Electronic Annual Notice Declaratory Ruling

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Federal Communications Commission FCC 17-73

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

National Cable & Telecommunications

Association and American Cable Association

Petition for Declaratory Ruling

)

MB Docket No. 16-126

DECLARATORY RULING

Adopted: June 16, 2017 Released: June 21, 2017

By the Commission: Commissioner O�Rielly issuing a statement.

I. INTRODUCTION

1. We grant to the extent described herein a petition for declaratory ruling filed by the

National Cable & Telecommunications Association and the American Cable Association (NCTA/ACA or

Petitioners).

Petitioners request clarification that the �written information� that cable operators must

provide to their subscribers annually pursuant to Section 76.1602(b) of the Commission�s rules may be

provided via electronic distribution.

As explained more fully below, we clarify that cable operators may

comply with Section 76.1602(b) by distributing the annual notices via e-mail to a verified e-mail address

that includes a mechanism for customers to opt out of e-mail delivery and continue to receive paper

notices.

II. BACKGROUND

2. In the Cable Television Consumer Protection and Competition Act of 1992, Congress, in

order to �provide increased consumer protection,� amended Section 632 of the Communications Act of

1934 to require the Commission to adopt customer service standards for cable operators.

In Section

632(b), Congress directs the Commission to �establish standards by which cable operators may fulfill

their customer service requirements� and specifies that �[s]uch standards shall include, at a minimum,

Petition of National Cable & Telecommunications Association and American Cable Association for Declaratory

Ruling, MB Docket No. 16-126 (filed March 7, 2016) (NCTA/ACA Petition). The Media Bureau set a Comment

Date of May 26, 2016 and a Reply Comment date of June 10, 2016

specifies that �[s]uch standards shall include, at a minimum,

Petition of National Cable & Telecommunications Association and American Cable Association for Declaratory

Ruling, MB Docket No. 16-126 (filed March 7, 2016) (NCTA/ACA Petition). The Media Bureau set a Comment

Date of May 26, 2016 and a Reply Comment date of June 10, 2016. See Public Notice, Media Bureau Seeks

Comment on Petition for Declaratory Ruling, 31 FCC Rcd 3595 (MB 2016) (�Public Notice�). The Public Notice

was published in the Federal Register. See 81 FR 24050-01 (April 25, 2016) (Federal Register Notice).

See 47 CFR � 76.1602(b).

As requested by Petitioners, this clarification applies to all types of notices required under Section 76.1602(b). See

NCTA/ACA Petition at 1-2; Letter from Diane B. Burstein, NCTA, to Marlene H. Dortch, Secretary, FCC, MB

Docket No. 16-126, at 1 (filed June 12, 2017). In addition to the annual notices required under this rule, this

includes notices that must be provided �at the time of installation of service� and those requested by individual

subscribers. 47 CFR � 76.1602(b). We refer to all of the required notices as �annual notices� herein as a shorthand.

Pub. L. No. 102-385, 106 Stat. 1460 (1992); see 47 U.S.C. � 552.

Federal Communications Commission FCC 17-73

requirements governing . . . communications between the cable operator and the subscriber (including

standards governing bills and refunds).�

3. The Commission implemented the customer service standards required under Section

632(b) in 1993.

Among other rules, the Commission adopted Section 76.1602(b), which now states that

�the cable operator shall provide written information on each of the following areas at the time of

installation of service, at least annually to all subscribers, and at any time upon request:

(1) Products and services offered;

nted the customer service standards required under Section

632(b) in 1993.

Among other rules, the Commission adopted Section 76.1602(b), which now states that

�the cable operator shall provide written information on each of the following areas at the time of

installation of service, at least annually to all subscribers, and at any time upon request:

(1) Products and services offered;

(2) Prices and options for programming services and conditions of subscription to

programming and other services;

(3) Installation and service maintenance policies;

(4) Instructions on how to use the cable service;

(5) Channel positions of programming carried on the system; and

(6) Billing and complaint procedures, including the address and telephone number of the

local franchise authority's cable office.

(7) Effective May 1, 2011, any assessed fees for rental of navigation devices and single

and additional CableCARDs; and,

(8) Effective May 1, 2011, if such provider includes equipment in the price of a bundled

offer of one or more services, the fees reasonably allocable to:

(i) The rental of single and additional CableCARDs; and

(ii) The rental of operator-supplied navigation devices.�

4. In its Petition, NCTA/ACA seek clarification through a declaratory ruling that the

�written information� requirement of Section 76.1602(b) may be satisfied through either e-mail or other

digital or electronic means �reasonably calculated to reach the individual subscriber.�

NCTA/ACA state

that �customers would be informed that they may request and receive a paper version of their Section

76.1602(b) notices� in any such electronic communications.

The Media Bureau published a Public

Notice seeking comment on the NCTA/ACA Petition on April 14, 2016.

The Public Notice stated that

Petitioners request that Section 76.1602(b) be interpreted to allow cable operators to use a �confirmed

47 U.S.C. � 552(b)(3)

ion

76.1602(b) notices� in any such electronic communications.

The Media Bureau published a Public

Notice seeking comment on the NCTA/ACA Petition on April 14, 2016.

The Public Notice stated that

Petitioners request that Section 76.1602(b) be interpreted to allow cable operators to use a �confirmed

47 U.S.C. � 552(b)(3). In addition, Section 632(b) requires the Commission to establish requirements governing

�cable system hours and telephone availability� and �installations, outages, and service calls.� 47 U.S.C. �

552(b)(1), (2).

See Implementation of Section 8 of the Cable Television Consumer Protection and Competition Act of 1992,

Consumer Protection and Customer Service, MM Docket No. 92-263, Report and Order, 8 FCC Rcd 2892 (1993)

(Customer Service Order). In implementing its customer service rule, the Commission looked to the National Cable

Television Association�s �Recommended Cable Industry Customer Service Standards� as a benchmark. See Notice

of Proposed Rule Making in MM Docket No. 92�263, 7 FCC Rcd 8641, 8644 (1992).

47 CFR � 76.1602(b). The rule was first located within the customer service section of our rules, 47 CFR �

76.309, but was later moved to 47 CFR � 76.1602 when the Commission streamlined the Part 76 notice

requirements by putting them in a separate section. See 1998 Biennial Regulatory Review -- Streamlining of Cable

Television Services Part 76 Public File And Notice Requirements, 14 FCC Rcd 4653 (1999). See also

Implementation of Section 304 of the Telecommunications Act of 1996, Third Report and Order and Order on

Reconsideration, 26 FCC Rcd 9209 (2010).

NCTA/ACA Petition at 3-4.

Id.

See supra note 1.

Federal Communications Commission FCC 17-73

email address� to deliver the notices and that Petitioners would continue to make the information

�available in print upon customer request.�

tion of Section 304 of the Telecommunications Act of 1996, Third Report and Order and Order on

Reconsideration, 26 FCC Rcd 9209 (2010).

NCTA/ACA Petition at 3-4.

Id.

See supra note 1.

Federal Communications Commission FCC 17-73

email address� to deliver the notices and that Petitioners would continue to make the information

�available in print upon customer request.�

5. All parties in the record support interpreting the �written information� obligation of the

rule to be satisfied by e-mail delivery of the annual notices.

NCTA/ACA state that most cable operators

still distribute the �written information� required by Section 76.1602(b) in hard copy, using hundreds of

millions of pages of paper annually.

They claim that businesses and customers increasingly prefer the

efficiency, effectiveness, and ease of electronic communications.

NCTA/ACA further argue that, in

addition to eliminating environmental waste, electronic dissemination would enhance the ease and speed

with which the annual notices could be updated or corrected, resulting in customers receiving more

accurate information.

They also maintain that electronic dissemination would provide cable operators

greater flexibility to match the electronic operations of online video providers and other competitors.

Cox, Charter, Comcast, Suddenlink, US Telecom and 83 small and mid-sized cable operators

all support

the NCTA/ACA Petition. In addition to the cable operators, the National Association of

Telecommunications Officers and Advisors (NATOA), the Local Government Coalition (LGC), the

Minnesota Association of Community Telecommunications Administrators (MACTA),

and the

Public Notice at 1; Federal Register Notice at 24050-24051.

See Appendix, attached hereto, for a list of commenters.

See NCTA/ACA Petition at 2.

Id. at 1.

Id. at 3.

(NATOA), the Local Government Coalition (LGC), the

Minnesota Association of Community Telecommunications Administrators (MACTA),

and the

Public Notice at 1; Federal Register Notice at 24050-24051.

See Appendix, attached hereto, for a list of commenters.

See NCTA/ACA Petition at 2.

Id. at 1.

Id. at 3.

Id.

Cox states that electronic dissemination would be consistent with consumer needs and expectations and allow

customers to access the required information in the format of their choice. Cox Comments at 1. Cox reports that

after a concerted effort towards paperless billing in early 2015, Cox�s residential subscribers opting for paperless

billing have increased from 14% to 41%. Id. at 2. Charter asserts that allowing customers to choose to receive

information electronically will ensure that subscribers have convenient and reliable access to information regarding

their cable service. Charter Comments at 1. Charter would like to modernize its notice practices to benefit

customers and reflect their shifting preferences. Id. at 2. Comcast notes that it currently provides its Section

76.1602(b) notices in hard-copy form at the time of installation (either by hand or with the shipping of a self-install

kit), and annually through the mail. Comcast Comments at 1. Comcast states that it communicates electronically

with millions of its customers, to disseminate and receive a wide array of information, including monthly bills,

payments, information about its service offerings and outages, service upgrades and service appointments. Id. at 2.

Suddenlink claims that electronic dissemination will help ensure that the Commission�s regulations do not impede

business modernization. Suddenlink Comments at 1. Suddenlink customers routinely order and modify service

levels online and about 20% pay their bills online. Id. at 2

ts, information about its service offerings and outages, service upgrades and service appointments. Id. at 2.

Suddenlink claims that electronic dissemination will help ensure that the Commission�s regulations do not impede

business modernization. Suddenlink Comments at 1. Suddenlink customers routinely order and modify service

levels online and about 20% pay their bills online. Id. at 2. US Telecom states that operators use a broad range of

modern communications tools and applications to inform their subscribers about a variety of issues, including

service offerings, billing information and payment options. US Telecom Comments at 2. US Telecom states that in

2014, AT&T achieved a 46.8% reduction of paper purchased for consumer billing from the 2010 baseline year as a

result of paperless billing systems, a reduction of more than 18.8 million pounds of paper. US Telecom also reports

that Verizon saved more than 6,556 tons of paper through its paperless billing programs, about 143,000 trees. Id. at

3. The 83 small and mid-sized cable operators assert that all subscribers would receive important notices in the

manner that they prefer, reducing customer confusion and reducing costs, with savings that can be passed on to

subscribers. 83 Small and Mid-sized Cable Operators Comments at 1.

NATOA�s membership includes local government officials and staff whose responsibility is to develop and

administer communications policy for local governments. NATOA Reply at n. 1. The LGC is composed of the

cities of Los Angeles, California; McAllen, Texas; Bay City and Livonia, Michigan; Montgomery County, Howard

County, and Anne Arundel County, Maryland and the local government coalitions of TeleCommUnity (an alliance

of local governments and associations) and PROTEC (a coalition of 50 Michigan communities). LGC Reply at 1.

MACTA represents more than 100 Minnesota cities and townships in matters related to cable television. MACTA

Reply at n. 1

ty and Livonia, Michigan; Montgomery County, Howard

County, and Anne Arundel County, Maryland and the local government coalitions of TeleCommUnity (an alliance

of local governments and associations) and PROTEC (a coalition of 50 Michigan communities). LGC Reply at 1.

MACTA represents more than 100 Minnesota cities and townships in matters related to cable television. MACTA

Reply at n. 1.

Federal Communications Commission FCC 17-73

Intergovernmental Advisory Committee to the Federal Communications Commission (IAC) support the

use of electronic distribution if consumer safeguards are in place.

III. DISCUSSION

6. We clarify that the �written information� that cable operators must provide to their

subscribers pursuant to Section 76.1602(b) may be provided electronically if the cable operator (1) sends

the information to a verified e-mail address and (2) provides a mechanism for customers to opt out of e-

mail delivery and continue to receive paper notices.

As a legal matter, we find that permitting cable

operators to comply with Section 76.1602(b) by delivering the required information via e-mail falls

squarely within the language of the rule. E-mails, by their very nature, convey information in writing.

Instead of delivering the annual notices via the U.S. Mail, this same information would be delivered by

electronic means (i.e., via the Internet). Thus, we conclude that it is reasonable to interpret the term

�written information� in Section 76.1602(b) to include information delivered by e-mail. Moreover, we

find that the Petitioners have supplied persuasive policy arguments that support interpreting the �written

information� requirement of Section 76.1602(b) to encompass electronic distribution to a verified e-mail

address

ernet). Thus, we conclude that it is reasonable to interpret the term

�written information� in Section 76.1602(b) to include information delivered by e-mail. Moreover, we

find that the Petitioners have supplied persuasive policy arguments that support interpreting the �written

information� requirement of Section 76.1602(b) to encompass electronic distribution to a verified e-mail

address. The benefits of permitting e-mail delivery include the positive environmental aspects of saving

substantial amounts of paper annually,

increased efficiency

and enabling customers to more readily

See, e.g., NATOA Reply at 2; LGC Reply at 2-3 (citing NCTA/ACA Petition at 2-3); MACTA Reply at 2; IAC

Advisory Recommendation Number 2016-11, dated July 12, 2016, at 4-5. (IAC Advisory Recommendation Number

2016-11). For example, among other suggestions, these commenters support (1) enabling customers to specify the

electronic contact information to be used, see infra para 9; (2) opt-out options that would enable customers to

withdraw from electronic delivery and receive paper notices, see infra para. 10; (3) the use of an opt-in mechanism

before customers would be switched to electronic delivery, see infra note 40; (4) a restriction on charging customers

additional fees based on their choice of delivery means for the annual notices, see infra note 38; (5) a prohibition on

the sale, barter or marketing use of verified e-mail addresses, see infra note 20; and (6) a restriction on the use of

verified e-mail addresses for billing or collections absent a specific and clear authorization by subscriber; see id.

While we agree with the first two requests on this list, we reject the other requests for the reasons discussed below.

We may revisit this issue in the future if there is evidence that additional safeguards are necessary to meet the

objectives of Section 632

on the use of

verified e-mail addresses for billing or collections absent a specific and clear authorization by subscriber; see id.

While we agree with the first two requests on this list, we reject the other requests for the reasons discussed below.

We may revisit this issue in the future if there is evidence that additional safeguards are necessary to meet the

objectives of Section 632.

This declaratory ruling applies only to Section 76.1602(b) and does not authorize cable operators to use e-mail

delivery for other purposes, such as billing and collection, marketing and sales or other notices. In addition, this

declaratory ruling in no way alters any methods of communication between cable operators and local franchising

authorities. LGC argues that cable operators must be prohibited from selling, bartering or using the customers� e-

mail addresses for marketing purposes, that cable operators must be prohibited from using verified e-mails for

billing or collections absent a specific and clear authorization by the subscriber and that the clarification should not

have a negative impact on LFA notifications contained in state or local cable franchises. LGC Reply at 6-8; see also

IAC Advisory Recommendation Number 2016-11 at 4-5. These requests are outside the scope of this proceeding,

although the uses of e-mail addresses may be restricted under other laws or regulations. NCTA/ACA maintain that

cable operators� use of e-mail addresses would remain subject to any and all applicable regulations, whether cable-

specific or rules of general applicability, that restrict the improper or unauthorized use of e-mail addresses and e-

mail communications and that there is no history of e-mail abuse by the cable industry that would warrant concern in

this area. NCTA/ACA also assert that the relief sought would have no impact on notifications to local franchising

authorities. Letter from Rick Chessen, NCTA, to Marlene H. Dortch, Secretary, FCC, MB Docket No

estrict the improper or unauthorized use of e-mail addresses and e-

mail communications and that there is no history of e-mail abuse by the cable industry that would warrant concern in

this area. NCTA/ACA also assert that the relief sought would have no impact on notifications to local franchising

authorities. Letter from Rick Chessen, NCTA, to Marlene H. Dortch, Secretary, FCC, MB Docket No. 16-126, at 5

(filed July 15, 2016) (NCTA/ACA Letter).

For example, Black�s Law Dictionary defines �written� as the �expression of ideas by letters visible to the eye.�

http://thelawdictionary.org/writing/ (last visited May 2, 2017). Similarly, Section 1001 of the Federal Rules of

Evidence defines �writing� as consisting of �letters, words, numbers, or their equivalent set down in any form.� See

Fed. R. Evid. 1001. In addition, Congress has defined �electronic communications� to include writing. See 18

U.S.C. � 2510, incorporated by 47 CFR � 1001 (�electronic communication means any transfer of . . . writing . . .

transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system . . .�).

See supra para. 5 and note 12 (e-mail delivery can save hundreds of millions of pages of paper annually).

See supra para. 5 (e-mail delivery would enhance ease and speed with which the annual notices could be updated).

Federal Communications Commission FCC 17-73

access accurate information regarding their service options.

In addition, we note that this clarification is

consistent with other Commission actions permitting electronic records in lieu of paper records.

7. We further find that Section 632(b) grants the Commission authority to establish the

means by which annual notices may be delivered to subscribers and to specify consumer protections with

regard to the delivery of the notices

options.

In addition, we note that this clarification is

consistent with other Commission actions permitting electronic records in lieu of paper records.

7. We further find that Section 632(b) grants the Commission authority to establish the

means by which annual notices may be delivered to subscribers and to specify consumer protections with

regard to the delivery of the notices. As noted above, Section 632(b) provides the Commission with

broad authority to �establish standards by which cable operators may fulfill their customer service

requirements.�

Moreover, Section 632(b) does not impose any limitations on the Commission�s

authority to specify the means by which cable operators may deliver notices to consumers.

8. Electronic delivery of annual notices will greatly ease the burden of complying with

Section 76.1602(b) for all cable operators, including in particular small cable operators. Co-petitioner

ACA is comprised of approximately 850 small and medium-sized independent operators delivering video,

high-speed broadband, and phone services to small markets and rural areas across the country.

ACA

members serve nearly seven million households and businesses.

Granting the NCTA/ACA Petition

would afford small and medium independent operators, many of which have very limited resources,

�greater flexibility to match the electronic operations of their online and other competitors.�

The 83

Small and Mid-sized Cable Operators claim that e-mail delivery will �significantly reduce the operational

costs of producing and distributing paper notices.�

Overall, our action today will enhance the ability of

small entities to compete and decrease the costs of complying with Section 76.1602(b)

to match the electronic operations of their online and other competitors.�

The 83

Small and Mid-sized Cable Operators claim that e-mail delivery will �significantly reduce the operational

costs of producing and distributing paper notices.�

Overall, our action today will enhance the ability of

small entities to compete and decrease the costs of complying with Section 76.1602(b).

E-mail delivery will enable customers to access the notices at a time convenient to them either by viewing the

information within the e-mail or if a link is provided, via the cable operator�s website. We note that our

interpretation will not increase the paperwork burden on cable operators. Accordingly, the Commission plans to

seek OMB approval for a non-substantial change to the rule.

See, e.g., Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public Interest

Obligations, Second Report and Order, 27 FCC Rcd 4535 (2012); Expansion of Online Public File Obligations To

Cable and Satellite TV Operators and Broadcast and Satellite Radio Licensees, Report and Order, 31 FCC Rcd 526

(2016).

47 U.S.C. �552(b)(3). Although it specifies certain topics that must be addressed in the Commission�s cable

customer service rules, Section 632(b) states that the standards must address these topics �at a minimum,� thereby

giving the Commission broad authority to adopt consumer protections for cable subscribers. Id.

Compare 47 U.S.C. �552(b) with 47 U.S.C. �552(c) (�a cable operator may provide notice of service and rate

changes to subscribers using any reasonable written means at its sole discretion�). Section 632(c) was implemented

by Section 76.1603 of the Commission�s rules, which governs the notice required for rate or service changes. 47

CFR � 76.1603 (�Customer service � rate and service changes�)

pare 47 U.S.C. �552(b) with 47 U.S.C. �552(c) (�a cable operator may provide notice of service and rate

changes to subscribers using any reasonable written means at its sole discretion�). Section 632(c) was implemented

by Section 76.1603 of the Commission�s rules, which governs the notice required for rate or service changes. 47

CFR � 76.1603 (�Customer service � rate and service changes�). Section 76.1602, on the other hand, implements

Section 632(b) and governs the notice required at the time of installation, on an annual basis of matters, or upon

request regarding a number of specific topics, such as communications regarding products and services, pricing and

options, and billing and complaint procedures. 47 CFR � 76.1602(b) (�the cable operator shall provide written

information on each of the following areas at the time of installation of service, at least annually to all subscribers,

and at any time upon request�).

See American Cable Association, About Us, http://www.americancable.org/about_us (last visited May 2, 2017).

Id.

NCTA/ACA Petition at 3.

83 Small and Mid-sized Cable Operators Comments at 1.

We note that the Commission has reported that under its small business size standard for purposes of cable rate

regulation, there are approximately 650 small cable operators and approximately 3,900 small cable systems. See

January 2017 Public Inspection File Report and Order, MB Docket No. 16-161, FCC 17-3, FRFA paras. 10-11 (rel.

Jan. 31, 2017). In clarifying Section 76.1602(b), we have taken steps to minimize significant economic impact on

small entities by declining to adopt more burdensome requirements for implementing e-mail delivery of the annual

notices such as an opt-in mechanism which would require additional resources to implement. The requirements we

(continued�.)

Federal Communications Commission FCC 17-73

2017). In clarifying Section 76.1602(b), we have taken steps to minimize significant economic impact on

small entities by declining to adopt more burdensome requirements for implementing e-mail delivery of the annual

notices such as an opt-in mechanism which would require additional resources to implement. The requirements we

(continued�.)

Federal Communications Commission FCC 17-73

9. We agree with Petitioners that cable operators must have verified e-mail contact

information for a customer in order to deliver the annual notice via e-mail.

We find that, in the absence

of a verified e-mail address, reliance on e-mail would not satisfy the directive in Section 76.1602(b) that

cable operators �provide written information � to all subscribers.�

The use of a verified email address

will ensure that the written information is provided � i.e., made available � to subscribers, as required by

the rule.

In this regard, we will consider each of the following to constitute a verified e-mail address for

purposes of the rule: (1) an e-mail address that the customer has provided to the cable operator (and not

vice versa)

for purposes of receiving communication, (2) an e-mail address that the customer regularly

uses to communicate with the cable operator, or (3) an e-mail address that has been confirmed by the

customer as an appropriate vehicle for the delivery of notices. Petitioners proposed these criteria, they are

supported by NATOA, and we find that each will provide adequate assurances that only active e-mail

contact information will be used to distribute the annual notices.

By requiring the use of a verified

email address, we will ensure that the annual notices have a high probability of being successfully

delivered electronically to an email address that the customer actually uses, so that the written information

is actually provided to the customer

e assurances that only active e-mail

contact information will be used to distribute the annual notices.

By requiring the use of a verified

email address, we will ensure that the annual notices have a high probability of being successfully

delivered electronically to an email address that the customer actually uses, so that the written information

is actually provided to the customer. If no verified e-mail contact information is available for a particular

customer, cable operators must continue to deliver the annual notices via paper copies to that customer.

(Continued from previous page)

impose herein were recommended by the ACA in the record and we agree with them that the two safeguards we

specify, a verified e-mail address and an opt-out mechanism, will lessen their economic burden by allowing them to

successfully deliver the annual notices electronically. See NCTA/ACA Letter at 3. These minimal safeguards

appropriately balance the interests of customers against the interests of the regulated entities, including small

entities.

NCTA/ACA Letter at 3. Petitioners state that it was not their �intention to seek approval to use simply any email

address that might be associated with a customer, whether the email account is actively used or not.� Id.

47 CFR �76.1602(b) (emphasis added).

The term �provide� in the rule means more than simply �send�; it requires that cable operators make available the

information to subscribers. For instance, the Meriam-Webster Online Dictionary defines the term �provide� to mean

�to supply or make available (something wanted or needed).� https://www.merriam-webster.com/dictionary/provide

(last visited May 2, 2017). Dictionary.com contains a similar definition of the term �provide�: �to make available;

furnish.� http://www.dictionary.com/browse/provide (last visited May 2, 2017)

rs. For instance, the Meriam-Webster Online Dictionary defines the term �provide� to mean

�to supply or make available (something wanted or needed).� https://www.merriam-webster.com/dictionary/provide

(last visited May 2, 2017). Dictionary.com contains a similar definition of the term �provide�: �to make available;

furnish.� http://www.dictionary.com/browse/provide (last visited May 2, 2017).

In other words, an e-mail address that a cable operator supplies to a customer as a courtesy when they sign up for

broadband service would not qualify as a verified e-mail contact without any additional indication from the

customer that (s)he actually uses that address.

See NCTA/ACA Letter at 3; Letter from Stephen Traylor, Executive Director, NATOA to Marlene H. Dortch,

Secretary, FCC, MB Docket No. 16-126, at 1 (filed December 9, 2016) (NATOA Ex Parte Letter). See also Letter

from Mary C. Lovejoy, ACA, to Marlene H. Dortch, Secretary, FCC, MB Docket No. 16-126, at 1 (filed May 30,

2017) (ACA May 30 Letter).

The parties disagree over whether customers need to be reminded of the obligation to keep their e-mail addresses

up to date. NCTA/ACA objects to having any obligation to inform a customer to keep its electronic contact

information up to date because this is something customers need to do for all of their transactions. NCTA/ACA

Letter at 3-4. NATOA and MACTA support a requirement that cable operators inform customers of their obligation

to keep such information up to date. See NATOA Reply at 2; MACTA Reply at 2. We agree with NCTA/ACA that

the obligation to update any changes to their e-mail addresses would be well-known to customers using those

addresses regularly for electronic communications and cable operators do not need to inform them of that obligation

ement that cable operators inform customers of their obligation

to keep such information up to date. See NATOA Reply at 2; MACTA Reply at 2. We agree with NCTA/ACA that

the obligation to update any changes to their e-mail addresses would be well-known to customers using those

addresses regularly for electronic communications and cable operators do not need to inform them of that obligation.

However, we note that if a cable operator becomes aware that a verified e-mail address is no longer operational, it

will be required to verify another address or send paper copies of the annual notices to that customer. We also find

IAC�s request that there �be no extra charge� to customers based on their choice of delivery method to be outside

the scope of this proceeding. See IAC Advisory Recommendation Number 2016-11 at 4. Because Section

76.1602(b) does not address fees associated with the delivery of the annual notices, we are unable to address this

issue within the scope of a declaratory ruling. We note, however, that the Media Bureau has previously found a

similar fee to be within the scope of local regulation. See Comcast Cable Communications, LLC, 29 FCC Rcd 2885,

(continued�.)

Federal Communications Commission FCC 17-73

10. We also agree with Petitioners that, with any annual notices delivered via e-mail,

customers must �be informed that they may request and receive a paper version of their Section

76.1602(b) notices� instead of e-mail delivery.

This option will afford customers the opportunity to opt

out of e-mail notification at any time and choose to continue to receive paper copies of the annual notices,

ensuring that customers continue to be provided information in a way that they will actually accept and

receive.

Petitioners propose that e-mail notices �would identify a phone number for subscribers to

request a paper copy� of their annual notices.

We agree with this proposal

e-mail notification at any time and choose to continue to receive paper copies of the annual notices,

ensuring that customers continue to be provided information in a way that they will actually accept and

receive.

Petitioners propose that e-mail notices �would identify a phone number for subscribers to

request a paper copy� of their annual notices.

We agree with this proposal. Cable operators must

include an opt-out telephone number that is clearly and prominently presented to customers in the body of

the originating e-mail that delivers the notices, so that it is readily identifiable as an opt-out option.

Having a telephone number available in the e-mail notice will provide a readily accessible opt-out option

(Continued from previous page)

2888 (MB 2014) (�late fees, returned check fees, and other similar miscellaneous subscriber charges, are within the

purview of local franchising authorities and not part of our regulatory scheme. A convenience fee charged for a

particular payment method chosen by the subscriber falls into this category of miscellaneous fees. Local authorities

may regulate such fees if they are permitted to under State or local consumer protection or other law.� (footnotes

omitted)).

NCTA/ACA Petition at 4. See also ACA May 30 Letter; Letter from Diane B. Burstein, NCTA, to Marlene H.

Dortch, Secretary, FCC, MB Docket No. 16-126, at 1 (filed May 30, 2017). NATOA and MACTA support

permitting customers to withdraw consent to electronic delivery of the notices at any time. See NATOA Reply at 2;

MACTA Reply at 2. LGC argues that each e-mail must provide an opt-out option. LGC Reply at 6. We note that

Section 76.1602(b) requires cable operators to �provide written information . . . at any time upon request.� 47 CFR �

76.1602(b).

Several commenters argue that cable operators should be required to obtain opt-in consent before they may deliver

the annual notices via e-mail

t 2;

MACTA Reply at 2. LGC argues that each e-mail must provide an opt-out option. LGC Reply at 6. We note that

Section 76.1602(b) requires cable operators to �provide written information . . . at any time upon request.� 47 CFR �

76.1602(b).

Several commenters argue that cable operators should be required to obtain opt-in consent before they may deliver

the annual notices via e-mail. See, e.g., LGC Reply at 4; MACTA Reply at 2; IAC Advisory Recommendation

Number 2016-11 at 4-5. Pursuant to the Electronic Signatures in Global and National Commerce Act (E-Sign Act),

information that a statute or regulation requires be provided to a consumer in writing can be delivered electronically

if the sender follows all of the E-Sign Act requirements, including the requirement that a consumer �has

affirmatively consented.� See 15 U.S.C. � 7001(c)(1). However, the E-Sign Act preserves a federal regulatory

agency�s rulemaking authority, allows federal agencies to interpret the E-Sign Act with respect to a statute that it

implements, and allows a federal agency to exempt a specified category or type of record from the consent

requirements in the E-Sign Act �if such exemption is necessary to eliminate a substantial burden on electronic

commerce and will not increase the material risk of harm to consumers.� See 15 U.S.C. � 7004(b), (d). Petitioners

argue persuasively that it would not be workable for cable operators to attempt to receive permission from each

individual customer prior to initiating electronic delivery for this particular notice asserting that �these benefits

could not be achieved if cable operators were required to seek and obtain express, individualized consent from

literally tens of millions of subscribers.� NCTA/ACA Letter at 3. Moreover, an opt-in mechanism does not appear

to be necessary to protect consumers because the annual notices are generic in nature and do not contain confidential

information specific to an individual subscriber

could not be achieved if cable operators were required to seek and obtain express, individualized consent from

literally tens of millions of subscribers.� NCTA/ACA Letter at 3. Moreover, an opt-in mechanism does not appear

to be necessary to protect consumers because the annual notices are generic in nature and do not contain confidential

information specific to an individual subscriber. The information is already available in many cases on a cable

operator�s or local franchising authority�s website. LGC also argues that Section 76.1602(b) e-mails should be

considered �Commercial E-mails� pursuant to the Controlling the Assault of Non-Solicited Pornography And

Marketing Act of 2003, 15 U.S.C. � 7701, et seq. (CAN-SPAM Act), or that the Commission should create a

parallel set of safeguards for cable subscribers, LGC Reply at 5-6. NCTA/ACA object to deeming the electronic

notices as �commercial e-mails� under the CAN-SPAM Act, which would require affirmative consent from

customers before the e-mails could be sent. NCTA/ACA Letter at 4-5. Under the CAN-SPAM Act, �commercial

electronic mail message� means �any electronic mail message the primary purpose of which is the commercial

advertisement or promotion of a commercial product or service.� 15 U.S.C. � 7701(2)(A). Because the annual

notices are part of an ongoing relationship, they are transactional in nature and the electronic communication of the

annual notices would not constitute �commercial e-mail� under the CAN-SPAM Act. See 15 U.S.C. � 7702

(Commercial electronic mail messages do not include transactional messages). Cf. 47 CFR �� 64.3100(c)(2), (8)

(defining �commercial electronic mail message� and �transactional or relationship message� in the context of

mobile service commercial messages).

NCTA/ACA Petition at 4.

Federal Communications Commission FCC 17-73

and ensure that customers are able to opt out of e-mail delivery without using electronic means

do not include transactional messages). Cf. 47 CFR �� 64.3100(c)(2), (8)

(defining �commercial electronic mail message� and �transactional or relationship message� in the context of

mobile service commercial messages).

NCTA/ACA Petition at 4.

Federal Communications Commission FCC 17-73

and ensure that customers are able to opt out of e-mail delivery without using electronic means.

The

provision of a telephone opt-out method is a minimum requirement and cable operators may choose to

offer additional choices to their customers that are clearly and prominently presented in the body of the

originating e-mail. Although we find that it is not necessary to require cable operators to provide more

than one opt-out mechanism, and that a clearly and prominently presented telephone opt-out in the body

of the originating e-mail would be the means most universally accessible to customers that prefer not to

receive their notices electronically, we agree with LGC and IAC that other methods, such as a link that

would allow customers to identify their delivery preference electronically, could also be efficient and

convenient for many customers.

11. We reject Petitioners� additional request to permit electronic delivery of annual notices

via other means �reasonably calculated to reach the individual customer� and limit electronic delivery at

this time to e-mail.

We are concerned that Petitioners� suggested �reasonably calculated� standard is

overly broad and vague, would be difficult to apply, and could create an undue risk that subscribers will

not receive the required notices

electronic delivery of annual notices

via other means �reasonably calculated to reach the individual customer� and limit electronic delivery at

this time to e-mail.

We are concerned that Petitioners� suggested �reasonably calculated� standard is

overly broad and vague, would be difficult to apply, and could create an undue risk that subscribers will

not receive the required notices.

For example, NCTA/ACA maintain that one such �reasonably

calculated� means to deliver annual notices would be to include in a subscriber�s monthly bill a �link to a

publicly available website where the notice applicable to a particular customer may be found�.�

are concerned that placing a link inside a bill could have the effect of obscuring rather than highlighting

that the annual notices are not part of the regular bill.

In any event, because e-mail delivery will provide

cable operators with the opportunity to vastly decrease their reliance on paper mailings via regular mail,

we find it unnecessary to complicate the means by which cable operators may comply with the annual

notice rule by approving this additional catchall standard.

Several commenters request that the Commission also require cable operators to provide their customers with

additional ways to opt out of e-mail delivery. LGC states that customers should not be forced to use old technology

(telephone) to request materials in writing. LGC Reply at 7-8. The IAC recommends that cable operators allow

customers to request materials in writing through an e-mail link and provide the information requested in a timely

manner. IAC Advisory Recommendation Number 2016-11 at 4-5. MACTA points out that not all customers

choose to subscribe to Internet/data services or can afford to do so. MACTA Reply at 2

quest materials in writing. LGC Reply at 7-8. The IAC recommends that cable operators allow

customers to request materials in writing through an e-mail link and provide the information requested in a timely

manner. IAC Advisory Recommendation Number 2016-11 at 4-5. MACTA points out that not all customers

choose to subscribe to Internet/data services or can afford to do so. MACTA Reply at 2. NCTA/ACA object to a

requirement for a specific method for customers to request a paper version of the notices, such as a link rather than a

telephone number, as long as the option chosen by the cable company is readily available and not difficult to

exercise. NCTA/ACA Letter at 4.

LGC Reply at 7-8. IAC Advisory Recommendation Number 2016-11 at 4-5.

NCTA/ACA Letter at 6.

NATOA and MACTA question whether the general use of website links or other �electronic measures� could

provide all subscribers with the information required pursuant to Section 76.1602(b) and, as MACTA points out,

especially those who either choose not to subscribe to Internet/data services or cannot afford to do so. NATOA

Reply at 2; MACTA Reply at 2.

NCTA/ACA Petition at 4. We find the inclusion of a website link to the notice itself to be reasonable when

annual notices are delivered via e-mail. Website links sent via e-mail will give customers the flexibility to choose

when to review the annual notices. To avoid customer confusion and inconvenience, if a website link is provided

within an e-mail to access the annual notices, we expect the link to remain active until a subsequent notice

supersedes it.

As we noted earlier, our authorization of e-mail delivery of annual notices does not extend to billing and

collections. See supra n. 19.

Petitioners� reliance on the Commission�s Battery Backup Order in this instance is misplaced. See Ensuring

Continuity of 911 Communications, 30 FCC Rcd 8677, 8709 (2015)

we expect the link to remain active until a subsequent notice

supersedes it.

As we noted earlier, our authorization of e-mail delivery of annual notices does not extend to billing and

collections. See supra n. 19.

Petitioners� reliance on the Commission�s Battery Backup Order in this instance is misplaced. See Ensuring

Continuity of 911 Communications, 30 FCC Rcd 8677, 8709 (2015). In the Battery Backup Order, the Commission

implemented a new disclosure requirement concerning the availability of battery backup power in the event of a

power outage. Although the Commission stated that the new annual disclosure could be disseminated �by any

means reasonably calculated to reach the individual subscriber,� the new disclosure requirement supplemented an

existing one that already required providers to �[o]btain and keep a record of affirmative acknowledgement by every

(continued�.)

Federal Communications Commission FCC 17-73

IV. ORDERING CLAUSES

12. For the reasons stated above, IT IS ORDERED, pursuant to section 632 of the

Communications Act of 1934, as amended, 47 U.S.C. � 552, and sections 1.2 and 76.1602 of the

Commission�s rules, 47 CFR �� 1.2, 76.1602, that the Petition for Declaratory Ruling filed by the

National Cable & Telecommunications Association and the American Cable Association IS GRANTED

to the extent indicated herein and IS OTHERWISE DENIED.

13. IT IS FURTHER ORDERED that this Declaratory Ruling shall be effective upon the date

specified in a notice published in the Federal Register announcing Office of Management and Budget

approval of the information collection requirements pursuant to the Paperwork Reduction Act.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

(Continued from previous page)

subscriber, both new and existing, of having received and understood the advisory.

the Federal Register announcing Office of Management and Budget

approval of the information collection requirements pursuant to the Paperwork Reduction Act.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

(Continued from previous page)

subscriber, both new and existing, of having received and understood the advisory. . .� See E911 Requirements for

IP-Enabled Service Providers, 20 FCC Rcd 10245, 10272 (2005); see also 47 CFR � 9.5(e)(1-3) (�Specifically

advise every subscriber, both new and existing, prominently and in plain language, of the circumstances under

which E911 service may not be available . . .�). In this instance, there is no prior existing rule requiring an

affirmative acknowledgement that information has been received and understood.

Federal Communications Commission FCC 17-73

APPENDIX

List of Commenters

Commenter Abbreviation

National Cable & Telecommunications Association NCTA

(Petitioner)

American Cable Association ACA

(Petitioner)

Charter Communications, Inc. Charter

Comcast Corporation Comcast

Cox Communications, Inc. Cox

Cequel Communications, LLC Suddenlink

d/b/a Suddenlink

United States Telecom Association US Telecom

National Association of Telecommunications NATOA

Officers and Advisors

Minnesota Association of Community MACTA

Telecommunications Administrators

Local Government Coalition LGC

Intergovernmental Advisory Committee to the IAC

Federal Communications Commission

83 Small and Mid-Sized Cable Operators

Kansas State Representative Dr. Thomas J. Sloan

Federal Communications Commission FCC 17-73

STATEMENT OF

COMMISSIONER MICHAEL O�RIELLY

Re: National Cable & Telecommunications Association and American Cable Association, MB Docket

No. 16-126, Petition for Declaratory Ruling.

I support this move to allow cable operators to provide certain required notices to their

subscribers via electronic distribution, subject to customer opt-out

Federal Communications Commission FCC 17-73

STATEMENT OF

COMMISSIONER MICHAEL O�RIELLY

Re: National Cable & Telecommunications Association and American Cable Association, MB Docket

No. 16-126, Petition for Declaratory Ruling.

I support this move to allow cable operators to provide certain required notices to their

subscribers via electronic distribution, subject to customer opt-out. This ruling comports nicely with our

overall push to recognize the current realities of business communications and realize efficiencies by

permitting, or in some cases requiring, paper transmissions to go electronic. It is my hope that the

Commission will be able to keep things moving in this direction. For example, the principle underlying

this item could potentially be extended to allow for distribution to a customer�s online account instead of

via email, if helpful. And notices for retransmission consent elections could move to email. Today�s

declaratory ruling demonstrates that the Commission is ready and willing to consider and possibly act on

suggestions to put more communications online.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.