The CAF provides support to broadband service providers to deploy networks in rural and other high-cost service areas. In addition to meeting their deployment obligations, CAF recipients must show that they provide broadband services meeting certain performance requirements that vary by CAF program. Last year, the FCC established uniform testing procedures for CAF recipients to demonstrate that they meet the relevant performance requirements. The testing requires CAF recipients to measure the speed and latency of their broadband services to see if they meet the applicable program benchmarks. Service providers unable to meet their performance requirements lose funding on a sliding scale based on how far they miss the benchmarks. The FCC initially established a July 1, 2020 deadline for CAF recipients to report their broadband performance testing results. However, many service providers raised concerns regarding both the timing and procedures for testing. In particular, these stakeholders noted that the July 1, 2020 reporting deadline would come before many CAF recipients are required to deploy most of their networks. These service providers also took issue with the current cost and availability of testing equipment and requested more time to become familiar with the CAF broadband performance testing process.

The Order attempts to address CAF recipients’ concerns in two ways. First, the FCC will delay the start of testing reporting for many CAF recipients to better align with the deployment deadlines for the different CAF programs. For example, the FCC is in the process of authorizing funding for winning bidders at the CAF Phase II auction that closed last year. These newly-authorized service providers would have at least until 2022 to deploy 40% of their broadband networks. As a result, the FCC will delay the start of testing reporting for CAF Phase II auction winners until January 1, 2023, to ensure a sufficient sample size. Second, the FCC will create mandatory pre-testing periods for CAF recipients to see how their networks and testing equipment perform without risk of losing support for missing the applicable speed and latency program benchmarks. The pre-testing period also will provide time for the cost of testing equipment to decrease and the availability of such equipment to increase. Note that the FCC will not delay the July 1, 2020 broadband performance testing start date for recipients of CAF Phase II model-based support. CAF Phase II model-based support recipients generally are large price-cap carriers that must deploy 80% of their networks by the end of 2020 and that have prior broadband testing experience. A summary of the new pre-testing and testing start dates for the major CAF programs is below:

CAF Program	Pre-Testing Start Date	Testing Start Date
CAF Phase II (model-based)	January 1, 2020	July 1, 2020
Rural Broadband Experiments	January 1, 2021	January 1, 2022
Alternative Cost-Model I	January 1, 2021	January 1, 2022
Alternative Cost-Model II	January 1, 2022	January 1, 2023
CAF Phase II (auction)	January 1, 2022	January 1, 2023

The Order also provides more flexibility in CAF broadband performance testing by, among other things, expanding the number and types of locations that can be used as testing endpoints, clarifying that the same location can be used for both speed and latency testing, and making the speed and latency testing timeframes less rigid. These changes should help lower the compliance burdens on smaller providers.

When displaying an emergency alert such as an on-screen crawl, MVPDs are currently required to provide a secondary audio stream with an audible version of the alert displayed. Manufacturers of video playback devices (e.g., TVs, tablets, smartphones) must then provide a mechanism with which to access that secondary audio stream when consumers hear the aural emergency alert tone.

Consumers have noted that the methods of accessing the audio alerts are sometimes too difficult, and for some consumers, impossible. By December 20, 2016, covered manufacturers must ensure that the mechanism to access the secondary audio stream on their device is “simple and easy to use.” Note, however, that industry will have flexibility in deciding how they will meet that requirement, because the FCC has declined to provide specific guidance. In other proceedings implementing the CVAA, the FCC has decided to rely on complaints and enforcement proceedings to determine the meaning of key terms and requirements.

Additionally, MVPDs will soon be required to pass through the secondary audio stream when they permit consumers to view linear programming on their mobile devices through MVPD-provided apps and plugins. However, device manufacturers are not required to guarantee that MVPD apps running on their devices are compliant with this obligation, and this requirement does not affect over-the-top (OTT) services like Netflix or Hulu.

Finally, the FNPRM seeks input on three questions: (1) whether the FCC should adopt rules regarding the prioritization of simultaneous displays of emergency messages; (2) whether school closings should continue to be announced on secondary audio streams (which some have argued is overly burdensome); and (3) whether the MVPD apps that allow consumers to view linear programming ought to be required to make the secondary audio stream “simple and easy” to activate.

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Leah Rabkin, a summer associate, contributed to this post.

Section 718 of the Communications Act (which was added by the CVAA) and the FCC’s new regulations require that (1) manufacturers of mobile phones that include an Internet browser, and (2) providers of mobile services that arrange for the inclusion of a browser in mobile phones to sell to customers, must ensure that the functions of the included browser (including the ability to launch the browser) are accessible to and usable by individuals who are blind or have a visual impairment, unless doing so is not achievable. The obligations do not apply to developers of Internet browsers included in mobile phones.

The FCC emphasized that its rules overlapped with the rules applicable to Internet browsers generally. Section 716 applies to all Internet browsers used for ACS (e.g., laptops, tablets and mobile phones), while Section 718 applies only to Internet browsers built into mobile phones but used for any purpose (not just for ACS). Further, Section 716 requires accessibility for all individuals with disabilities, while Section 718 requires accessibility for only those individuals that are blind or visually impaired.

In keeping with the FCC’s approach to disabled access requirements, industry has been given a great deal of flexibility regarding how it can comply with the requirements, but not much guidance. Specifically, the FCC determined not to mandate that covered entities include an accessibility application programming interface (API) in mobile phones. However, it also declined to establish the inclusion of an accessibility API in a mobile phone as a safe harbor for compliance with Section 718 and the FCC’s new rules.

The accessibility requirements for ACS pursuant to Section 716 and for mobile phone Internet browsers pursuant to Section 718 are both effective on October 8, 2013. However, the FCC determined that the recordkeeping obligations of Section 717 of the Communications Act apply to entities covered by Section 718 and those obligations were effective as of January 30, 2013. The FCC declined to delay the effective date for Section 718 entities because of the statutory language and the notice provided by the January 2012 order. Therefore, entities that did not file the annual certification that records required to be maintained are being kept in accordance with the CVAA by April 1, 2013, but that are covered by Section 718 as described above, should file the certification. (There is no small business exemption for Section 718 entities.) Similarly, entities that may have registered and certified as equipment manufactures or providers of telecommunications or ACS may need to amend their registration to include “Mobile Phone Equipment Manufacturer that includes an Internet browser” or “Mobile Phone Service Provider that arranges for inclusion of an Internet browser” if they are covered by Section 718 as described above.

For more information, please click here to read the Kelley Drye Client Advisory.

When: Due on February 1, 2010

Who must file:

Required if carrier has received numbers from NANPA, a pooling administrator or other carrier. Subscriber toll-free numbers are not reported. Filers include ILECs, CLECs, 500-service providers, paging companies, wireless carriers, STS providers, satellite service providers and resellers of these services.

What: FCC Form 499Q: Telecommunications Reporting Worksheet - Quarterly Filing for Universal Service Contributors. Contributors must project 2Q telecommunications revenues and report actual telecommunications revenues for 4Q 2009.

When: Due on February 1, 2010

Who must file: All carriers that are required to contribute to the maintenance of universal support mechanisms. De minimis contributors (those with an annual contribution to the FCC's Universal Service Fund below $10,000) need not file a 499Q but must keep records demonstrating their de minimis status.

REMINDER: Revisions to the 499Q must be filed within 45 days of this deadline.

When: Due on January 15, 2010 (electronic filing only)

Who must file: All wireless service providers, including MVNOs. See FCC Public Notice.