This week, the Federal Communications Commission (“FCC” or “Commission”) released a Notice of Proposed Rulemaking (“NPRM”) to increase uniformity among several diverse sets of FCC complaint procedures.  Today, there are three different mechanisms for complaints handled by either the Market Disputes Resolution Division (“MDRD”) or the Telecommunications Consumers Division of the Enforcement Bureau regarding common carriers generally; pole attachments; and the accessibility for people with disabilities of advanced communications services (“ACS”) and equipment under the Communications Act of 1934 (the “Act”).  In the NPRM, the FCC considers harmonizing, consolidating, and streamlining the procedural rules that govern filing and resolving these formal complaints as well as introducing several new requirements.  Included among the proposed new requirements is that pre-complaint settlement discussions would have to occur at the executive level for section 208 and ACS accessibility complaints, as is currently the case in pole attachment complaints.

The changes proposed in the NPRM are procedural in nature and thus the FCC is not required under law to undergo a formal notice and comment proceeding before changing the rules. The FCC is, however, seeking comments to inform its decision. Comments will be due 30 days after publication of the NPRM in the Federal Register and reply comments will be due 45 days after publication. Publication has not yet occurred.

Under current Commission rules, there are established procedures that individuals or organizations must follow when filing formal complaints which vary based on context. The NPRM focuses on the following complaint mechanisms:

  1. Common carrier complaints – section 208 of the Act provides a process for resolution of any disputes involving common carriers;
  2. Pole Attachment Complaints – section 224 of the Act authorizes the FCC to hear and resolve complaints about rates, terms, and conditions for access to poles and other utility rights-of-way; and
  3. ACS Accessibility Complaints – under sections 255, 717, and 718 of the Act, the Commission can resolve complaints regarding the lack of accessibility to persons with disabilities of advanced communications services and equipment.

The FCC explicitly excludes the Open Internet complaint process from its proposals, noting that it is the subject of a separate NPRM.

In this NPRM, the Commission considers creation of a uniform set of procedural rules to govern all three formal complaint processes, although it appears some variation would remain. The section 208 (common carrier) complaint process serves as the baseline for most of the elements of the proposed more standardized approach.  The ability to file complaints under section 208 has been in place since 1997, and the ACS accessibility process largely mirrors the process under section 208.  Below is a summary of the changes being considered:

  • Filing Deadlines. The FCC proposes a thirty-day (30-day) deadline for answering any formal complaint. Currently, the section 208 and ACS accessibility rules include twenty-day (20-day) response deadlines, while the pole attachment rules have a thirty-day (30-day) deadline. Additionally, replies to answers would be due within ten (10) days after service instead of the current timelines of three (3) days for section 208 and ACS accessibility complaints or twenty (20) days for pole attachment complaints.
  • Information Designations. The section 208 and ACS accessibility processes currently require parties to identify in the complaint, answer, and reply individuals that have firsthand knowledge of the facts in their allegations. The FCC proposes to apply the same requirement to pole attachment complaints, which would more closely align all processes with a similar standard under Federal Rule of Civil Procedure 26.
  • Discovery Process. The section 208 and ACS accessibility rules outline the specific number of interrogatories a party can serve with a complaint and answer. However, the current pole attachment rules only state that the FCC may request “additional filings.” The FCC proposes a uniform approach wherein a complainant may file and serve up to ten (10) written interrogatories with its complaint; a defendant may serve up to ten (10) interrogatories with its answer; and a complainant may file up to five (5) additional interrogatories with its reply. Parties under the proposal would no longer need to request permission from the FCC to serve interrogatories, but they still will need to explain why the requested information is necessary to the resolution of the dispute. Parties also retain the right to object to any interrogatory.
  • Required Conclusions of Law. For the section 208 and ACS accessibility process, the complaint, answer, and reply currently must include proposed findings of fact and conclusions of law. The FCC proposes eliminating this requirement for all complaint processes.
  • Section 208(b)(1) Complaints. Section 208(b)(1) includes a five-month deadline within which the FCC must issue an order concluding any investigation of a complaint about “the lawfulness of a charge, classification, regulation, or practice.” The FCC has interpreted this provision to apply to tariffs filed with the FCC. In order to expedite complaint resolution, the FCC now proposes to require parties to a tariff complaint governed by section 208(b)(1) to engage in pre-complaint discussions with the FCC as currently occurs in most cases.
  • Settlement Discussions and Mediation. The FCC proposes to supplement the existing requirement for a certification of pre-complaint settlement efforts under the section 208 and ACS accessibility complaint processes with a stricter requirement for such settlement discussions to occur at the “executive-level.” (This requirement already exists in the pole attachment process.) Additionally, the FCC proposes to codify the availability of the MDRD’s current staff-supervised meditation services for parties that choose to negotiate a resolution of their dispute.
  • Initial Status Conference. Under the section 208 and ACS accessibility rules, FCC staff can now direct parties to a complaint to appear for a status conference after the answer is filed. The FCC proposes to allow staff the option to direct status conferences for pole attachment complaints as well.
  • Accelerated Docket. The FCC suggests consolidating all the Accelerated Docket provisions, which appear in multiple parts of the section 208 rules, into one new rule. The FCC would also streamline the rules to afford FCC staff more flexibility to tailor the accelerated docket based on the facts of a case. The proposal also calls for the option of an accelerated docket to be extended to pole attachment complaints. The rules do not, however, propose extending the treatment to disability access complaints under sections 255, 717, and 718, which was rejected in the past.
  • Shot Clock. The FCC also seeks comment on whether it should adopt shot clocks for each of the three complaint processes addressed by the NPRM.

This proceeding addresses a few matters regarding pole attachment complaints and the related regulations under Part 1 of the FCC’s Rules that were raised in the May 2017 wireline infrastructure proceeding (see our previous client advisory for more information).

In advance of its July Open Meeting, the Federal Communications Commission (Commission) unanimously adopted a Report and Order (Order) that revises the rules requiring certain video programming providers to make video described programming available for access by Americans who are blind or visually impaired. The new rules expand the Commission’s existing requirements by increasing the required amount of video described programming while affording providers more flexibility about the type of programming that can be used to meet the requirement.

Video descriptions make video programming accessible to individuals who are blind or visually impaired by aurally describing a program’s key visual elements during pauses in the program’s dialogue. The 21st Century Communications and Video Accessibility Act of 2010 (CVAA) authorizes the Commission to require video programming providers to provide video descriptions for programming that is “transmitted for display on television in digital format.” In 2012, the Commission adopted video description obligations for video programming distributors defined as “any television broadcast station licensed by the Commission and any multichannel video programming distributor (MVPD), and any other distributor of video programming for residential reception that delivers such programming directly to the home and is subject to the jurisdiction of the Commission.”

Under the current rules, commercial broadcast television stations affiliated with ABC, CBS, Fox, and NBC that are located in the top 60 television markets, as identified by the Nielsen Company, are required to offer 50 hours per calendar quarter of video descriptions during prime time or on children’s programming. MVPD systems must provide this same type and amount of described programming for each of the top five national non-broadcast networks that they carry. The non-broadcast networks currently subject to the rules are USA, TNT, TBS, History, and Disney. Prime time is defined as the period from 8-11 p.m., Monday through Saturday, and 7-11 p.m. on Sunday.

The CVAA also provides for continuing Commission authority to reassess whether additional regulations are needed after at least two years since its last rules if it finds that the need and benefits outweigh any technical and economic costs. In the Order, the Commission found that the benefits of new rules outweigh the costs, which it described as “minimal and represent[ing] a very small percentage of total programming expenses and network revenues.” The new rules increase the required amount of video described programming that programming distributors must offer on each stream or channel where they carry the included networks from 50 to 87.5 hours per quarter beginning in January 2018.

In addition, the Order affords distributors more flexibility in meeting the description requirements regarding when the additional hours of described programming may be aired. Programming distributors can now include video descriptions for any programming that occurs between 6 A.M. and midnight, which is broader in scope than prime time and children’s programming. However, the rule still requires that at least 50 hours of described programming consist of prime time and children’s programming.

On March 16, 2017, the Federal Communications Commission’s Media Bureau (Bureau) released a Memorandum Opinion and Order (Order) addressing Honda Motor Co., Ltd’s (Honda) January 2017 petition for limited waiver of video accessibility rules for its in-vehicle rear entertainment systems. The Bureau granted Honda’s 20-month waiver request with the condition that Honda provide status update reports.

Continue Reading FCC Grants Honda Twenty Month Extension to Comply with Video Accessibility Rules

On December 19, 2016, the Federal Communications Commission’s (Commission) Public Safety and Homeland Security Bureau (Bureau) issued a Public Notice (Notice) seeking comment on a letter from the National Association of State 911 Administrators (NASNA) that asks the Commission to initiate a proceeding to examine issues related to how mobile device 911 applications interface with 911 systems. Comments on the Notice are due by February 2, 2017 and reply comments by March 6, 2017.

Continue Reading FCC Considers Investigation of 911 Mobile Device Apps

Last week, the Federal Communications Commission’s (FCC or Commission) Media Bureau released a Public Notice (Notice) seeking comment on a petition for limited waiver of the Commission’s rules filed by Honda Motor Company (Honda). Honda seeks a limited 20 month waiver of the requirement for the user interfaces on its rear entertainment systems to be accessible for people with disabilities. Comments on the Notice are due by January 11, 2017 and reply comments by January 23, 2017.

Continue Reading Honda Waiver Request Highlights FCC’s Broad Disabilities Access Authority and Requirements

Modern mobile devicesOn December 15, 2016, at the last Federal Communications Commission (FCC or Commission) Open Meeting under Chairman Tom Wheeler’s tenure, the Commission voted unanimously to adopt a Report and Order (Order) and Further Notice of Proposed Rulemaking (FNPRM) that permits wireless service providers and device manufacturers to support real-time text (RTT) technology instead of text telephony (TTY) to meet their obligations to provide reliable telephone communications options for people who are deaf, hard of hearing, deaf-blind or who have a speech disability. RTT technology uses IP-based networks and allows the user to send text immediately as it is typed without the need to press “send” and the other party receives the text to read as it is being created. The ability to use RTT to meet TTY obligations phases in starting in December 2017 and resellers have until June 2021 to comply.

The FNPRM seeks comment on issues including sun-setting the TTY backwards compatibility requirement and interaction with the telecommunications relay service (TRS). Comments are due 30 days after publication in the Federal Register and reply comments are due 30 days later.

Continue Reading FCC Allows Wireless Carriers and Device Manufacturers to Replace Text Telephony with Real-Time Text Technology

On October 7, 2016, the Federal Communications Commission (FCC) released the third iteration of its Biennial Report to Congress on the state of communications technology accessibility for people with disabilities as required by the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA). To inform the conclusions in the 2016 CVAA Biennial Report, the FCC sought input by way of two Public Notices, one general and another outlining its tentative findings. One of the findings was that 31% of the requests for dispute assistance (RDA) involved lack of accessibility features in mobile phones provided by Lifeline service providers.

Continue Reading FCC Releases Third Biennial Report to Congress on Communications Accessibility for People with Disabilities

On October 6, 2016, the Federal Communications Commission (FCC) released a White Paper entitled “Individuals with Cognitive Disabilities: Barriers to and Solutions for Accessible Information and Communication Technologies” containing best practices for equipment manufacturers and service providers looking to comply with the Twenty-First Century Communications and Video Accessibility Act and the FCC’s accessibility rules. This release teed up FCC Chairman Tom Wheeler’s remarks later that day at the Coleman Institute Conference on Cognitive Disabilities and Technology. These events come after the FCC hosted its first-ever Summit and Expo on Telecommunications Needs of People with Cognitive Disabilities in October 2015 and demonstrate a strong focus of the FCC on making sure communications equipment and services are accessible to people with all kinds of disabilities.

Continue Reading FCC Highlights Accessibility Challenges for Individuals with Cognitive Disabilities

On August 23, 2016, the FCC issued a Public Notice seeking comment on the Consumer and Governmental Affairs Bureau’s tentative findings about the accessibility of communications technologies, which will be included in this year’s biennial report to Congress on the 2010 Twenty-First Century Communications and Video Accessibility Act (CVAA) (Biennial Report).  This will be the third such report, following earlier reports in 2012 and 2014.  Comments are due September 7, 2016.

Continue Reading FCC Seeks Comment on Disabilities Access Findings

01_CFE_12_05_11_NASAThe Federal Communications Commission’s (FCC or the Commission) Notice of Proposed Rulemaking (NPRM) on the transition from text telephone (TTY) to real-time text (RTT) was published in the Federal Register on May 25, 2016, which triggers comment and reply deadlines of July 11 and July 25.  The Commission proposes to amend its rules to replace the obligations of wireless service providers and equipment manufacturers to support TTY technology with obligations that these entities support RTT over IP-based wireless voice services.  The proposal requires RTT to be interoperable across networks and backwards compatible with TTY technology.  The Commission proposes that larger Tier I wireless providers must implement RTT by December 31, 2017, and seeks comment on an appropriate timeline for smaller providers (i.e., non-nationwide carriers).   Continue Reading Commission Seeks Comment on TTY-RTT Transition