FCC Adopts Backup Power and Disclosures Rules for

Fixed Residential Voice Service Providers

On August 6, 2015, the FCC adopted a Report and Order obligating voice service providers to provide backup power sources to customers in order to ensure 911 service during a power outage and to disclose certain information to consumers.

Covered Voice Service Providers.  The new rules apply to all providers of facilities-based, fixed voice services, such as interconnected VoIP, that are not line-powered by the provider.  This includes interconnected VoIP and fixed wireless services offered as a replacement for line-powered telephone service. 

Backup Power.  Providers must offer new voice subscribers the option to purchase a backup power solution that ensures the service can work for at least 8 hours during a power outage.  Within three years of the effective date of the 8-hour obligation, providers must also offer a minimum 24-hour backup power solution. 

Providers may develop and offer their own backup power solution, as long as it meets certain minimum time obligations.  Providers are not obligated to retrofit equipment currently used by subscribers to accommodate new backup power solutions. 

Backup Power Charges.  The Report and Order clarified that providers may charge subscribers for backup power capabilities.  The FCC did not specify the rates at which providers may offer backup power or related accessories; rather, the FCC explained that “market forces [should] ensure that backup power is offered at competitive prices.”  At the same time, providers may choose to include backup power capabilities without separate charge, for competitive or other reasons.

Disclosures.  The rules require providers to notify new voice subscribers at the point of sale and all voice customers annually of the following:

• Availability of backup power sources;
• Service limitations with and without backup power during a power outage;
• Purchase and replacement options;
• Expected backup power duration;
• Proper usage and storage conditions;
• Self-testing and monitoring instructions; and
• Warranty details, if any.

The rules do not provide for a specific manner in which providers must deliver the disclosures to subscribers.  The Order states that providers may “convey both the initial and annual disclosures…by any means reasonably calculated to reach the individual subscriber.”  However, solely posting the disclosures on a provider’s website does not constitute sufficient notice.

Effective Dates.  The effective dates of the rules are not yet announced but are staggered depending on the rule and provider size.

If you have questions about the new backup power requirements or disclosures, please contact Jake Baldwin or Madeleine Goldfarb at (312) 372-3930 or jbaldwin@cinnamonmueller.com or mgoldfarb@cinnamonmueller.com.

REMINDER:  Broadband Internet Access Service Providers Must

Post and Update Open Internet Disclosures

On June 12, 2015, the FCC’s Open Internet Order went into effect.  In addition to imposing three “bright line” Net Neutrality rules and a new general standard of conduct, the FCC added enhancements to its existing transparency rule (mandated by the 2010 Open Internet Order).  The enhancements are aimed at addressing concerns about the adequacy and accuracy of broadband Internet access service (“BIAS”) providers’ disclosures.  In this regard, the FCC issued advisory guidance in July 2014 reminding providers of their duty of accuracy, and more recently released a Notice of Apparent Liability, finding that AT&T Mobility “apparently willfully and repeatedly” violated the 2010 transparency rules by misleading customers about its unlimited mobile data plans and proposed a $100 million fine for the alleged violations.

All providers must keep their Open Internet disclosures updated and accurate.  The FCC’s recent actions serve as a stark reminder for BIAS providers of the importance of posting and maintaining their disclosures.  Now is the time to review your disclosures and ensure that they are up-to-date, accurate, complete and fully consistent with your marketing materials and related consumer-facing disclosures and policies. 

Required Disclosures.  Under the 2010 transparency rule, all providers of broadband Internet access service, whether fixed or mobile service, must publicly disclose information about three broad categories of information:  network management practices, performance characteristics, and commercial terms of service.  The disclosures must be sufficiently detailed to allow consumers “to make informed choices regarding use of such services and for content, application, service, and device providers to develop, market, and maintain Internet offerings.” 

The FCC Enforcement Bureau and General Counsel issued guidance in 2011 to assist providers in complying with their obligations under the 2010 transparency rule.  Pursuant to the advisory guidance, BIAS providers may disclose the metrics of actual speed and latency on their network by reference to the results contained in the FCC’s Measuring Broadband America Reports.  Because results in these reports change annually, BIAS providers referencing them must ensure that they are referencing the most recent report.

2015 Enhancements.  The 2015 Open Internet Order enhanced the transparency rule, requiring providers with over 100,000 connections to additionally disclose, among other things: promotional rates, fees, and surcharges, and data caps; packet loss as a measure of network performance; and network management practices that can affect service.  The new rule enhancements will not go into effect until the FCC publishes notice of OMB approval in the Federal Register.

Small Business Exemption.  Providers with fewer than 100,000 broadband connections are temporarily exempt from the 2015 rule enhancements, but are still required to meet the 2010 transparency disclosure requirements.  The FCC Consumer & Governmental Affairs Bureau is currently considering whether to retain or amend eligibility for the exemption, and is required to reach a decision by the December 15, 2015 expiration of the temporary exemption.

If you have questions about the Open Internet rules or disclosures, please contact Barbara Esbin at (202) 872-6811 or besbin@cinnamonmueller.com.

FCC Reminds Cable Operators of EEO Form 396-C Filing Deadline 

Notice Lists Cable Operators Who Must File Supplemental Investigation Sheet 

On August 18, 2015, the Media Bureau released a Public Notice reminding multichannel video programming distributors (“MVPDs”), including cable operators, that Form 396-C, the FCC’s MVPD Equal Employment Opportunity (“EEO”) Program Annual Report, must be submitted electronically by midnight on September 30, 2015.  To file Form 396-C, login to the Media Bureau’s CDBS Electronic Filing System.

The Public Notice also lists the cable operators that the FCC randomly selected to file a Supplemental Investigation Sheet along with their Form 396-C.  For this year’s filing, Supplemental Investigation Sheet filers must:

• Include one job description for employees in the category “Professionals” in Part I of the form.

• Answer questions 2,4, and 6 in Part II of the form:
• Describe the employment unit’s efforts to disseminate widely its equal employment opportunity program to job applicants, employees, and those with whom it regularly does business.
• Explain the employment unit’s efforts to promote in a nondiscriminatory manner to positions of greater responsibility.
• Report the findings of the employment unit’s analysis of its efforts to recruit, hire, promote in a nondiscriminatory manner and explain any difficulties encountered in implementing its EEO program.

• Attach, as Part III, a copy of the unit’s EEO public file report created in 2015 covering the previous 12 months.

If you have any questions about EEO compliance, please contact Scott Friedman at (312) 372-3930 or sfriedman@cinnamonmueller.com.