Upcoming Webinar: Whither Aereo? (or should that be "Wither Aereo?")

As we all know, the Supreme Court issued its decision in the Aereo case two months ago – but that wasn’t the end of the matter by any means. The Court’s decision left a number of questions unanswered. And, as has been the case since it burst onto the scene, Aereo is nothing if not creative, which means that, despite its loss in the Supremes, it has not exited the scene by a long shot.

While maybe you took the summer off, our Aereo watchers, Kevin Goldberg and Harry Cole, did not. They’ve been keeping track of the fall-out following the Supreme Court’s decision, and they’re ready to bring you all up to date in a free one-hour webinar on September 10 at 1:00 p.m. (ET).

You can sign up for the webinar here. It’s a Team Lightbulb production.

NLRB Panel Likes "Likes"

To the likely dislike of companies who aren’t careful about their social media policies, NLRB holds Facebook “liking” can be “concerted protected activity”.

I’ve written a few pieces about the National Labor Relations Board (NLRB) and social media. For readers with short memories, the NLRB has held that, under the National Labor Relations Act (NLRA), an employee can speak out on a personal Facebook, Twitter, LinkedIn or any other personal social media account without fear of retaliatory discipline if the posting is “concerted protected activity” that is “not opprobrious” in nature. The term “not opprobrious” in this context is just a fancy way of saying “be civil about it”: don’t break laws, don’t harass others, don’t defame – just be professional.

And “concerted protected activity”? To fit into that protected category, the employee’s communications must be seeking to improve or otherwise affect the conditions of his or her employment. Also, they must be made with a clear intention to get others on board (as opposed to just venting, airing grievances, etc).   

I have previously noted that the NLRB’s policy accords employees rather broad freedom from disciplinary action while it imposes on employers wishing to impose some limits on their employees the obligation to write clear and somewhat narrow social media policies. But the cases we have looked at so far have involved fully articulated expressions by the employee.

A new NLRB decision takes us into new territory: Can simply hitting “Like” be considered “concerted protected activity”?

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Are Deferred Radio Renewals Headed for Hearings?

Audio Division may be considering designating some renewal applications for hearing, but practical considerations could, and should, make it think twice. 

Last February my colleague Howard Weiss reported on a decision by the Audio Division that boded ill for radio stations that had been off the air (or operating with inadequate power) for too much of the preceding license term. Faced with a renewal application in which the station had been off the air for approximately one-half of the term, the Division granted the station only a two-year “short term” renewal, instead of the standard eight-year term.

 That decision hinted that more stringent actions might be taken in some situations. And now we hear rumblings that the Division is indeed thinking seriously about putting license renewal applicants who were off the air for more than half their license terms into hearings to determine whether to renew or cancel their licenses.

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Upcoming Webinar: What You Need to Know About The Must-Carry/Retrans Consent Election Process

Attention TV licensees: MVPD carriage elections must be formalized by October 1 for carriage arrangements through 2017. Have YOU tied everything down yet?

With Summer, 2014 on the wane and Labor Day just days away, full-service TV licensees probably should already have a clear idea of the steps they’ll be taking to tie down cable and satellite carriage for the next three-year election term. But we’re guessing that some of you may still be a bit behind the curve.

Never fear.

On September 9, 2014 at 2:30 p.m. (ET), Fletcher, Heald will be presenting a free webinar on the ins and out of the must-carry/retransmission consent process.

The next three-year carriage term begins on January 1, 2015 – which means that must-carry/retrans elections must be formalized by October 1, 2014, barely a month from now. If you’re eligible to make an election but you haven’t wrapped things up already, this webinar is for you.

MVPD carriage is critically important for television broadcasters. It’s crucial that TV folks know what their rights are, including the upsides and the downsides of the available alternatives. And once you’ve figured out your target, you’ve got to know what steps you need to take and when (and how) you need to take them to insure that you achieve the results you’re looking for.

The webinar will be presented by FHH cable gurus Dan Kirkpatrick and Paul Feldman. They’ll  explain: the rights and obligations of broadcasters and cable and satellite operators under the FCC’s rules; what has changed since the last round of must-carry/retransmission consent elections; potential pitfalls and hidden concerns regarding carriage; and what the future of retrans may involve.

The webinar is free. You can register for it by clicking on the Register Now button below.

Last Minute Update: Reply Deadline in 5.8 GHz U-NII Proceeding Extended

Last month we reported that the FCC had announced deadlines for oppositions and replies to several petitions for reconsideration that had been filed with respect to recent changes to the rules governing the 5 GHz unlicensed band. The FCC received over 100 filings. The deadline for replies was today, August 25. But, apparently, that didn’t provide quite enough time to plow through the pile of paper, at least according to the Association of Global Automakers, Inc.The Commission agreed, but not until the middle of the afternoon on August 25. This is good news for anybody who had been thinking about filing a reply, but just hadn’t gotten around to it yet. The rest of you may disregard the extension and continue your end-of-summer activities.

In any event, replies to the oppositions that were filed are now due on September 2, 2014. Have a great Labor Day weekend.

Update: Reply Comment Deadline Extended in Net Neutrality Proceeding

The comment total is already past 1,100,000, but who’s counting?

Really, would it be possible to get too many net neutrality comments? As if.

So we’re pleased to report that the FCC has extended the deadline for filing reply comments by five days. The new deadline is September 15, 2014.

The original reply deadline was September 10, but the Commission was concerned because, as we all remember, the initial comment deadline got extended from July 15 to July 18 (because the Commission’s online filing system was, um, choking a bit on the volume of comments being filed). Since initial commenters got an extra three days, figured the FCC, reply commenters should get the same. And since a three-day extension would plunk the deadline onto a Saturday, everybody gets an extra two days, taking the deadline to the following Monday.

So if you were sweating about getting your reply wrapped up in time, you can totally chill.

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FCC Adopts ANSI C63.1-2013 for 1920-1930 MHz

FCC rule change adopts ANSI update that reflects 2012 FCC rule change.

The FCC continues to mop up the technical rules for Unlicensed Personal Communications Service at 1920-1930 MHz. An order in 2012 simplified those rules. Among other things, the FCC incorporated by reference into its code an American National Standards Institute (ANSI) standard governing certain measurement procedures in the 1920-1930 MHz band. The ANSI standard adopted by the FCC in 2012 – ANSI C63.17-2006 – has since been superseded by a later and greater version, ANSI C63.17-2013. And now an order from the Office of Engineering and Technology has substituted that later version into the rules in place of the earlier iteration. All the details of ANSI C63.17-2013 aren’t spelled out in the FCC’s rule – but if you’re seriously interested, you can get yourself a copy of ANSI C63.17-2013 here … as long as you’re willing to spend $113.00 for the privilege.

Update: Deadlines for Seeking Reconsideration, Appeal of Spectrum Auction Report and Order Set

Exactly three months after its adoption, the FCC’s Report and Order (R&O) setting the preliminary ground rules to cover the ambitious incentive auction and repacking of the TV band has now been published in the Federal Register. While this does not mean that the auction is imminent – the FCC is still hoping that it will happen next year – the Federal Register publication does set the effective date of some (but not all) of the rules adopted in the R&O. Perhaps more importantly, it starts the clock on a number of important deadlines.

First and foremost, the effective date of some of the new rules is October 14, 2014. But heads up, because that does not apply to §§1.2105(a)(2)(xii) and (c)(6); 1.2204(a), (c), (d)(3), and (d)(5); 1.2205(c) and (d); 1.2209; 2.1033(c)(19)(iii); 15.713(b)(2)(iv); 15.713(h)(10); 27.14(k) and (t)(6); 27.17(c); 27.19(b) and (c); 73.3700(b)(1)(i) through (v), (b)(2)(i) and (ii), (b)(3), (b)(4)(i) and (ii), and (b)(5); 73.3700(c); 73.3700(d); 73.3700(e)(2) through (6); 73.3700(f); 73.3700(g); 73.3700(h)(4) and (6); 74.602(h)(5)(ii) and (iii); and 74.802(b)(2). Those sections all involve “information collections” that must be run past the Office of Management and Budget (thanks to the Paperwork Reduction Act) before they can take effect.

Irrespective of the effective date, the R&O’s appearance in the Register establishes the dates for seeking reconsideration or judicial review.

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Update: Comment Deadlines in FM Class C4 Proceeding Extended

Last month we reported that the Commission had formally acknowledged the petition for rulemaking filed by SSR Communications proposing the creation of a new class of FM channel – Class C4 – to be shoe-horned in between current Class A and Class C3. Comments on the proposal were invited. The Media Bureau has now announced that the comment period has been extended a month, to September 18, 2014. Additionally, the deadline for replies to any incoming comments has been extended to October 3.

While a one-month extension isn’t necessarily the end of the world – particularly since the SSR petition was filed in January, 2013, some 18 months before the Commission deigned to acknowledge it, indicating that, as far as the FCC is concerned, time isn’t of the essence here – this particular extension could signal trouble for the proposal.

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Mitchell Lazarus, Back on the Tubes

Our colleague down here in the CommLawBlog bunker, Mitchell Lazarus, has popped up on the Internet, again. This time it’s in an interview on the RF Venue site. RF Venue is a company that produces a variety of accessories designed to make wireless audio systems work better, so it makes sense that they would be interested in interviewing Prof. Lazarus. He has, as they correctly note, “been instrumental in the regulatory approval of many essential wireless technologies, as well as the wireless audio industry’s evolution from an unregulated enigma to a recognized and important part of the wireless ecosystem.” Adding to the overall credibility of the folks at RF Venue is the fact that they also observe – without apparent irony – that Mitchell “blogs for the always fascinating CommLawBlog.” We’ll take that as a compliment and return the favor by suggesting that our readers check out Mitchell’s interview. Feel free to tell them we sent you.

Regulatory Weed-Whacking: The FCC Cleans Up its Antenna Structure Regulations

Nearly a decade in the making, FCC tower rules brought into the 21st Century

If you’ve got one or more tower structures, you may be in luck. The FCC has at long last taken a weed-whacker to Part 17 of its rules, a long-overgrown regulatory briar patch governing the construction, painting and lighting of antenna structures. While the substantive requirements remain largely intact, a number of procedural changes should make life at least a little easier for tower owners as well as the Commission’s Staff. At a minimum, the changes should make the rules easier for real people to grasp.

The only real question here: What took so long?

Tower Inspections. The current rules require that tower lights be monitored at least once every 24 hours, either by observation of the tower itself or through an alarm system that takes care of the process automatically. In addition, any automatic or mechanical control devices, indicators, and alarm systems associated with a tower-lighting system must be inspected quarterly to confirm that the gear is working properly. Some major tower owners have set up Network Operations Centers (NOCs) which are staffed at all times, have highly sophisticated equipment that sounds an alarm at any tower lighting malfunction, and stores records of all alerts. An alert is sent not only if the lights fail at a tower but also if the monitoring system fails. Historically, the FCC has granted several waivers of the quarterly inspection requirement to companies that have demonstrated that their NOCs are adequately staffed and equipped.

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Coming Soon: Online Public File Obligations for Cable, Satellite . . . AND Radio?

Media Bureau solicits comments on very recent petition for rulemaking – and expands inquiry beyond the petition.

Well, that didn’t take long . . . on a couple of levels. The Media Bureau has requested comments on a proposal to impose online public file requirements on cable and satellite operators. And the Bureau has gone the proponents one big step further by suggesting that radio stations as well should be posting their public files online.

The notion of online public files is, of course, of relatively recent vintage. Since August, 2012, TV stations have been required to post most of their public files to the FCC-maintained online system. Political file information was initially required to be posted only by Top Four network licensees in the top 50 markets . . . until July 1 of this year (yes, just a tad more than a month ago), at which time all commercial TV licensees joined the club. If you’re at all fuzzy on the history of the online public file, click here and just keep scrolling – we followed the whole process pretty closely.

Given the long gestation of the TV online public file, some observers (well, us, at least) expected that the FCC might let things settle down for a minute or two.

Surprise, surprise.

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What a Drag It Is . . .

Nearly 50 years I sat in my dorm room at Smith College (yes, Smith – it’s a long story), writing history papers while listening to Let It Bleed cranked up to 11 through my headphones.

Those were the days.

So it was more than a little sobering to read the first paragraph of a recent D.C. Circuit opinion. Written by Judge Janice Rogers Brown, the opinion in Stop This Insanity, Inc. v. FEC begins:

What does it say when your enfant terrible role model – Mr. Let’s Spend the Night Together, Mr. Sympathy for the Devil, Mr. “Let’s hire Hell’s Angels to be our security guards for $500 worth of beer” – has become source material for the D.C. Circuit, and “iconic” source material, at that?

For sure, it says that, as Mick knew all along, time was on his side.

For the rest of us, it says that getting old is . . . well, to borrow another Mick-ism, it’s a bitch.

But let’s put our hands together for Judge Brown. By dipping into the Stones songbook for a right-on reference that is immediately accessible, she demonstrated that effective legal writing does not require arcane Latin phrases or erudite polysyllables to get the point across. To the contrary, sometimes you need look no farther than your vinyl collection to come up with a righteous, and comprehensible, turn of phrase.

So here’s to you, Your Honor – you may not have blown our noses, but for sure, you blew our minds.

Update: Deadlines Set for Responses to Recon Petitions in AWS-3 Service Rules Proceeding

A couple of weeks ago we reported on the filing of two petitions for reconsideration of the adoption of rules governing AWS-3 service on 65 MHz of repurposed spectrum.  (We included links to the two petitions for those who might be inclined to read them.) A public notice reflecting those filings has now made it into the Federal Register. As a result, we now know the deadlines for oppositions and replies to the petitions: Oppositions must be filed by August 21, 2014, and replies are due by September 2.

Update: Some Cell Phone Unlocking Now Officially Legal

We recently reported that Congress had passed a bill designed to overrule a 2013 decision by the Librarian of Congress which severely limited the ability of cell phone owners to “unlock” (legally, at least) the software in their phones in order to move from one network to another. That bill has now been signed into law by the President, a development which FCC Chairman Wheeler promptly applauded.