Relief Expanded to Include BIAS Providers with

250,000 or Fewer Broadband Connections

At its February 23^rd Open Agenda Meeting, the FCC approved by a 2-1 vote an Order waiving compliance with the 2015 enhanced transparency rules for smaller broadband Internet access service (“BIAS”) providers for five years.  The Order, not yet released, mirrors the bipartisan compromise reflected in the pending Small Business Broadband Deployment Act of 2017. 

In addition, the FCC expanded the relief to cover BIAS providers with 250,000 or fewer broadband connections, and made the relief retroactive to January 17, 2017, the date the enhanced transparency rules took effect.

Background.  In its 2015 Open Internet Order, the FCC adopted certain enhancements to the Transparency Rule that imposed additional recordkeeping obligations on BIAS providers that required Office of Management and Budget (“OMB”) approval before they could go into effect.  On December 16, 2016, the FCC issued a Public Notice announcing OMB approval and a January 17, 2017 effective date for the enhancements. 

When the enhanced transparency requirements were initially adopted, the FCC granted a temporary exemption from the enhancements for BIAS providers with 100,000 or fewer broadband connections.  Because the FCC did not extend the temporary exemption, all BIAS providers were required to comply with the enhanced transparency rules beginning January 17, 2017.

New Relief.  The Order will apply retroactively and prospectively to cover the period beginning on the date the enhanced reporting requirements became effective, January 17, 2017, and will end five years after the date the Order is adopted.

Small BIAS Provider Transparency Obligations.  Smaller BIAS providers subject to the waiver must ensure that they still meet their transparency obligations under the FCC’s 2010 Open Internet Order (“2010 Order”).  Under the transparency rule adopted in the 2010 Order and in effect since 2011, BIAS providers must publicly disclose accurate information regarding their network management practices, network performance and commercial terms sufficient to allow consumers to make informed choices and Internet edge (content, applications, services, device) providers to develop, market and maintain Internet offerings.

If you have any questions about the FCC’s Open Internet rules, the basic Transparency Rule and/or the enhanced transparency rules, please contact Barbara Esbin at (202) 872-6811 or besbin@cinnamonmueller.com, Bruce Beard at (314) 394-1535 or bbeard@cinnamonmueller.com, or Scott Friedman at (312) 372-3930 or sfriedman@cinnamonmueller.com.

Despite New Enhanced Transparency Waiver, BIAS Providers Must Continue to Ensure Compliance with 2010 Transparency Rules and Title II Obligations

New FCC Chairman Pai has announced an agenda that includes reversing the Wheeler FCC’s decision to reclassify broadband Internet access service (“BIAS”) as a Title II common carrier service and re-examine the Open Internet rules adopted in the 2015 Open Internet Order. 

There are two things for BIAS providers to keep in mind.  First, the 2010 Transparency Rule was not adopted pursuant to the FCC’s Title II authority, and is likely to remain in effect largely as is despite reexamination of the other Open Internet rules.  Second, while there is a “new sheriff in town” at the FCC, BIAS providers are reminded that until the FCC acts, they remain classified as Title II common carriers.  As such, they are subject to both statutory obligations under Sections 201 and 202 of the Act prohibiting unjust, unreasonable and unjustly discriminatory acts and practices, as well as the FCC’s Open Internet rules (no blocking, throttling, paid prioritization). 

Moreover, as common carriers, BIAS providers are subject to enforcement and complaint actions under Sections 207 and 208 of the Communications Act by “any person claimed to be damaged by any common carrier” subject to Title II. 

Section 207 permits recovery of damages by any person damaged by any common carrier subject to Title II, either by complaint to the Commission or by suit for recovery of damages for which such carrier may be liable under Title II “in any district court of the United States.  The only limitation is that a person does not have the right to pursue both remedies.

Although the courts may choose to refer such cases to the FCC under the judicial doctrine of “primary jurisdiction” as a matter better addressed in the first instance by the expert agency, the doctrine is discretionary and a court can choose to retain jurisdiction and decide the matter itself.

Section 208 provides for complaints to the Commission by “any person, any body politic, or municipal organization, or State commission, complaining of anything done or omitted to be done by any common carrier” subject to Title II.  The Commission is required to conclude its investigation into such complaints within 5 months after the date on which the complaint was filed. 

Accordingly, BIAS providers should continue to follow the statutory mandates and FCC Open Internet rules until such time as the FCC acts to reverse the 2015 Open Internet Order. 

If you have any questions about the FCC’s Open Internet rules and your obligations under Title II, please contact Barbara Esbin at (202) 872-6811 or besbin@cinnamonmueller.com.

Form 477 Deadline Extended Due to Technical Difficulties

On February 24, 2017, the FCC’s Wireline Competition Bureau released a Public Notice announcing the extension of the deadline for the submission of Form 477 data as of December 31, 2016.  Without the extension, Form 477 would have been due by March 1, 2017. 

On February 22, 2017, the Form 477 filing interface experienced significant and unanticipated technical issues that required the Wireline Competition Bureau to shut down the site while it works to resolve the technical difficulties.  Once the site reopens, the Wireline Competition Bureau will release a Public Notice announcing that the system is accessible for filers and establishing the new filing deadline. 

If you have any questions about Form 477, please contact Scott Friedman at (312) 372-3930 or sfriedman@cinnamonmueller.com.

FINAL REMINDER:  Copyright Forms and Fees Due by March 1, 2017 

Cable operators must file with the U.S. Copyright Office their Statement of Accounts (Form SA1-2 or SA3) and pay any royalty fees due for the July 2016 – December 2016 accounting period by March 1, 2017. The following forms apply:

• SA1-2 Short Form. For use by cable systems with semiannual gross receipts of less than $527,600. 
• SA3 Long Form. For use by cable systems with semiannual gross receipts of $527,600 or more.

Copyright filings must be accompanied by a filing fee in addition to the royalty payment.  The filing fee is calculated based on the type of form filed:  

Operators must remit the royalty fee and filing fee in a single electronic payment.  If you have any questions about copyright forms or fees, please contact Bruce Beard at (314) 394-1535 or bbeard@cinnamonmueller.com.