You will find more information about the items on the December meeting agenda after the break:

Improving Accessibility and Clarity of Emergency Alerts - The EAS NPRM would propose rules to improve the accessibility and clarity of visual messages distributed to the public through the EAS, which advises the public of emergency alerts issued by government entities. The EAS is comprised of a legacy broadcast system that can only relay audio messages and an internet-based Common Alerting Protocol (“CAP”) system that can relay audio, text and visual messages. Due to the fact that alert initiators using the legacy EAS have some discretion regarding the content of the alert message while EAS participants that use video (such as broadcast or cable television operators) must rely on codes embedded in alerts to create a visual message (usually text), the audio and visual messages associated with the alerts may not match. To improve the clarity of EAS test messages, the EAS NPRM would propose the use of the following script as the visual message for all legacy EAS nationwide tests: “This is a nationwide test of the Emergency Alert System issued by the Federal Emergency Management Agency covering the United States from [time] until [time]. This is only a test. No action is required by the public.” For EAS participants that receive an alert from the CAP system, the FCC would propose to change the nationwide EAS test event code that alert initiators include in the alerts so that the following language is displayed in all visual messages: “Nationwide Test of the Emergency Alert System.” The EAS NPRM would also seek comment on how the legacy EAS can be improved to enable alert originators to relay visual text that matches the audio message and how the EAS can be modified to support greater functionality and accessibility.

Facilitating Satellite Broadband Competition – The Satellite Spectrum Sharing NPRM would grant a petition for rulemaking from SpaceX requesting revisions to the spectrum sharing requirements among NGSO FSS systems. The FCC considers applications for NGSO FSS system licenses, which are used to provide broadband services, in groups based on filing date under a processing round procedure. All NGSO FSS system operators within a processing round that are granted a license must comply with the FCC’s spectrum sharing rules and coordinate with each other in good faith to use commonly authorized frequencies. If the NGSO FSS system operators in a processing round are unable to come to a coordination agreement, then a default spectrum-splitting procedure applies. The Satellite NPRM would propose that the spectrum sharing requirement only be applicable to NGSO FSS systems approved in the same processing round. The FCC would seek comment on a rule that would protect systems processed in an earlier round from being subjected to a certain level of interference from systems processed in a subsequent round and on whether interference protection should end after a period of time. To facilitate analysis of potential interference, earlier-round NGSO FSS system operators would be required to share data regarding their beam locations with later-round NGSO FSS system operators subject to confidentiality or non-disclosure agreements.

Promoting Fair and Open Competitive Bidding in the E-Rate Program – The E-Rate NPRM would propose changes to the E-Rate program rules to improve program integrity. The Schools and Libraries program, or E-Rate, funded by the Universal Service Fund, provides discounted telecommunications and broadband services and equipment to eligible schools and libraries (referenced as E-rate “applicants”). To obtain services and equipment through the E-rate program, an applicant must conduct a competitive bidding process among interested service providers that is commenced by submission of FCC Form 470 to USAC, which then posts the form to its website. Applicants consider bids received directly from interested service providers and then seek funding to pay their chosen service providers by filing an FCC Form 471 with USAC. The E-Rate NPRM would recommend the establishment of a bidding portal through which service providers would provide competitive bidding documentation. The FCC would seek comment on whether applicants also should be required to use the portal to submit other documentation, such as bid evaluation matrices, questions from bidders, and contract documents. In addition, the E-Rate NPRM would ask whether service providers should be required to wait a certain period of time before they could access service providers’ bids. Finally, the E-Rate NPRM would request comment on various issues related to the proposed portal, including how the E-rate’s existing portal could be leveraged to accept service providers’ bids, whether any procurement laws or technical issues would preclude or limit the use of a bidding portal and whether the portal should be used as a repository of documents for purposes of meeting recordkeeping requirements.

You will find more information about the most significant items after the break.

Appeals of STIR/SHAKEN Revocation Decisions – The Third Report and Order (“Order”) would establish a process for the FCC’s private Governance Authority that oversees the STIR/SHAKEN framework to review and revoke the ability of a voice service provider to participate in STIR/SHAKEN. The Order would also create an appeals process for voice service providers to challenge any revocation decisions, modeled on the established appeals process and procedures for reviewing decisions by the Universal Service Administrative Company (“USAC”). Voice service providers affected by a revocation could file a request for review with the FCC, and third parties would be permitted to file oppositions and replies to the request in ECFS.

Establishing Two New Innovation Zones – The Public Notice would approve the creation of two new Innovation Zones for experimental licenses in Boston, MA (Northeastern University) and Raleigh, NC (NC State University), and would expand the geographical boundary of the Innovation Zone in New York City. Innovation Zones allow experimental licensees to conduct unrelated experiments at designated locations without requiring explicit FCC approval. The NC State Innovation Zone would be intended to study new use cases for advanced wireless technologies emerging in unmanned aerial systems (“UAS”), while the Northeastern Innovation Zone would allow researchers to use the Colosseum wireless network emulator to extend and accelerate research in wireless networked systems. The two Innovation Zones would also promote platforms to test the integration of Open Radio Access Networks (Open RAN). Both Innovation Zones would be established for a renewable period of five years.

Updating FCC Numbering Policies – The Further Notice of Proposed Rulemaking would adopt clarifications and revisions to the Commission’s numbering rules, consistent with the Congressional directives in the TRACED Act. The FNPRM would propose to require additional certifications as part of the direct access application to numbering resources and would require disclosures of foreign ownership information of applicants, proposing to refer applicants with 10% or greater foreign ownership to the Executive Branch agencies. It would also require direct access authorization holders to more frequently update the FCC of any ownership changes, and would seek comment on expanding the direct access to numbers authorization process to one-way VoIP providers or other entities using numbers.

Updating TRS Compensation – The Notice of Proposed Rulemaking would propose changes to the compensation methodology for the Internet Protocol Relay, a form of Telecommunications Relay Service (“TRS”) that allows an individual with a hearing or speech disability to communicate with voice telephone users by transmitting text via the Internet. The NPRM would propose to modify the compensation methodology to permit recovery of reasonable costs of outreach and operating margins, and would seek comment on permitting recovery of indirect overhead costs. It would also propose to calculate the base compensation level using projected costs and demand over a multi-year compensation period. The NPRM further would seek comment on a proposed potential hybrid compensation model that would rely in part on compensation for state-program relay service.

You will find more details about these items on the May meeting agenda after the break.

Reducing Interstate Rates and Charges for Incarcerated People – The Third Report and Order, Order on Reconsideration, and Fifth FNPRM all have different purposes related to reducing the telephone service rates for inmate phone calls. The Third Report and Order would lower the interstate interim rate caps to $0.12 per minute for prisons and $0.14 per minute for jails with populations of 1,000 or more. It would permit an additional allowance of $0.02 for negotiated site commission payments, and eliminate the separate interstate collect calling rate cap. The Report and Order would cap international calling rates, change ancillary service charge rules for third-party financial transaction fees, and adopt a new mandatory data collection to gather data and set permanent rates. The Report and Order would also reaffirm providers’ obligations regarding access for incarcerated people with disabilities. The Order on Reconsideration would reaffirm the FCC’s findings in the 2020 Inmate Calling Services Order that the jurisdictional nature of a telephone call for purposes of charging consumers depends on the physical location of the originating and terminating endpoints of the call. The FNPRM seeks comment on the provision of communications services to incarcerated individuals with disabilities, permanent interstate and international rate caps, and reforms to site commission payments and rules regarding ancillary service charges.

Strengthening Support for Video Relay Service – The NPRM suggests a continued use of a tiered rate structure for the next VRS compensation plan. It also seeks comment on whether to adjust tiered rate levels, bring average provider compensation closer to allowable costs, or defer rate changes for two years while waiting for a resolution of uncertainty about post-pandemic changes in VRS costs and demands. The Order would extend current VRS compensation rates through December 31, 2021, or the effective date of compensation rates adopted by the NPRM, whichever is earlier.

Shortening STIR/SHAKEN Extension for Small Providers Likely to Originate Robocalls – The Third FNPRM proposes to shorten the extension for small voice service providers that are most likely to originate illegal robocalls. These small providers would have to implement STIR/SHAKEN in the IP portions of their networks by June 30, 2022—shortening the extension by one year. The FNPRM seeks comment regarding the best methods to identify and define the small voice service providers that are at a heightened risk or originating an especially large amount of illegal robocall traffic. It proposes three measures to identify such providers that would be subject to a shortened implementation deadline:

• small voice service providers that originate more than 500 calls per day for any single line in the normal course of business;
• small voice service providers that receive more than half their revenue from customers purchasing services that are not mass market services; or
• small voice service providers that offer certain service features to customers commonly used for unlawful robocalls, such as the ability to display any number in the called party’s caller ID, or to upload and broadcast a prerecorded message.

Section 214 Petition for Partial Reconsideration for Mixed USF Support Companies – The Order on Reconsideration addresses a request related to a transaction involving a Section 214 transfer of control. The Order would grant the petition and exclude the petitioner from the mixed support condition because the cost shifting harm that the mixed support condition was designated to address is not present in the current case. The Order would also reaffirm the FCC’s delegation of authority to the Wireline Competition Bureau to continue applying the mixed merger condition where it is deemed necessary to remedy a potential public interest harm.

If you have any urgent questions, please contact your usual Kelley Drye attorney or any member of the Communications Practice Group. For more information on other aspects of the federal and state response to the COVID-19 pandemic, as well as labor and employment and other issues, please visit Kelley Drye’s COVID-19 Response Resource Center.

FCC Approves Twelfth Set of COVID-19 Telehealth Program Applications, Closes Filing Window

On June 25, 2020, the FCC’s Wireline Competition Bureau (“WCB”) announced via Public Notice (DA 20-667) that it will no longer accept new applications for funding from the COVID-19 Telehealth Program, noting that demand for funding exceeds available Program funds based on applications received. This announcement comes after the June 24 approval of 77 additional applications and $29.41 million in funding. To date, the FCC has approved 444 funding applications in 46 states plus Washington, D.C. for a total of $157.64 million in funding. Congress appropriated $200 million for the Program in the CARES Act.

The FCC also released a report on the CARES Act spending plan in accordance with section 15011(b)(1)(B) of the legislation, which requires the agency to submit a plan describing how it will use the covered funds.

FCC Further Extends Temporary Waivers of Relay Services Rules

On June 22, 2020, the FCC’s Consumer and Governmental Affairs Bureau extended temporary waivers (DA 20-650) through August 31, 2020 for Telecommunications Relay Service (“TRS”) providers to ensure relay services remain available for individuals who are deaf, hard of hearing, deafblind, or have a speech disability. These waivers extend actions previously taken to grant TRS providers flexibility.

FCC Further Extends Inteliquent Access Stimulation Waiver

On June 23, 2020, the WCB granted (DA 20-655) Inteliquent’s request for renewal of its temporary waiver of certain access stimulation rules until September 1, 2020. Inteliquent requested a limited renewal of the temporary waiver, with respect to traffic it terminates in six urban areas to preexisting customers on the basis that its terminating-to-originating traffic ratios in those areas continue to be particularly unbalanced as a result of the “unprecedented amounts of conference platform traffic that Inteliquent is terminating for pre-existing customers Zoom and Cisco Webex to facilitate remote work and other forms of social distancing.”

The WCB originally granted Onvoy d/b/a Inteliquent a temporary and limited waiver of the FCC’s rules that treat competitive local exchange carriers with an interstate terminating-to-originating traffic ratio of at least 6:1 as engaging in access stimulation.

FCC Resolves CAF Phase II, Rural Broadband Petitions

On June 26, 2020, the WCB, Rural Broadband Auctions Task Force, and Office of Economics and Analytics, resolved petitions (DA 20-677) filed by the Connect America Fund (“CAF”) Phase II Coalition and Skybeam, LLC (“Skybeam”) seeking waiver of the letter of credit rules for the CAF Phase II auction (“Auction 903”) and Rural Broadband Experiments. Petitioners requested that the FCC allow them to comply with the recently adopted letter of credit rules for the Rural Digital Opportunity Fund instead. The FCC found good cause to grant a limited waiver to all Auction 903 and Rural Broadband Experiments funding recipients until December 31, 2021, because of the increased consumer demand for robust broadband services and severe financial hardship on the companies imposed by the COVID-19 pandemic.

FCC Announces Section 106 Emergency Authorizations

On June 25, 2020, the FCC’s Wireless Telecommunications Bureau issued a Public Notice (DA 20-668) announcing an electronic process for FCC licensees to apply for expedited Section 106 review or for emergency authorization to resume standard review for qualifying critical infrastructure projects. Section 106 of the National Historic Preservation Act requires the FCC to account for the effect of any proposed “undertakings” on historic properties, including construction or collocation of wireless communications facilities.

If you have any urgent questions, please contact your usual Kelley Drye attorney or any member of the Communications Practice Group. For more information on other aspects of the federal and state response to the COVID-19 pandemic, as well as labor and employment and other issues, please visit Kelley Drye’s COVID-19 Response Resource Center.

FCC Approves More COVID-19 Telehealth Program Applications, Waives Red Light Rule for Program Applicants

On April 23, 2020, the FCC’s Wireline Competition Bureau (“WCB”) approved six more funding applications for the COVID-19 Telehealth Program. The $2.56 million in funding will go to health care providers in hard-hit areas like New York, California, and Maryland. Days earlier, the WCB approved five other funding applications, including $3.71 million to providers in California and Michigan. To date, the Telehealth Program has funded 17 health care providers in 10 states for a total of $9.5 million in funding. Congress appropriated $200 million to the FCC for the Telehealth Program as part of the recently-enacted CARES Act. The FCC is continuing to evaluate Telehealth Program applications at a rapid pace and distribute additional funding on a rolling basis.

The FCC’s Office of Managing Director and WCB also decided to waive the FCC’s “red light” rule for Telehealth Program applicants to facilitate prompt review and processing of the maximum number of applications to the Program. The “red light” rule normally prevents the FCC from taking action on applications and other requests by entities with delinquent debts with the agency. While the FCC found good cause existed to waive the “red light” rule, the agency was clear that the waiver only applied to the Telehealth Program and did not affect the agency’s ability to take collection action against delinquent debtors.

Join us for a webinar on April 28, 2020, as we discuss these issues and other details of the Telehealth Program, including healthcare provider eligibility criteria, funding coverage, and key application considerations. Register here.

FCC Joins Department of Education to Promote $16 Billion in Funding for Remote Learning

On April 27, 2020, the FCC and the Department of Education announced joint efforts to promote remote learning funding opportunities to school and state officials under the recently-enacted CARES Act. Specifically, the CARES Act established an Education Stabilization Fund with approximately $16 billion currently available in grants to schools and state governors to purchase devices and services to facilitate remote learning while educational institutions remain closed due to the pandemic. While the Department of Education will handle the actual funding disbursements, the FCC will identify local service providers for participating schools and governors that may be able to provide devices and broadband connectivity to support remote learning. Like the Telehealth Program, the Education Stabilization Fund is another example of the multi-prong approach taken by the federal government to spur broadband deployment and adoption during the pandemic to assist social distancing and stay-at-home orders.

FCC Grants Additional Temporary Spectrum Access Requests

On April 23, 2020, the FCC’s Wireless Telecommunications Bureau (“WTB”) granted NTUA Wireless, LLC’s emergency Special Temporary Authority (“STA”) request to operate in certain 700 MHz band spectrum in Arizona and Utah. The WTB also granted STA requests from T-Mobile License LLC and Medicine Wheel Website Design as part of the FCC’s continued effort to improve communications and broadband service in rural and other hard-to-serve areas during the crisis. The STA grants show that the FCC is open to requests to use otherwise fallow spectrum to improve communications and broadband services in the near-term.

Comments on TRS Emergency Waiver Petition Due May 4

On April 20, 2020, the FCC’s Consumer and Governmental Affairs Bureau announced via Public Notice that it is seeking comment on a Petition for Emergency Waiver and Declaratory Ruling filed by Telecommunications for the Deaf and Hard of Hearing, Inc. and other consumer advocacy groups. The groups ask the Commission to (1) temporarily waive the Telecommunications Relay Services (“TRS”) user registration and per-call validation rules to increase TRS access for persons with hearing and speech disabilities during the COVID-19 pandemic and (2) issue a declaratory ruling that TRS providers can receive compensation from the TRS Fund for the distribution of software used for TRS access by deafblind individuals, including those who do not qualify as low-income individuals under the National DeafBlind Equipment Distribution Program. Comments on the petition are due May 4, 2020, and may be filed electronically at https://www.fcc.gov/ecfs/.

Currently, section 20.19 of the FCC’s rules requires handset manufacturers and service providers to offer a minimum percentage of handsets, for each air interface, from their overall wireless handset product portfolio that are HAC. This section also establishes ANSI C63.19 (currently it lists the 2011 version) as the specific technical standard to be used for measuring compatibility between wireless handsets and hearing aids. Wireless handsets submitted for FCC certification must demonstrate they are designed to this standard and have a hearing aid compatibility rating of least M3 regarding interference and T3 for inductive coupling. Manufacturers and service providers are required to ensure that 66% of their handsets are HAC but this benchmark is set to increase to 85% beginning on October 21, 2021 and April 4, 2022 for manufacturers and service providers, respectively. In 2017, the FCC also adopted a requirement that handsets be “equipped with volume control that produces sound levels suitable for persons with hearing loss (including persons with and without hearing aids),” effective on March 1, 2021. Handset manufacturers are required to submit Form 655 reports by July 15 each year regarding their compliance with these requirements and service providers are required to submit Form 855 certifications of compliance each year by January 15, although the NPRM proposes to push those deadlines to July 31 and January 31 respectively.

The FCC now proposes to amend its rules to require manufacturers and service providers to offer devices that comply with the newest (2019) version of the C63.19 standard after a two-year transition period that would begin after an order adopting the 2019 standard is published in the Federal Register. The 2019 standard provides a revised technical approach for determining hearing aid compatibility and incorporates the volume control standard used for wireline phones, ANSI/TIA-5050, as a component of the requirements a handset must satisfy to be considered HAC. In addition, the new standard eliminates the M/T rating system and covers handsets operating in the 614 MHz to 6 GHz as opposed to the 698 MHz to 6 GHz range of the current standard. The NPRM, if adopted, would extend the effective date of the volume control requirement to be consistent the implementation date of the new standard.

Under the proposed rules, manufacturers and service providers would be able to count handsets previously certified under the 2011 standard towards satisfying the HAC benchmarks. During the transition period, manufacturers would able to test new handsets for certification using either the 2011 or the 2019 standard. The proposal also considers simplifying rules around the labeling of HAC packaging materials to allow consumers to have more easily understandable information. Proposed changes would give manufacturers and service providers flexibility to disclose information to consumers “through clear and effective means (e.g., packaging materials, manuals) about things like whether a handset is HAC, the air interfaces on the handset that are not HAC, and the standard to which the handset complies. Certified handsets that have air interfaces that are HAC must include exact warning language proposed by the FCC. Finally, handsets compliant with the 2019 standard would be required to display information on the packaging material as well as in the manual (or an insert) about the amplification capabilities.

Further, in the NPRM, the FCC seeks comment about the level of handset redesign that would be required to meet the new standard. The FCC also seeks comment about what impact the proposed technical standard and transition period would have on the plan to consider whether a requirement for a 100% HAC handsets is feasible in 2024. In 2016, the FCC adopted a joint agreement from three trade associations and three disability advocacy groups for gradual increases in the HAC benchmarks with a goal of 100% handset compliance by 2024. An aspect of that joint agreement was to initiate an external stakeholder task force that would assess the state of the marketplace and provide data to inform the FCC’s decision. On February 6, the signatories to the joint agreement filed an update informing the FCC about the selection of an administrator and the official launch of the task force. Therefore, it is likely this group’s efforts and timeline will influence the FCC’s consideration of the proposed rules.

Comments on the NPRM will be due 30 days after publication in the Federal Register and replies will be due 45 days after publication, which has not yet occurred.

VRS enables people with hearing or speech disabilities who use American Sign Language to communicate via video and phone with voice callers. The person with the disability uses a video call to sign with a CA who then relays the details from the signer to the user on the voice side of the telephone call. In 2011, the FCC amended its rules to exclude the use of at-home CAs due to its concern that lack of oversight and other limitations would increase the risk of fraud in the VRS program. In 2017, however, the FCC found that anti-fraud protections and network technology advancements had reduced fraud risk related to at-home CA use. As a result, the FCC initiated a one-year pilot program that allowed any VRS provider with a conditional or full certification to receive TRS Fund compensation if the provider used at home CAs for no more than 30% of the monthly call minutes. As a condition of participation, a VRS provider had to submit a compliance plan outlining the provider’s plan to meet the mandatory minimum standards and safeguards listed in section 64.604(b)(8) of the FCC’s rules. The FCC authorized two VRS providers to participate in the initial pilot program and granted a temporary extension until the end of April 2019. Following the end of the temporary extension period, the FCC granted waivers to participate in the program to a number of other VRS providers and further extended the program expiration date to April 2020.

In May 2019, the FCC released a proposal to allow at-home CAs permanently, subject to safeguards similar to those used in the pilot program. Last week’s Order amends the FCC’s rules to allow permanent use of at-home CAs with some changes from the pilot program. With the new rules, the FCC raised the percentage cap on a provider’s use of at-home call-handling to 50% of the provider’s monthly VRS call minutes. Since all certified VRS providers were authorized to use at-home CAs under the pilot program, these providers will not need further authorization. However, any new applicant for VRS certification that seeks to use at-home CAs will need to include a request for authorization that includes a proposed compliance plan. The FCC additionally adopted a number of safeguards related to 1) CA personnel qualifications, training, and performance; 2) the technical specifications of the CA home workstation and environment; and 3) monitoring, oversight, and inspection of home workstations. Additionally, providers are required to include at-home call-handling data in their annual VRS compliance reports.

The new rules become effective 30 days after a summary of the Order is published in the Federal Register with the exception of the provider standards and safeguards listed in sections 64.604 and 64.606 of the FCC’s rules, which contain information collection provisions requiring Office of Management and Budget (“OMB”) approval. As a result, sections 64.604 and 64.606 amendments will not become effective until the date specified in future Federal Register notice announcing OMB approval.

The FCC’s current review will look at rules adopted in 2005-2006 and covers a number of major regulatory areas. For example, the FCC asked for comment on certain USF rules, including:

• the agency’s definition of “rural area” in the Rural Health Care Program;
• certain eligibility requirements for carriers to qualify to receive high cost or Lifeline USF support, including the demonstration of compliance with consumer protection and service quality standards, the public interest standard, and the requirement to provide a copy of any eligible telecommunications carrier (“ETC”) petitions to affected Tribal governments;
• certain annual reporting obligations for high cost fund recipients; and
• the certifications that must be made by schools and libraries to obtain E-Rate funds.

The FCC also will review its equipment authorization procedures, particularly the testing and certification requirements for software defined radios. As we previously highlighted, the FCC has taken a number of recent enforcement actions against small- to medium-sized manufacturers for equipment marketing violations, which often involve complex testing and disclosure obligations.

Disabilities access rules will be reevaluated as well, such as the technical standards and carrier contribution mechanisms for the Telecommunications Relay Service that helps facilitate communications by persons with hearing or speech disabilities. Moreover, the FCC will re-assess the requirements on wireless providers and mobile device manufacturers to offer a sufficient selection of hearing aid-compatible handsets.

The range of topics covered by the FCC’s review is indeed wide and presents an opportunity for all stakeholders to submit their thoughts over the coming months on how these rules should be expanded, contracted, or eliminated. The FCC will accept comments until October 29, 2018.

The FCC used the current process for complaints against common carriers as the model for reforming the pole attachment and disabilities access formal complaint rules. The FCC adopted a uniform deadline of 30 days for responding to a formal complaint, expanding the current answer period by 10 days for complaints against common carriers and disabilities access complaints. The FCC also eliminated the burdensome requirement to include proposed findings of fact and conclusions of law in complaint filings, noting that the agency already waived this obligation in most proceedings. Moreover, the FCC expanded its discovery procedures, allowing parties in all types of formal complaint proceedings to ask questions through written interrogatories. To encourage more settlements, the FCC now will require all formal complaints to certify that the complainant engaged in “executive-level” discussions with the other party before filing. Critically, the FCC established a 270-day “shot clock” for its decisions on formal complaints, although the agency did not indicate what would happen if it exceeded the deadline. While the FCC aimed to make formal complaint procedures more uniform, it decided to retain certain evidentiary rules for pole attachment complaints - including the requirement to submit information regarding pole costs - that the agency found critical to resolving disputes.

The Order generally adopted the proposals put forward last year to streamline the complaint process, but it drew a harsh rebuke from Commissioner Rosenworcel, who questioned whether certain changes undermined consumers’ ability to receive proper consideration of their informal complaints of industry practices with the FCC. Besides its formal complaint reforms, the FCC also adopted a proposal to clarify its informal complaint rules. Currently, the FCC’s informal complaint rules state that, “[i]f the [informal] complainant is not satisfied by the carrier’s response and the Commission’s disposition, it may file a formal complaint.” In a footnote in the Order, the FCC deleted the phrase “and the Commission’s disposition,” stating that it was not FCC practice “to dispose of informal complaints on substantive grounds.” Commissioner Rosenworcel dissented and expressed concern that this change was inconsistent with the FCC’s longstanding practice of studying informal consumer complaints and working with providers to resolve the problem. In response, Chairman Pai argued that the wording change would not impact current informal complaint procedures or prevent the FCC from relying on informal complaints in enforcement actions. Thus, it remains to be seen whether the changes will result in more informal complaints being shunted into the new formal complaint process.

The rule changes adopted in the Report and Order allow local EAS tests to use actual EAS alert codes, provided that the entity conducting the test must

(1) notify the public that there will be a test that uses a live code;

(2) coordinate the test with the appropriate EAS participants (e.g., radio and television broadcast stations, cable systems) and state and local emergency authorities, and;

(3) to the extent technically feasible, inform the public in the test message that the event is only a test (that is, that there is no real emergency).

In the Further Notice of Proposed Rulemaking, the FCC seeks comment on other specific measures to help prevent and correct false alerts, as well as requiring “State EAS Plans to include procedures to help prevent false alerts, or to swiftly mitigate their consequences should a false alert occur.” Finally, the FCC seeks comment on the performance of Wireless Emergency Alerts (“WEA”), including how stakeholders could measure and report WEA performance, and any measures the FCC should take to “address inconsistent WEA delivery.” Comments on these proposals will be due 30 days after the item is published in the Federal Register, and replies will be due 30 days after that.

The FCC has granted three class waivers already for video game software and the latest waiver ends on December 31, 2017. In granting these waivers, the Commission has found that video game software qualifies for a waiver under the rules even though it has the ability to access ACS because the primary purpose of the software is gaming and not ACS.

In this Petition, ESA argues that gaming remains the primary purpose and that ACS capabilities are secondary and not prominently advertised. ESA also asserts that there are unique challenges involved with gaming software, such as the display technologies used by video games, creation of highly specialized code, and the successful and simultaneous integration of numerous specialized functions, animation, graphics, audio and artificial intelligence. Further, video games use specialized controllers rather than standard equipment like a mouse. In contrast, “most assistive technologies are intended to work with standardized inputs and controls.” The inherent lag time for technologies like audio transcription can also be difficult for fast-paced gaming communications. The Petition states that despite these challenges, over the course of the multiple waivers, the video game industry has released games that “are increasingly accessible—even as it continues to experiment with ACS accessibility solutions for video game software.” The Petition offers several examples of video games that have incorporated accessibility technologies, including real-time text transcription of audio game chat and text-to-audio features in game chat on Microsoft’s Xbox One console.

In spite of this progress, ESA contends that certain challenges remain and that additional time is needed to explore accessibility solutions for ACS and core game play activities before video game software can comply fully with the ACS rules. ESA argues that another year will allow video game software developers to continue to look for alternative solutions where standard assistive technologies are insufficient, permit industry to continue to release innovative games in the meantime, and allow industry to continue an ongoing dialogue with members of the disability community.

ESA is likely to be successful receiving an additional waiver, however, it is clear that time is running out. The first waiver granted was for three years but the last two have only been for one year, with the last one including a requirement for a mid-year progress report that was filed in June. ESA appears to recognize this in asking for a “final” waiver. However, other industries and technologies that are subject to the ACS rules and that have a primary purpose other than ACS should consider a similar waiver request. This is especially true for new and innovative technologies and applications.

First, the Order updates volume control technical standards for wireline telephones in section 68.317 of the Commission’s rules. These technical standards are developed and amended by the TR-41 Committee, currently affiliated with the Telecommunications Industry Association (TIA). The Commission, responding to a petition filed by TIA, proposed to update the Part 68 wireline volume control rules to incorporate a revised standard developed by the TR-41 Committee, referred to in the Order as the 2012 Wireline Volume Control Standard. All commenters addressing this issue support this adoption. Based on this support and the record evidence, the Commission found the revised standard improves the measurement of volume amplification over the previous standard, which contributed to discrepancies between the claimed and actual amplification being provided.

Specifically, the revised standard enhances the measurement of volume amplification in two ways: by using a Head and Torso Simulator, which considers the lack of seal between a telephone receiver and the ears of users in real-life settings, instead of measuring the volume received by the user with an IEC-318 coupler, which is designed to form a seal with the telephone handset; and by using a “conversation gain,” where gain is measured relative to an absolute benchmark based on the sound of face-to-face conversation at a distance of one meter, instead of measuring loudness in terms of Receive Objective Loudness Rating, where gain is measured relative to each phone’s normal unamplified sound level. Furthermore, the Order requires telephones manufactured or imported for the use in the U.S. to comply with the new standard two years after the Order’s effective date. Additionally, existing inventory and installed base of telephones that comply with current rules are approved to remain in place until retired.

Second, the Order amends the Commission’s rules to extend the HAC requirements for wireline telephones to ACS, which includes interconnected and non-interconnected VoIP services and equipment. The Order specifies VoIP telephones and other wireline equipment collectively termed “ACS telephonic CPE” must comply with the HAC requirements for wireline telephones. These requirements include: (1) having the equipment tested for HAC compliance; (2) registering the equipment with the ACTA terminal equipment database; and (3) providing appropriate labels regarding HAC compliance.

Third, following other Commission explorations into the need for a wireless volume control rule to address the needs of people with hearing loss, the Order finds a wireless phone volume control requirement that specifies certain levels of amplification as an element of HAC is needed and just as necessary as a corresponding wireline provision, especially given the country’s increasing reliance on wireless phones. Therefore, the Order requires all wireless handsets newly certified as hearing aid compatible to include volume control suitable for consumers with hearing loss. Manufacturers and services providers must comply with this stipulation within three years.

Finally, the Order eliminates the 2007 version of ANSI C63.19 (2007 Wireless RF Interference/Inductive Coupling Standard), as a choice for measuring and rating the HAC compliance of wireless handsets and requires the use of an updated version.

The Order was approved over the partial dissents of Republican Commissioners Brendan Carr and Michael O’Rielly, who both questioned the need to adopt a requirement now when the requirement will not be effective for three years. Commissioner Carr pointed out that the applicable technical standard is still being developed and Commissioner O’Rielly more broadly opposed the Commission adopting standards in its rules.

Currently, section 20.19 of the Commission’s rules requires that both wireless handset manufacturers and service providers offer a minimum number or percentage of handsets that are hearing aid compatible. Additionally, service providers must submit an annual report on FCC Form 655 that includes the following information:

• compliant handset models offered to customers since most recent report with the handset marketing model name/number and FCC ID number;
• for each compliant model, the air interface(s) and frequency band(s) on which it operates, the HAC rating for each frequency band and air interface according to the ANSI C63.19 standard, and the months it has been available since the most recent report;
• non-compliant handset models offered since the most recent report with the handset marketing model name/number and FCC ID number;
• for each non-compliant model, the air interface(s) on which it operates and the months the model was available since the most recent report;
• total number of compliant and non-compliant models offered to customers for each air interface on which the service provider operates;
• retail availability of compliant handset models;
• the levels of functionality into which compliant handset falls and how the service provider determined the relevant functionality;
• status of product labeling;
• outreach efforts; and
• service provider public website and the website address of the page(s) with information on the compliant handset models.

In the NPRM, the Commission notes that many entities, particularly small and rural service providers, have expressed that the amount of time needed to prepare the wireless HAC compliance report is burdensome. The Commission seeks comment on whether it should exempt non-Tier I service providers, i.e., those that do not offer nation-wide service, from the annual Form 655 reporting requirement. Alternatively, the Commission seeks comment on whether the scope of the exemption should be defined by a different carrier type or size standard. For example, the Commission raises the possibility of the exemption being based on the number of subscribers a service provider serves. (As an example, the Commission notes that in other proceedings, 500,000 subscribers is used as the appropriate number to be considered a small provider.) The NPRM also considers whether a possible reporting exemption should be made effective immediately if adopted by the Commission. In addition, the Commission seeks comment on whether it should continue to require a report from Tier I service providers that fall under the de minimis exception if it decided to eliminate such a requirement for non-Tier I providers.

The Commission asks whether it should require less frequent reporting for non-Tier I service providers if it determines that a complete exemption is not in the public interest. An alternative would be the adoption of a certification approach wherein providers would certify that they have met the deployment and reporting requirements rather than having to submit a detailed report. With regard to certification, the NPRM seeks input on the best way to implement such a model including what format should be used and what supporting information should be required, if any. The Commission also seeks comment on other possible ways to streamline or update the HAC reporting requirement for all service providers.

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.

The disabilities access rules at issue, implemented pursuant to the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA), require manufacturers of covered digital apparatus to ensure devices manufactured after December 20, 2016 include accessible user interfaces. Honda does not make products that would typically be deemed communications devices, but its in-vehicle rear entertainment systems are required to comply with the CVAA’s video accessibility rules. FCC rules require that all digital apparatus be designed so that certain standard functions (e.g., play back, display of video programming) have controls that are accessible to and usable by individuals who are blind or visually impaired. (See our previous discussion here, including the broad scope these disabilities access rules). In the Order, the Bureau states that generally “lack of knowledge of the Commission’s rules” is not a viable basis for good cause to issue a waiver. However, in this case, the Bureau determined that there were “compelling special circumstances . . . that warrant a deviation from the general rule.”

The Bureau found persuasive Honda’s justification that, to comply with the deadline, it would have to suspend production and sales of its vehicles. The Order cites Honda’s statement that stopping production would cause temporary layoffs of Honda employees and financial harm to the company that could jeopardize additional jobs. The Bureau agreed that halting production would not be in the public interest. The Bureau also highlighted Honda’s inclusion of a detailed plan for implementing the requisite accessibility features and accounting for the time to undertake each step of the redesign process. The Bureau further noted that the National Federation of the Blind’s opposition did not provide specific evidence to refute Honda’s claims that the changes could not be done in less time.

The Order requires Honda to ensure that vehicles manufactured after August 20, 2018 are fully compliant with all relevant accessibility requirements. The Order also requires Honda to submit status reports about its efforts to integrate the accessibility features for its in-vehicle rear entertainment systems within six months and one year after the initial compliance deadline.

While Honda was granted some reprieve, their products are still deemed to be within the scope of the requirements and they are expected to come into compliance. Therefore, companies that provide digital products or services, including as components in other products, equipment or services, are encouraged to do their due diligence and seek guidance to determine whether they are compliant with disabilities access regulations given the wide breadth of applicability of the CVAA rules.

For additional information regarding disabilities access compliance, please contact a member of Kelley Drye’s Communications Practice.

Comments are due to the Bureau by June 22, 2016. The Commission will use these comments to inform tentative findings, which will then be open for another round of public comment. The report to Congress is due by October 8, 2016.

Section 255 governs accessibility requirements for telecommunications and interconnected VoIP service providers and equipment manufacturers. Section 716 applies to non-interconnected VoIP services, advanced communications services (e.g., electronic messaging services and interoperable video conferencing services), and the manufacturers of devices for these services. Section 718 requires Internet browsers on mobile phones to be accessible to the blind and visually impaired. Section 717 contains recordkeeping and enforcement obligations applied to entities covered by sections 255, 716, and 718.

In addition to telecommunications, advanced communications services, and Internet browser technologies, the Commission seeks comment on accessibility barriers to “new communications technologies,” that are both within and outside the scope of the Act. The 2012 CVAA Report expressed an expectation that many accessibility barriers to new communications technologies would likely be addressed by compliance with the requirements under section 716 and 718, and the Commission now seeks comment on the extent to which that expectation has been met, and what barriers remain.

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.

Participating organizations will include: the American Association of People with Disabilities; Adobe Systems; Hearing Loss Association of America; IBM; the U.S. Department of Labor; University of Colorado, Boulder; and the U.S. Business Leadership Network. (A complete list of participating organizations can be found here.)

The Commission launched the Accessibility and Innovation Initiative in 2010, on the twentieth anniversary of the passage of the Americans with Disabilities Act, to push for improved access to technology for disabled citizens. Several months after the announcement of the Initiative, President Obama signed the Twenty-First Century Communications and Video Accessibility Act (CVAA) into law, imposing a variety of accessibility requirements on advanced communications products and services. The FCC has, on occasion, granted waiver requests for select devices including most recently for certain e-reader devices.

Under the new procedures, a consumer can initiate the complaint process by contacting the company directly, or seeking assistance from the FCC’s Consumer & Governmental Affairs Bureau through its Disabilities Rights Office by submitting a request for dispute assistance, which is required before the consumer may file an informal complaint. Separately, the consumer may file a formal complaint with the FCC without the need for a request for dispute assistance. A more detailed explanation of the new complaint procedures is available on the FCC’s website .

The new complaint process marks a departure from previous FCC procedure, which required the consumer to file grievances only with the FCC, which would then serve as an intermediary between the consumer and the company. Thus, it is important for companies that offer ACS to be alert to complaints that may come directly from consumers in addition to correspondence from the FCC. The company’s designated FCC contact should also be a senior employee who can recognize the impact of a request for dispute assistance, or informal or formal complaint regarding ACS and the timelines and documentation necessary to respond to such complaints.

The new procedures are part of the FCC’s ongoing effort to implement the CVAA, with the latest round of regulations going into effect on October 8, 2013.