CommLawBlog : Broadcast & Communications Lawyers & Attorneys : Fletcher Heald & Hildreth Law Firm : Telecommunications, FCC Regulation, Communications Act

Last month we reported on a Notice of Proposed Rulemaking (NPRM) looking to address the problem of contraband cell phone use in prisons. The NPRM has now been published in the Federal Register, which means that comment and reply comment deadlines have now been set. If you’re looking to chip in your two cents’ worth, you’ve got until July 18, 2013 to file comments, and until August 2 for reply comments.

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Pleading asks full Commission to reverse decision of three bureaus.

We reported in May that three of the FCC’s bureaus turned down, after five years, a Petition for Rulemaking from the Utilities Telecom Council and Winchester Cator, LLC that asked the FCC to open the 14.0-14.5 GHz band for terrestrial point-to-point and point-to-multipoint critical infrastructure communications. It is probably not a coincidence that the FCC, just a few days before the rejection, had proposed use of this same band for air-ground broadband systems to facilitate Internet service for airplane passengers.

UTC and Winchester Cator have now filed an Application for Review asking the full Commission to reverse the bureaus’ decision. Comments are due on July 1, 2013 and reply comments on July 11.

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Reply comments in the proceeding on 5 GHz unlicensed operation are now due July 24.

In February we reported on an FCC proposal that would not only add new 5 GHz frequencies but also overhaul – maybe even simplify – a confusing stretch of the rules. One possible upshot would be the opening up of 195 MHz of spectrum for Wi-Fi-type operation.

Comments were filed on May 28. The FCC has extended the date for reply comments, originally June 24, to July 24.

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Media Bureau announces LPFM filing window opening October 15 and closing October 29 (at 6:00 p.m. EDT); applications may be uploaded, but not filed, starting now

Attention all you LPFM wannabes. Mark your calendars, get your CDBS and FRN account information in order, stock up on NoDoz® and let the games begin – because the count-down has started. The Media Bureau has announced that, on October 15, 2013, the first LPFM filing window in more than a decade will be flung open, and will stay open until 6:00 p.m. (EDT) on October 29, 2013. The window will permit the filing of applications for new LPFM stations and major changes to existing stations. 

While applications can’t be filed until October 15, they may be uploaded to CDBS anytime between now and then – which gives would-be LPFM applicants plenty of time to undertake searches for channels and transmitter sites and prep their apps in anticipation of the opening of the window.

A few important threshold factors to keep in mind:

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Base forfeiture tripled because offender is a multi-billion dollar global enterprise.

Here’s another reminder to stay on top of the licensing paperwork. Especially if your company is successful.

A company called Remel, Inc. manufactures and supplies microbiology products for clinical, industrial, and research laboratories. Its corporate parent, Thermo Fisher Scientific, Inc., is a global supplier of analytical instruments, laboratory and diagnostic equipment, chemicals and reagents, and related products and services.

The companies, like many others, use two-way radios. They say their radio supplier told them, incorrectly, that the radios did not require an FCC a license. (Apparently this happens a lot.) On finding out that a license is in fact required, the companies turned the radios off and applied to the FCC for a license on a different frequency for a higher-powered radio, which the FCC subsequently granted.

The FCC remained concerned, though, about the period of unlicensed operation, which spanned some nine years. Moreover, a frequency the companies used over that time was allocated to the General Mobile Radio Service (GMRS), a service intended for use by individuals, not companies. GMRS radios are popular with families on camping trips, and the like. In fact, only individuals, and not companies, are eligible for a GMRS license.

Not many individuals bother, though. Our friends over at SpectrumWiki.com note that the fee for a GMRS license is many times the cost of the radio equipment, so that only a very small fraction of GMRS operators actually obtain one. (Our law partner Peter Tannenwald wishes it known that he shelled out the eighty bucks and is duly licensed.)

The FCC could have acknowledged that Remel and Thermo Fisher made an honest mistake and fixed it, and then let the matter drop, or possibly charged a small forfeiture. Instead it proposed a forfeiture of $30,000. The FCC also emphasized that Remel and Thermo Fisher, not being individuals, would not have been eligible for a GMRS license. This put the FCC once again in the odd position of imposing sanctions for failing to obtain a license that the FCC would not have granted.

The base forfeiture for operating without a license is $10,000. The FCC tripled that on the ground that Thermo Fisher is a “multi-billion dollar global enterprise” and so “should expect the assessment of higher forfeitures for violations.”

The takeaway: Check your licenses. Don’t ever believe your radio supplier. And prepare for extra penalties if your company makes a lot of money.

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A Supreme Court case offers a possible route to appealing a forfeiture without having to pay it first.

A pair of California raisin farmers might have made it easier to challenge an FCC forfeiture.

A party dinged with a forfeiture that it thinks is unfair now has two options under the Communications Act. One is to challenge the forfeiture order directly in the Court of Appeals. The problem with that approach is that, as a condition to getting into the Court of Appeals, the challenger must first pay the forfeiture. Since forfeitures can reach up into six and seven figures and, let’s face it, not everyone has that much spare cash lying around, that condition poses a serious disincentive to direct appeals.

The other option is to not pay the forfeiture and wait for the FCC (assisted by their friends from the Department of Justice) to bring suit in your nearest federal District Court. In that case, the burden is on the government to prove that you are in fact really liable for the forfeiture, which gives you an arguable advantage going in. But at least one appellate court has held that a party choosing this option is not allowed to raise the full panoply of defenses that might normally be available in challenging the forfeiture.

What does this have to do with raisins?

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Three petitions seek minor adjustments to rules.

The FCC’s order from last January expanding the scope of experimental licenses has drawn three petitions for reconsideration. Considering the broad reach of the order, the fact that only three were filed is a testament to the FCC’s foresight.

Sirius XM Radio and EchoStar Technologies, which provide satellite services to the public, seek a clarification and expansion of the term “emergency notifications,” the bands for which receive special protection from experimental licensees.

Medtronic, Inc., which develops medical devices, wants expanded eligibility for Medical Testing Experimental Radio Licenses to include all sponsors and sponsor-investigators as defined by the FDA, and requests a clarification that cost reimbursement for clinical trials is not a violation of the equipment marketing rules.

Our friend Michael Marcus of Marcus Spectrum Solutions LLC wants the “passive bands,” including those used for radio astronomy, made available to experimental licensees at frequencies above 100 GHz.

The FCC has put these on public notice. Comment due dates must await publication in the Federal Register. Watch this space.

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Citation issued to Florida motel serves as reminder of possible penalties for leaky cable systems.

 If you’re a school, or a hotel, or a hospital, or some other operation offering in-house cable TV service, you may be subject to a six-figure FCC fine, even though you might not think that you’re subject to the long arm of the FCC’s enforcement machine.  The Commission has been kind enough to issue us all a reminder of that – in the form of a “Citation and Order” directed to the Parkway Inn Motel in sunny Miami Springs, Florida. 

From its website you might not think the Parkway Inn (Motto: “Your Satisfaction is our Main Purpose”) would attract the FCC’s attention, but it did.  According to FCC inspectors, the Parkway’s video system was leaking big-time (in one case by a factor of more than 100 times the permitted level) on a couple of aeronautical frequencies.  Yikes!

As our faithful readers may recall, last August we reported on an FCC public notice warning “non-cable MVPDs” of their obligations relative to their useof aeronautical frequency bands.  The notice – issued in connection with three separate citations notifying, respectively, an inn, an elder care facility, and a rehabilitation hospital, that they were all in violation of the rules – was an effort to get the word out to other unsuspecting non-cable MVPDs.

The FCC’s notice, and our related post, apparently weren’t entirely successful, since not everyone got the message – at least the Parkway Inn Motel didn’t.

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Last month we reported on an FCC decision to allow the use of Auditory Assistance Devices for simultaneous language translation. That decision – which involved some technical rule changes as well as the expansion of permissible uses to include translation – has now been published in the Federal Register, which means that the effective date of the new rules has been established. That effective date is July 11, 2013.  Use of 72-76 MHz band devices for language translation will be permitted as of that date.  The technical rule changes -- which require compliance with tighter out-of-band emission limits -- will apply to new equipment certification applications filed on or after January 11, 2015, and to importation, marketing and installation on or after July 11, 2016.

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Last month we noted that the FCC (through its Office of Engineering and Technology) had requested comment on a white paper concerning technical standards for radio receivers, produced by its Technological Advisory Committee and entitled “Interference Limits Policy: The use of harm claim thresholds to improve the interference tolerance of wireless systems.” The basic idea is to add flexibility to the notion of “interference” from a nearby band.

The questions posed in the white paper are a matter of potentially major consequence. Probably because of that, three entities that have occasionally found themselves at odds on a number of substantive regulatory issues found common ground here, at least with respect to the need for more time to respond to the FCC’s invitation for comments: the National Association of Broadcasters, the Consumer Electronics Association, and the GPS Innovation Alliance filed a joint request for more time. 

That request has been granted. As a result, comments are now due by July 22, 2013 and reply comments by August 7.

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Despite the FCC’s efforts in its 2002 and 2006 quadrennial review proceedings to relax (or maybe even eliminate) its newspaper-broadcast cross-ownership (NBCO) prohibition, that prohibition is still alive and kicking after nearly 40 years. In the 2010 quadrennial the NBCO is again in the Commission’s sights. And now the Minority Media and Telecommunications Council (MMTC) has provided arguable impetus for the Commission to try to pull the trigger, again.

MMTC has submitted a specially-commissioned study entitled “The Impact of Cross Media Ownership on Minority/Women Owned Broadcast Stations” (Study). Prepared by well-respected BIA/Kelsey Chief Economist Mark Fratrik, the Study presents evidence that “the impact of cross-media ownership on minority and women broadcast ownership is probably negligible”. In other words, the Commission could probably dump the NBCO without having to worry about adversely affecting minority- or female-owned stations. Since the FCC’s 2002 and 2006 quad efforts were criticized (by, among others, the U.S. Court of Appeals for the Third Circuit) because of the Commission’s supposed lack of attention to minority/female considerations, the Study helps fill in that arguable gap.

Based on questionnaire responses provided by only a relatively limited sample of broadcast stations, the Study is, by its own terms, “not dispositive”. Still, in light of its sponsor and its author, it may be viewed as a significant contribution to the record.

The FCC has invited public input on the Study. Comments are due by July 22, 2013; reply comments by August 6.

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Location service company is deemed to have satisfied the requirement that it not cause unacceptable interference to unlicensed devices.

The FCC has authorized Progeny LMS, LLC to begin commercial operation of its Location and Monitoring Service (LMS) network. Progeny’s system uses part of the 902-928 MHz band, which is heavily occupied by unlicensed devices regulated under Part 15 of the FCC rules. The FCC action came over vigorous objection from the companies that make and use Part 15 equipment.

“So what?” knowledgeable readers will ask. After all, unlicensed devices always have to accept interference from licensed services like LMS.

Not quite always. When the FCC authorized LMS back in 1995, the 902-928 MHz band was already home to a very large array of unlicensed devices serving both consumers and industry. (Their number, variety, and importance have increased many-fold in the years since.) To ensure that LMS did not obliterate unlicensed usage, the FCC adopted a unique rule: certain LMS licenses are “conditioned upon the licensee’s ability to demonstrate through actual field tests that their systems do not cause unacceptable levels of interference to [Part 15] devices.”

Fast forward to 2011, when LMS licensee Progeny requested and was granted a waiver that permitted one-way service and the location of assets other than vehicles. The waiver grant re-triggered the field testing requirement. Progeny conducted four sets of tests and submitted the results to the FCC, which then duly requested comments about the results. Providers of unlicensed wireless Internet service and manufacturers of unlicensed automatic meter reading equipment – both of which require reliable operation – challenged the conclusions. They claimed the tests used too few unlicensed devices, non-representative devices, and conditions artificially rigged to understate interference.

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Open issues concern licensing, earth station technical requirements.

People who like to watch silly cat videos on airplanes no doubt were pleased with the FCC’s decision last December that regularized satellite service to and from aircraft in flight. No doubt even more pleased are the satellite providers, which now have access to a promising market: bored people strapped into their seats without much else to do.

Aircraft manufacturers, too, are enthusiastic about the prospect of the new service – at least, the folks at Boeing are. So much so that they have filed a petition for reconsideration and clarification “applaud[ing]” the Commission for its Earth Stations Aboard Aircraft initiative, but asking for several tweaks to the rules on licensing requirements and earth station technical specifics. Thanks to a notice in the Federal Register, we can tell you that comments on the requested changes are due on June 24, 2013 and reply comments on July 2.

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Back in April we reported on the FCC’s most recent foray into the thorny issue of health effects of radio waves. The FCC adopted minor tweaks to its existing rules, proposed further tweaks, and sought comments on broader issues, including the controversial question of whether the current radio-frequency exposure limits are safe, and if not, what they should be.

The document has now been published in the Federal Register, in two separate parts. The first part sets out the newly adopted rules; the second part poses the questions on which the Commission has requested comment.

Publication in the Federal Register establishes both (a) the effective date of the rule changes that were adopted and (b) the deadlines for comments on the out-for-comment questions. The adopted changes will become effective on August 5, 2013. Comments will be due on September 3, 2013, and reply comments on November 1.

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