On October 22, 2013, the Consumer & Government Affairs Bureau of the FCC extended its review of the petition. It did so by granting a temporary waiver – until January 28, 2014 – for compliance with its ACS rules to a class of e-reader equipment. The waiver noted that over the next three months, the Consumer and Governmental Affairs Bureau would further evaluate the primary purpose of the e-reader equipment in question and examine the product life cycle of such e-readers to determine the appropriate duration of any further waiver, should it be granted.

The waiver applies only to e-reader devices that: (1) have no LCD screen; (2) have no camera; (3) are not offered or shipped to consumers with built-in ACS client applications, though the devices may include a browser and social media applications; and (4) are marketed to consumers as reading devices and promotional material does not advertise the capability to access ACS.

In late 2011, the FCC released a Report and Order implementing provisions of the Twenty-First Century Communications and Video Accessibility Act of 2010 (“CVAA”) to ensure that people with disabilities have access to advanced communications services (“ACS”). Generally, ACS is one-way VoIP, electronic messaging (email, text, IM) and interoperable video conferencing.

The FCC has been implementing these requirements in stages over the past several years. The CVAA and the Report and Order complement longstanding rules that require equipment manufacturers and providers of telecommunications services (and more recently interconnected VoIP service providers) to make their products and services accessible to people with disabilities. In January, we issued a Client Advisory describing the requirements in detail.

Covered entities were required to file an annual certification with the FCC no later than April 1, 2013 that also acted as a registration as an ACS equipment manufacturer or service provider. The certification was required to identify a contact that can address consumer complaints. Before filing an informal complaint, an individual with or without a disability or a consumer group must file a Request for Dispute Assistance with the FCC containing specified information. The FCC will forward the Request to the identified contact person at the applicable manufacturer or service provider and begin a 30 day settlement process with the consumer.

These rules became effective on October 8, 2013. Once the FCC re-opens after the government shutdown, these Requests can be filed with the Commission. Covered entities should be prepared to address any Requests that may be filed.

The Coalition seeks a class waiver from the accessibility requirements for e-readers, such as Kindles, on the grounds that such devices are designed, marketed and used primarily for reading and not for ACS, although they may include some simple browsing and messaging capabilities (e.g., to email documents for viewing on the e-reader). The Coalition proposes that the waiver apply only to devices that: (1) have no LCD screen; (2) have no camera; (3) are not offered or shipped to consumers with built-in ACS client applications, though the devices may include a browser and social media applications; and (4) are marketed to consumers as reading devices and promotional material does not advertise the capability to access ACS.

In determining not to continue to provide for an exemption the unlocking of mobile devices, the Agency focused on three factors.

First, there had been a significant development in case law regarding whether the firmware (the software that runs the handset) was owned or licensed to the handset user. Prior to 2010, the assumption was that the owner of the handset owned the copies of software on their phones. This had enabled the Agency (in part) to conclude that the an exception to the prohibition against circumvention of technological measures was appropriate (i.e., a non-infringing use of a work owned by the handset owner).

This assumption changed in 2010 when a federal court identified factors that would indicate that the mobile phone firmware was licensed to, rather than owned by, the handset owners. Assuming that a license was issued with respect to the firmware, it is generally apparent that the mobile phone firmware is licensed to the handset owner. What follows then is: (i) the handset owners must comply with the license terms; and (ii) if the license terms say you cannot circumvent the access controls to move the phone to another network, you cannot do it. It should be noted that although the Agency found the case law to be instructive, it did not find it to be controlling.

The second significant factor the Agency relied upon was that the handset owner could have its phone unlocked by the carrier through the carrier’s unlocking policy. Put another way, the logic is that since the carriers will unlock the phone upon request (and satisfaction of certain conditions), there is no reason an exemption (which by their nature are extraordinary) from copyright law. This notion was bolstered by the practice of some who apparently bought pre-paid phones that were subject to subsidized pricing, unlocked the phones, and sold them in foreign markets at non-discounted prices. On the losing end of this transaction was the carrier, who was unable to recover the subsidy because the phone was not used on its network. Removing the exemption makes this practice unlawful.

The final significant factor that the Agency relied upon was that, even though not every handset is available, there are many handsets than can simply be bought unlocked.

Therefore, be warned. It is a violation of law to unlock your mobile device without the assistance of your carrier. Monetary damages and penalties will apply. We expect carriers to begin modifying their terms and conditions to implement this ruling, and litigation against entities facilitating unlocking remains a possibility.

As a postscript, there is a “We the People” petition with over 100,00 signatures requesting that the White House to ask the Librarian of Congress to reconsider its decision. We shall see, but know that online petitions are not a substitute for the Federal Rulemaking Process.

At the end of September, the Federal Communications Commission (FCC) took several coordinated steps to enhance the better operation of a spectrum sharing framework adopted several years ago. Terminal Doppler Weather Radars (TDWRs) maintained by the Federal Aviation Administration (FAA) operate at airports in the 5600-5650 MHz band to obtain a variety of data used in real time by aviation operations, such as gust fronts, wind shear, and microbursts. The band is also used by wireless ISPs operating IEEE-802.11a devices on an unlicensed, non-interference basis as part of the Unlicensed National Information Infrastructure (U-NII) framework.

On September 27, the Commission issued an enforcement advisory (Advisory) directed to not just wireless ISPs operating U-NII equipment in the 5600-5650 MHz band, but to manufacturers, retailers, and marketers of U-NII devices. The multi-faceted target audience serves as a reminder that FCC enforcement actions to preserve the viability of sharing frameworks, especially when they involve unlicensed operations, will not be limited to the persons or entities operating the radio devices.

The Advisory reminds operators of U-NII devices in this band that only equipment certified under the FCC’s rules may be used and that equipment must be installed and configured properly, including following the additional steps that must be taken when the devices are within 35 km of a TDWR. Further, users of these devices, like users of all unlicensed devices, need to keep in mind that compliant installation and configuration does not necessarily entitle one to use a certified device under all conditions – the devices must still not cause interference to TDWRs or other licensed services and must accept interference from any source.

The Advisory also served as a reminder that retailers need to ensure that what is on their shelf that must be authorized under the FCC’s rules is, in fact, properly authorized before it goes on the shelves. From the FCC’s perspective, the prohibition against marketing prior to certification falls squarely on retailers, even if importers or distributors may also have regulatory liability. Given the potential for U-NII devices, if not compliant and if not installed or configured properly, to cause harmful interference to operations that support air safety in the vicinity of airports, this is not a matter for retailers to take lightly.

Finally, the FCC reminded manufacturers that their U-NII devices operating in the same band as TDWRs – actually anywhere in the 5.25-5.35 and 5.47-5.725 GHz bands – must meet certain requirements (such as a Dynamic Frequency Selection (DFS) mechanism that users cannot disable, so as to detect the presence of, and avoid co-channel operations with, incumbent federal radar systems) and must provide certain information to the users. And, as noted above, manufacturers (or importers) must certify the devices before they are marketed or offered for sale.

The Advisory cautions users, retailers, and manufacturers that failure of each group to comply with the applicable rules can lead to FCC enforcement action, including substantial monetary forfeitures, seizure of the equipment, and even criminal sanctions, including imprisonment. In that regard, contemporaneous with the Advisory, the FCC issued two enforcement orders against AT&T and Skybeam Acquisition Corporation. In the AT&T Forfeiture Order, the Commission fined AT&T $25,000 for operating a U-NII device incapable of satisfying the DFS requirements and in frequencies outside the authorized range. The FCC issued a Notice of Apparent Liability against Skybeam Acquisition Corporation ordering the company to show cause why it should not be fined $15,000 for operating an uncertified U-NII device on unauthorized frequencies and with DFS functionality disabled. The Commission’s records make clear that there are other investigations ongoing and several other notices of apparent liability pending. While it remains to be seen how many future enforcement actions there will be as a result of uncertified U-NII devices being marketed or non-compliance devices being operated, our readers should be reminded that liability for interfering with the TDWRs may not necessarily be limited to FCC enforcement if air operations are adversely impacted and property damage, injury, or worse results.