible by individuals who are deaf-blind."  The Public Notice specifically seeks comment on implementing the National Deaf-Blind Equipment Distribution Program (Program).

The issues for which the FCC seeks comments are broad, but generally include the following topics:

• Eligibility of deaf-blind individuals, including
  • The range of disabilities that fall within the definition of "deaf-blind";
  • The degree of hearing or vision loss required; and
  • Factors to consider in determining "low income," including relative disability expenses.
• Equipment necessary to access telecommunications, Internet access, and advanced communications services, including
  • The availability of specialized equipment at retail;
  • Possible funding for the development of specialized equipment;
  • Whether equipment distributed under the Program may include mainstream equipment used with specialized equipment;
  • The lifespan of specialized equipment; and
  • Research and development of specialized equipment.
• State equipment distribution programs, including
  • Information and data regarding the effectiveness of these programs;
  • Utilization of state programs to facilitate equipment distribution under the Program; and
  • Funding for equipment distribution within current TRS Fund structure.
• Logistics and criteria for funding, including
  • Appropriate approval process and eligibility requirements;
  • Modeling equipment distribution after Universal Service framework (eg, state or federal criteria for eligibility, certification and verification); and
  • Provision of ongoing technical or other support under Program;
• Oversight and recordkeeping to ensure effective and efficient use of funds.

Comments are due November 17, 2010.  Reply comments are due November 23.

 

 

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Yesterday the FCC's Consumer and Government Affairs Bureau released a Public Notice seeking comments to refresh the record on closed captioning that was last addressed in the Commission's 2005 and 2008 Closed Captioning NPRMs.  As recognized by the Commission, much has happened since those proceedings, both technologically and regulatory.  As directed by the recently enacted 21st Century Communications and Video Accessibility Act (which we blogged about earlier here, and discussed in DWT's Advisory here), the FCC's rules must be revised to extend closed captioning to the Internet within 6 months of the Advisory Committee's report on closed captioning, which must be released by October 2011.  As we noted earlier, the Advisory Committee must be formed by December 8, and hold its first meeting by April 2011.  

The revised closed captioning rules will necessarily require a new closed captioning rulemaking proceeding, and presumably, the Commission is gathering information now to determine what the forthcoming rulemaking proceeding will look like.  Some of the issues that the Commission seeks to refresh include:

• Whether to establish quality standards for non-technical aspects of closed captioning, including whether different quality standards should apply to live and pre-recorded programming;

• The need for mechanisms and procedures over and above the "pass through" rule, and whether there should be a per violation forfeiture amount for non-compliance;

• Whether the FCC should revise its rules to disallow the use of electronic newsroom technique for certain DMAs;

• How the section 79.1(d)(12) exemption for channels producing revenues of less than $3 million should apply to digital mulitcast, specifically, the ramifications of treating each multicast stream as a separate channel for purposes of the exemption.

Comments are due November 24.  Reply comments are due December 9.

 

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The FCC yesterday released a Public Notice initiating the first of what will be several proceedings to implement the requirements of the new 21st Century Communications and Video Accessibility Act, which we wrote about earlier here and here. The Notice focuses on the "advanced communications" component of the Act, which the Act defines to include interconnected and non-interconnected VoIP services, electronic messaging service, and interoperable video conferencing service.  The Act in general directs the FCC to implement regulations to ensure that advanced communications devices and services are accessible to the disabled community, including rules related to hearing aid compatibility. 

The Notice seeks comment to interpret the following aspects of the Act:

• New definitions for non-interconnected VoIP, electronic messaging service, and interoperable video conferencing service;
• The meaning of the term "achievable" in the context of whether compliance by device manufacturers and service providers is "achievable";
• Identification of third party applications, peripheral devices, software, hardware, or CPE that may be used to access the features of a device or service;
• Whether the term "devices commonly used by persons with disabilities" means specialized equipment or mass market devices and software;
• How to interpret the requirement that service providers may not install network features, functions or capabilities that impede accessibility to advanced communications services;
• Performance objectives for measuring access to advanced communications services and devices;
• What "information content" must be accessible by advanced communications services and devices; and
• Safe harbor parameters for service providers and device manufacturers;

The Notice further seeks comment on addressing accessibility obligations for equipment that may use telecommunications (subject to Section 255) and advanced communications services (subject to new Section 716); scope of exemptions for features, equipment, or class of features or equipment; and just how far must a device or service be accessible given that the Act does not require manufacturers or providers "to make every feature and function of every device or service accessible to every disability." (Emphasis added).

Comments are due November 22, 2010.
Reply comments are due December 7, 2010.
 

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by Paul Glist and Brian Hurh

On Oct. 8, 2010, President Obama signed into law the Twenty-First Century Communications and Video Accessibility Act of 2010 (Act), coinciding with the 20th anniversary of the Americans with Disabilities Act.

Among other things, the Act (1) extends closed captioning requirements to video programming distributed on the Internet; (2) reinstates the Federal Communications Commission’s (FCC’s) video description regulations; and (3) requires customer digital equipment, including navigation devices (in particular, cable set top boxes), to accommodate accessibility features for closed captioning, video description, emergency information, user interfaces, and video guides and menus.

The Act phases in these various requirements after an Advisory Committee submits its recommendations to the FCC, and the FCC adopts regulations to implement the recommendations and the requirements of the Act. A timeline summarizing these events is available here.

(Continue reading...)

 

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Moments ago, President Obama signed into law the Twenty-First Century Communications and Video Accessibility Act of 2010.  Among other things, the Act reinstates the FCC's video description rules, which were first adopted in 2000 but struck down by the D.C. Court of Appeals, and extends the FCC's closed captioning rules to the Internet. 

For further discussion of the Act, please read Brendan Holland's blog on our sister site, the Broadcast Law Blog.

DWT will also be issuing an in-depth Advisory on the Act's video description and closed captioning rules, so stay tuned.

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Today the FCC released a Public Notice seeking comments on what the FCC calls the "business broadband marketplace."  While this comment cycle is not directly related to any current FCC proceeding (the docket number - WC Docket No. 10-188 - was only created yesterday), the magnitude of information sought hints at the establishment of future regulatory policies, if not rules, regarding broadband service offerings to businesses, that may impact aspects of other Commission broadband initiatives.  Indeed, the Public Notice suggests that the Commission intends to institute regulatory policies over the business broadband marketplace, stating up front that the "business broadband marketplace...requires policies that enable...competitive retail markets, incentives for investments in facilities, and access where competitive infrastructure cannot be economically deployed."  In addition, the Public Notice indicates that the Commission recognizes that "[d]ifferences in the technology used to provide a particular service may cause that service to be subject to significantly different policies, which may undermine competition policy objectives."  This seems to suggest that the Commission prefers a single, uniform policy over broadband business services, regardless of the transmission, technology or facilities used.  (The Public Notice could also be a precursor to the Commission's forthcoming rulemaking in Q4 of this year regarding the collection and analysis of industry-wide data on key broadband metrics (subscribership, prices, performance) for business (and retail) customers.)

Basically, the Commission wants to know everything about "the universe of business broadband service inputs, where they are available, and how they are used."  The Public Notice specifically identifies a number of issues for which it seeks further information, including, among other things, (1) the different types of transmission services, technologies and facilities used to provide business broadband; (2) the various combination of services, technologies and facilities used; (3) trends in the business broadband marketplace, including pricing and technology trends; and (4) the impact of non-traditional marketplace participants (e.g., cable and wireless) and non-carrier wholesale customers (e.g., consumer electronics companies embedding broadband services in their devices) on the marketplace.

Comments are due October 15, 2010.  Reply comments are due November 4, 2010.

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This week the Federal Communications Commission issued three important items related to the National Broadband Plan, and broadband services generally. 

On September 1, the Commission issued a Public Notice to initiate a Further Inquiry Into Two Under-Developed Issues In The Open Internet Proceeding (GN Docket No. 09-191, and WC Docket No. 07-52).  The original Open Internet NPRM (which we discussed at length here) was released October 22, 2009 over two partial dissents, and was designed to impose “network neutrality” rules on Internet service providers, including nondiscrimination obligations, limits on network management techniques, and disclosure requirements.  As discussed in more detail in the Public Notice, comments submitted in this and other proceedings have prompted the Commission to further solicit public discussion regarding two "complex" issues that were addressed "in less detail" than other issues in the NPRM.   First, the Commission seeks additional comments about concerns and policies related to "managed" or "specialized" services.  The NPRM had appeared to be more sensitive to allowing innovation in IP managed services outside of Open Internet regulations, so the Further Inquiry could affect the regulations as originally proposed. 

Second, the Commission seeks additional comment on "how, to what extent, and when" its "openness principles" should apply to mobile wireless services.  The Public Notice specifically noted the fact that, since the NPRM was released in October, recent developments warranted updating the record on certain questions related to wireless, namely, the emergence of new business models by certain wireless carriers to introduce pricing plans that charge different prices based on consumers' level of data consumption, and Verizon's and Google's recent proposal for open Internet legislation that would exclude wireless.

Today, the FCC released an Order extending the deadline for filing reply comments in its pole attachment rulemaking proceeding (WC Docket No. 07-245) to Monday, October 4, 2010.  Reply comments previously were due on September 13, but in response to a petition for extension filed by an industry organization representing electric utilities, the Commission decided to extend the deadline by three weeks.

Also today, the Commission released its tentative agenda for its September open meeting.  According to the release, the Commission intends to discuss four items: (1) TV White Spaces Second Memorandum Opinion and Order; (2) E-Rate Broadband Order; (3) E911 Location Accuracy Second Report and Order; and (4) E911 Location Accuracy FNPRM and NOI.

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The FCC has commenced a proceeding to facilitate the use of spectrum for wireless backhaul and other point-to-point and point-to-multipoint communications, increasing the efficient use of spectrum for backhaul, and providing for the more flexible use of microwave frequencies to promote the deployment of wireless broadband and other services.  In an NPRM, the Commission seeks comment on proposals to increase the utilization and provision of increasing flexibility in microwave spectrum.  The NOI component of the proceeding seeks more generally comments on other proposals for more cost-effective and intensive use of microwave spectrum.  Initial comments will be due 60 days from publication in the Federal Register; reply comments will be due 90 days from publication.  More detailed analysis of this proceeding will be posted shortly. 

The FCC has also commenced a proceeding related to its Hearing-Aid Compatibility rules.  As we noted earlier, this proceeding foreshadows the impending passage of new federal legislation designed promote access to advanced communications, including Internet video, by the disabled community, discussed below. 

The Commissions has issued a Policy Statement basically declaring that people with hearing aids and cochlear implants should have access to advanced technologies, including modern smartphones.  In a Second Report and Order, the Commission clarified a number of issues related to its hearing aid compatibility rules, including that the rules apply to devices that have built-in speakers designed to be held to the ear; requiring disclosure of information about multi-band and multi-mode phones that operate in part over bands or modes for which technical standards have not been established; and amending the rules requiring manufacturers to deploy hearing-aid compatible handsets to apply to handsets sold through all distribution channels, not only through service providers.  Finally, in an NPRM, the Commission seeks comment regarding customer equipment used to provide wireless communications over any type of network; a requirement for some or all retail outlets to offer consumers in-store testing of hearing-aid compatible devices; and user-controlled reduction of power to meet standards for operations over legacy GSM interfaces in the 1900 MHz band.  The Commission also noted that it intends to initiate a comprehensive review of its wireless hearing aid compatibility rules later this year.  Initial comments will be due 45 days after publication in the Federal Register; reply comments will be due 75 days after publication.

The Hearing Aid Compatibility proceeding is especially significant given the recent passage of House and Senate accessibility legislation.  As noted earlier, House Bill 3101, Rep. Markey's "Twenty-First Century Communications and Video Accessibility Act of 2009" was adopted by the House and received in the Senate on July 27, 2010.  More recently, on August 5, it was read twice and placed on the Senate legislative calendar for consideration. 

At the same time, Sen. Pryor's companion bill (S. 3304), which we first mentioned here and here, was replaced by a substitute version proposed by Sen. Reid on August 5.  That version was agreed to and passed by the Senate by unanimous consent that same day.

With the House Bill now on the Senate's calendar, and the Senate having passed its version of the bill, passage of new accessibility legislation is expected very shortly.  As previously explained in detail, the new legislation is expected to update the Americans with Disabilities Act (ADA) by requiring advanced services and devices to be ADA-compliant, including Internet videos and mobile devices, and will reinstate the FCC's video description rules.  Accordingly, this legislation, when passed, will have a significant impact on manufacturers, content providers, and programming distributors, to name a few.   As soon as Congress passes the legislation, we will provide an in-depth look at what changes the legislation will make to the Communications Act and the FCC's ADA rules, among others.

For additional information about the legislation, please contact Maria Browne or Brian Hurh.

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As anticipated from the Commission's earlier tentative agenda, the agenda for the August 5th open meeting, released on Thursday, confirms that the Commission intends to initiate two proceedings this month.  The first is a hearing-aid compatibility Report and Order and Further Notice of Proposed Rulemaking that will seek to require modern advanced telephone voice communications devices to be compatible with hearing-aids.  As discussed earlier, this proceeding is a precursor to the Commission's goal of making broadband services and applications, including Internet video, accessible to the disabled community.  This proceeding will also follow on the heels of the House of Representative's recent passage of Rep. Markey's "Twenty-first Century Communications and Video Accessibility Act of 2009" (HB 3101), which we first talked about back in May, along with the companion bill S.3304 (Pryor).  On July 26, House Bill 3101 was easily adopted by a vote of 348 to 23, and the next day it was received in the Senate, where it is expected to pass.  As we discussed earlier, House Bill 3101, which is cited numerous times throughout the National Broadband Plan, would extend hearing aid compatibility requirements to "advanced services" (including non-interconnected VoIP and text messaging) and to manufacturers of devices for such services, as well as reinstate the FCC's "video description rules."

The second agenda item is a wireless backhaul Notice of Proposed Rulemaking and Notice of Inquiry that will seek to "remove regulatory barriers to the use of spectrum for wireless backhaul and other point-to-point and point-to-multipoint communications, in order to lower the cost of backhaul services and accelerate investment in broadband networks throughout the nation."

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The FCC has released its tentative agenda for its August 5th open meeting.  Like its July meeting, this one is fairly light, with only two agenda items scheduled for adoption.  One is a proposed NPRM and NOI which will "seek to remove regulatory barriers to the use of spectrum for wireless backhaul and other point-to-point and point-to-multipoint communications, to promote broadband competition and investment in rural and non-rural areas."  This issue was recommended by the National Broadband Plan, as we discussed earlier.

The other agenda item is not directly related to broadband, but can be seen as perhaps a precursor of things to come.  The second agenda item involves a Report and Order and FNPRM to ensure that advanced voice communication devices are hearing aid-compatible.  This comes during the FCC's celebration of the 20th anniversary of the Americans With Disabilities Act (ADA), which has recently become both a political and industry issue.  As we discussed earlier, both the House and Senate are currently considering similar bills that would update the ADA to require advanced services and devices be ADA-compliant, including Internet videos and mobile devices, as well as reinstate the FCC's video description rules.  The Senate bill (S.3304, Pryor) was recently moved out of subcommittee to the Senate Commerce Committee on July 15.  Similarly, the House bill (HR 3101, Markey) was heard and marked-up by the House Subcommittee on Communications, Technology and the Internet, then forwarded to the full Committee on Energy and Commerce on June 30.  As Sen. Kerry asserted during hearings on S.3304, Congress intends to pass new ADA laws before the end of the year.  With the finance and healthcare bills taken care of, and the fact that Markey's House bill, which had been stuck in subcommittee since June 2009, was marked up and sent to committee a couple weeks ago, we could indeed see a new law that would impose new ADA requirements on a broad spectrum of industry players, including content providers, programming distributors, device manufacturers and application developers.

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This morning the Federal Communications Commission held its monthly open meeting, this time to discuss the Commission's proposed reclassification efforts for broadband services.  In a three-to-two vote (Commissioners McDowell and Baker dissented), the Notice of Inquiry was adopted, and will seek comment on three ways to regulate broadband - under the Commission's Title I ancillary authority; under full Title II authority; or under the Chairman's "Third Way" approach which would impose limited Title II authority using the Commission's forbearance authority.  The NOI will also solicit the public for any other suggestions on how to regulate broadband.

It was announced during the meeting that comments to the NOI will be due by July 15, 2010, and reply comments due by August 12, 2010.

At this time, the NOI has not yet been released, but the FCC has released a News Release and statements from the Commissioners (but not the Chairman).  When the NOI is released, we will provide a more in-depth analysis.

UPDATE: The Notice of Inquiry has been released, and is available on the FCC's website with all the Commissioners' statements.

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This is a reminder that the FCC will hold its next open meeting on Thursday, June 17.  As we noted earlier, and as confirmed by the Commission's recent Meeting Agenda released this past Friday, this open meeting is expected to be quite entertaining, as it is dedicated to discussing a Notice of Inquiry to initiate an "open, public process to consider possible legal frameworks for broadband Internet services in order to promote innovation and investment, protect and empower consumers, and bring the benefits of broadband to all Americans" -- in other words, reclassification of broadband services as telecommunications services to implement the Commission's National Broadband Plan.

If you recall, last May, Chairman Genachowski released a statement indicating that, rather than reclassifying broadband services as telecommunications broadly, he would pursue a "third way approach" whereby only the "transmission components of broadband service" would be deemed telecommunications subject to select portions of Title II of the Communications Act.  This controversial approach will certainly be discussed at the June 17 meeting, in addition to any other proposals that the NOI may present.

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The FCC has released its tentative agenda for its June 17, 2010 open meeting.  Unlike recent agendas for April and May, this one is written such that the June meeting will be dedicated to one, and only one, issue - the reclassification of broadband access service as a telecommunications service.*  According to the agenda, the Commission intends to adopt a Notice of Inquiry to "begin an open, public process to consider possible legal frameworks for broadband Internet services...."  In particular, the agenda highlights three questions from the proposed NOI, paraphrased as follows:

1. Whether the information service classification for broadband Internet service remains legally sound and adequate for the Commission to perform responsibly;

2. The legal and practical consequences of classifying broadband Internet service as a telecommunications service subject to all the provisions of Title II; and

3. The Commission's "third way" approach to regulating broadband Internet service (or at least the transmission components of such service).

We previously blogged about this issue already when the Chairman first announced his "third way" approach to reclassification (see an opinion on the "third way" approach here), so we won't get into it again now.  But rest assured, June 17 should make for an interesting and eventful day at the FCC.

* Of course, the Commission may include additional agenda items as the June 17 date nears, but this issue is obviously big enough to keep everyone busy for the entire meeting.

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While the FCC ponders the legality of implementing the recommendations of the National Broadband Plan (see our prior discussions of the Chairman's "Third Way" approach to regulating the Internet, here and here), it appears that Congress is first to move forward in addressing broadband accessibility issues for the disabled, including closed captioning for Internet-delivered video and reinstating the FCC's video description rules.  (According to the FCC's broadband action agenda items schedule, the Commission was not planning to address hearing aid compatibility until Q3 of this year, and Internet video and device accessibility until Q4.)

Tomorrow, the Senate Subcommittee on Communications, Technology and the Internet (of the Senate Committee on Commerce, Science & Technology) will hold a hearing on “Innovation and Inclusion: The Americans with Disabilities Act at 20.” This hearing will likely include discussion of the recently introduced Senate bill entitled “Equal Access to 21st Century Communications Act” (S.3304, Pryor-Kerry-Conrad-Dorgan, May 4, 2010) which would expand the accessibility of “advanced communications” to people with hearing and visual disabilities.

As we noted in our initial analysis of accessibility under the National Broadband Plan, many federal laws have been enacted to require greater access to telecommunications by persons with disabilities, but they often lag technological development. For example, Section 255 of the Act requires telecommunications products and services to be accessible to the disabled but does not apply to voice over Internet protocol (VoIP) or other IP-based equipment and services. Video programs delivered by Internet are under no requirement to be captioned, even if they were previously shown with captions on TV. Many 911 emergency call centers also cannot accept calls from people who communicate in video or via pagers. Application of existing disability laws to Web sites that blend Internet with “bricks and mortar” retailing has caused confusion and spawned litigation.

In the past, Representative Edward Markey (D-Mass.) has regularly introduced bills to extend the reach of accessibility legislation. His most recent bill on this issue was “The Twenty-first Century Communications and Video Accessibility Act of 2009,” (H.R. 3101, June 26, 2009). In making its recommendations, the National Broadband Plan often cited to, and thus relied on, the recommendations made in the Markey bill, including extending hearing aid compatibility requirements to "advanced services" (including non-interconnected VoIP and text messaging) and to manufacturers of devices for such services, as well as reinstating the FCC's "video description rules." The more recent Pryor bill is similar to the Markey bill in both scope and intent.

Both bills' efforts to reinstate the FCC's video description rules are particularly noteworthy. "Video description" is defined as the "insertion of audio narrated descriptions of a television program's key visual elements into natural pauses between the program's dialogue." (47 C.F.R. 79.3(a)(3).) In other words, when there is no dialogue, audio narration would be inserted to describe what is happening onscreen, so that people with visual disabilities could follow the events unfolding. The original video description rules were adopted by the FCC in 2000 (15 FCC Rcd. 15,230) and would have required, among other things, that (1) affiliates of the top 4 broadcasters at the time (NBC, ABC, CBS, and Fox) must provide 50 hours of video description per calendar quarter either during prime time or children's programming, and (2) MVPDs with over 50,000 subscribers must provide 50 hours of video description on each channel on which they carry one of the top five national nonbroadcast networks. The MPAA immediately challenged the rules on the ground that the FCC had exceeded its authority by promulgating rules that implicated program content. The D.C. Circuit agreed, and struck down the video description rules. In doing so, the court clarified that the FCC "acted without delegated authority from Congress."

In light of the D.C. Circuit's clarification, the Pryor and Markey bills would expressly delegate such authority to the FCC, thus avoiding any challenges based on the FCC's delegated authority. Specifically, the law, if passed, would require the FCC to "republish" and "refresh" the original rules to apply to "video programming that is first published or exhibited after the date of enactment" of such new law. In addition, both bills would authorize the FCC to require closed captioning on certain video programming distributed over the Internet, and to impose (or inquire into imposing) accessibility requirements on navigation devices/set top boxes, programming guides, DVRs, and remote controls. With express Congressional authority, challenges to resultant FCC actions would have to find some other Constitutional ground for reversal.

The Senate hearing is scheduled for May 26 at 2:30 pm in the Russell Senate Office Building Room 253.
 

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In publicizing his decision to reclassify broadband as a Title II telecommunications service, FCC Chairman Genachowski took some pains to try to reassure the investment community that he was not making any sudden moves that should discourage broadband investment. But despite his efforts to try to limit the impact of his move, he has crossed a Rubicon that should never have been crossed. Broadband internet was never regulated under the Title II rules that grew up for the monopoly “Ma Bell” era, and for good reason.  It was because the Internet was allowed to grow in an unregulated competitive market that attracted massive investment by competing providers and delivered the astonishing broadband throughput that enables all the cool Internet business models. No student of technology should feel comforted when the government decides that technological innovation has gone far enough, and we can stop now and write it into rule. No student of regulatory history should be sanguine about promises to limit the scope of government once it asserts control. Every student of government should be alarmed when the government picks favorites, asserting control over the selected few parties who built the “core” of the Internet to today’s capabilities, to benefit its favored parties at the “edge,” claiming all the while that it is not touching the Internet or free speech, when it is in fact doing both. It has been only weeks since we and Google collectively scolded China for centralized government controls which are anathema to the Internet—and now we are inviting centralized government controls when it favors Google. We should be troubled, too, by some of the reasoning offered. It conspicuously avoids inconvenient facts, such as broadband never having been subject to “Ma Bell” regulation. It seeks to write for itself a new Title of the Communications Act that Congress never adopted, ignoring a Congressional mandate to leave the Internet “unfettered” by regulation. While the Commission will be inviting further comment, matters this profound should not be left to an unelected agency, no matter how bright and well-meaning. If we are to reconstruct communications and media law, we should be turning to Congress. And if we are straying towards a world in which the government decides which speech is free and which is not, we should be turning to the Bill of Rights to remind us of why the government is supposed to limit its reach in the first place.

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Following reports yesterday that Chairman Genachowski was now prepared to assert FCC jurisdiction over the Internet, the FCC released the Chairman's statement proposing a "third way" to regulate the Internet.  As anticipated by earlier reports, the Chairman's statement reveals that the FCC would not seek to impose Title II on Internet services in its entirety.  Rather, the FCC would only recognize the "transmission component of broadband service" as a "telecommunications service."  In addition, the FCC would only apply a "handful" of Title II provisions to Internet networks, specifically, Sections 201 (just and reasonable service and charges), 202 (non-discrimination), 208 (complaint procedures), 222 (customer privacy), 254 (universal service) and 255 (disability access).  In doing so, the Commission would forbear from applying many other sections of the Communications Act that, according to the Chairman, are "unnecessary and inappropriate for broadband access service." 

The "third way" approach is the FCC's attempt to find some middle ground between the status quo (Title I ancillary jurisdiction) and full reclassification of Internet access service as a telecommunications service under Title II.  Indeed, the Chairman admitted that "the extreme alternatives to this light-touch approach are unacceptable," and that "FCC policies should not include regulating Internet content, constraining reasonable network management practices of broadband providers, or stifling new business models or managed services that are pro-consumer and foster innovation and competition."

The statement follows reports that Representative Waxman and Senator Rockefeller had delivered a letter to the Chairman yesterday indicating their support for the FCC's regulatory oversight of the Internet, which may have helped sway the Chairman to adopt this middle ground.  The statement also follows a letter from Commissioner McDowell to Rep. Waxman providing a brief history of the regulatory classification of Internet access services.  In that letter, Commissioner McDowell emphasized that, following the Supreme Court's Brand X decision upholding the FCC's classification of cable modem service as an information service, the Commission "without dissent" consistently classified broadband services as information services in the context of wireline, powerline, and wireless.

UPDATE: The FCC has also released an accompanying statement from the FCC's General Counsel Austin Schlick that provides the "legal thinking" behind the "third way" approach. 

In addition, Commissioner Copps released his statement on the proposal, in which he admitted that he "would have preferred plain and simple Title II reclassification through a declaratory ruling and limited, targeted forbearance."

UPDATE: Commissioners McDowell and Baker have released their joint statement, finding the Chairman's proposal "disappointing" and one that "deeply concerns" them.  Notably, the two Commissioners caution that the proposal will be shot down by the courts as exceeding the FCC's authority absent a "specific mandate from Congress."  If that is the case, the Waxman and Rockefeller letter to the Chairman would suggest that some members of Congress would then try to give the FCC that mandate.

UPDATE: Commissioner Clyburn's statement is now available on the FCC's website, which, not surprisingly, supports the Chairman's proposal.

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In case you missed it, the Senate Commerce Committee's hearing with Chairman Genchowski on the Broadband Plan is now available on the Commerce Committee's website.  The FCC has also released the Chairman's prepared statement for the hearing.

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Although the DC Circuit's recent decision in Comcast v. FCC has raised significant questions concerning the Commission's jurisdiction over Internet access (read the DWT Advisory on the case), the Commission has moved forward with releasing a comprehensive schedule that proposes over 60 proceedings, workshops and other efforts to implement the recommendations in the Broadband Plan. The schedule anticipates the release of 16 reports and orders by the end of 2010 alonw, nine of which are expected to be released in the second quarter, in addition to numerous other proposed NPRMs, NOIs and FNPRMs. Some notable issues to be considered this year include pole attachments, TV white spaces, hearing aid compatibility and a clarification on interconnection. The FCC also intends to initiate an NPRM on CableCARD and an NOI on smart video devices in the second quarter of 2010, as well as NPRMs on USF, texting, intercarrier compensation and smart video devices by the end of 2010.

The 2010 schedule and the more comprehensive agenda which discusses the 60+ proposed action items, are available on the FCC’s broadband.gov website.  However, like the FCC's March 31 tentative agenda,  this comprehensive agenda still only offers teasers of what to expect in the upcoming proceedings, so there is not much more to report than what is available. (You can, in the meantime, refer to DWT’s Advisory on the Broadband Plan for more detailed analyses of the issues.)

The Chairman also took this opportunity to respond to reports that the DC Circuit's decision could derail the FCC’s broadband agenda. The Chairman is quoted as saying that the court’s decision “does not change our broadband policy goals, or the ultimate authority of the FCC to act to achieve those goals.”  That, of course, remains to be seen -- as we concluded in our DWT Advisory, the court’s ruling likely sets the stage for further rulemakings, court cases and federal legislation to address, and clarify, the FCC’s regulatory role in high-speed Internet access, including a potential showdown on placing the Internet under Title II regulation.

 

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The U.S. Senate Committee on Commerce, Science, and Transportation has rescheduled its review of the National Broadband Plan to April 14, 2010.  This hearing was previously scheduled for Tuesday, March 23, 2010. Currently, Chairman Genachowski is the only witness scheduled to appear.  More meeting information is available on the Commerce Committee's website

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The FCC has made available the Chairman’s and the Commissioners’ prepared statements for the March 25 hearing before the House Committee on Energy and Commerce, Subcommittee on Communications, Technology and the Internet.

• Chairman Genachowski
• Commissioner Copps
• Commissioner Clyburn
• Commissioner Baker
• Commissioner McDowell

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The Senate Commerce Committee cancelled its hearing on the National Broadband Plan, which was originally scheduled for March 23, most likely due to the healthcare debates.  Reports indicate that the Committee will try and reschedule before the Easter break. We will post the new date as soon as it is released.

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By Robert G. Scott, Jr. and James M. Smith

On March 16, 2010, the Federal Communications Commission (FCC) presented to Congress its long-anticipated National Broadband Plan, as mandated by the American Recovery and Reinvestment Act of 2009 (the “Recovery Act”). Thirteen months in the making and weighing in at nearly 400 pages, “Connecting America: The National Broadband Plan” (the “Plan”) has occupied a disproportionate share of the FCC’s time and energy for the last year and, given the breadth and sheer quantity of its analysis and proposals, it will continue to be the single greatest focus of the agency for years to come.

Section 6001 of the Recovery Act, signed into law by President Obama on Feb. 17, 2009, less than a month after his inauguration, mandated the dispersal of $7.2 billion through grant and loan programs to expand broadband deployment to, and adoption by, unserved and underserved areas and vulnerable populations. Those programs—the Broadband Technology Opportunities Program (BTOP) administered by the Department of Commerce and the Broadband Initiatives Program (BIP) administered by the Department of Agriculture—are underway, and by law, all of these grants must be awarded by September 30, and the projects completed within three years thereafter.

But Subsection 6001(k) of the Recovery Act also directed the FCC to submit to Congress a National Broadband Plan for the longer term, to pick up where these broadband deployment and other short-term projects leave off “to ensure that all people of the United States have access to broadband capability and [to] establish benchmarks for meeting that goal.”

Congress ordered the FCC to include (1) “analysis of the most effective and efficient mechanisms for ensuring broadband access” by all Americans, (2) “a detailed strategy for achieving affordability of such service and maximum utilization of broadband infrastructure” by the public, (3) “an evaluation of the status of deployment of broadband service, including progress of projects supported by the [BTOP and BIP] grants,” and (4) “a plan for use of broadband infrastructure and services in advancing consumer welfare, civic participation, public safety and homeland security, community development, health care delivery, energy independence and efficiency, education, worker training, private sector investment, entrepreneurial activity, job creation and economic growth, and other national purposes.”

Continue reading DWT"s Analysis of the National Broadband Plan.

Download the National Broadband Plan. 

You can also directly access DWT's analysis of specific topics under the National Broadband Plan here:

• Broadband Deployment
• High-Cost Universal Service
• Intercarrier Compensation
• Mobile Broadband Services and Spectrum Initiatives
• Infrastructure Deployment -- Poles, Conduits, and Rights of Way
• Navigation Devices
• Privacy Advisory
• Cybersecurity
• E-Rate Upgrade
• Broadband Adoption
• Accessibility (Persons with Disabilities
• Smart Grid
• Consumer Disclosure
• Broadband Availability in Tribal Communities
• E-Health Records

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