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The Commission’s Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010 Initiates a Two-Year Deadline for Providers of Advanced Communications Services and Manufacturers of Equipment Used in Advanced Communications Services to Comply with Disabilities Access Requirements.

The Federal Communications Commission (the “Commission”) recently adopted a Report and Order (“R&O”) and Further Notice of Proposed Rulemaking (“FNPRM”) implementing Section 104 of the Twenty-First Century Communications and Video Accessibility Act of 2010 (the “CVAA”), codified as Sections 716, 717 and 718 of the Communications Act of 1934, as amended (the “Act”). The purpose of the CVAA is to “ensure that people with disabilities have access to the incredible and innovative communications technologies of the 21st century.”

Prior to the passage of the CVAA, and pursuant to Section 255 of the Act, the Commission imposed disabilities access requirements on manufacturers of telecommunications equipment (including answering machines, pagers and telephones) and providers of telecommunications services. In 2007, the Section 255 requirements were extended to providers of interconnected VoIP services and manufacturers of VoIP equipment. The CVAA expands the Commission’s regulatory authority to historically unregulated providers of advanced communications services (“ACS”) and manufacturers of equipment used for ACS (collectively the “Covered Entities”) and codifies the requirement as it applies to interconnected VoIP.

ACS includes interconnected VoIP, noninterconnected VoIP, electronic messaging service and interoperable video conferencing services, which are defined as:

  • Interconnected VoIP: a service that (1) enables real-time, two-way voice communications; (2) requires a broadband connection from the user’s location; (3) requires Internet protocol-compatible customer premises equipment (“CPE”); and (4) permits users generally to receive calls that originate on the public switched telephone network (“PSTN”) and to terminate calls to the PSTN.
  • Noninterconnected VoIP: a service that (i) enables real-time voice communications that originate from or terminate to the user’s location using Internet protocol or any successor protocol; and (ii) requires Internet protocol compatible customer premises equipment” and “does not include any service that is an interconnected VoIP service.
  • Electronic Messaging Service: “means a service that provides real-time or nearreal-time non-voice messages in text form between individuals over communications networks. This service does not include interactions that include only one individual (human to machine or machine to human communications).
  • Interoperable Video Conferencing Services: services that provide real-time video communications, including audio, between two or more users. This service does not include video mail. The Commission has sought additional comment, pursuant to the Further Notice of Proposed Rulemaking, regarding the definition and application of “interoperable”.

The Commission clarified that the regulations implemented pursuant to the CVAA “do not apply to any telecommunications and interconnected VoIP products and services offered as of October 7, 2010.” The R&O also indicates that any regulated equipment or service offered after October 7, 2010 may be governed by both Sections 255 and 716.

The CVAA established, among other things, a phased compliance timeline due to the financial and technical burdens associated with developing and implementing technological changes required by the CVAA. Covered Entities must comply with Sections 716 and 717 within one year of the effective date. Section 718 compliance must be achieved within two years of the effective date or no later than October 8, 2013. The CVAA also includes long-term reporting obligations, enforcement procedures, limitations on liability for violations and finite compliance deadlines. The Commission decided that the rules, as implemented, would not include any safe harbors or technical standards at this time. Finally, the Commission determined that when implementing the CVAA, its rules should include opportunities for waivers and self-executing exemptions.

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By Glenn S. Richards and Christine A. Reilly

In a series of actions within the last five days, the FCC has focused its enforcement attention on cramming — the unauthorized placement of fees onto a consumer’s monthly phone bill by its own phone provider or an unaffiliated third party. These charges could be for telecommunications products and services but could also be for cosmetics or diet products. At an event in Washington, DC on June 20th, FCC Chairman Julius Genachowski announced the launch of a major new effort to educate consumers about cramming and plans for a proceeding that will empower consumers to better protect themselves from cramming. The FCC estimates that up to 20 million Americans may be victims of cramming each year.

In a series of Notices of Apparent Liability (NAL) released last week, the FCC issued fines between $1.5 and $4.2 million against four telephone service providers for cramming. These charges usually range from $1.99 to $19.99 per month and may go undetected for months. To reinforce its concerns about cramming, the FCC also released an Enforcement Advisory stating that “it has acted on four major investigations involving cramming” which it said is an “unjust and unreasonable” practice under Section 201(b) of the Communications Act. The Advisory also stated that the telecom providers “had apparently engaged in constructive fraudulent activity as part of a plan to place charges on consumers’ phone bills for services that the consumers neither requested nor authorized.”

According to a News Release issued last week, the four telecom providers, all headquartered in Pennsylvania, defrauded consumers by billing them for unauthorized dial-around services (a form of long distance service that allows a customer to use a different carrier than the one presubscribed to the telephone number). According to the News Release, 99.9% of the billing charges levied by the alleged violators were bogus. In one NAL, the FCC stated that one of the telecom providers billed “as many as 18,571 consumers monthly, during which time no more than 22 consumers (or 0.1 percent) ever actually used its service.”

According to the NALs, all four telecom providers employed identical Internet-only solicitation and online enrollment for services utilizing the same billing aggregator. The telecom providers practiced the same method of customer verification, which did not include sending “reply required” confirmation e-mails. When consumers later challenged the monthly charges, the telecom provider stated that as part of its customer verification process, it merely confirmed that the consumer’s name and/or address contained on the online enrollment form matched the telephone number provided on the online enrollment form, or confirmed that the IP address provided on the online enrollment form was within a 100 mile radius of the name, address and telephone number included in the online registration.
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