Broadband Law Advisor Blog

FCC to Study Pole Attachment Costs to Spur Gigabit Deployment

Maria Browne — Mon, 29 Apr 2013 11:26:29 -0800

At last month’s Broadband Acceleration Initiative workshop, outgoing FCC Chairman Genachowski announced that the FCC would soon release a notice launching an inquiry into pole attachment costs as part of its effort to further reduce barriers to broadband build-out. This announcement followed on the heels of the Chairman’s issuance of the Gigabit Cities Challenge, which urges broadband providers and state and municipal community leaders to establish ultra-fast, affordable broadband connections in at least one community in every state by 2015.

Pole attachment delays and costs routinely have been cited by broadband providers as barriers to swift and ubiquitous deployment of networks. The Congressionally directed National Broadband Plan released in 2010 recognized that the cost of deploying a broadband network depends significantly on the costs that service providers incur to access poles, conduits and rights of way. The FCC sought to address these concerns in its April 2011 order (affirmed by the D.C. Circuit January 2013) lowering rental rates for telecommunications attachments and imposing timeframes on pole owners for processing attachment applications.

However, recent statements by small cable operators and broadband newcomers, including broadband grant recipients and Google, Inc. – that utility pole attachment practices factor into a company’s deployment decisions – appear to have prompted the FCC to take another look at pole attachment related costs and their impact on deployment of gigabit networks. Buford Media attributed its decision to shut down four systems in Arkansas and Texas to high costs for pole attachment fees. We will keep you apprised of any developments in this area, including when the notice initiating the FCC proceeding is released.

Disputes Over MDU Access Persist

Robert G. Scott, Jr. — Fri, 19 Apr 2013 11:28:48 -0800

You would be forgiven if you thought the status of exclusive agreements for exclusive broadband cable service to “multiple dwelling units” such as condominiums and planned communities (MDUs) was settled. In 2007, the Federal Communications Commission (“FCC”) issued a ruling broadly declaring that such exclusivity agreements are “null and void,” and adopted a rule that prohibits the enforcement or execution of “any provision in a contract that grants to it the exclusive right to provide any video programming service (alone or in combination with other services) to a MDU.” We detailed the FCC’s exclusivity orders in previous posts here and here, and the court’s decision upholding the FCC on appeal here.

Despite the seemingly straight-forward application of this rule to ban exclusive MDU service, conflicts over broadband service to MDUs persist. The issue continues to surface both in negotiation of expiring agreements (where MDU management tends to demand compensation in exchange for exclusivity or simply tells the existing provider to leave and enters into a “non-exclusive” agreement with another provider) and in court disputes. At a recent FCC workshop promoting so-called gigabit networks, investors and service providers told the FCC that access to MDUs continues to be an obstacle to broadband deployment and investment.

Most recently, on April 5, 2013, in Lansdowne on the Potomac Homeowner’s Association v. OpenBand at Lansdowne, the United States Court of Appeals for the Fourth Circuit affirmed an order of the district court striking down an arrangement that gave a broadband service provider the exclusive right to provide video, voice, and Internet service to a large planned development. Exclusivity was assured through a convoluted series of entities and agreements designed to insulate the exclusive service rights from potential challenges under the FCC’s rule, which had been a proposal but not a rule when the agreements were structured.

The court concluded that the provider had “engaged in what amounts to an elaborate game of regulatory subterfuge featuring an array of procedural defenses, the use of various corporate entities to escape the definition of an OVS operator, and an artifice to evade the FCC order by structuring its exclusive arrangement using a web of sub-agreements.” The court declared the exclusivity provisions null and void as required by the FCC’s rule, and issued an injunction prohibiting their enforcement against the homeowners’ association and the homeowners themselves.

The Lansdowne case may discourage some developers and service providers from entering agreements designed to circumvent the FCC’s prohibition on exclusive service agreements. But because exclusive service is extremely profitable for the provider and affiliated developers, disputes are unlikely to disappear altogether.

Regional Transmission Organizations Can Be a Bellwether for Wireless Attachers on Transmission Towers

Mark Trinchero — Thu, 18 Apr 2013 11:31:36 -0800

Throughout the nation, wireless carriers attach their facilities to electric transmission towers, despite the fact that they do not have statutory rights to do so. The rights of wireless carriers to attach to electric facilities generally stems from the federal Pole Attachment Act, as amended by the Telecommunications Act of 1996 (“the Act”), codified at 47 U.S.C. § 224. While wireless carriers have rights to attach under the Act, carrier rights do not extend to transmission towers. Southern Company v. Federal Communications Commission, 293 F.3d 1338, 1343-46 (11^th Cir. 2002). This lack of rights gives transmission tower owners significant bargaining power over wireless carriers and often results in unbalanced license agreements heavily skewed in favor of the tower owner.

For example, license agreements typically subordinate the wireless attacher’s use of space on transmission facilities to the needs of the tower owner. It is not uncommon to find provisions requiring an attacher to remove or relocate its equipment upon 90 days’ notice from the tower owner when the owner needs the space for its own use or planned future uses. Removing wireless facilities in such a short time frame can severely hamper a wireless carrier’s ability to locate, secure, obtain permitting for and construct an alternative site in order to ensure continuous coverage.

Wireless carriers in New Jersey were forced into such a situation just last year when Public Service Gas and Electric Company (“PSE&G”) sent 90 day removal notices to wireless attachers along a transmission path that had been slated for replacement. PSE&G had no plans for temporary or permanent relocation of the wireless attachments on other PSE&G facilities. Given the timeframes for local zoning and permitting, the wireless carriers had no reasonable means for ensuring that coverage and service (including access to emergency services) would not be compromised. The wireless attachers were compelled to raise the issue with the New Jersey Board of Public Utilities, which in turn led to a settlement in which PSE&G agreed to cooperate with the wireless attachers to ensure wireless coverage would not be interrupted.

There is a relatively simple way for wireless attachers to ensure they are not caught off guard in such situations. In order to better anticipate a transmission tower owner’s future planned use of facilities to which they are attached, wireless carriers should monitor the planning processes of the Regional Transmission Organizations (“RTOs”). RTOs are entities approved by the Federal Energy Regulatory Commission (“FERC”) to both operate transmission networks in centrally dispatched control areas, and maintain reliability within established reliability standards. Most electric companies across the country have turned over the operational control of their electric transmission systems to RTOs. In order to ensure the transmission system will continue to meet reliability standards, the RTOs will typically engage in regional transmission planning processes to determine when transmission facilities will need to be upgraded and/or replaced. These planning processes are open to the public. Wireless attachers can and should monitor these planning processes in order to know in advance when an RTO will require transmission tower owners to replace facilities. In this way wireless attachers will be in a better position to work with tower owners in advance of receiving removal/relocation notices.

Federal Funding Available for Building Broadband Networks for Health Care

Randall B. Lowe — Tue, 16 Apr 2013 11:37:44 -0800

By Randy Lowe and Michael Sloan

Many healthcare providers (HCPs) do not have access to broadband facilities that are capable of supporting bandwidth-hungry telemedicine applications – either because it is simply unavailable or too expensive. Congress recognized this problem when it created the Health Care Support component of the Universal Service Fund. In December 2012, the FCC changed the program to make it more useful to HCPs seeking to expand their telemedicine offerings. Specifically, the FCC created the Health Care Connect Fund (HCF), which aims to distribute $400 million annually to rural HCPs and their non-rural partners.

The purpose of the HCF is to expand broadband access to HCPs and to encourage the development of state and regional broadband networks for telemedicine. The HCF will support the cost of (1) broadband and other advanced services; (2) upgrading existing facilities to higher bandwidth; (3) equipment necessary to create HCP networks or use broadband services; and (4) HCP-owned infrastructures where shown to be the most cost-effective option.

The HCF will allow eligible HCPs the option of purchasing services or designing and building networks if they can demonstrate that their choice is the most cost-effective option (the option for building new networks is available only to members of a consortium). Infrastructure funding, which is capped at $150 million each year, may be used in combination with services purchased from commercial service providers. Only consortia will be permitted to receive support for new infrastructure builds. Urban HCPs will be permitted to participate in those consortia with Rural HCPs so long as the Urban HCPs are not a majority of the participants. The HCF will pay 65 percent of eligible costs, with the participating HCPs required to pick-up the remaining 35 percent. While the HCP contribution obligation is not insignificant, the FCC specifically approved a variety of creative ways for HCPs to finance their 35 percent share of the costs.

Participants in the precursor to the HCF, the Rural Healthcare Pilot Program, can seek HCF funding beginning July 1 of this year. The FCC is expected to finalize the applications for the HCF by the end of the summer and funding will begin for new participants on January 1, 2014.

FCC Extends Compliance Deadline for Some VPD Captioning Functionality Requirements

Brian Hurh — Thu, 30 Aug 2012 15:14:26 -0800

By Maria Browne and Brad Guyton

Updated September 12, 2012 at 10 AM EST

On August 17, the Federal Communications Commission (FCC) extended to January 1, 2014 the date for video programming providers (VPDs) to comply with new captioning functionality requirements imposed under the 21st Century Communications and Video Accessibility Act (CVAA). The functionality requirements, which enable the end user to manipulate the appearance of captions, apply to any VPD that provides applications, plug-ins or devices in order to deliver video programming.

The FCC declined, however, to extend the timeframe for complying with rules requiring the rendering or pass-through of closed captions. VPDs must meet the FCC’s rendering/pass-through requirements by the current deadline of September 30, 2012.

The FCC made these moves via an order that addressed two different waiver requests submitted by the Digital Media Association (DiMA). First, DiMA requested a limited waiver extending the deadline for compliance with various user configuration requirements for captions, including presentation, character color, character opacity, character size, fonts, caption background color and opacity, character edge attributes, caption window color, language, and preview and setting retention. The FCC granted a limited waiver of this deadline (moving it to January 1, 2014, as noted above), easing the nearly industry-wide burden on VPDs by providing additional implementation time. As a result, VPDs now have until 2014 to rewrite software or meet any other technical challenges to provide full captioning functionality.

Second, DiMA requested a limited waiver of rules regarding the rendering (that is, decoding closed captions for display) of captions by all VPDs that do not currently provide closed captioning. This request was denied by the FCC. Because not all VPDs needed the requested relief and the industry has been on notice about the upcoming requirements since the CVAA was passed nearly two years ago, the current deadline of September 30, 2012 will remain in effect. Thus, VPDs have until the end of this September to ensure that their software, applications, or plug-ins (or the devices upon which content is played) decode or pass through the required closed captions to display properly for the end user.

FCC Seeks Comment on the Accessibility of Telecommunications Technologies and Advanced Communications Services

Maria Browne — Mon, 16 Jul 2012 11:52:41 -0800

By Maria Browne

The FCC’s Consumer and Governmental Affairs Bureau seeks public comment by July 25, 2012, to inform preparation of the FCC’s biennial report to Congress required by the Twenty-First Communications Video Accessibility Act of 2010 (CVAA), concerning the accessibility of telecommunications and advanced communications services and equipment to individuals with disabilities. Specifically, the FCC seeks comment on, among other things:

The level of compliance with Sections 255, 716, and 718 of the Communications Act (Act) by telecommunications and interconnected VoIP providers, as well as providers of advanced communications services, such as text messaging, video conferencing and non-interconnected VoIP;
An evaluation of the extent to which any accessibility barriers still exist with respect to new communications technologies; and
An assessment of the effect of the recordkeeping and enforcement provisions of Section 717 of the Act on the development and deployment of new communications technologies.

Links to the Public Notice:

http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-12-1125A1.doc
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-12-1125A1.pdf
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-12-1125A1.txt

FCC Seeks Comment On Latest VPAAC Report On Video Description and Emergency Information

Maria Browne — Thu, 26 Apr 2012 06:25:35 -0800

Earlier this month, the Video Programming Accessibility Advisory Committee (VPAAC) released its Reports on Video Description, Access to Emergency Information, and User Interfaces, Video Programming Guides and Menus. These reports respectively summarize the VPAAC's investigation and recommendations regarding these topics.

This week, the FCC announced that it is seeking the public's general reactions to these reports.

With respect to access to emergency information and video description, the FCC has asked for general feedback:

We seek comment on the portions of the VPAAC Second Report that address access to emergency information and device capabilities with respect to the provision of video description and emergency information. How should these portions of the VPAAC Second Report inform our forthcoming rulemakings? In particular, we ask commenters to indicate whether they agree with the pertinent recommendations in the VPAAC Second Report, and if so, why. Are there additional issues that the Commission should consider as it prepares to commence these rulemakings?

Initial comments are due May 24. (Full press release availabler here.)

The FCC's request for comment on the VPAAC's report related to user interfaces, video programming guides and menus is essentially the same:

We seek comment on the portion of the VPAAC Second Report that addresses the above
issues pertaining to making user interfaces, video programming guides, and menus accessible on video programming apparatus and navigation devices. How should this portion of the VPAAC Second Report inform our Notice of Proposed Rulemaking about user interface, video programming guide, and menu accessibility? In particular, we ask commenters to indicate whether they agree with the pertinent recommendations in the VPAAC Second Report, and if so, why. Are there additional issues that the Commission should consider as it prepares to commence this rulemaking?

Initial comments are also due May 24. (Full press release available here.)

Comment Dates Set for FCC's Proceeding to Improve the Video Relay Service Program

Maria Browne — Mon, 06 Feb 2012 14:13:36 -0800

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.

FCC Adopts Lifeline Reform Order; Link Up Eliminated Except in Tribal Lands

Danielle Frappier — Wed, 01 Feb 2012 07:26:27 -0800

By James Smith and Danielle Frappier

The Federal Communications Commission (FCC) yesterday (Jan. 31, 2012) adopted its long-awaited Report and Order and Further Notice of Proposed Rulemaking (Order and Rulemaking) reforming and modernizing the federal Low Income program, with the goals of preserving this important program while introducing significant program funding reductions and cost savings. The Order sets a savings target of $200 million in 2012, and seeks to save up to $2 billion over the next three years.

As we have described in our Mar. 7, 2011 and Aug. 9, 2011 advisories, the Low Income component of the Universal Service program has provided subsidies for telephone services to low income Americans by paying a portion of their monthly recurring charges (Lifeline) and service activation fees (Link Up).

The full text of the FCC’s Order has not yet been released; we will provide a more detailed report when it becomes available. Based upon the FCC’s brief News Release, FCC Commissioner and staff statements during the FCC’s meeting and a subsequent press conference yesterday, we can report the following key elements of the Order:

(Continuing reading here)

DWT Advisory: FCC Adopts Closed Captioning Rule for Online Video Programming

Maria Browne — Tue, 17 Jan 2012 13:35:58 -0800

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.)

FCC Releases Final Rules on Closed Captioning for IP-Delivered Video Programming

Maria Browne — Fri, 13 Jan 2012 13:34:28 -0800

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.

Accessibility Rules for Advanced Communication Services Published in Federal Register; Effective Dates Set For Compliance with Accessibility and Recordkeeping Obligations

Maria Browne — Tue, 03 Jan 2012 08:35:44 -0800

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.

Revised FCC Form 499-A Released To Include Non-Interconnected VoIP Providers; FCC Registration Required By December 31

Maria Browne — Wed, 09 Nov 2011 07:36:58 -0800

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.

FCC Requires Certain Non-Interconnected VoIP To Register with FCC and Contribute To Telecom Relay Service Fund

Maria Browne — Wed, 12 Oct 2011 10:48:29 -0800

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.

FCC Releases Final Rules on Accessibility of VoIP, Texting and Video Chat; Rules Cover Incidental Services and Equipment

Maria Browne — Mon, 10 Oct 2011 18:17:26 -0800

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.

Internet Closed Captioning Proposed Rules Published in Fed Reg - Comments Due Oct. 18; Replies due Oct. 28

Maria Browne — Wed, 28 Sep 2011 06:30:40 -0800

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.

FCC Releases Proposed Internet Closed Captioning Rules

Maria Browne — Mon, 19 Sep 2011 18:02:16 -0800

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.

Net Neutrality Regulations Will Soon Be In Effect

Chris Fedeli — Tue, 13 Sep 2011 11:27:24 -0800

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

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

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

FCC Releases Order Reinstating Video Description Rules

Maria Browne — Thu, 25 Aug 2011 09:57:49 -0800

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.

Follow the Broadband Law Advisor on Twitter

Brian Hurh — Fri, 12 Aug 2011 07:09:15 -0800

The Broadband Law Advisor is now available through Twitter! Follow us @DigiNetAtty for the latest news on FCC broadband policy and rulemakings, and other emerging technology news, now from your Twitter account.

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