Update: Effective Date, Comment Deadlines Set in Cell Phone Signal Booster Proceeding

Several weeks ago we reported on the FCC’s order disposing of several petitions for reconsideration that had been filed with respect to its 2013 decision to adopt a new regulatory approach to the use of cell phone signal boosters. In its most recent order the Commission adopted a couple of tweaks to its rules and proposed some further tweaks. All of those actions have now made it into the Federal Register. As a result, we now know when all but one of the newly-revised rules will take effect, and we also know the deadlines for commenting on the proposed additional tweaks.

According to one notice, all the revisions adopted by the Commission last month will take effect on
December 29, 2014 except for Section 20.21(f)(1)(iv)(A)(2), which, because it’s an “information collection”, must first be run past the Office of Management and Budget thanks to the Paperwork Reduction Act.

And according to a separate notice, comments on the newly-proposed tweaks are due by December 29, 2014 and replies are due by January 20, 2015.

Update: Comment Deadlines Set in LPTV/TV Translator Proceeding

Last month we reported on a Notice of Proposed Rulemaking (NPRM) advancing a number of proposals likely to affect the future of LPTV/TV translator operations, particularly following the spectrum repack. As we mentioned there, the FCC has given LPTV and TV translator licensees a lot to think about but not much time to do their thinking. The NPRM has now been published in the Federal Register, which means that the comment deadlines have been set – so we now know just how little time is available. Comments on the FCC’s proposals are due by December 29, 2014, and replies are due by January 12, 2015. Note, however, that a two-week extension of those deadlines has already been requested, and we understand that there's an excellent chance that that request will be granted. Check back here for updates.

Five More Years! With STELAR, Congress Re-Ups STELA

Cable TV and broadcast provisions tweaked as Congress re-authorizes satellite carriage of local TV stations.

Christmas is coming early this year … if, that is, you’re a direct broadcast satellite (DBS), cable or other MVPD operator, or a low power TV licensee. Not so much if you’re a full-power TV licensee, although there may be a little something under the tree for you, too.

All this is thanks to Congress, which has passed the STELA Reauthorization Act of 2014, commonly known as “STELAR”. All that remains is for President Obama to put his John Hancock on it, which we can expect to happen before New Year’s Eve. While the primary purpose of STELAR is (as its name suggests) to extend the provisions of STELA (i.e., the Satellite Television Extension and Localism Act of 2010), Congress couldn’t resist the temptation to tweak a number of provisions relating to MVPDs (DBS and others).

The major DBS-specific provisions of STELAR include:

Five More Years for STELA.The principal purpose of STELAR is to extend provisions of STELA, and, in particular, the exemption enjoyed by DBS operators from having to obtain retransmission consent for the carriage of distant network signals to “unserved households”. STELAR extends those provisions five years beyond their current expiration date of December 31, 2014.

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Finally Bringing Broadcast Contest Rules into the 21st Century?

Three years in the making, a notice of proposed rulemaking would give the thumbs up to online contest rules.

Big News! The Commission has taken the unusual step of proposing a rule revision requested by broadcasters and of potential benefit to broadcasters, both TV and radio! The on-air contest rule – Section 73.1216 – is up for a long-overdue overhaul. And while there may be plenty to criticize in the FCC’s less-than-prompt attention here, let’s not focus on that just now. Instead, let’s take a look at how the Commission figures to make broadcasters’ lives a little better.

As we have reported previously, the contest rule requires (among other things) periodic on-air disclosure of all material elements of the contest. You can find some examples of the rule in action here, here and here. For many contests, that imposes a considerable burden on both stations (who must be sure to intone the rules on the air, often at auctioneer speed – or scroll them in infinitesimal print – regardless of how much that can interrupt program flow) and audience members (who have to suffer through the interruptions).

Nearly three years ago, Entercom filed a petition for rulemaking advancing an unquestionably reasonable proposal: instead of the over-the-air requirement, why not let broadcasters post contest rules on their websites (or, if a broadcaster doesn’t happen to have a website, on a state broadcast association site) for all the world to read whenever all the world happens to want to read them? As Entercom put it, this would be consistent with “how the majority of Americans access and consume information in the 21st century.”

The Commission is now on board with the idea.

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Flo and Eddie Take Their Siriusly Winning Ways to the East Coast

Sirius XM loses on public performance claims for pre-1972 sound recordings … again.

I’ve already written about two lawsuits – both in California – based on infringement claims arising from Sirius XM’s public performance of sound recordings created before February 15, 1972. (You can read those two posts here and here.) In both cases Sirius XM suffered adverse rulings. It remained to be seen, however, whether Sirius XM (and other potential defendants engaged in the digital transmission of “pre-1972” sound recordings) might be in trouble elsewhere.

The answer is (drum roll, please) “YES”.

The plaintiffs in one of the California cases – former Turtles Mark Volman and Howard Kaylan, better known to many by their noms de disque, Flo and Eddie – also sued Sirius XM in New York. And now Judge Colleen McMahon of the U.S. District Court of the Southern District of New York has joined her West Coast colleagues by taking a big step toward granting Flo and Eddie summary judgment on the liability element of their claim against Sirius XM. (If she concludes that summary judgment is the way to go, the case will proceed to a damages phase where a dollar figure can be attached to that liability.)

But Judge McMahon went a bit beyond the California decisions: her opinion may pave the way for judges in other states to hop on the bandwagon more easily, and it may also include a veiled warning for broadcasters as well.

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Update: Comment Deadlines Set in Two Wireless Mic Proceedings

Last month we reported on a couple of Notices of Proposed Rulemaking looking for possible solutions to the problems that the upcoming repack of the spectrum will cause to wireless microphone users and manufacturers in particular as well as other unlicensed users of the TV spectrum (who may include some wireless mic folks as well as white space device users). Both of those NPRMs have now been published in the Federal Register – here (for the wireless mic item) and here (for the more general item on unlicensed uses). Thanks to that development, we now know the deadlines for comments and reply comments in the two proceedings. For both, the comment deadline is January 5, 2015; replies are due by January 26. Comments can be filed through the FCC's online ECFS filing system. Use Proceeding Numbers. 14-166 and 12-268 for the comments in the proceeding dealing primarily with wireless mics; use Proceeding Number 14-165 for the proceeding dealing more generally with unlicensed uses.

Reminder: ALL DTV Broadcasters Must File Form 317 by December 1

If you’re broadcasting video in digital, we’re talking to you.

Attention, all DTV broadcasters! It’s that time of year again. Your Form 317 is due at the FCC by December 1. Since that’s the Monday following Thanksgiving weekend, you might want to start to focus on this now, before you get distracted by the holiday spirit.

Having trouble recalling just what Form 317 is all about? No problem. Form 317 is the “Digital Ancillary/Supplementary Services” Report on which you have to report whether, between October 1, 2013 – September 30, 2014, your DTV station provided any ancillary or supplementary services for a fee and, if so, how much revenue the station received. If you did provide any such services, then you’ve got to fork over five percent of the gross revenues you got from them (the payment to be accompanied by a completed Form 159, thank you very much.)

“Ancillary or supplementary services” include any services that are provided using the portion of a facility’s spectrum that is not needed for its required one free broadcast signal. Multiple video streams that are received free to the public are not considered to be ancillary or supplementary services.

The filing requirement applies to ALL digital broadcasters of television programming – commercial and noncommercial – including not only full service stations, but also TV translators, LPTV and Class A television stations, whether operating pursuant to a license, program test authority, or Special Temporary Authority. And it applies whether or not the broadcaster in fact offered any ancillary/supplementary services for a fee. Obviously, if you offered no such services, the report will be short and you won’t have to do any calculations or pay any money to the Commission – but, if you have a facility that is operating digitally to broadcast television programming, the FCC wants a Form 317 report from you, and it wants that report by December 1.

As has become an annual custom, in its public notice reminding one and all of the requirement, the Media Bureau darkly observes that failure to file “may result in appropriate sanctions”. Consider yourself warned.

As with most forms these days, the Form 317 must be filed electronically through CDBS. Also, keep in mind for planning purposes that only one station goes on each report. Thus, if you are a licensee with a number of digital translators, you’ll probably need to allow more time for filing.

Marriott Wants FCC Guidance on How Far Venues Can Go to Control Their Wi-Fi Networks

Petition for rulemaking follows $600,000 consent decree. Hotels, convention centers, universities, hospitals among those potentially affected.

Last month we reported that the FCC had whacked Marriott Corporation for a cool $600,000 for messing with guests’ Wi-Fi hotspots. (The hotelier had prevented guests at its Opryland resort from using their own hotspots by transmitting disabling signals to private hotspots, forcing them to pay what the FCC felt were exorbitant rates for the resort’s own Wi-Fi service.) The FCC’s theory was that Marriott was violating Section 333 of the Communications Act, which bars interference with lawful communications.

While Marriott appeared to have accepted its come-uppance willingly (by signing onto a Consent Decree), it turns out there was more to the story. While the consent decree was being negotiated, Marriott mustered some reinforcements and took the offensive. Last August, joined by the American Hospitality and Lodging Association and Ryman Hospital Properties, Marriott filed a Petition for Declaratory Ruling or, in the Alternative, for Rulemaking asking the FCC to clarify exactly what operators of large venues may do to protect the security and quality of their own Wi-Fi networks. The petition was filed on August 25, 2014, but it took the FCC nearly three months to invite preliminary comments on it. If you’ve got something to say about this, you’ve got until December 19, 2014 to do so.

The petition raises all kinds of alarms about what will happen if the FCC decides that unlimited operation of private Wi-Fi hotspots must be permitted, even on private property. For example, Bad Guys could set up a private hotspot with the same SSID (network name) used by a hotel network. With that, they could grab traffic from hotel guests and exhibitors who think, wrongly, that they’re attaching to the hotel’s network. From there, it’s a snap for the Bad Guys to snag commercial information, including credit card numbers.

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Upcoming FREE Webinar: Kathy Kleiman, Kevin Goldberg and Jon Markman on the Arrival of the New gTLDs

On the agenda: How to take advantage of the new Top Level Domains now coming available, and how to identify and avoid potential problems

As we have advised our readers repeatedly, new generic Top Level Domains are here, NOW, and more are coming online every day. And NOW is the time to learn about them: what they are, how to get them, how you can use them.

If you’re looking for an introduction into the brave new world of new gTLDs, here’s your chance. Internet gurus Kathy Kleiman, Kevin Goldberg and Jon Markman will be presenting a free webinar on Thursday, November 20, at 3:00 p.m. (ET) in which they plan to address such questions as:

  • What are new “Top Level Domains” and how will they change the Internet?
  • How can new gTLDs help your business stand out and attract customers?
  • What possible risks do you face from new gTLDs?
  • How can you protect your trademarks and existing domain names in the new gTLD environment?
  • What is the process (including likely costs) of taking advantage of new gTLDs?

The webinar is a production of Team Lightbulb. You can register here. Did we mention that it's FREE?

It's Almost December, 2014 - Do YOU Comply with the CALM Act?

The FCC’s rules contemplated waivers extending, at most, for two years. Those two years are just about up.

With December just around the corner, full power TV licensees and MVPDs should probably be checking their compliance with our old friend, the Commercial Advertising Loudness Mitigation Act (you probably know it as the CALM Act) and the related FCC rules.

When the FCC’s rules governing the “loudness” of TV commercials were first adopted, they were set to take effect on December 13, 2012. One-year waivers were available which, if granted, took the compliance deadline to December 13, 2013. One-year extensions of those waivers were also available; anybody who received such an extension has until December 13, 2014 – less than a month – to get with the program.

The two one-year waivers were expressly provided for by Congress in the CALM Act. But Congress also confirmed that the FCC retains its general authority to waive its rules if the public interest warrants. So theoretically, anybody currently facing a December 13, 2014 deadline may – and we emphasize may – be able to get a further extension.

But we wouldn’t count on it.

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CPB IG: Re-think Inclusion of In-Kind Trades for CSG/NFFS Purposes?

Low-profile Inspector General Report includes recommendation with potentially serious budgetary repercussions.

Noncommercial (NCE) stations that receive grants from the Corporation for Public Broadcasting (CPB) should pay attention to a recommendation made recently by CPB’s Inspector General (IG). She thinks it may be time for CPB to “evaluate the practicality” of continuing to allow CPB grant recipients include in-kind trades as part of the calculation of their grant amounts.

If this recommendation gets any traction, it could seriously rock the bottom line of many CPB grantees.

NCE stations receiving CPB grants rely on funding from various sources. Private support, in particular, is critical to a public station’s success. Such support can influence a station’s bottom line in two ways. First and most obviously, contributions are revenues which the station uses for continued operation. But second, private contributions are used in part to determine the size of the CPB Community Service Grant (CSG) that is made available to the station.

CSG amounts are based, in large part, on a matching principle pegged to the amount of private support each station raises in “non-Federal financial support” or “NFFS”. Not all forms of local support count as NFFS, and the CPB match is far less than 100% of a station’s NFFS. (For example, in Fiscal Year 2015, the CPB match starts at approximately 13 cents for every dollar in NFFS that a public television station reports it raised in Fiscal Year 2013.) But you get the idea: the more NFFS a station can show, the more CPB money may be made available.

NFFS is a statutorily defined term. (Check out Section 397(9) of the Communications Act if you don’t believe it.) NFFS can come in many forms, including: individual gifts (from viewers and listeners like you!); corporate underwriting; grants from private foundations and state or local governments; and in-kind support (e.g., donations of property, the use of property or professional services, and indirect administrative and occupancy support from an institution, like a university, that owns a public station).

The problem the IG found is stations aren’t correctly reporting the value of their in-kind transactions claimed as NFFS.

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Rural Call Completion Update: FCC Grants One, Tosses Four Petitions for Reconsideration

As we reported just about a year ago, the FCC adopted a number of rules to address the problem of rural call completion or, more accurately, rural call non-completion. Many calls placed to numbers served by small rural telephone companies don’t seem to make it to their destination. And that seems to happen especially when the calls are routed through “least cost” intermediate service providers who don’t take kindly to the high per-minute termination access charges imposed by many small telcos. In keeping with its priority goal of universal connectivity, the FCC adopted rules mandating that calls not be blocked, that carriers file quarterly reports on call completion success rates, and that a ring tone not be delivered to the calling party until the call has actually been connected to its destination.

Five petitions for reconsideration were filed and the Commission has now denied all but one of them.

In response to the one successful petition, filed by USTelecom and ITTA, the FCC has decided to exempt from call quality reporting requirements intraLATA toll calls that are: (a) carried entirely over the covered provider’s network or (b) handed off by a covered provider directly to a the terminating carrier or a terminating tandem switch. Some carriers don’t keep detailed records of such calls now, so the cost of reporting on such calls would likely impose significant new cost burdens. Since the benefit of reports on such calls would be limited, the scale balanced in favor of an exemption. The exemption does not apply to interLATA toll calls, even if they are directly handed off to the terminating carrier or tandem; the FCC said that the majority of on-net traffic is interLATA and will still be covered.

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Update: Last of the New Text-to-911 Rules Now Effective

Last month we reported that most of the rules adopted back in August to make text-to-911 service generally available took effect in October. As often happens, though, a small number of the new rules couldn’t kick in until the Office of Management and Budget gave them the go-ahead. That’s because those particular sections – Sections 47 CFR 20.18(n)(10)(i) and (ii), (n)(10)(iii)(C), and (n)(11) – are “information collections”.

Under the new rules, Public Safety Access Points (PSAPs) may voluntarily register when they are technically ready to receive text messages to 911. As PSAPs become text-ready, they may either register in the PSAP database (or, if the database is not yet available, submit a notification to PS Docket Nos. 10–255 and 11–153) or provide other written notification reasonably acceptable to a covered text messaging provider. To implement these requirements, the Commission seeks to collect information primarily for that database. Either approach will do the trick. (PSAPs and covered text providers may also mutually agree to an alternative implementation timeframe (other than six months). Covered text providers must notify the FCC of the dates and terms of the alternate timeframe that they have mutually agreed on with PSAPs within 30 days of the parties’ agreement.)

Additionally, some third-party notifications – to consumers, covered text providers, and the Commission – will need to be effective in order to implement text-to-911. The new rules provide for the collection of information about such notifications, which are essential to ensure that all affected parties are aware of the limitations, capabilities, and status of text-to-911 services.

According to a notice in the Federal Register, all these information collection rules have become effective as of November 14, 2014.

More on Getting Sued For Playing the Oldies

Sirius XM loses another ruling in California litigation about digital performance of pre-1972 recordings.

As I reported in September, Sirius XM (and, by extension, just about any other provider of streamed digital music) suffered a setback in a Federal District Court in California when the judge there ruled that performers have an exclusive public performance right to music they recorded prior to February 15, 1972. As it turns out, the news got worse for Sirius XM a couple of weeks later, when a California State Superior Court judge came down largely the same way.

As a result, Sirius XM, Pandora and other such services will likely be looking at a lot more liability for infringements as more pre-1972 artists join in the class action suit started by Flo and Eddie in California. While the outcome of the California end of that litigation doesn’t seem to be in much doubt – which is bad news for Sirius XM et al. – the chances of similar outcomes in other states is still up in the air, at least for the moment. Also up in the air: possible Congressional reaction.

For background on the issue of digital performance rights for pre-February, 1972 recordings, check out my earlier post about the Flo and Eddie case.

The more recent case doesn’t involve iconic individuals (like Flo and Eddie) as plaintiffs; it involves iconic record labels as plaintiffs.

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Paperwork Reduction(?) Act

A recent notice about DTV construction permit applications got us thinking about our old friend, the PRA.

Has the FCC changed the process for applying for DTV construction permits? Probably not, but a recent notice in the Federal Register seemed to suggest otherwise. It turns out, though, that the real story here is the hypnotic effect of the Paperwork Reduction Act (PRA).

The PRA – usually referred to as “hilariously named” here in the CommLawBlog bunker – is a pleasant vestige of the 1980s. It was intended to curb the wretched excesses of federal regulatory agencies. The idea was that, before an agency could impose a new paperwork burden on the public, the agency would have to take the time to quantify, and justify, the anticipated burden. The Office of Management and Budget (OMB) was appointed the final checkpoint on the regulatory assembly line to ensure that agencies were not overstepping.

This being Washington, the PRA process is more elaborate than might have been expected. The agency first devises the proposed “information collection” and determines who will have to submit the information and how much time it’s likely to take them. (While the former is generally easy for the FCC to pinpoint, the latter not so much. Example: Several years ago a Commission PRA notice advised that completion of a particular LPFM form was expected to take anywhere from one-seventh of a second (that would be 0.0025 minutes) to 12 hours. It’s hard to say which is more dubious, the accuracy of that estimate or its utility.)

The FCC then publishes that information in a nondescript notice in the Federal Register, giving anybody who wants to comment a generous 60 days to do so. Following that period, the FCC packs up the proposed form and any comments received, slaps on an explanatory cover memo, and ships the whole shooting match over to OMB, which then issues its own nondescript Federal Register notice soliciting a second 30-day round of comments. OMB then dutifully reviews any comments that roll in and, in nearly all cases, rubber-stamps the form.

Which brings us to DTV CPs.

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