Client Advisory: Lifeline Modernization and Transition from Voice to Broadband

At its open meeting on March 31, 2016 the Federal Communications Commission (FCC or Commission) voted along party lines (3-2) to adopt a Lifeline Modernization Order implementing significant changes to the Lifeline Universal Service Program, the most significant of which is an expansion of the program to cover broadband service. Last week, the Commission released the text of the Order, and on Friday we released a client advisory that provides a summary of the Order’s key changes and effective dates.

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Kelley Drye Webinar Recap: Disability Laws & LGBT Rights in the Workplace

On April 19, Kelley Drye’s Labor and Employment and Communications practice groups held the first in a series of joint webinars on labor issues affecting communications and technology companies.

Barbara E. Hoey, partner and chair of Kelley Drye’s Labor and Employment Practice Group, along with partner, Mark A. Konkel guided participants through current federal, state and administrative laws covering disability and discrimination in the workplace, particularly as it relates to LGBT employees.  The webinar was moderated by Steven A. Augustino, partner in Kelley Drye’s Communication Practice Group.

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$11.7 Million Available Under Department of Agriculture’s Community Connect Grant Program

The Department of Agriculture’s (USDA) Rufunding_opportunity_v1r1ral Utilities Service (RUS) announced today the availability of $11.7 million under its Community Connect Grant Program (Community Connect), which provides grants for deploying broadband service to unserved, low-income and rural areas.  Grant awards range from $100,000 to $3 million for FY 2016.

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Rural Utilities Services Announces Broadband Loan Program Funding; Applications due July 7, 2016

funding_opportunity_v1r1On April 8, the Department of Agriculture’s (USDA) Rural Utilities Service (RUS) published a Notice of Solicitation of Applications (NOSA) in the Federal Register for the Rural Broadband Access Loan and Loan Guarantee Program (the Broadband Program) for Fiscal year 2016.  Loans are available ranging from $100,000 to $10 million.  Applications will be accepted from April 8, 2016 through July 7, 2016.

The Broadband Program provides loans to corporations, Limited Liability Companies, Cooperatives, State or local governments and Indian tribes or tribal organizations for the construction, improvement and acquisition of facilities and equipment.  The loan will not fund operating expenses, construction costs incurred prior to the issuance of a complete application status, the purchase of Customer Premises Equipment (CPE) and installation of installed writing (unless certain conditions are met) and leased facilities, among others.

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Client Advisory: The FCC’s Broadband Privacy NPRM

As we discussed in our earlier blog post, on March 31, 2016, the Federal Communications Commission (FCC or Commission) voted along party lines (3-2) to launch a notice of proposed rulemaking (NPRM) to establish privacy rules for Broadband Internet Access Service (BIAS) providers.  These proposals, if adopted, could impose prescriptive and complex privacy obligations that would be among the most extensive in the country.

Today we release a client advisory that provides a deep dive into the item and its key proposals and questions.  Comments on the NPRM are due on May 27, 2016, and reply comments are due on June 27, 2016.

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FCC Announces Consumer Broadband “Nutrition Labels”

On April 4, 2016, the Federal Communications Commission (FCC or Commission) unveiled new Consumer Broadband Labels to provide consumers of mobile and fixed broadband Internet access service (BIAS) with easily understandable information about the price and performance of their service. As we discussed in an earlier blog post, the labels stem from the 2015 Open Internet Order, which directed the FCC’s Consumer Advisory Committee (CAC) to recommend “nutrition label”-style disclosures for BIAS offerings (the CAC released its recommendations in November 2015). The Consumer Financial Protection Bureau also worked closely with the FCC on the design and content of the labels.  While the Commission will not require BIAS providers to use the Consumer Broadband Labels, if providers do use them, they will receive safe harbor from the format requirements of the Commission’s Open Internet transparency rule, which requires BIAS providers to disclose relevant information about their service to consumers in “an accurate, understandable and easy-to-find manner.”  The labels include the following information:

  • Price: Price of service and other charges (e.g., overage, equipment, early termination and administrative fees).
  • Data Allowances: carrier-defined plan limitations after which consumers will face some consequence, e.g., additional charges or slowed data speeds.
  • Performance: network speed and other performance metrics.

The safe harbor will go into effect when the Office of Management and Budget approves the still-pending enhanced transparency requirements in the 2015 Open Internet Order, which have been undergoing Paperwork Reduction Act review since the Order was adopted in March 2015.

Here are the sample labels as released by the FCC:

The FCC’s Public Notice announcing the labels also includes instructions for preparing them.  If you have any questions about these new labels or how you can adapt them to your own practices, please feel free to contact the authors of this post or your usual Kelley Drye attorney.

FCC Votes 3-2 to Initiate Sweeping Broadband Privacy Rulemaking Proceeding

On March 31, 2016 at its Open Meeting, the Federal Communications Commission (FCC or Commission) voted along party lines (3-2) to launch a notice of proposed rulemaking (NPRM) to establish privacy rules for broadband Internet Service Providers (ISPs). As we explained in our blog post in anticipation of this vote, this rulemaking stems from the 2015 Open Internet Order and is intended to seek comment on how the Commission should apply Section 222 of the Communications Act of 1934, as amended, to broadband Internet access service (BIAS).

While the text of the NPRM—and the approximately 500 questions contained within it—has not yet been released, a Commission press release, fact sheet, and prior statements outline the NPRM in broad strokes. (We will follow up with more information once we have the item in hand.)

As a threshold issue, in the NPRM, the FCC seeks comment on definitions for both broadband customer proprietary network information (CPNI), as well as the broader category of “proprietary information” contained in Section 222(a).

In addition, the NPRM seeks comment on proposed rules reflecting three “core principles”: choice, transparency, and security. With respect to choice, the NRPM creates three categories of data use and sharing policies, similar to the existing framework:

  • Implied Consent. The Commission recognizes that there is consent “inherent” in a customer’s decision to purchase an ISP’s service. This data is necessary to provide the broadband service and requires no additional consent beyond the creation of the relationship
  • Opt-out. Broadband providers would be allowed to use customer data for marketing other communications-related services and to share information with their affiliates, unless the consumer affirmatively opts out
  • Opt-in. All other uses and sharing of consumer data would require express, affirmative consent from consumers

As for transparency, the NPRM proposes to require ISPs to provide clear, conspicuous and persistent notice about what information they collect, use, and share with third parties.

The NPRM also proposes the following requirements related to data security:

  • Data security requirements. The NPRM will propose both a general standard for data security as well as specific practices to “reasonably secure” customer data.
  • Data breach notification. All telecommunications providers—including traditional carriers and broadband providers—will be required to notify law enforcement and consumers when CPNI or proprietary information is accessed without authorization.  This provision appears to significantly expand the breach notification procedures applicable to traditional telecommunications carriers today.

Finally, while the Commission’s earlier Fact Sheet stressed that the Commission’s proposal would not bar any specific practices, comments from Commission staffers suggest that the NPRM may in fact seek comment on whether certain privacy-related ISP practices should be prohibited, such as deep packet inspection, financial inducements, and persistent tracking.

The two Republican commissioners sharply criticized these proposals as anti-consumer choice, overly regulatory and costly to businesses.  They also criticized the proposals for going beyond the approach used by the FTC, and, as a result, creating differing obligations depending upon the entity’s regulatory status.

Importantly, the NPRM only covers proposed requirements for broadband providers, and does not address or apply to the privacy practices of edge services (e.g., websites), which fall within the jurisdiction of the Federal Trade Commission, or other services that an ISP offers (e.g., a social media website).  Further, the press release states that the NPRM does not address government surveillance, encryption, or law enforcement issues.

The text of the NPRM likely will be released in the coming days, and the FCC will begin accepting comments following the NPRM’s publication in the Federal Register. We’re tracking and will follow up when we learn more. If you have questions or are interested in participating in this proceeding, feel free to contact the authors of this post or your regular Kelley Drye attorney.

FCC Reminds Broadband Providers of Disabilities Access Duties

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The Federal Communications Commission (FCC or Commission) has long-required regulated telecommunications service providers (as well as VoIP providers) and equipment manufacturers to make their services and devices accessible to individuals with disabilities.  These entities also must annually certify to the FCC their compliance with the disabilities access requirements.  These compliance measures have become fairly routine for most regulated entities.  As of 2016, however, broadband Internet access service (BIAS) providers are now among those that must comply with disabilities access requirements, and the FCC has taken affirmative steps to remind these entities of their obligations under the Communications Act and Commission rules.

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FCC Includes Privacy Item on Its March Open Meeting Agenda: What to Expect

stock_03082013_0826It’s official: next Thursday, March 31, 2016, the FCC will vote on a Notice of Proposed Rulemaking seeking comment on a proposed framework for new privacy and data security rules for broadband Internet access service (BIAS) providers.  This proceeding will have important implications for not only the broadband providers subject to the rules, but also for the Internet ecosystem as a whole.

This rulemaking proceeding stems from the 2015 Open Internet Order, which reclassified BIAS as a telecommunications service and applied several of the FCC’s core consumer protection provisions—including Section 201 and 222 of the Communications Act—to BIAS.  Section 201(b) prohibits “unjust or unreasonable” practices, which the FCC has interpreted to require reasonable data security practices.  Section 222 (and the Commission’s interpretations of that section) establishes a complex framework for the protection of proprietary information (PI), carrier proprietary information (CPI), and customer proprietary network information (CPNI).  CPNI, in short, is the information that a carrier has about its customer solely by virtue of the customer-provider relationship.  However, because the CPNI rules promulgated pursuant to Section 222 were designed with traditional telecommunications services in mind, the FCC declined to impose those rules on BIAS, instead opting for a rulemaking proceeding to create new broadband CPNI rules.

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