On October 25, 2018, the FCC released a draft Report and Order that would expressly allow cable operators to provide certain written customer communications electronically. As part of the FCC’s “Modernization of Media Regulation Initiative,” the draft Report and Order follows the Commission’s June 2017 Declaratory Ruling, which had clarified that electronic delivery of cable operators’ Annual Notices (under Section 76.1602 of the FCC’s rules) could satisfy the regulation’s “written” communications requirement (also note that the FCC also released a similar order applicable to broadcasters). The draft Report and Order applies the same electronic delivery format for all subscriber notices required under Subpart T of the FCC’s rules, as well as to the statutorily required privacy notices. In addition to Annual Notices, the covered Subpart T notices include:

  • Channel deletions and repositioning
  • Signal quality complaint procedures
  • Local franchise authority contact information
  • Rate and service change
  • Notice of charge for frequent change of service tiers
  • Basic tier information
  • List of broadcast signals not available without a converter box

The draft Report and Order explains that this approach would be environmentally friendly, ease operators’ economic and administrative burdens, and respond to consumers’ increasing preference for electronic notices over paper notices.

Significantly, electronic notices must be sent to a “verified email address” and customers must be provided with the opportunity to opt-out of electronic delivery. A “verified email address” is one that:

  • the subscriber has provided to the cable operator for purposes of receiving communication,
  • the subscriber regularly uses to communicate with the cable operator, or
  • has been confirmed by the subscriber as an appropriate vehicle for the delivery of notices.

The “opt-out” offer must include a telephone number that is “clearly and prominently presented” in the body of the email.

Cable operators may provide the full text of the required regulatory notice in the body of the email, or they may include a web link to the notice in the email. The Commission suggests, however, that the web link is a suitable option only if the underlying communication with the subscriber is electronic – a typed web address provided in a paper document would not suffice.

The draft Report and Order also clarifies that cable operators may respond to consumer requests or billing dispute complaints by email where: (1) the consumer initiated the request or complaint by email, or (2) the consumer specified email as the preferred method of communication.

Finally, the draft Report and Order eliminates two outdated FCC regulations (76.1621 and 76.1622), which had required cable operators to: (1) offer subscribers “special equipment that will enable the simultaneous reception of multiple signals;” and (2) educate customers regarding equipment compatibility issues, particularly related to VCRs and remote control units. The FCC recognized that changes in technology subsequent to these rules being adopted rendered them unnecessary.

The FCC has tentatively scheduled the matter for consideration and adoption at its November 15th Open Meeting.