Georgetown Law Open on Time
The Law Center will open on time FRIDAY, MARCH 6, 2015, but liberal leave is in effect. All designated emergency employees must report to work on time. All other employees may take unscheduled leave, but should contact their supervisor to discuss the needs of their unit and individual circumstances. Unless otherwise notified, classes will begin at their normal time. Instructional Continuity is in effect for the faculty members that wish to exercise it.
Communications and Technology Law Projects
I. Appeal in Support of Lower Telephone Rates for Prison Payphones
Over a decade ago, Martha Wright, a grandmother from Washington, DC, along with a group of prisoners and former prisoners, their family members, the D.C. Prisoners’ Legal Services Project, Citizens United for Rehabilitation of Errants (CURE), and others (Wright Petitioners) filed a petition for rulemaking with the FCC seeking relief from excessively high rates and fees charged by companies providing Inmate Calling Services (ICS). After many years of advocacy, the FCC finally adopted interim price caps for interstate calls in 2013. The effect of this decision was to substantially reduce the cost of making an interstate phone call to or from a prison.
Several of the ICS providers and prison facilities sought review of the FCC’s decision in the D.C. Circuit. The pro bono counsel for the Wright Petitioners was unable to handle the appeal, so IPR agreed to take it over.
A. Opposition to Stay Motions of ICS Providers
In December 2013, IPR filed a motion for the Wright Petitioners to intervene in the consolidated appeals. Shortly thereafter, IPR filed an opposition to the petitioners’ emergency motion to stay the FCC order. The opposition argued that a stay would cause financial harm to individuals and families relying on ICS, who are some of the most economically disadvantaged in the nation. The opposition cited examples of families forced to cut off contact with an inmate incarcerated hundreds of miles from home because they could not afford the phone bills. The opposition also pointed out the harms to the 2.7 million children from the lack of contact with a parent who is in prison.
The stay opposition also argued that the public interest would suffer if the court stayed the FCC’s order. The record showed that when families speak with an imprisoned loved one more frequently, prisoners are more likely to be successful upon reentry into the community and less likely to commit additional crimes. Reducing recidivism even by a small percentage would result in millions of dollars in savings.
The D.C. Circuit denied the stay in part, allowing the interim price caps to take effect. As a result, ICS providers generally may not charge customers more than $0.21 per minute for prepaid/debit interstate calls or $0.25 per minute for collect calls. However, the Court stayed parts of the FCC’s order that set a much lower “safe harbor” rate for calls and required that ancillary fees be cost based.
B. Merits Brief Supporting Commission’s Order
During the spring semester, a team of IPR students worked on the brief in support of the FCC’s order. The students dug through thousands of comments to find overwhelming statistical and anecdotal evidence supporting the FCC’s decision to lower ICS rates. In addition to conducting legal and factual research, they had to figure out what arguments to make for the clients to best support the FCC, without duplicating its arguments. They produced multiple drafts of both the Statement of the Case and the arguments.
After the petitioners filed their briefs, the Wright brief was revised to respond to their arguments. The brief contends that the FCC’s action to lower the costs of interstate ICS is a lawful and reasonable response to a failed market and does not interfere with the day-to-day administration of state and local prisons facilities. It also argues that the FCC acted lawfully and appropriately in requiring that “ancillary fees” charged to customers be based on costs. Ancillary fees are paid by consumers to set up and maintain a pre-paid calling account and to add money to the account and are necessary to be able to place or receive a call. These fees can often double the cost of calling.
II. Political Broadcasting
Broadcast stations have long been required to publicly disclose the sponsors of political advertisements as well as other information about candidate and issue advertising. That information was kept at the station’s main studio, and members of the public generally had to visit the station in person to view this information. That changed as a result of the advocacy of IPR and its client, the Public Interest Public Airwaves Coalition (PIPAC). In 2012, the Commission started requiring television stations to put their public inspection files in an online database hosted by the FCC. These files may be viewed at https://stations.fcc.gov/.
A station’s public inspection file contains, among other things, applications, ownership reports, children’s programming, issue-responsive programming, and a “political file,” containing records concerning political broadcasting. Section 315 of the Communications Act, as amended by the 2002 Bipartisan Campaign Reform Act, requires that broadcast stations maintain records regarding any request to purchase broadcast time that “communicates a message relating to any political matter of national importance.” These records must identify the issue, candidate, and election referred to by the ad and the sponsor of the ad. The licensee must also disclose the purchaser’s chief executive officers or members of the executive committee or of the board of directors.
After the Supreme Court struck down limits on campaign expenditures in Citizens United and in McCutcheon v. Federal Election Commission, the amount of money being spent on candidate and issue advertising on television has increased dramatically. Yet, the public retains the right to know about the organizations and individuals seeking to influence their vote through these ads. Thus, it is more important than ever for the public and journalists to have easy access to television stations’ political files.
In summer 2013, IPR filed comments on behalf of PIPAC, the Sunlight Foundation, and the Center for Effective Government, detailing the public benefits from online disclosure, which at that time applied only to the major network affiliates in the fifty largest markets. The comments urged the FCC to proceed with plans to require all television stations to upload their political files starting in July 2014, which it did. The comments also recommended that the FCC adopt data standards and require television stations to upload their political files in a machine-readable format to make the data easier to analyze and more useful to the public. The Commission has not yet acted on this proposal.
A. Complaints filed against eleven television stations for failing to make required disclosures
In May 2014, IPR filed complaints at the FCC on behalf of the Campaign Legal Center and the Sunlight Foundation against eleven television stations. The complaints were drafted by IPR students who also reviewed many stations’ online political files. The complaints indicated of widespread noncompliance with the disclosure requirements without regard to the political leanings of the sponsor, the geographic location, or the station’s network affiliation. For example, many stations failed to identify the candidate to which the ad referred; the issue of national importance to which the ad referred; and/or the chief executive officer or board of directors of the sponsor. In some cases, stations simply uploaded blank disclosure forms. In others, stations filled in some, but not all, of the required information. The FCC acted quickly. Not only did FCC Chairman Tom Wheeler release a statement in support of our complaints, but within a month of filing, the FCC forwarded the complaints to the stations involved for their response, and IPR filed replies to their responses.
B. Complaints against television stations that failed to properly identify sponsors of political ads
In July 2014, IPR filed complaints at the FCC against two television stations on behalf of Campaign Legal Center, Common Cause, and the Sunlight Foundation. These stations had aired issue ads without disclosing the true identity of the sponsor as required by Section 317 of the Communications Act.
One of the stations, WJLA, in Washington, D.C., ran ads purchased by the NextGen Climate Action Committee (NextGen). NextGen was founded, and at the time solely funded, by Tom Steyer, a former hedge-fund manager worth billions. The complaint alleged that Steyer, and not NextGen, was the true sponsor of the ad, and therefore the station should have disclosed Tom Steyer’s name at the end of the ad rather than the name of the committee. It also alleged that WJLA clearly failed to exercise “reasonable diligence” to ascertain the true sponsor as required by the Communications Act.
The other complaint was against Portland, OR television station KGW. KGW ran ads purchased by the American Principles Fund (APF). At the time, APF was funded almost exclusively by Sean Fieler, a hedge-fund manager. The complaint alleged that Fieler was the true sponsor of the ads, and therefore the station should have disclosed Sean Fieler’s name at the end of the ad rather than “American Principles Fund.” It also alleged that the station did not exercise “reasonable diligence” to ascertain basic funding information for the group.
C. Petition for Rulemaking to extend online public file requirements to cable and satellite
Because spending by political candidates, Super PACs and “dark money” groups is not limited to broadcast television stations, IPR filed a Petition for Rulemaking on behalf of Campaign Legal Center, Sunlight Foundation and Common Cause in July 2014. The petition asked the FCC to require that cable and satellite operators, which currently make their public files (including political files) available at certain physical locations, to upload them into the online database currently used only for broadcast television stations. Putting the files online would make it easier for the public to access the information. Because political campaigns and outside groups have substantially increased spending for advertisements on cable and satellite channels, the public needs online access to obtain comprehensive data on political ad spending. The FCC, again acting very quickly, put the petition out for public comment in August 2014.
III. Media Ownership
The FCC’s regulation of broadcast station ownership continues to be a major focus of IPR’s advocacy on behalf of the Office of Communication, Inc. of the United Church of Christ, National Organization for Women Foundation, Common Cause, Prometheus Radio Project and other organizations. The FCC rules are intended to promote diversity of viewpoints, diversity of ownership, competition, and the provision of local news and other local programming by limiting the number of television and radio stations that may be commonly owned within a market, as well as common ownership of newspapers and broadcast stations.
Under the Telecommunications Act of 1996, the FCC must review whether the ownership limits continue to serve the public interest every four years. In addition, the Commission may only approve the assignment or transfer of broadcast licenses where it is consistent with the limits, or the applicants make an affirmative showing that the public interest would be served by waiving the limit.
IPR’s clients successfully challenged previous decisions by the FCC in its 2002 and 2006 reviews to relax its ownership limits. Both appeals were heard by the US Court of Appeals for the Third Circuit. In both decisions, which are known as Prometheus I and Prometheus II, the Court in large part agreed with IPR’s arguments, reversed parts of the FCC’s orders, and remanded for further FCC review. While the appeal of the 2006 Quadrennial Review was still pending, the FCC began its 2010 Quadrennial Review.
IPR filed multiple comments and made numerous ex parte presentations in the 2010 Quadrennial Review. Most recently, IPR’s advocacy efforts focused on two objectives. First, we urged the FCC to take action to stop television stations from evading local ownership limits by entering into “shared services agreements” (SSAs). The local television rule prohibits common control of two or more television stations in all but the largest markets as well as common control of two top-four ranked television stations (usually the CBS, NBC, ABC and Fox affiliates). An SSA may allow one station to provide all local news for another television station, to sell advertising on that station, and to control most of its operations. IPR’s clients sought to require the disclosure of all such sharing agreements. In addition, they wanted the FCC to amend its “attribution rules,” which identify the types of ownership interests that are counted for purposes of the ownership limits, to attribute ownership where an SSA gave a station substantial influence over another station in the same market.
Second, IPR’s clients wanted to make sure that the FCC complied with the Court’s order in Prometheus II that the FCC take certain steps to promote broadcast station ownership by women and people of color. Our many filings showed wide disparities in station ownership by women and people of color as compared to white men. The comments also suggested research and other concrete steps that the Commission could take to advance the goal of increasing ownership diversity.
In April 2014, the FCC issued a combination Order and Further Notice of Proposed Rulemaking in the 2010 Quadrennial Review (2014 Quadrennial Review). In the Order, the FCC amended its “attribution rules,” which identify the types of ownership interests that are counted for purposes of the ownership limits, to include Joint Sales Agreements (JSAs). JSAs are agreements in which a station sells advertising time on another station in the same market. JSAs are similar to SSAs in that they both confer substantial control to another in-market station owner and may be used to evade violations of the media ownership limits.
In the Further Notice, the FCC combined the ongoing 2010 Quadrennial Review with the new 2014 Quadrennial Review. The Further Notice sought comment on whether to retain or amend its ownership limits, how to respond to the Prometheus II remand regarding racial and gender diversity in station ownership, and whether to require that stations disclose SSAs.
A. Petitions regarding the FCC’s Action and Inaction in the 2010 Quadrennial Review
IPR filed a petition for review of the 2014 Quadrennial Review on behalf of Prometheus Radio Project, et al. in the Third Circuit. The petition asserted that the FCC failed to satisfy the Third Circuit’s remand instructions in Prometheus II. Specifically, it alleged that the FCC failed to collect and analyze the data and conduct studies necessary to promote station ownership by women and people of color. Further, the petition alleged that the FCC acted arbitrarily in attributing one type of sharing agreement between broadcast television stations (JSAs) while not requiring that a different type of sharing agreement raising similar concerns (SSAs) even be disclosed.
Three other petitions for review were filed in the DC Circuit by industry parties. The National Association of Broadcasters (NAB) challenged the FCC’s failure to relax or repeal any rules, while two others challenged the decision to attribute JSAs. Because petitions of the same order were filed in different courts, initial jurisdiction was determined by lottery. After the DC Circuit was selected, Prometheus et al. filed a motion to transfer the case to the Third Circuit, which had retained jurisdiction over the remanded portions of Prometheus II.
B. Intervention in NAB’s Appeal of a Public Notice regarding SSAs
In March 2014, shortly before the FCC issued the Quadrennial Review, the FCC’s Media Bureau, which is charged with reviewing proposed license transfers to determine whether they are in the public interest, issued a Public Notice to provide guidance concerning its processing of applications involving SSAs and contingent or financial interests. The NAB sought review of this action in the D.C. Circuit. The FCC filed a motion to dismiss the petition on the grounds that the Media Bureau’s public notice was not a final agency action. IPR filed a motion on behalf of Prometheus et al. supporting the motion to dismiss, and requesting that if the case is not dismissed that it be consolidated with the other petitions for review of the 2010/2014 Notice/Order because it presented legal and factual issues in common.
C. Challenges to Mergers involving SSAs to Circumvent Ownership Limits
2013 was a blockbuster year at the FCC for media mergers. IPR represented organizations challenging license transfers or assignments that involved SSAs designed to get around ownership limits.
As described in last year’s annual report, IPR filed a petition to deny in June 2013 opposing Gannett Company’s proposed acquisition of twenty television stations from Belo Corp. for $2.2 billion. The petition, which was filed on behalf of Communications Workers of America (both NABET and the Newspaper Guild), National Hispanic Media Coalition, Common Cause, Office of Communication, Inc. and Free Press, argued that the acquisition was not in the public interest because Gannett was proposing to use SSAs to circumvent the FCC media ownership limits.
In December, after Gannett agreed to sell one of the stations pursuant to a consent decree with the Department of Justice, the FCC’s Media Bureau denied IPR’s petition and approved the license transfers. In January 2014, IPR filed an application for review asking the full Commission to reverse the Media Bureau decision for three reasons. First, the approval of the assignments involving sharing arrangements to evade the newspaper-broadcast-ownership rule presented a novel question of law, fact, and policy that should be decided by the full Commission. Second, the Bureau’s decision was incorrect because the assignment of licenses was contrary to the Communications Act, which permits assignments only where they serve the public interest. Finally, failure to reverse this decision and the previously unreviewed Bureau precedents on which it relied would result the increased use of such sharing agreements to further evade the FCC’s media ownership rules.
2. Tribune-Local TV transaction
In January 2014, IPR also filed an application for review of the Media Bureau’s approval of Tribune Co.’s acquisition of nineteen television stations licensed to Local TV. Because outright acquisition of some of the Local TV stations would have violated the Commission’s cross-ownership limits, Tribune entered into various SSAs with a “sidecar “company Dreamcatcher. The application for review, which was filed on behalf of Free Press, made arguments similar to those made in application for review of the Gannett-Belo transaction.
3. Transfer of KFVE
In February 2014, IPR filed a petition to deny the transfer of television station KFVE, Honolulu, on behalf of the Media Council Hawai`i (MCH). As described in prior annual reports, IPR has represented MCH since 2009 in an effort to diversity ownership and local news coverage in Honolulu. Specifically, Media Council Hawai`i (MCH) challenged a transaction through which Raycom, one of the largest broadcasting companies in the US, acquired direct control over two major network affiliates in Honolulu (KHNL and KGMB), as well as indirect control over KFVE, through the use of various sharing arrangements. While the Media Bureau agreed that the original 2009 transaction was inconsistent with the local television ownership rules, it nonetheless declined to take action because it had no transfer application before it. MCH filed an application for review of the Bureau’s decision in December 2011, which remains pending.
In November 2013, an application was filed with the FCC seeking approval of the transfer of KFVE to American Spirit Media, LLC. Raycom, which had initially obtained an option to purchase KFVE in 2009 when it entered into the SSA, had transferred the option to American Spirit. American Spirit exercised the option, but needed FCC approval for the transfer to proceed.
An IPR student drafted a petition for MCH arguing that approval of the transfer would not serve the public interest because it would undermine the purpose of the local television station ownership limit and allow Raycom to continue to air virtually identical news programs on three Honolulu stations. The petition included a side-by-side comparison of news programming on the three stations over two days, which showed that the local news programs on KFVE were almost identical to those on the two Raycom-owned stations. The petition also argued that American Spirit appeared to have no independent existence apart from holding licenses on behalf of Raycom, since all six of its stations were operated by Raycom. Finally, it urged that the full Commission, rather than the Media Bureau, should review this application because it concerned issues and facts almost identical to those present in MCH's pending application for review.
IV. Children’s Online Privacy
The Children’s Online Privacy Protection Act of 1998 (COPPA) generally requires website operators and online service providers that target children under 13, or know a particular user is under 13, to provide notice to parents and obtain verifiable parental consent (VPC) before collecting, using, or disclosing personal information about children. The Federal Trade Commission (FTC) is charged with implementing and enforcing COPPA. Over the last few years, the FTC sought comments on updating the COPPA through its own “COPPA Rule.” IPR filed comments on behalf of the Center for Digital Democracy (CDD) and a broad coalition of children’s and privacy advocacy organizations. The FTC significantly revised the rule and made many changes in response to IPR’s comments.
The revised COPPA Rule took effect in July 2013. Over the past year, IPR students worked with CDD on projects to ensure the revised rule is properly interpreted and enforced.
A. Requests for the FTC to investigate potential COPPA Rule violations
In the fall semester, IPR students reviewed children’s websites and mobile apps to assess compliance with the revised COPPA Rule. Based on this analysis, they drafted two requests for investigation. The students presented their findings to the FTC staff and filed the requests for investigation in December 2013.
2. Hello Kitty Carnival
B. Comments on proposed COPPA safe harbor programs
COPPA includes a provision enabling companies to join an approved safe harbor program. A member of a safe harbor that abides by the safe harbor’s guidelines is deemed to be in compliance with COPPA. To become an approved safe harbor, an organization must to apply to the FTC and meet certain criteria. Applications for "safe harbor" status are published in the Federal Register to allow public comment on whether they meet criteria set forth in the COPPA Rule. IPR worked with CDD to comment on two such requests.
CDD opposed iKeepSafe’s safe harbor application because the company in charge of enforcement did not seem to have sufficient staff to effectively enforce the iKeepSafe rules. CDD also objected that iKeepSafe’s guidelines used permissive language when the COPPA Rule required mandatory language and thus, did not provide as much protection for children as the COPPA Rule. The FTC recently approved iKeepSafe contingent on the company changing some of the permissive language to mandatory language, as requested by CDD.
CDD opposed the kidSAFE+ safe harbor application on a variety of grounds. In particular, it objected to kidSAFE’s plan to use a logo for its COPPA safe harbor seal, “kidSAFE+,” that looked very similar to its “kidSAFE” seal, which denotes that the online service complies with certain safety criteria, because it would likely be confusing to parents. The comments also objected that the kidSafe+ guidelines did not provide protection that was equal or greater to the protections in the COPPA Rule and that the application failed to provide (or redacted) information necessary to determine whether the safe harbor program met the relevant criteria
C. Comments on proposed verifiable parental consent mechanisms
The COPPA Rule prohibits websites and apps from collecting, disclosing, and using personal information from children without first obtaining verifiable parental consent (VPC). To obtain consent, companies can use “verifiable parental consent mechanisms.” Companies offering VPC mechanisms may apply for FTC approval. IPR worked with CDD on comments opposing two such applications.
AssertID proposed a verification system that used Facebook to verify that the person granting permission was in fact the child’s parent. CDD commented that this untested system could be gamed easily with fake Facebook accounts. Further, this mechanism required parents and children to disclose substantial amounts of information about themselves to AssertID. Citing CDD’s comments, the FTC rejected this application.
Imperium proposed a knowledge-based authentication system (KBA). KBA, which is used by some financial institutions, verifies identity by asking a few “out-of-wallet” questions about things likely to be known only by that individual. CDD commented that the proposal was insufficient in that it did not describe how its methods would be effective at verifying parental consent. Moreover, Imperium had not shown that a KBA system would work in the VPC context where the goal is to ensure the responding person is the child’s parent rather than to verify identify.
D. Freedom of Information Act requests
On behalf of CDD, IPR has filed two requests under the Freedom of Information Act (FOIA) to obtain information concerning children’s privacy. Under the revised COPPA Rule, safe harbor programs must file an annual report with the FTC starting in July 2014, detailing the number of complaints filed against member companies and the type of enforcement the safe harbor used to fix the problems. The FOIA request seeks to have those reports made public.
Another FOIA request seeks documents from the National Institute of Standards and Technology (NIST), which recently granted $1.6 million to Privacy Vaults Online, Inc. (PRIVO) and Verizon for the creation of a VPC mechanism. The FOIA request seeks to obtain PRIVO’s grant application and other related information about the request from PRIVO.
V. Low-Power FM Radio
IPR represents Prometheus Radio Project, a nonprofit organization committed to developing and supporting community based radio in communities across the United States. Prometheus was the leading force behind the drafting and passage of the Local Community Radio Act (LCRA) in 2010, which opened up the airwaves for hundreds of new low-power radio stations across the country. In the wake of the LCRA’s passage, the Commission began a series of rulemakings that culminated in the creation of a low-power FM (LPFM) application window in late 2013. LPFM stations have a limited broadcast radius of only a few miles, meaning that they are highly local service that is designed to serve communities. In the fall 2013 application window, nearly 3,000 organizations applied for radio licenses to broadcast in their communities.
A. Advising LPFM Applicants
During the fall semester, IPR students helped nearly 60 applicants apply for low-power FM stations. The applicants included community justice organizations, social/health programs, and Native American tribes. The students reviewed each organization’s application to ensure it met the Commission’s minimum requirements and that the applicant had maximized its chances of obtaining a radio license. After the application window closed, the Commission awarded licenses to about a dozen applicants that faced no competitor. These stations are expected to be on the air before the end of 2014 or in early 2015.
B. Creating a Guide for Organizations that Applied for LPFM Licenses
Other applicants advised by IPR applied for frequencies where they faced competition from other applicants, a situation that the Commission refers to as mutually exclusive (MX) applications. The Commission developed a point system for choosing among MX applications. However, because many groups were expected to claim the maximum number of points, the Commission also allowed applicants with the most points to team up with one or more other applicants in an effort to win the channel. This process, known as voluntary timesharing, allows applicants to aggregate their points and the group with the most points gets the license.
In spring 2014, an IPR student wrote a comprehensive guide for LPFM applicants working with Prometheus to explain the Commission’s selection process and provide practical advice. The guide included a detailed breakdown of all the various scenarios applicants could encounter after learning that they were in an MX group. The guide discussed how applicants might negotiate with other groups to create universal or voluntary settlements. It also provided practical tips on the type of information that had to be included in settlement agreements, including a template for the agreements and an example of a hypothetical agreement between two applicants. Prometheus distributed the guide to the LPFM applicants it supported.
C. Supporting the LPFM Service in Commission Pleadings
Full-power FM radio owners have long fought the establishment of the LPFM service due to concerns about the interference they might cause to full-power FM stations. Despite a Congressional study demonstrating that the concerns of full-power stations were unfounded, full-power FMs continue to try to limit the ability of LPFM stations to get on the air. IPR has represented Prometheus in various efforts to defend the LPFM service in the face of challenges by full-powered stations.
1. LPFM Applicant Process Theatre Inc.
In spring 2014, IPR filed an amicus curiae statement in support of Process Theatre, Inc., an LPFM applicant in the Sacramento, California market. AMFM Texas Licenses, LLC, which owns a full-power station in Sacramento, filed a petition to deny Process Theatre’s LPFM application, arguing that the LPFM applicant had not used an accurate engineering model to show there would not be interference. In particular, AMFM argued that because its engineering study — which used a different method than the one required by the LPFM rules — predicted interference, the application should be dismissed. IPR responded that because Process Theatre used a process approved by the Commission to demonstrate a lack of interference, AMFM’s arguments should be rejected. The statement also argued that allowing a full-power station’s engineering study to trump an LPFM applicant’s interference study put LPFM applicants at a distinct disadvantage.
2. LPFM Applicants in the LA Market
In summer 2014, IPR filed an opposition on behalf of Prometheus to a clarification of the LPFM rules sought by KYLA, a full-power FM station in Los Angeles. The rules allow an LPFM applicant to show that no interference will occur to adjacent channels by showing that its proposed transmitter is located consistent with certain minimum distance requirements. LPFM applicants had to conduct engineering studies showing a lack of interference with such channels. The opposition argued that requiring LPFM applicants to conduct additional engineering studies would be cost prohibitive for most applicants, since they are usually small, community-based nonprofit organizations. Further, requiring such studies after the fact could jeopardize hundreds of LPFM applicants that did not conduct the studies requested by KYLA because they were not required to do so by the FCC’s rules.
VI. Accessibility to Telecommunications by Persons with Disabilities
IPR has continued to represent Telecommunications for the Deaf and Hard of Hearing, Inc. (TDI), a nonprofit organization that advocates for improved access to telecommunications, media, and information technology for Americans who are deaf or hard of hearing. In addition to representing TDI, IPR worked closely with a coalition of deaf and hard of hearing consumer advocacy groups, including the National Association of the Deaf (NAD), the Hearing Loss Association of America (HLAA), the Association of Late-Deafened Adults (ALDA), the Deaf and Hard of Hearing Consumer Advocacy Network (DHHCAN), and the Cerebral Palsy and Deaf Organization (CPADO).
A. Closed Captions on Television
IPR has worked to ensure that all broadcast, cable, satellite, and other television programming is accessible by means of closed captions as required by the Communications Act and the Commission’s captioning rules. Under the Commission’s rules, programmers are required to caption their content unless one of the handful of exemptions in the rules applies. In particular, a programmer can petition for an exemption from closed captioning if it can show that captioning would be economically burdensome. In spring 2014, an IPR student analyzed exemption petitions and drafted comments opposing thirteen, primarily on the ground that the petitioner failed to make a sufficient showing. In August 2014, the Consumer and Governmental Affairs Bureau acted on two pending petitions, denying one that TDI had opposed and granting another that TDI did not oppose. The Bureau also summarily dismissed dozens of pending captioning petitions that TDI had previously opposed on the grounds that the petitioners failed to provide the information required for a waiver.
Two petitioners whose applications were dismissed as incomplete sought Commission review of the Bureau’s action. Both applications involved requests to exempt religious services recorded for broadcast from closed captioning and raised the same legal arguments. IPR drafted and filed oppositions on behalf of TDI and the other organizations.
B. Improving Commission Processes for Handling Captioning Petitions
In fall 2013, Tom Wheeler was confirmed as the new FCC Chairman. One of his first actions was to seek public comment on how the Commission could improve its procedures to be more responsive to the public. IPR had long been frustrated by the delays and difficulties caused by the Commission’s requirement that petitions for exemption from closed captioning as well as comments on those petitions be filed in paper at the FCC’s headquarters. Most other FCC proceedings allow electronic filing. IPR drafted comments for TDI and the other consumer groups asking that parties seeking or opposing closed-captioning waivers be able to file electronically. In spring 2014, the FCC adopted an order to allow electronic filing. The comments also asked the Commission to process dozens of pending closed-captioning waiver requests. Subsequently, the FCC summarily dismissed dozens of pending waiver petitions that failed to provide sufficient information.
C. Closed Captioning Controls and User Interfaces
IPR worked with TDI, NAD, and other deaf and hard of hearing consumer advocacy groups to draft comments filed with the FCC related to implementation of the Twenty-First Century Communications and Video Accessibility Act (CVAA). The comments sought to make closed-captioning controls and other accessibility features on televisions, set-top boxes, and other devices more accessible and easy to use. IPR drafted a section of the comments demonstrating that the Commission had ample legal authority under the CVAA to require that accessibility features be readily available on all devices.
VII. Supporting Robust Network Neutrality
IPR drafted comments for the Benton Foundation filed in the FCC’s network neutrality proceeding in April 2014. The comments argued that preserving an open Internet was a vital policy goal because vulnerable populations such as seniors and persons with disabilities rely on an open internet to access services designed to help them. They further argued that the proposal to impose network neutrality rules that allowed for “commercial reasonable” practices would be insufficient to protect a vibrant open Internet. Benton was concerned that such case-by-case enforcement would create uncertainty for Internet users, startups, and other companies. Instead, the comments urged the FCC to reclassify the transmission portion of the Internet under Title II of the Communications Act, which would allow the FCC to impose non-discrimination requirements on data transmission, while leaving the content layer of the Internet largely unregulated.