Summary of Federal Laws
Miscellaneous Laws that Might Apply
Communications Act of 1934
(amended by the Telecommunications Act of 1996)
Pub. L. No. 104-104, 110 Stat. 5647 (1996); 47 U.S.C. § 151 et seq.; 47 U.S.C. §§ 153, 251, 252, 253, and 255 and amended by the Communications Assistance for Law Enforcement Act, (CALEA) 47 USC §§ 1001-1010
The Communications Act of 1934 created the FCC and gave this new agency the power to regulate telephones and radio. The 1996 Act amends the 1934, but is actually much longer. The purpose of the law was to encourage competition, but it also has a vast regulatory scheme.
One section of the law deals with Federal Communications Commission (FCC) Licenses for Instructional TV Channels, etc. Title 47 U.S.C. § 396(k) requires public radio stations that receive funds from the Corporation for Public Broadcasting, to make available for public inspection annual financial audits or statements filed with the Corporation.
FCC Fines Non-Commercial Educational Broadcaster for Advertising for a for-profit entity:
See The Pillsbury Advisory dated November 2008 titled
FCC Upholds $9,000 fine for Noncommercial FM Radio Station Airing Advertisements. FCC rules (
47 CFR 73.503(d)) prohibits noncommercial stations from airing promotional ads for entities that are for profit. While acknowledgments of contributions are OK, they many not contain comparative or qualitative descriptions, price info, inducements to buy, sell or lease, or calls to action.
See FCC 07-110) on disabilities access for IP service, adopted May 31, 2007 by the FCC. The order will go into effect 60 days after notice of the decision in the Federal Register. See also the FCC web page on Voice Over Internet Protocol.
FCC Public Notice DA 05-1992: Emergency Approval of new VoIP E911 Rules
Effective Date July 29, 2005 WC Docket No. 04-36
The FCC has granted emergency approval of the information collection aspects of the voice over IP E911 rules.
The customer notice requirement will become effective July 29, compliance with the substantive rules and compliance reports will be required by November 28. See also the June 3, 2005 First Report and Order and Notice of Proposed Rulemaking on IP Enabled Services and 911 requirements.
FCC Ruling regarding Radio Interference from Unlicensed Devices
June 24, 2004 notice reaffirming that under the Communications Act of 1934, the FCC has exclusive jurisdiction to to resolve matters involing radio frequency interference when unlicensed devices are being used, regardless of venue. The notice also affirms that the consumer protections for the installation and use of consumer antennas under the FCC's Over the Air Reception Devices rules apply to unlicensed devices.
Cases
American Library Association v. Federal Communications Commission, No. 04-1037 (U.S. C. A. for District of Columbia, decided May 6, 2005) 2005 U.S. App. LEXIS 7847
The question presented by this case is whether Congress delegated authority to the Federal Communications Commission (FCC) to regulate apparatus that can receive television broadcasts when the apparatus are not engaged in the process of receiving a broadcast. By Dec. 31, 2006, analog television service will be replaced with digital television service or DTV. In November 2003 the FCC adopted broadcast flag regulations that would have required digital television receivers and other devices capable of receiving digital broadcast TV signals to include technology that would recognize the broadcast flag, which is digital code embedded in the DTV broadcasting stream, which prevents retransmission of the content of the broadcast. This broadcast flag would have to have been in place for all devices manufactured on or after July 1, 2005. The broadcast flag affects the receiver devices only after the broadcast.
Petitioners, including the American Library Association, among others, filed a petition for review on three grounds:
(1) the Commission lacks statutory authority to mandate that demodulator products recognize and give effect to the broadcast flag;
(2) the broadcast flag regime impermissibly conflicts with copyright law; and
(3) the Commission's decision is arbitrary and capricious for want of reasoned decisionmaking.
The Motion Picture Association intervened in support of the Commission's decision, and contested the issue of standing. The Court found the ALA had standing, citing in particular the affidavit filed by Peggy Hoon, Scholarly Communication Librarian at North Carolina State, as follows:
Ms. Hoon's affidavit asserts that the NCSU Libraries assist faculty members who would like to make broadcast materials available to students in distance learning courses via the Internet. The affidavit states that the NCSU Libraries currently assist a professor in the Foreign Languages and Literatures Department make short broadcast clips of the Univision network's program, El Show de Christina, available over the Internet on a password-protected basis for use in a distance-education Spanish language course. The affidavit alleges that Internet redistribution is essential to making such clips available. See id. PP 5-10. The FCC does not dispute that the NCSU Libraries' activities are lawful. And as petitioners point out, if the regulations implemented by the Flag Order take effect, there is a substantial probability that the NCSU Libraries would be prevented from assisting faculty to make broadcast clips available to students in their distance-learning courses via the Internet.
The Court found that the FCC had exceeded its delegated authority, and that the FCC broadcast regulations were ultra vires, stating : "In the seven decades of its existence, the FCC has never before asserted such sweeping authority. Indeed, in the past, the FCC has informed Congress that it lacked any such authority. In our view, nothing has changed to give the FCC the authority that it now claims." The Court also dismissed as "specious" the argument of the MPAA that any redress for petitioners must come from the hardware manufacturers, as it would only be through the actions of these third parties that the petitioners would suffer injury. A May 20th, 2005 Chronicle of Higher Education article entitled Appeals Court Overturns Rule Intended to Prevent Digital Television Piracy, noted as follows:
The case was closely watched by academic libraries that had filed briefs in the case. In one brief, Paul M. Gherman, university librarian at Vanderbilt University, said that the broadcast flag threatened the university's well-known television-news archive, which has gathered some 40,000 hours of broadcasts over the past 35 years. The regulations, he said, would prevent Vanderbilt from distributing future news segments online.
Definitional Issues
Title 47 U.S.C. § 255, added in 1996, has the goal of increasing access to telecommunications service by persons with disabilities. Title 47 U.S.C. § 255(c) states that a "provider of telecommunications service shall ensure that the service is accessible to and usable by individuals with disabilities, if readily achievable."
Title 47 U.S.C. § 153(46) defines the term "telecommunications service" as the "offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used."
Some colleges and universities may fall under the regulatory purview of this law. There does not seem to be a simple four-part test for who is an aggregator or a provider of telecommunication services. See also the FCC Section 255 Fact Sheet.
Compliance Requirements
Once determined to be subject to the requirements of Section 255, the service provider must ensure that telecommunication service is accessible to and usable by individuals with disabilities, if readily achievable. If the service itself cannot be made fully accessible, the service should be compatible with existing peripheral devices or specialized customer premises equipment commonly used by individuals with disabilities, if compatibility is readily achievable.
In practical terms, this means, for example:
Vendors should be asked what kind of specialized customer premises equipment their equipment will attach to. New contracts should all be reviewed for these compatibility issues. Further information will become available on all these issues as new products adapt to the market.
The rules also apply to pagers, call waiting, and operator services. Web page accessibility is not covered under these rules. The rules are generally effective January 28, 2000.
Designation of an agent for receipt of complaints
If a college or university is covered under the definitions above, the college or university must designate an agent. The agent's principal function will be to ensure the service provider's prompt receipt and handling of accessibility concerns raised by consumers or FCC staff. The deadline date for designation of an agent by a "provider of telecommunication services" is Jan. 31, 2002. See 67 Fed. Reg. 678 (Jan. 7, 2002). Institutions that have already designated an agent will not need to redesignate. For a list of the colleges and universities that have registered (and who they designated as an agent) see http://www.fcc.gov/cgb/dro/section255_colleges.html
Further information is available online at www.fcc.gov or at www.acuta.org.
Resources and archived content
Who Needs to File CALEA-Related Forms with the FCC? See this article on the EDUCAUSE CALEA page which will walk you through the question of whether or not your school needs to file the monitoring report due Feb. 12, 2007, and the System Security Integrity Report due March 12, 2007. See the Perkins Coie memo below for an overview of the law. Whether or not a report is due depends upon how the institution connects to the Internet. If the school does not support the connection to the ISP (i.e. when the connection goes down, the school calls the ISP to fix it) then the school is probably exempt from CALEA obligations and the filing obligations fall upon the ISP.
The Application of CALEA to Higher Education Networks, issued by ACE on June 13, 2006
This memo addresses the exclusion from CALEA for higher education institutions that operate private networks that do not "support" a connection of the private network to the Internet.
ACE v. CALEA, No. 05-1404, U.S. Court of Appeals for the D.C. Circuit, Decided June 9, 2006
This case involves a statutory interpretation of 47 USC § 1002. This law provides that a telecommunications carrier shall ensure that its equipment, facilities, or services that provide a customer or subscriber with the ability to originate, terminate, or direct communications are capable of being expeditiously isolated and accessed by the government pursuant to a court order or other lawful authorization. The communication must be able to be accessed before, during, or immediately after the transmission of a wire or electronic communication. An exception in section 1002 excludes from this requirement information services; or equipment, facilities, or services that support the transport or switching of communications for private networks or for the sole purpose of interconnecting telecommunications carriers.
In September of 2005, the FCC issued an Order (FCC 05-153) that stated that broadband and VoIP (Voice over Internet Protocol) providers were covered (at least in part) by CALEA's definition of "telecommunications carriers". Implementation of this Order (required by May 14, 2007) would necessitate colleges and universities that are broadband or VoIP providers to redesign their networks at a cost estimated to be over $450* per student in tuition fees. Given these high stakes, the America Council on Education (ACE) challenged the order, and this decision, which upheld the FCC Order is the result of the litigation.
In a 2-1 decision, the Court of Appeals for the DC Circuit agreed with the FCC that providers of both broadband and VoIP serve as replacements for a substantial functionality of local telephone exchange service. This is key, as the definition of a telecommunications carrier in 47 USC § 1001(8) includes those providers that substantially replaces traditional transmission or switching. The court also found CALEA differed from the Telecom Act by not using the phrases "telecommunications carrier" and "information services" as mutually exclusive terms. The court found the FCC interpretation of the law reasonable. The court did state that if the case had been reviewed de novo, the ACE argument might have been found to be the more persuasive one.
EDUCAUSE Resource Page on CALEA
This web page includes the briefs filed by EDUCAUSE, NAICU, ACE, the ALA and others with the FCC. See the Reply brief filed in ACE v. FCC, and the May 3, 2006 summary of the vote and discussion of the CALEA Second Report and Order from the FCC Open Commission meeting.
Wikipedia entry on CALEA
CFR updated 10/21/08 rab
links updated 6/12/08 rab
updated 2/3/13/09 mlo to add FCC fine
updated 3/1/09 mlo to add compliance partner, delete old text
links updated 3/3/09 rab
compliance box links updated 6/2/09 rab
Last Revised 02-Jun-09 12:13 PM.
