UPDATE

February 17, 2012

FCC’s Enforcement Bureau Issues Notice of Apparent Liability to Cable Operator For Delaying Access to Public Inspection File

On February 13, 2012, the FCC’s Enforcement Bureau Office in New Orleans issued a Notice of Apparent Liability (“NAL”) to Allen’s TV Cable Service, Inc., for failing to make its public inspection file available upon request during regular business hours.  The potential fine was set at $10,000.  

According to the NAL, an FCC enforcement agent visited Allen’s TV’s office on October 26, 2011, and requested to inspect the public inspection file.  Allen’s TV’s customer service representative refused.  The enforcement agent then telephoned Allen’s TV’s CEO, who stated that customer service representatives are not allowed access to the public inspection file unless a manger is present. 

FCC rules require cable operators to maintain certain files and records for public inspection during regular business hours.  Authorized FCC representatives may also request to view the file at any reasonable hour.  While the FCC recognizes that brief, security-related delays to access a public file are reasonable, the FCC issued the NAL even though enforcement agents from the New Orleans Office returned on October 27, 2011, when a manager was present, and observed that Allen’s TV’s public inspection file was complete. 

Cable public file and recordkeeping requirements vary with the size of the system.  Systems with fewer than 1,000 subscribers have the fewest obligations, while obligations for systems with more than 5,000 subscribers are more extensive.  

If you have questions about the FCC’s public file obligations, please contact Scott Friedman at (312) 372-3930 or via email at sfriedman@cm-chi.com. 

FCC’s Enforcement Bureau Issues Notice of Apparent Liability to Cable Operator For Failing to Install Emergency Alert System Equipment

On February 13, 2012, the FCC’s Enforcement Bureau Office in Detroit issued a Notice of Apparent Liability for Forfeiture and Order (“NAL”) to Richards TV Cable Co, for failing to install emergency alert system (EAS) equipment.  The potential fine was set at $10,000. 

The NAL alleged FCC enforcement agents inspected Richards TV’s cable system and observed that it did not have any EAS equipment installed.  The cable system owner admitted that the system did not have any EAS equipment and mentioned the company’s inability to find affordable equipment.  Agents returned three months later and found no EAS equipment installed.  Seven months later the owner reported by telephone that no upgrades had been made. 

All cable systems, analog and digital, must comply with EAS requirements on a headend basis.  Under FCC rules, cable systems must ensure that EAS encoders, EAS decoders, and attention signal generating and receiving equipment are installed and operational.  

Here, because FCC enforcement agents found that Richards TV failed to install its EAS equipment despite repeated warnings, the FCC adjusted its $8,000 base forfeiture amount for failing to have EAS equipment installed or operational upward to $10,000. 

If you have questions about your cable system’s obligations under the EAS rules, please contact Bruce Beard at (314) 394-1535 or via email at bbeard@cm-chi.com. 

FCC Issues CPNI Enforcement Advisory for CPNI Officer’s Certification Due On or Before March 1, 2012

On February 16, 2012, the FCC released an Enforcement Advisory to promote more widespread compliance for the upcoming round of CPNI Officer Certifications, due on or before March 1, 2012.  Failure to submit a timely and complete certification may lead to FCC enforcement action.  In past years, the FCC has issued Notices of Apparent Liability proposing fines of up to $20,000 against companies that failed to comply with the certification requirement, late-filed certifications, or incorrectly filed certifications.  

FCC rules require an annual compliance certificate, signed by a corporate officer, stating with personal knowledge that the provider has established and followed operating procedures adequate to ensure compliance with the FCC’s CPNI rules.  The filing must include a statement explaining how the operating procedures ensure compliance with the FCC’s CPNI rules.  

The provider must also include, if applicable, an explanation of any actions taken against data brokers and a summary of all customer complaints concerning any unauthorized release of CPNI received in the past year.  The certificate, as well as the information noted above, must be filed in EB Docket No. 06-36, or through the FCC’s CPNI Certification Template (http://apps.fcc.gov/eb/CPNI/).   

If you have any questions regarding CPNI or the filing of the officer’s certificate, please contact please contact James Moskowitz at (202) 872-6881 or via email at jmoskowitz@cm-chi.com 

Copyright Forms and Fees Due March 1, 2012

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 2011 – December 2011 accounting period by March 1, 2012.  The following forms apply: 

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

Copyright royalty fees must be remitted by electronic payment.  If you have any questions about copyright forms or fees, please contact Heidi Schmid at (312) 372-3930 or via email at hschmid@cm-chi.com.

FCC Form 477 Due March 1, 2012 

The next Form 477 filing is due March 1, 2012 (reporting data as of December 31, 2011).  For this filing, the FCC’s electronic system will only recognize 2010 Census tract codes.  Further information about the Form 477 and 2010 Census tracts is available online: 

• Census Tract Information, Filing Instructions, and a Link to File Form 477:                          http://transition.fcc.gov/form477
• 2010 Census Tract Reference Maps: http://www.census.gov/geo/www/maps/pl10_map_suite/tract.html
• 2010 Census Tract Relationship Files: http://www.census.gov/geo/www/2010census/tract_rel/tract_rel.html  

For more information about filing Form 477, please contact Scott Friedman at (312) 372-3930 or via email at sfriedman@cm-chi.com.

_________________________________________________________________________________

Please visit our website at www.cinnamonmueller.com http://www.cinnamonmueller.com to learn more about our lawyers and practice.  You can reach Cinnamon Mueller at (312) 372-3930.  This update is provided by the law firm of Cinnamon Mueller.  The document is intended for informational purposes only as a service to clients of Cinnamon Mueller and to the members of the American Cable Association.  It is not intended to provide specific legal advice or to substitute obtaining appropriate legal counsel.  We encourage you to consult with counsel to address special compliance issues and for assistance in negotiating or handling any such matter referred to in the update. 

SPECIAL UPDATE FOR VoIP AND TRADITIONAL TELEPHONE PROVIDERS

February 10, 2012 

CPNI Officer Compliance Certificate Due On or Before March 1 

All interconnected VoIP and voice telephony providers must file their annual CPNI Officer’s Compliance certificate on or before March 1, 2012.  

FCC rules require an annual compliance certificate, signed by a corporate officer, stating with personal knowledge that the provider has established and followed operating procedures adequate to ensure compliance with the FCC’s CPNI rules.  The filing must include a statement explaining how the operating procedures ensure compliance with the FCC’s CPNI rules.  

The provider must also include, if applicable, an explanation of any actions taken against data brokers and a summary of all customer complaints concerning any unauthorized release of CPNI received in the past year.  The certificate, as well as the information noted above, must be filed in EB Docket No. 06-36, or through the FCC’s CPNI Certification Template (http://apps.fcc.gov/eb/CPNI/).   

Failure to submit an annual CPNI certification may lead to FCC enforcement action.  In past years, the FCC has issued Notices of Apparent Liability proposing fines of up to $20,000 against companies that failed to comply with the certification requirement, late-filed certifications, or incorrectly filed certifications.  

Universal Service Annual Reports (499A) Due April 2

All VoIP and voice telephony providers must file their USF annual reports (Form 499A) on or before April 1, 2012.   This includes any entity that relies on the de minimus exception for contributions to universal service. 

Form 499-A calculates the support contributions an entity must pay into the federal universal service, Telecommunications Relay Service, North America Numbering Plan, and Local Number Portability Administration funds.  It is required of all entities providing voice service including those that rely on the de minimus exemption.

VoIP providers must complete the Form 499-A worksheet (available here) using revenue data from the 2011 calendar year.

If you have any questions regarding these filings, please contact James Moskowitz at (202) 872-6881 or jmoskowitz@cm-chi.com, or Bruce Beard at (314) 394-1535 or bbeard@cm-chi.com. _________________________________________________________________________________

Please visit our website at www.cinnamonmueller.com http://www.cinnamonmueller.com to learn more about our lawyers and practice.  You can reach Cinnamon Mueller at (312) 372-3930.  This update is provided by the law firm of Cinnamon Mueller.  The document is intended for informational purposes only as a service to clients of Cinnamon Mueller and to the members of the American Cable Association.  It is not intended to provide specific legal advice or to substitute obtaining appropriate legal counsel.  We encourage you to consult with counsel to address special compliance issues and for assistance in negotiating or handling any such matter referred to in the update.  

UPDATE

February 3, 2012 

FCC Releases IP Closed Captioning Order

Last month, the FCC adopted rules that will require closed captioning for video programming shown on television with closed captions and distributed using IP (Internet protocol) technology.  The FCC adopted these rules in response to Congress’s directive in the 21^st Century Video Accessibility Act.  

Under the new rules, video programming owners (“VPOs”) must send program files to video programming distributors (“VPDs”) with captions for programming previously displayed with captions on TV.  VPDs, in turn, must render or pass-through captions to end users, “including through the hardware or software that a distributor…makes available for this purpose.” 

Below, we briefly summarize the key IP closed captioning requirements. 

VPDs.  Under the new rules, VPDs make available to end users video programming using IP distribution.  That is, distribution over the Internet or “online.”  In general, an MVPD distributing video programming online that is not part of its traditional MVPD service will be subject to the rules.  This will apply to over-the-top video programming services offered outside the MVPD’s service footprint. 

Excluded Entities.  MPVDs (i) using IP to distribute video programming under the television closed captioning rules; or (ii) who are also Internet service providers and provide access to video programming distributed by another entity (ex:  Amazon, Hulu, Netflix), are not subject to captioning requirements as VPDs.  

VPDs Must Render or Pass Through Captions.  VPDs are responsible only for enabling the rendering or pass-through of captions included in IP distributed programming.  This includes an obligation to ensure that plug-ins, applications, and devices are capable of rendering or passing through the closed captioning. 

Good Faith Compliance.  The FCC will deem VPDs in compliance if the VPD makes a good faith effort to identify whether video programming received must be captioned, and will not treat de minimis failures to comply as violations of the rules.  

Complaint Procedures.  The FCC adopted a complaint process similar to that for television closed captioning complaints.  Under the new rules: 

• Consumers must file a complaint within 60 days of experiencing a problem (with the FCC or VPD). 
• If the consumer files the complaint directly with the VPD, the VPD will have 30 days to respond showing compliance, good faith reliance, or resolution of the problem. 
• If a VPD fails to respond or resolve the problem, the complainant can re-file the complaint with the FCC.  The VPD again will have 30 days to respond.   

Contact Information.  VPDs must make contact information available to consumers for receipt and handling of complaints.  The FCC declined to specify how VPDs must provide this contact information, but expects that VPDs will “prominently display their contact information in a way that it is accessible to all end users of their services.”  A general notice on the VPDs website would be sufficient.  

This contact information must be updated within 10 business days of any change, and include (i) the name of a person with primary responsibility for Internet protocol captioning issues and who can ensure compliance; and (ii) the person’s title or office, telephone number, fax number, mailing address, and e-mail address. 

General Compliance Deadlines.  Six months after publication of the rules in the “Federal Register” for programming that is not edited for Internet distribution; 12 months for live and near-live programming; and 18 months for prerecorded programming that is edited for Internet distribution. 

Compliance Deadlines for Archival Content.  Starting two years after publication of the rules, archival content already in the distributor’s library before it is aired on television with captions must be captioned within 45 days.  After three years, such content must be captioned within 30 days, and after four years, such content must be captioned within 15 days. 

Compliance Deadlines for Devices.  The Order sets Jan. 1, 2014, as the deadline for captioning pass-through for devices used for viewing IP-based programming, such as smartphones, tablets, personal computers, and TV set-top boxes, as well as for integrated viewing software on such devices and for recording devices and removable media players. 

For more information about IP closed captioning, please contact Scott Friedman at (312) 372-3930 or via email at sfriedman@cm-chi.com.

Notice Requirements under the FCC’s Rules 

FCC regulations require that cable operators provide certain notices to subscribers, broadcast stations, local franchise authorities, and the FCC.  

Sending notices make up a key part of the cable business.  Notices keep customers informed of their rights and cable operators’ obligations.  Sending out proper notices also helps ensure your company’s compliance with the FCC’s regulations.  Below, we describe in detail an important notice requirement of which many cable operators may not be aware.  

Last August, the FCC’s revised CableCARD rules became effective.  Under the revised rules, cable operators must “prominently list the fee for their CableCARDs as a line item on their website and annual rate cards separate from their host devices, and provide such information orally or in writing at a subscriber’s request.”  

Specifically, the new rules require cable operators to notify subscribers: 

• Of any assessed fees for the rental of single and additional CableCARDs and the rental of operator-supplied navigation devices; and
• If the provider includes equipment in the price of a bundled offer of one or more services, the fees reasonably allocable to the rental of single and additional CableCARDs and the rental of operator-supplied navigation devices. 

Cable operators must provide this notice (i) at the time of installation; (ii) annually; (iii) at any time upon request; and (iv) on websites (readily accessible to members of the public) or billing inserts.  For more information about cable operators’ notice requirements, please contact Scott Friedman at (312) 372-3930 or via email at sfriedman@cm-chi.com. 

Copyright Forms and Fees Due March 1, 2012 

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 2011 – December 2011 accounting period by March 1, 2012.  The following forms apply: 

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

Copyright royalty fees must be remitted by electronic payment.  If you have any questions about copyright forms or fees, please contact Heidi Schmid at (312) 372-3930 or via email at hschmid@cm-chi.com. 

CPNI Officer’s Certificate Due On or Before March 1, 2012

The FCC’s CPNI rules require that an officer of an interconnected VoIP provider file an annual certificate with the FCC stating that the officer has personal knowledge that the provider has established operating procedures adequate to ensure compliance with the FCC’s CPNI rules.  The carrier must also provide a statement explaining how its operating procedures ensure that it is in compliance with the FCC’s CPNI rules.  The annual certificate for 2011 must be filed on or before March 1, 2012. 

The provider must also include, if applicable, an explanation of any actions taken against data brokers and a summary of all customer complaints concerning the unauthorized release of CPNI received in the past year.  The officer’s certificate, as well as the information noted above, must be filed in EB Docket No. 06-36. 

If you have any questions regarding CPNI or the filing of the officer’s certificate, please contact Bruce Beard at (314) 394-1535 or via email at bbeard@cm-chi.com. 

FCC Form 477 Due March 1, 2012 

The next Form 477 filing is due March 1, 2012 (reporting data as of December 31, 2011).  For this filing, the FCC’s electronic system will only recognize 2010 Census tract codes.  Further information about the Form 477 and 2010 Census tracts is available online: 

• Census Tract Information, Filing Instructions, and a Link to File Form 477:                          http://transition.fcc.gov/form477
• 2010 Census Tract Reference Maps: http://www.census.gov/geo/www/maps/pl10_map_suite/tract.html
• 2010 Census Tract Relationship Files: http://www.census.gov/geo/www/2010census/tract_rel/tract_rel.html  

For more information about filing Form 477, please contact Scott Friedman at (312) 372-3930 or via email at sfriedman@cm-chi.com.

_________________________________________________________________________________

Please visit our website at www.cinnamonmueller.com http://www.cinnamonmueller.com to learn more about our lawyers and practice.  You can reach Cinnamon Mueller at (312) 372-3930.  This update is provided by the law firm of Cinnamon Mueller.  The document is intended for informational purposes only as a service to clients of Cinnamon Mueller and to the members of the American Cable Association.  It is not intended to provide specific legal advice or to substitute obtaining appropriate legal counsel.  We encourage you to consult with counsel to address special compliance issues and for assistance in negotiating or handling any such matter referred to in the update. 

UPDATE

January 20, 2012 

FCC Releases EAS Order Outlining CAP Requirements

On January 10, 2012, the FCC released a Report and Order adopting rules requiring that Emergency Alert System (“EAS”) Participants be able to receive and transmit Common Alerting Protocol (“CAP”)-formatted messages.  In addition, the FCC took steps to streamline its rules to improve the overall effectiveness of the EAS.   

Despite the FCC’s statements that new costs and obligations would be minimal, the new rules may create new operational and cost burdens for small cable operators.  These burdens include both new filing and other regulatory requirements and new costs associated with the requirement that all headends have Internet access capabilities.   

The deadline to comply with the CAP requirements is June 30, 2012.  

We summarize below the CAP compliance requirements imposed on EAS Participants, including cable operators. 

CAP Compliance Requirements for All EAS Participants. 

• EAS Participants must be able to convert CAP-formatted EAS messages into messages that comply with the EAS Protocol requirements, following the procedures set forth in the EAS-CAP Industry Group’s ECIG Implementation Guide. 
• EAS Participants may use intermediary devices in tandem with existing legacy EAS equipment to meet CAP-related obligations. 
• EAS Participants must monitor the operational readiness of all equipment used as part of the EAS, including any intermediary devices used.   
• EAS Participants must monitor FEMA’s IPAWS system for federal CAP-formatted alert messages using any interface technology the EAS Participant deems appropriate. 
• EAS Participants must use the enhanced text in CAP messages to meet the EAS video display requirements. 
• Presidential Emergency Action Notification (“EAN”) messages must receive priority over all other EAS messages, regardless of format. 
• Equipment used to implement CAP must be certified by the FCC. 

Waivers for Small Cable Systems.  The FCC declined to grant a blanket exemption from the EAS rules for cable systems with fewer than 500 subscribers on the grounds that access to the Internet is unreasonably expensive or that the purchase of CAP equipment is cost prohibitive.  Instead, the FCC will consider waivers on a case-by-case basis and will generally review the facts and circumstances on their own merits. 

At the same time, the FCC stated that the physical unavailability of broadband Internet service offers a presumption in favor of a waiver from the EAS rules, although waivers based on the lack of access to broadband Internet service would likely only be granted for six-month intervals.  In addition, cable operators may base individual waiver requests on financial hardship and argue that access to the Internet is unreasonably expensive or that costs associated with CAP equipment are prohibitive. 

If you have questions related to EAS or CAP compliance, please contact Bruce Beard at (314) 394-1535 or via email at bbeard@cm-chi.com.

FCC Begins Review of Sports Blackout Rules

On January 12, 2012, the FCC opened a proceeding requesting comment on whether it should eliminate the sports blackout rules for cable and satellite television providers.  The FCC opened the proceeding in response to a petition filed last November by industry and consumer groups. 

FCC rules permit professional sports leagues – such as the NFL – to prevent cable and satellite providers from offering live coverage of a local sporting event when the game is subject to blackout on local broadcast television.  

Comments are due February 13, 2012.  Reply comments are due February 28, 2012. 

 If you have questions about the sports blackout rules, or are interested in filing comments, please contact Scott Friedman at (312) 372-3930 or via email at sfriedman@cm-chi.com. 

Copyright Forms and Fees Due March 1, 2012 

Cable operators must file with the U.S. Copyright Office their Statement of Account (Form SA1-2 or SA3) and pay any royalty fees due for the July 2011 – December 2011 accounting period by March 1, 2012.  The following forms apply: 

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

Copyright royalty fees must be remitted by electronic payment. 

If you have any questions about copyright forms or fees, please contact Heidi Schmid at (312) 372-3930 or via email at hschmid@cm-chi.com.

FCC Form 477 Due March 1, 2012 

To promote compliance with the FCC’s Form 477 filing rules, the FCC’s Enforcement Bureau released an Enforcement Advisory reminding broadband and interconnected VoIP providers of the March 1, 2012 filing deadline.  In addition, the FCC warned that it will take appropriate enforcement action against non-compliant companies. 

The FCC noted three recurring deficiencies:  (i) failing to file data in a timely fashion, if at all; (ii) failing to have a company official certify that the information submitted is correct; and (iii) filing incomplete or inaccurate data. 

The next Form 477 filing is due March 1, 2012 (reporting data as of December 31, 2011).  For this filing, the FCC’s electronic system will only recognize 2010 Census tract codes.  Further information about the Form 477 and 2010 Census tracts is available online: 

• Census Tract Information, Filing Instructions, and a Link to File Form 477:   http://transition.fcc.gov/form477
• 2010 Census Tract Reference Maps: http://www.census.gov/geo/www/maps/pl10_map_suite/tract.html
• 2010 Census Tract Relationship Files: http://www.census.gov/geo/www/2010census/tract_rel/tract_rel.html  

For more information about filing Form 477, please contact Scott Friedman at (312) 372-3930 or via email at sfriedman@cm-chi.com.

CPNI Officer’s Certificate Due On or Before March 1, 2012

The FCC’s CPNI rules require that an officer of an interconnected VoIP provider file an annual certificate with the FCC stating that the officer has personal knowledge that the provider has established operating procedures adequate to ensure compliance with the FCC’s CPNI rules.  The carrier must also provide a statement explaining how its operating procedures ensure that it is in compliance with the FCC’s CPNI rules.  The annual certificate for 2011 must be filed on or before March 1, 2012. 

The provider must also include, if applicable, an explanation of any actions taken against data brokers and a summary of all customer complaints concerning the unauthorized release of CPNI received in the past year.  The officer’s certificate, as well as the information noted above, must be filed in EB Docket No. 06-36. 

In past years, the FCC has issued Public Notices in January and February offering further guidance regarding the filing of the officer’s certificate, including an acceptable sample form.  Use of the sample form is not mandatory provided all required information is included.  

If you have any questions regarding CPNI or the filing of the officer’s certificate, please contact Bruce Beard at (314) 394-1535 or via email at bbeard@cm-chi.com. 

_________________________________________________________________________________

Please visit our website at www.cinnamonmueller.com http://www.cinnamonmueller.com to learn more about our lawyers and practice.  You can reach Cinnamon Mueller at (312) 372-3930.  This update is provided by the law firm of Cinnamon Mueller.  The document is intended for informational purposes only as a service to clients of Cinnamon Mueller and to the members of the American Cable Association.  It is not intended to provide specific legal advice or to substitute obtaining appropriate legal counsel.  We encourage you to consult with counsel to address special compliance issues and for assistance in negotiating or handling any such matter referred to in the update. 

BARBARA ESBIN NAMED MANAGING PARTNER, CINNAMON MUELLER DC OFFICE

Nationally Recognized Authority On Federal Broadband Regulation, Media Mergers, And Cable Regulation To Manage Firm’s Washington, D.C., Office

CHICAGO, January 9, 2012 — Barbara S. Esbin has been named a partner of the Cinnamon Mueller law firm (CM), assuming the role of managing partner of the firm’s growing Washington, D.C. office. Esbin joined the firm in 2010, after an extended tenure as a senior Federal Communications Commission attorney, and following influential work as a Senior Fellow and Director at the Progress & Freedom Foundation (PFF). Esbin leads the team representing the American Cable Association, the leading national trade association for small and medium-sized. She has also represents a wide variety of cable and telecommunications clients, advising on the FCC’s emerging broadband regulations, cable and telecommunications regulatory matters, and access to content, both traditional and online.

“Barbara is an exemplary lawyer and a wonderful colleague. ACA and all our clients have benefited immensely from her experience and judgment in dealing with broadband regulation, media ownership, and the FCC,” said Chris Cinnamon, CM’s chief executive officer. “I am delighted she has become a partner of the firm.”

American Cable Association President and CEO Matthew M. Polka commented, “I am pleased to hear of Barbara’s advancement at CM. She has been an outstanding addition to the team. ACA will rely on her insight and counsel as face the challenges of 2012 and beyond.”

Esbin has extensive experience in broadband regulation, having contributed to FCC broadband policy beginning in 1996. At the FCC, Esbin’s positions included Associate Media Bureau Chief, with significant responsibility for evaluating major media combinations, including News Corp./DirecTV, and handling a wide range of cable, wireless and telecommunications regulatory proceedings and cases. At PFF, Esbin authored comments and briefs throughout the Comcast/BitTorrent case, which was ultimately decided much as she had advocated.

Esbin earned her J.D. with distinction from Duke University School of Law and her B.A. from Antioch College.

About Cinnamon Mueller

With offices in Chicago, D.C., and St. Louis, CM concentrates its practice on the small and medium-sized cable sector, representing cable and telecommunications providers throughout the U.S. on regulatory, transactional, and litigation matters. CM serves as outside counsel to the American Cable Association, representing ACA before the FCC and other federal agencies.

UPDATE

January 6, 2012 

Electronic Filing for Cable Special Relief and Cable Show Cause Petitions Now Mandatory 

The Media Bureau recently announced that, effective January 3, 2012, the FCC will no longer accept new Cable Special Relief and Cable Show Cause petitions filed on paper.  These petitions must now be submitted electronically through the FCC’s Electronic Comment Filing System, http://www.fcc.gov/ecfs, in MB Docket No. 12-1. 

Upon review and acceptance of each petition, the Media Bureau will place the petition on public notice, assign a CSR or CSC number to the petition, and assign a new docket number for parties to file comments or oppositions. 

Anyone may search for petitions electronically filed in MB Docket No. 12-1.  Once the Media Bureau puts a petition on public notice, the petition can be found using the newly assigned docket number or CSR or CSC number. 

If you have questions about new electronic filing requirements, please contact Scott Friedman at (312) 372-3930 or via email at sfriedman@cm-chi.com.

Political Advertising Primer 

With Presidential primary election season beginning, cable operators have begun to receive requests from candidates for advertising time.  Federal law and FCC regulations govern the rates and terms for candidate advertising.  Key provisions of the FCC’s regulations include: 

• Cable operators are not obligated to provide political candidates access to cable systems.  If a cable operator permits “use” of its system by a legally qualified candidate, it must afford “equal opportunities to all other candidates for that office.” 
• Candidate appearances on a bona fide newscast, bona fide news interview, bona fide news documentary (if the appearance of the candidate is incidental to the subject of the documentary), or on-the-spot coverage of bona fide news events (including political conventions) do not trigger the equal opportunity requirements.
• For candidate advertising – except for periods before a primary, general, or special election – the system shall charge no more than the rates for comparable use of the system by commercial advertisers.  Discounts and other terms offered to commercial advertisers must be disclosed and offered to political advertisers. 
• During the 45 days before a primary, and the 60 days before a general or special election, the cable system may charge legally qualified candidates for public office no more than the “lowest unit charge” for advertising time.  The “lowest unit charge” is the amount that the system charges “its most favored commercial advertisers for the same classes and amounts of time for the same periods.”  In calculating the lowest unit charge, cable operators must take into account any practices offered to commercial advertisers that enhance the value of advertising spots, such as bonus spots, time-sensitive make goods, and preemption priorities.   
• Cable systems providing political advertising must maintain a political advertising file of all candidate requests for time and the disposition of those requests.  Any records maintained in the file must be kept for two years. 

If you have questions about political advertising, please call Scott Friedman or Heidi Schmid at (312) 372-3930 or via email at sfriedman@cm-chi.com or hschmid@cm-chi.com. 

FCC Form 477 Enforcement Advisory – Form 477 Filing Due March 1, 2012 

To promote compliance with the FCC’s Form 477 filing rules, the FCC’s Enforcement Bureau released an Enforcement Advisory reminding broadband and interconnected VoIP providers of the March 1, 2012 filing deadline.  In addition, the FCC warned that it will take appropriate enforcement action against non-compliant companies. 

The FCC noted three recurring deficiencies:  (i) failing to file data in a timely fashion, if at all; (ii) failing to have a company official certify that the information submitted is correct; and (iii) filing incomplete or inaccurate data. 

The next Form 477 filing is due March 1, 2012 (reporting data as of December 31, 2011).  For this filing, the FCC’s electronic system will only recognize 2010 Census tract codes.  Further information about the Form 477 and 2010 Census tracts is available online: 

• Census Tract Information, Filing Instructions, and a Link to File Form 477:                          http://transition.fcc.gov/form477
• 2010 Census Tract Reference Maps: http://www.census.gov/geo/www/maps/pl10_map_suite/tract.html
• 2010 Census Tract Relationship Files: http://www.census.gov/geo/www/2010census/tract_rel/tract_rel.html  

For more information about filing Form 477, please contact Scott Friedman at (312) 372-3930 or via email at sfriedman@cm-chi.com.

Copyright Forms and Fees Due March 1, 2012 

Cable operators must file with the U.S. Copyright Office their Statement of Account (Form SA1-2 or SA3) and pay any royalty fees due for the July 2011 – December 2011 accounting period by March 1, 2012.  The following forms apply: 

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

Copyright royalty fees must be remitted by electronic payment. 

If you have any questions about copyright forms or fees, please contact Heidi Schmid at (312) 372-3930 or via email at hschmid@cm-chi.com.

CPNI Officer’s Certificate Due On or Before March 1, 2012

The FCC’s CPNI rules require that an officer of an interconnected VoIP provider file an annual certificate with the FCC stating that the officer has personal knowledge that the provider has established operating procedures adequate to ensure compliance with the FCC’s CPNI rules.  The carrier must also provide a statement explaining how its operating procedures ensure that it is in compliance with the FCC’s CPNI rules.  The annual certificate for 2011 must be filed on or before March 1, 2012. 

The provider must also include, if applicable, an explanation of any actions taken against data brokers and a summary of all customer complaints concerning the unauthorized release of CPNI received in the past year.  The officer’s certificate, as well as the information noted above, must be filed in EB Docket No. 06-36.

 In past years, the FCC has issued Public Notices in January and February offering further guidance regarding the filing of the officer’s certificate, including an acceptable sample form.  Use of the sample form is not mandatory provided all required information is included.  

If you have any questions regarding CPNI or the filing of the officer’s certificate, please contact Bruce Beard at (636) 778-0646 or via email at bbeard@cm-chi.com. _________________________________________________________________________________

Please visit our website at www.cinnamonmueller.com http://www.cinnamonmueller.com to learn more about our lawyers and practice.  You can reach Cinnamon Mueller at (312) 372-3930.  This update is provided by the law firm of Cinnamon Mueller.  The document is intended for informational purposes only as a service to clients of Cinnamon Mueller and to the members of the American Cable Association.  It is not intended to provide specific legal advice or to substitute obtaining appropriate legal counsel.  We encourage you to consult with counsel to address special compliance issues and for assistance in negotiating or handling any such matter referred to in the update. 

UPDATE

December 16, 2011

HAPPY HOLIDAYS FROM CINNAMON MUELLER!

FCC Adopts CALM Act Rules – New Rules Address TV Commercial Volumes 

On December 13, 2011, the FCC adopted an Order implementing rules in response to the 2010 Commercial Advertisement Loudness Mitigation Act (the “CALM Act”).  The rules require broadcast stations and MVPDs, beginning December 13, 2012, to ensure that all commercials are transmitted to consumers at the appropriate loudness level.  The rules cover advertisements locally inserted by MVPDs and those that come embedded from a content provider.  

For MVPDs that locally insert commercials, the FCC will assume compliance if the MVPD: 

• Has installed the required equipment (under the A/85 Recommended Practice, a standard adopted by the ATSC) ;
• Uses the equipment in connection with the insertions; and
• Keeps the equipment in good working order (with records showing the equipment’s use and that the equipment has undergone periodic maintenance and testing).

For embedded commercials, MVPDs can rely on a “safe harbor” to prove compliance:  

• For certified programming, the MVPD may rely on a programmer’s certification if the MVPD has no reason to believe the certification is false.  
• For non-certified programming, MVPDs with over 10 million subscribers must annually spot check 100% of non-certified programming, and MVPDs with between 400,000 and 10 million subscribers must annually spot check 50% of non-certified programming.  MVPDs with less than 400,000 subscribers are exempt from these spot check obligations.  

If you have any questions about the CALM Act rules, please contact Scott Friedman at (312) 372-3930 or via email at sfriedman@cm-chi.com.

FCC Issues Form 477 Enforcement Advisory – Form 477 Filing Due March 1, 2012 

To promote compliance with the FCC’s Form 477 filing rules, the FCC’s Enforcement Bureau recently released an Enforcement Advisory reminding broadband and interconnected VoIP providers of the March 1, 2012 filing deadline.  In addition, the FCC warned that it will take appropriate enforcement action against non-compliant companies. 

The FCC noted three recurring deficiencies:  (i) failing to file data in a timely fashion, if at all; (ii) failing to have a company official certify that the information submitted is correct; and (iii) filing incomplete or inaccurate data. 

The next Form 477 filing is due March 1, 2012 (reporting data as of December 31, 2011).  For this filing, the FCC’s electronic system will only recognize 2010 Census tract codes.  Further information about the Form 477 and 2010 Census tracts is available online: 

• Census Tract Information, Filing Instructions, and a Link to File Form 477:                          http://transition.fcc.gov/form477
• 2010 Census Tract Reference Maps: http://www.census.gov/geo/www/maps/pl10_map_suite/tract.html
• 2010 Census Tract Relationship Files: http://www.census.gov/geo/www/2010census/tract_rel/tract_rel.html  

For more information about filing Form 477, please contact Scott Friedman at (312) 372-3930 or via email at sfriedman@cm-chi.com.

Copyright Forms and Fees Due March 1, 2012 

Cable operators must file with the U.S. Copyright Office their Statement of Account (Form SA1-2 or SA3) and pay any royalty fees due for the July 2011 – December 2011 accounting period by March 1, 2012.  The following forms apply: 

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

Copyright royalty fees must be remitted by electronic payment. 

If you have any questions about copyright forms or fees, please contact Heidi Schmid at (312) 372-3930 or via email at hschmid@cm-chi.com. 

CPNI Officer’s Certificate Due On or Before March 1, 2012

The FCC’s CPNI rules require that an officer of an interconnected VoIP provider file an annual certificate with the FCC stating that the officer has personal knowledge that the provider has established operating procedures adequate to ensure compliance with the FCC’s CPNI rules.  The carrier must also provide a statement explaining how its operating procedures ensure that it is in compliance with the FCC’s CPNI rules.  The annual certificate for 2011 must be filed on or before March 1, 2012. 

The provider must also include, if applicable, an explanation of any actions taken against data brokers and a summary of all customer complaints concerning the unauthorized release of CPNI received in the past year.  The officer’s certificate, as well as the information noted above, must be filed in EB Docket No. 06-36. 

In past years, the FCC has issued Public Notices in January and February offering further guidance regarding the filing of the officer’s certificate, including an acceptable sample form.  Use of the sample form is not mandatory provided all required information is included.  

If you have any questions regarding CPNI or the filing of the officer’s certificate, please contact Bruce Beard at (636) 778-0646 or via email at bbeard@cm-chi.com.

__________________________________________________________________________________

Please visit our website at www.cinnamonmueller.com http://www.cinnamonmueller.com to learn more about our lawyers and practice.  You can reach Cinnamon Mueller at (312) 372-3930.  This update is provided by the law firm of Cinnamon Mueller.  The document is intended for informational purposes only as a service to clients of Cinnamon Mueller and to the members of the American Cable Association.  It is not intended to provide specific legal advice or to substitute obtaining appropriate legal counsel.  We encourage you to consult with counsel to address special compliance issues and for assistance in negotiating or handling any such matter referred to in the update. 

UPDATE

December 2, 2011 

Broadband Service Providers Must Use 2010 Census Tract Data Beginning with Form 477 Due March 1, 2012 

The FCC’s Wireline Competition Bureau recently released a public notice announcing that broadband service providers must use 2010 Census tract data to report broadband subscribership information in the Form 477 filing due March 1, 2012.  The Wireline Competition Bureau released the public notice in response to informal inquiries from broadband service providers.  

To facilitate the transition to 2010 census tracts, the Wireline Competition Bureau will modify the FCC’s Form 477 electronic filing system.  Beginning December 31, 2011, the electronic system will only recognize 2010 Census tract codes for future filings.  At the same time, the electronic system will continue to accept 2000 Census tract codes for revisions to previous filings.  

Further information about the Form 477 and 2010 Census tracts is available online: 

• Census Tract Information, Filing Instructions, and a Link to File Form 477:                          http://transition.fcc.gov/form477  
• 2010 Census Tract Reference Maps: http://www.census.gov/geo/www/maps/pl10_map_suite/tract.html  
• 2010 Census Tract Relationship Files: http://www.census.gov/geo/www/2010census/tract_rel/tract_rel.html  

For more information about the changes to 2010 Census Tract data or for more information about filing the Form 477, please contact Scott Friedman at (312) 372-3930.

Copyright Forms and Fees Due March 1, 2012

Cable operators must file with the U.S. Copyright Office their Statement of Account (Form SA1-2 or SA3) and pay any royalty fees due for the July 2011 – December 2011 accounting period by March 1, 2012.  

The following forms apply:  

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

Copyright royalty fees must be remitted by electronic payment. 

Note:  Cable operators must now report all distant multicast streams.  The 2010 Satellite Television Extension and Localism Act amended the definition of “primary transmission” to include both the primary stream and any multicast streams (simulcasts are excluded), and delayed the applicability of distant multicast streams until the July 2010 – December 2010 accounting period. 

If you have any questions about copyright forms or fees, please contact Heidi Schmid at (312) 372-3930. 

CPNI Officer’s Certificate Due On or Before March 1, 2012

The FCC’s CPNI rules require that an officer of an interconnected VoIP provider file an annual certificate with the FCC stating that the officer has personal knowledge that the provider has established operating procedures adequate to ensure compliance with the FCC’s CPNI rules.  The carrier must also provide a statement explaining how its operating procedures ensure that it is in compliance with the FCC’s CPNI rules.  The annual certificate for 2011 must be filed on or before March 1, 2012. 

The provider must also include, if applicable, an explanation of any actions taken against data brokers and a summary of all customer complaints concerning the unauthorized release of CPNI received in the past year.  The officer’s certificate, as well as the information noted above, must be filed in and reference EB Docket No. 06-36. 

In past years, the FCC has issued Public Notices in January and February offering further guidance regarding the filing of the officer’s certificate, including an acceptable sample form.  Use of the sample form is not mandatory provided all required information is included.  

If you have any questions regarding CPNI or the filing of the officer’s certificate, please contact Bruce Beard at (636) 778-0646.

__________________________________________________________________________________

Please visit our website at www.cinnamonmueller.com http://www.cinnamonmueller.com to learn more about our lawyers and practice.  You can reach Cinnamon Mueller at (312) 372-3930.  This update is provided by the law firm of Cinnamon Mueller.  The document is intended for informational purposes only as a service to clients of Cinnamon Mueller and to the members of the American Cable Association.  It is not intended to provide specific legal advice or to substitute obtaining appropriate legal counsel.  We encourage you to consult with counsel to address special compliance issues and for assistance in negotiating or handling any such matter referred to in the update. 

SPECIAL UPDATE

November 23, 2011 

FCC Releases Order Reforming Universal Service and Intercarrier Compensation Rules 

The FCC has released its much-anticipated Universal Service Fund Reform Order, which makes sweeping changes to its Universal Service Fund (USF) and intercarrier compensation (ICC) rules.  The 759 page Order initiates the most sweeping changes in the regulation of the telephone industry since the passage of the Telecommunications Act of 1996.  While we are still digesting the Order and its implications, we provide a summary below of some of key points that may affect providers of telecommunications and Voice over Internet Protocol (VoIP) services.  

ICC REFORM           

Traditional Voice Services 

Transition to Bill-and Keep:  The FCC adopts bill-and-keep (i.e. no intercarrier payments for transport and termination of switched voice traffic) as the ultimate end state for all intercarrier compensation.  However, this end state is reached after a phase-in period lasting between 3-9 years, depending on the carrier and type of traffic.  In summary, the transition to bill-and-keep will proceed as follows: 

• Most ICC rates capped as of November 2011;
• Intrastate and interstate terminating end office rates are to be brought to parity in two steps by July 2013;
• Termination and transport rates decrease to bill-and-keep within six years for price cap carriers (PCCs), and 9 years rate of return (ROR) carriers;
• The fate of the remaining access charge rate elements is subject to further review by the FCC in 2012. 

Access Recovery Costs:  The FCC will permit carriers to charge end users limited amounts to make up revenue lost because of ICC reform.  The FCC will permit a line item charge, similar to the subscriber line charge (SLC), but called the Access Recovery Charge (ARC).  The monthly ARC is limited to $.50/month for residential lines, and $1.00 per line for multi-line business services.  The ARC is only available where customer rates are less than $30/month, inclusive of all fees.  In addition, the combination of the ARC and the SLC cannot add up to more than $12.20/line.  

 VOIP Services 

The FCC established that carriers (i.e. certificated local exchange carriers) may collect ICC for VoIP-to-PSTN traffic until the date that ICC is phased out for all voice traffic.  The “toll” charges for VoIP-to-PSTN traffic will be equal to the interstate rates applicable to non-VoIP traffic, and default charges for other VoIP-to-PSTN traffic (e.g. local traffic) will be the applicable reciprocal compensation rates charged for local telephone traffic.  These rules are intended to put all providers of voice services on equal footing with regard to ICC revenues.  The rates terms and conditions for charging ICC for VoIP-PSTN traffic will be set forth either in tariffs, or individual contracts.  VoIP retailers may use wholesale carriers that interconnect with the PSTN to tariff and collect ICC for them.  

Phantom Traffic 

The FCC attempts to eliminate the problem of “Phantom Traffic” (traffic that has had its call data information stripped from it, preventing ICC billing) by requiring carriers and VoIP providers to include the calling party’s telephone number in the call signaling, and require intermediate carriers to pass signaling through unaltered.  

Access Stimulation 

The FCC addresses access stimulation (artificially increasing traffic volume to inflate ICC payments) by requiring certain CLECs and ROR carriers to lower their access rates if: (1) they have ICC revenue sharing agreements, and (2) they have either a 3-1 ratio of terminating-to-originating traffic, or experience more than a 100% increase in traffic in any month over the same month in the previous year.   

USF REFORM

The Order creates the “Connect America Fund” (CAF), which will replace the USF and will be used to subsidize the construction of broadband, rather than voice telephone facilities.  

Phase I:  Immediate Changes:   

Price Cap Carriers:   In early 2012, the CAF allows PCCs to exercise a “right of first refusal” for one-time funding totaling $300 million.  These funds are to be used for immediate build-out of broadband facilities.  This will primarily benefit carriers such as AT&T, Verizon, Frontier, Windstream, and CenturyLink.  PCCs that accept this money will be required to connect one home for every $775 of CAF dollars received.  They must also comply with service speed (4 Mbps downstream and 1 Mbps upstream) and build-out requirements, which are subject to audit. 

Rate-of-Return Carriers:  ROR carriers retain the current $2 billion in annual high-cost fund support they are to receive for 2011.  ROR carriers receiving legacy USF support, or CAF support to offset lost ICC revenues, must offer broadband services to meet FCC requirements, including achieving actual speeds of 4 Mbps downstream and 1 Mbps upstream, upon a customer’s reasonable request for service.  In addition, the new rules also make a number of other changes to the current system over time, including: 

• Limiting reimbursable capital and operating expenses;
• Reducing high-cost loop support to the extent a ROR carrier’s local rates are below a floor established by the FCC;
• Eliminating new safety net additive support claims;
• Eliminating local switching support effective July 1, 2012;
• Capping support at $250/line/month (limit phased-in over three years). 

Competitive and Mobile ETCs:  The new rules eliminate the “identical support rule” for non-incumbent mobile and wireline carriers certified as eligible to receive USF funds (ETCs).  Support for these carriers is frozen per study area as of the end of 2011, and phased-out over a five-year period beginning July 1, 2012.         

Phase II:  More Changes to Come: 

Phase II of CAF implementation is expected to begin in 2013, after another round of proceedings at the FCC to determine implementation issues.  Among the issues the FCC needs to decide are the forward-looking cost models and competitive bidding mechanisms that will be used to establish the support in unserved areas.  The CAF will not provide support to areas where there are unsubsidized competitors that provide broadband at levels consistent with the FCC’s requirements.  Competitive bidding will be used in the areas where PCCs decide not to exercise their “right of first refusal” to accept CAF funds to deploy broadband services.  The CAF will provide up to $1.8 billion annually to support those areas where there is currently no unsubsidized broadband provider.  The minimum speed requirements for providers accepting CAF funds will initially be 4 Mbps down and 1 Mbps up, moving up to 6 Mbps/1.5 Mbps over time.  FCC rules will also include minimum latency metrics.  

ROR Carriers:  Beginning in 2012, the rate-of-return is likely to shrink from the current level of 11.25% to around 9% as the FCC’s reforms take effect.  Support for cost-based carriers will decrease to around 5% per year.  Over the long term, the FCC is likely to transition all ROR carriers to some form of incentive-based support.  Further, support is likely to cover high-cost locations, rather than particular carriers.  

COURT CHALLENGES EXPECTED 

This Order is likely to be challenged in court.  Several of the changes adopted in the USF Reform Order required the FCC to push beyond the edge of its currently recognized statutory authority.  This creates an opportunity for opponents of the USF Reform Order to challenge the rules.  Among the most likely challengers include the states, which see their jurisdiction diminished by several aspects of the USF Reform Order.  Other possible challengers include rate-of-return telephone carriers and rural wireless carriers, some of whom may experience significant decreases in revenue as a result of the Order. 

If you have questions about USF or ICC reform, please contact James Moskowitz at (202) 872-6881 or via email at jmoskowitz@cm-chi.com. 

__________________________________________________________________________________

Please visit our website at www.cinnamonmueller.com http://www.cinnamonmueller.com to learn more about our lawyers and practice.  You can reach Cinnamon Mueller at (312) 372-3930.  This update is provided by the law firm of Cinnamon Mueller.  The document is intended for informational purposes only as a service to clients of Cinnamon Mueller and to the members of the American Cable Association.  It is not intended to provide specific legal advice or to substitute obtaining appropriate legal counsel.  We encourage you to consult with counsel to address special compliance issues and for assistance in negotiating or handling any such matter referred to in the update. 

UPDATE

November 21, 2011 

FCC Open Internet Order Rules Went Into Effect Yesterday

The FCC’s “Net Neutrality” regulations, adopted in its December 2010 Open Internet Order, became effective yesterday, November 20, 2011.  If your company provides broadband Internet service and has not yet posted disclosures prominently on your website, you should take steps to create and post such consumer disclosures as quickly as possible.  

A short overview of the new rules follows. 

For the first time, the regulations impose affirmative disclosure obligations on broadband ISPs.  Disclosures must cover service characteristics, network performance, network management techniques and privacy protections.  All providers will need to examine their existing service descriptions and disclosures to ensure conformity with the new requirements, and place these disclosures prominently on their websites. 

Specifically, the FCC adopted three “high-level” rules:  transparency, no blocking, and no unreasonable discrimination.  The new rules also establish both informal and formal complaint processes for potential violations.  The most immediate impact of the rules is the first time imposition of specific consumer disclosure obligations on broadband ISPs under the “transparency” requirement:  

• Broadband ISPs must publicly disclose information regarding network management practices, network performance, and commercial terms of the broadband Internet access service sufficient for consumers to make informed choices and for third party applications, services and device makers to develop, maintain and market their Internet offerings.  
• Disclosures must appear on the broadband ISP’s website and be provided at the point of sale.   
• The level of detail is left to providers to determine.  

If you have questions about the proposed transparency rule, or would like more information on how your company can begin to prepare a disclosure statement, please contact Chris Cinnamon at (312) 372-3930, Barbara Esbin at (202) 872-6811, or James Moskowitz at (202) 872-6881. 

FCC Mails Equal Employment Opportunity (“EEO”) Audit Letters to MVPDs

On November 16, 2011, the FCC’s Media Bureau released a public notice announcing that it has mailed its EEO audit letters to randomly selected MVPDs.  Each year, the FCC randomly selects about 5% of MVPDs to complete EEO audits.  

If you have been selected for an audit this year and have questions about the audit process or need assistance responding to the audit request, please contact Scott Friedman at (312) 372-3930. 

first QUARTER 2012 Reminders

Copyright Forms and Fees Due March 1, 2012

Cable operators must file with the U.S. Copyright Office their Statement of Account (Form SA1-2 or SA3) and pay any royalty fees due for the July 2011 – December 2011 accounting period by March 1, 2012.  

The following forms apply:  

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

Copyright royalty fees must be remitted by electronic payment. 

Note:  Cable operators must now report all distant multicast streams.  The 2010 Satellite Television Extension and Localism Act amended the definition of “primary transmission” to include both the primary stream and any multicast streams (simulcasts are excluded), and delayed the applicability of distant multicast streams until the July 2010 – December 2010 accounting period. 

If you have any questions about copyright forms or fees, please contact Heidi Schmid at (312) 372-3930. 

CPNI Officer’s Certificate Due On or Before March 1, 2012

The FCC’s CPNI rules require that an officer of an interconnected VoIP provider file an annual certificate with the FCC stating that the officer has personal knowledge that the provider has established operating procedures adequate to ensure compliance with the FCC’s CPNI rules.  The carrier must also provide a statement explaining how its operating procedures ensure that it is in compliance with the FCC’s CPNI rules.  The annual certificate for 2011 must be filed on or before March 1, 2012. 

The provider must also include, if applicable, an explanation of any actions taken against data brokers and a summary of all customer complaints concerning the unauthorized release of CPNI received in the past year.  The officer’s certificate, as well as the information noted above, must be filed in and reference EB Docket No. 06-36. 

In past years, the FCC has issued Public Notices in January and February offering further guidance regarding the filing of the officer’s certificate, including an acceptable sample form.  Use of the sample form is not mandatory provided all required information is included.  

If you have any questions regarding CPNI or the filing of the officer’s certificate, please contact Bruce Beard at (636) 778-0646. 

Form 477 Due March 1, 2012 

FCC Form 477 is due on March 1, 2012.  Operators are required to include information about broadband connections and local telephone service as of December 31, 2011.   Filing instructions and a link to the electronic filing system are available at http://www.fcc.gov/form477/.  

As a reminder, broadband providers must provide the following information: 

• The number of broadband connections in individual census tracts, broken down by technology type and upload and download speed.
• The percentage of broadband connections that is residential. 

 Moreover, interconnected VoIP providers must report the following information: 

• The number of subscribers served (both end-user and resale).
• The percentage of subscribers that is residential.
• Whether the service is provided over a broadband connection provided by the filer or the filer’s affiliate. 
• A list of the 5-digit zip codes in which the filer has at least one subscriber.
• Whether the service is fixed or nomadic. 

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

__________________________________________________________________________________

Please visit our website at www.cinnamonmueller.com http://www.cinnamonmueller.com to learn more about our lawyers and practice.  You can reach Cinnamon Mueller at (312) 372-3930.  This update is provided by the law firm of Cinnamon Mueller.  The document is intended for informational purposes only as a service to clients of Cinnamon Mueller and to the members of the American Cable Association.  It is not intended to provide specific legal advice or to substitute obtaining appropriate legal counsel.  We encourage you to consult with counsel to address special compliance issues and for assistance in negotiating or handling any such matter referred to in the update. 

UPDATE

November 4, 2011 

FCC Nationwide Emergency Alert System Test Wednesday, November 9, 2011

The FCC will conduct the first nationwide test of the Emergency Alert System (EAS) on November 9, 2011, at 2 p.m. EST.  All EAS Participants must report the results of the national test to the FCC.  

Last week, the FCC released a public notice outlining the reporting requirements.  Under the reporting system, EAS participants must complete three forms.  All three forms may be completed online (http://apps.fcc.gov/easnt/home1.cfm) and must be submitted no later than December 27, 2011. 

Form 1:  Collects background information, including EAS system and equipment information and EAS point-of-contact information.  Complete prior to November 9, 2011 

Form 2:  Collects information on whether the National EAS Test alert code was received and rebroadcast.  Complete on November 9, 2011 

Form 3:  Collects information regarding receipt and rebroadcasting of the alert code, including an explanation of any complications in receiving or rebroadcasting the code.  Complete between November 9 and December 27, 2011 

In addition, the FCC also released the Nationwide EAS Test Handbook.  EAS participants must place the handbook at all EAS equipment locations and make it immediately available to all staff responsible for administering the EAS test.  The Handbook is available here: http://transition.fcc.gov/pshs/eas/EAS%20Handbook%20-%20National%20Test.pdf. 

If you have questions about preparing your cable system for the nationwide EAS test, please contact Scott Friedman at (312) 372-3930 or Bruce Beard at (314) 394-1535. 

FCC Open Internet Order Rules Effective November 20, 2011

The FCC’s “Net Neutrality” regulations, adopted in its December 2010 Open Internet Order, become effective November 20, 2011.  

For the first time, the regulations impose affirmative disclosure obligations on broadband ISPs.  Disclosures must cover service characteristics, network performance, network management techniques and privacy protections.  All providers will need to examine their existing service descriptions and disclosures to ensure conformity with the new requirements, and place these disclosures prominently on their websites. 

Specifically, the FCC adopted three “high-level” rules:  transparency, no blocking, and no unreasonable discrimination.  The new rules also establish both informal and formal complaint processes for potential violations.  The most immediate impact of the rules is the first time imposition of specific consumer disclosure obligations on broadband ISPs under the “transparency” requirement:  

• Broadband ISPs must publicly disclose information regarding network management practices, network performance, and commercial terms of the broadband Internet access service sufficient for consumers to make informed choices and for third party applications, services and device makers to develop, maintain and market their Internet offerings.  
• Disclosures must appear on the broadband ISP’s website and be provided at the point of sale.   
• The level of detail is left to providers to determine.  

Broadband ISPs should begin their compliance efforts immediately by reviewing their network management practices, acceptable use policies, terms of service, privacy policies, and other customer disclosures.  Providers that do not already have notices posted prominently on their websites should take steps to create and post such consumer disclosures as quickly as possible.  

If you have questions about the proposed transparency rule, or would like more information on how your company can begin to prepare a disclosure statement, please contact Chris Cinnamon at (312) 372-3930, Barbara Esbin at (202) 872-6811, or James Moskowitz at (202) 872-6881.

Preparing For Retransmission Consent 

Bargaining in Good Faith

The FCC’s rules obligate television broadcast stations and MVPDs to negotiate in good faith the terms and conditions of retransmission consent agreements.  The FCC issued regulations addressing retransmission consent negotiations following enactment of the 1999 Satellite Home Viewer Improvement Act, and amended these “good faith negotiation regulations” pursuant to the 2004 Satellite Home Viewer Extension and Reauthorization. 

Under the FCC’s rules, the following actions or practices violate a broadcast television stations or MVPDs duty to negotiate retransmission consent agreements in good faith:  

• Refusal to negotiate retransmission consent;
• Refusal to designate a representative with authority to make binding representations;
• Refusal to meet and negotiate at reasonable times and locations, or acting in a manner that unreasonably delays retransmission consent negotiations;
• Refusal to put forth more than a single, unilateral proposal;
• Failure to respond to a proposal of the other party, including the reasons for the rejection of any such proposal;
• Execution of an agreement that prevents a party from entering into a retransmission consent agreement with any other television broadcast station or MVPD; and
• Refusal to execute a written agreement that sets forth the full understanding of the parties. 

In addition, a television broadcast station or MVPD may demonstrate, based on the totality of the circumstances of a particular retransmission consent negotiation, that the opposing party breached its duty to negotiate in good faith. 

If you have questions about the FCC’s good faith rules, or retransmission consent negotiations in general, please contact Heidi Schmid or Scott Friedman at (312) 372-3930, or Bruce Beard at (314) 394-1535.

Cinnamon Mueller News 

Telco TV Presentation.  On October 27, 2011, CM Partner Chris Cinnamon participated in a panel titled “Compelling Content That is Affordable” at the 10^th annual Telco TV conference in New Orleans.  

PLI Faculty.  CM attorney Barbara Esbin will again participate as a speaker at the Practising Law Institute’s (“PLI”) Broadband and Cable Industry Law Seminar, scheduled for January 30-31, 2012 in New York City.   Barbara will discuss the need for the FCC to reform its retransmission consent framework and adopt additional good faith rules to address pressing problems in the market for broadcast signal carriage. 

Melanie McMullen joins the firm.  We would like to extend a warm welcome to Melanie McMullen.  Melanie joins Cinnamon Mueller with over twenty years of experience in the cable television industry.  Before joining Cinnamon Mueller, Melanie was in-house counsel for the National Cable Television Cooperative and Directory of Regulatory Affairs for Time Warner Cable, and also served as outside counsel to a number of cable and telecommunications providers.  Melanie is a graduate of Central Missouri State University and the University of Kansas School of Law.  Welcome, Melanie!

__________________________________________________________________________________

Please visit our website at www.cinnamonmueller.com http://www.cinnamonmueller.com to learn more about our lawyers and practice.  You can reach Cinnamon Mueller at (312) 372-3930.  This update is provided by the law firm of Cinnamon Mueller.  The document is intended for informational purposes only as a service to clients of Cinnamon Mueller and to the members of the American Cable Association.  It is not intended to provide specific legal advice or to substitute obtaining appropriate legal counsel.  We encourage you to consult with counsel to address special compliance issues and for assistance in negotiating or handling any such matter referred to in the update. 

UPDATE

October 14, 2011 

FCC Open Internet Order Rules Effective November 20, 2011

            The FCC’s “Net Neutrality” regulations, adopted in its December 2010 Open Internet Order, become effective November 20, 2011.  

            For the first time, the regulations impose affirmative disclosure obligations on broadband ISPs.  Disclosures must cover service characteristics, network performance, network management techniques and privacy protections.  All providers will need to examine their existing service descriptions and disclosures to ensure conformity with the new requirements, and place these disclosures prominently on their websites. 

           Specifically, the FCC adopted three “high-level” rules:  transparency, no blocking, and no unreasonable discrimination.  The new rules also establish both informal and formal complaint processes for potential violations.  The most immediate impact of the rules is the first time imposition of specific consumer disclosure obligations on broadband ISPs under the “transparency” requirement:  

• Broadband ISPs must publicly disclose information regarding network management practices, network performance, and commercial terms of the broadband Internet access service sufficient for consumers to make informed choices and for third party applications, services and device makers to develop, maintain and market their Internet offerings.  
• Disclosures must appear on the broadband ISP’s website and be provided at the point of sale.   
• The level of detail is left to providers to determine.  

            Broadband ISPs should begin their compliance efforts immediately by reviewing their network management practices, acceptable use policies, terms of service, privacy policies, and other customer disclosures.  Providers that do not already have notices posted prominently on their websites should take steps to create and post such consumer disclosures as quickly as possible.  

            If you have questions about the proposed transparency rule, or would like more information on how your company can begin to prepare a disclosure statement, please contact Chris Cinnamon at (312) 372-3930, Barbara Esbin at (202) 872-6811, or James Moskowitz at (202) 872-6881. 

FCC Nationwide Emergency Alert System Test Date Approaching:  November 9, 2011 

            The FCC will conduct the first nationwide test of the Emergency Alert System (EAS) on November 9, 2011, at 2 p.m. EST.  

            EAS participants currently participate in state-level monthly tests and local-level weekly tests.  The FCC, along with the Federal Emergency Management Agency, will use the results of the first nationwide test to assess EAS system functionality and determine if improvements need to be made to the system.   

            Pursuant to the FCC’s rules, all EAS Participants must report back to the FCC on the results of this test, including whether, and from whom, they received the alert message and whether they rebroadcast it.  The FCC will post instructions on how to report, as well as release further information, through the FCC’s nationwide test website (www.fcc.gov/nationwideEAStest).  

            If you have questions about preparing your cable system for the nationwide EAS test, please contact Scott Friedman at (312) 372-3930 or Bruce Beard at (314) 394-1535.

Preparing For Retransmission Consent

 Network Non-Duplication and Syndicated Exclusivity 

            Our last update outlined the requirements for a commercial broadcast station to properly elect retransmission consent.  In this update, we briefly cover the FCC’s broadcast exclusivity regulations – network non-duplication and syndicated exclusivity. 

            Television broadcast station licensees affiliated with broadcast networks often receive, through their affiliation agreement, exclusive rights to distribute certain network programming within a specified geographic area.  Television station licensees may also exercise exclusivity rights in accordance with the contractual provisions of their syndicated program license agreements.  

            In short, when a broadcaster receives exclusive rights by contract, the station can use the FCC’s rules to prevent cable systems from carrying duplicate programming.  

Notice Requirements.  The network non-duplication and syndicated exclusivity rules require that, following proper notice from a station, a cable operator must delete duplicating programming in a community that falls within a station’s protected zone.  A broadcaster’s failure to meet the FCC’s notice requirements can lead to forfeited network non-duplication or syndicated exclusivity rights. 

Extent of Protection.  In general, a broadcast station’s protected zone extends 35 miles from the station’s community of license reference point.  For network non-duplication purposes, smaller market stations receive an extra 20 mile secondary zone. 

Exceptions.  Several exceptions may trump a broadcaster’s assertion of network non-duplication or syndicated exclusivity, including: 

• Small systems.  The network non-duplication and syndicated exclusivity rules do not apply to cable systems with fewer than 1,000 subscribers.   
• Significantly viewed stations.  A cable system need not delete the duplicate network or syndicated programming of any television station “significantly viewed.”   

           If you have questions about the FCC’s broadcast exclusivity rules, or retransmission consent negotiations in general, please contact Heidi Schmid or Scott Friedman at (312) 372-3930, or Bruce Beard at (314) 394-1535.

__________________________________________________________________________________

Please visit our website at www.cinnamonmueller.com http://www.cinnamonmueller.com to learn more about our lawyers and practice.  You can reach Cinnamon Mueller at (312) 372-3930.  This update is provided by the law firm of Cinnamon Mueller.  The document is intended for informational purposes only as a service to clients of Cinnamon Mueller and to the members of the American Cable Association.  It is not intended to provide specific legal advice or to substitute obtaining appropriate legal counsel.  We encourage you to consult with counsel to address special compliance issues and for assistance in negotiating or handling any such matter referred to in the update. 

UPDATE

September 30, 2011 

FCC Open Internet Order Rules Effective November 20, 2011

            The FCC recently published the “Net Neutrality” regulations adopted in its December 2010 Open Internet Order in the Federal Register, triggering a 60-day countdown until the new rules become effective.  That date?  November 20, 2011.  

           For the first time, the regulations impose affirmative disclosure obligations on broadband ISPs.  Disclosures must cover service characteristics, network performance, network management techniques and privacy protections.  All providers will need to examine their existing service descriptions and disclosures to ensure conformity with the new requirements, and place these disclosures prominently on their websites. 

           Specifically, the FCC adopted three “high-level” rules:  transparency, no blocking, and no unreasonable discrimination.  The new rules also establish both informal and formal complaint processes for potential violations.  The most immediate impact of the rules is the first time imposition of specific consumer disclosure obligations on broadband ISPs under the “transparency” requirement:  

• Broadband ISPs must publicly disclose information regarding network management practices, network performance, and commercial terms of the broadband Internet access service sufficient for consumers to make informed choices and for third party applications, services and device makers to develop, maintain and market their Internet offerings.  
• Disclosures must appear on the broadband ISP’s website and be provided at the point of sale.   
• The level of detail is left to providers to determine.  

            Broadband ISPs should begin their compliance efforts immediately by reviewing their network management practices, acceptable use policies, terms of service, privacy policies, and other customer disclosures.  Providers that do not already have notices posted prominently on their websites should take steps to create and post such consumer disclosures as quickly as possible.  

           If you have questions about the proposed transparency rule, or would like more information on how your company can begin to prepare a disclosure statement, please contact Chris Cinnamon at (312) 372-3930, Barbara Esbin at (202) 872-6811, or James Moskowitz at (202) 872-6881.

Signal Leakage Reports Due by December 31, 2011 

           If your system uses aeronautical frequencies, you must conduct signal leakage measurements and file FCC Form 320 at least once each calendar year.  The form should be filed within 45 days of testing so that the most current CLI information is on record with the Commission.  In the past, the FCC has fined cable operators for violating the signal leakage rules, even when a third party caused the signal leakage.  

           FCC Form 320 must be filed electronically through the FCC’s Cable Operations and Licensing System (COALS).  To access COALS, go to http://fcc.gov/coals.  

           If you have questions about FCC Form 320, please contact Scott Friedman at (312) 372-3930.

Preparing For Retransmission Consent 

Election Letters Must be Postmarked by October 1, 2011 

            The next round of retransmission consent negotiations is upon us.  To help you prepare, we outline the requirements for a commercial broadcast station to properly elect retransmission consent. 

           Since 1992, Federal law has provided two, and only two, legal ways for a cable operator to retransmit a commercial broadcast station.  The first is “must carry” – mandatory carriage for qualified stations that request it.  The second is retransmission consent.  Must carry stations aside, the law is clear:  no consent, no carriage.  Carriage of a commercial station without consent violates FCC regulations, the Communications Act, and constitutes copyright infringement.  Simply put, with limited exceptions, carriage of a commercial broadcast station without consent is not an option. 

            FCC rules govern how a broadcaster elects retransmission consent.  Under these rules, local commercial broadcast stations must elect retransmission consent every three years by sending a valid election letter.  Valid letters must be: 

• Postmarked by October 1, 2011.
• Sent by certified mail, return receipt requested.
• Placed in the broadcaster’s public file.
• Consistent throughout the franchise area.

           If a local broadcaster gets this wrong, the station defaults to must carry.  Accordingly, cable operators should carefully review and document each election letter received.  

           Note that if you want to carry a distant station, you still need retransmission consent but the station is not obligated to send election letters to operators outside its market. 

           If you have questions about retransmission consent elections or negotiations, please contact Heidi Schmid or Scott Friedman at (312) 372-3930, or Bruce Beard at (314) 394-1535.

__________________________________________________________________________________

Please visit our website at www.cinnamonmueller.com http://www.cinnamonmueller.com to learn more about our lawyers and practice.  You can reach Cinnamon Mueller at (312) 372-3930.  This update is provided by the law firm of Cinnamon Mueller.  The document is intended for informational purposes only as a service to clients of Cinnamon Mueller and to the members of the American Cable Association.  It is not intended to provide specific legal advice or to substitute obtaining appropriate legal counsel.  We encourage you to consult with counsel to address special compliance issues and for assistance in negotiating or handling any such matter referred to in the update. 

SPECIAL UPDATE

September 23, 2011 

FCC Open Internet Order Published in Federal Register

Rules Effective November 20, 2011 

            The FCC has finally published the “Net Neutrality” regulations adopted in its December 2010 Open Internet Order in the Federal Register, triggering a 60-day countdown until the new rules become effective.  That date?  November 20, 2011. 

           For the first time, the regulations impose affirmative disclosure obligations on broadband ISPs.  Disclosures must cover service characteristics, network performance, network management techniques and privacy protections.  All providers will need to examine their existing service descriptions and disclosures to ensure conformity with the new requirements, and place these disclosures prominently on their websites. 

           Specifically, the FCC adopted three “high-level” rules:  transparency, no blocking, and no unreasonable discrimination.  The new rules also establish both informal and formal complaint processes for potential violations.  The most immediate impact of the rules is the first time imposition of specific consumer disclosure obligations on broadband ISPs under the “transparency” requirement:  

• Broadband ISPs must publicly disclose information regarding network management practices, network performance, and commercial terms of the broadband Internet access service sufficient for consumers to make informed choices and for third party applications, services and device makers to develop, maintain and market their Internet offerings.  
• Disclosures must appear on the broadband ISP’s website and be provided at the point of sale.   
• The level of detail is left to providers to determine.  

           Broadband ISPs should begin their compliance efforts immediately by reviewing their network management practices, acceptable use policies, terms of service, privacy policies and other customer disclosures.  Providers that do not already have notices posted prominently on their websites should take steps to create and post such consumer disclosures as quickly as possible.  

           If you have questions about the proposed transparency rule, or would like more information on how your company can begin to prepare a disclosure statement, please contact Chris Cinnamon at (312) 372-3930, Barbara Esbin at (202) 872-6811, or James Moskowitz at (202) 872-6881. __________________________________________________________________________________

Please visit our website at www.cinnamonmueller.com http://www.cinnamonmueller.com to learn more about our lawyers and practice.  You can reach Cinnamon Mueller at (312) 372-3930.  This update is provided by the law firm of Cinnamon Mueller.  The document is intended for informational purposes only as a service to clients of Cinnamon Mueller and to the members of the American Cable Association.  It is not intended to provide specific legal advice or to substitute obtaining appropriate legal counsel.  We encourage you to consult with counsel to address special compliance issues and for assistance in negotiating or handling any such matter referred to in the update.