2015 Regulatory Fees Proposed: Stability Reigns (At Least For Now)

Just in time for the Memorial Day weekend, the FCC has released its proposed regulatory fees for 2015. Now we all have something to mull over during all those boring parades, fireworks shows, baseball games and cook-outs. Lucky us!

As usual, the proposed fees are set out in a Notice of Proposed Rulemaking (NPRM ) in which the FCC solicits comments on the proposals, as well as some other incidental matters relating to the fees. While the final figures (usually adopted in July or early August, payable in late August or September) may vary here and there from the proposed fees, generally any changes can be expected to be minor. Still, the NPRM gives one and all an opportunity to comment on the proposals before they get etched in stone (although many may question the utility of trying to sway the Commission on the fee front).

For TV folks, reg fees appear to be stabilizing. Prior to last year, you may recall, the Commission had two separate TV fee schedules, one for VHF, the other for UHF. That differential treatment was tossed out in 2013 (effective with the 2014 reg fees). That led to some rough water on the UHF side – and smooth sailing on the VHF side – last year: VHF licensees noticed a substantial drop in their fees (as much as 48% for some), while UHF licensees suffered a major uptick (running from 15% to 30%). This year the proposed TV rates are proposed to remain largely where they were last year, with only modest (1% - 4%) increases. The only exception: FM/TV Translators and boosters and LPTV licensees, whose fees will go up 6% -- but, since last year’s fee was only $410, that amounts to only a $25 hike to $435.

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This Should Get Your Attention III: iHeart Whacked for $1 Million for Misuse of EAS Tones

A one-time only broadcast leads to a “multi-state cascade” of false alarms … and a big penalty

We have previously reported on the FCC’s crackdown on the misuse of EAS tones, a crackdown that has thus far resulted in more than $2.5 million in penalties. No, wait – make that more than $3.5 million, thanks to a Consent Decree by which the Commission has extracted a cool $1 million from the coffers of iHeartCommunications for yet another violation of the Commandment Against Non-Emergency EAS Broadcasts.

Unlike previous instances in which the EAS tones were improperly used in advertising (presumably to get the audience’s attention), this time the problem is the fault of syndicated radio host Bobby Bones. In October, 2014, Mr. Bones was engaged in “commentary” about an interruption in his viewing of Game 2 of the World Series. Apparently the cable system on which he had been watching the game ran its monthly EAS alert during the game, presumably to Bones’s displeasure. While we didn’t hear the broadcast, we’re guessing that, to illustrate just how annoying and disruptive an EAS alert can be, Bones played the EAS tones – but not the tones as they were heard during the baseball game. Instead, he used a recording of the EAN Event code from the November, 2011, nationwide EAS test.

The mere broadcast of the tones in a non-emergency context would ordinarily have been enough to fetch a hefty fine. (Anyone who doubts that should take a quick look at Section 11.45 of the Commission’s rules). But there was more. Bones’s show is carried on more than 70 stations. A number of EAS participants downstream from those stations didn’t have their own EAS gear set to recognize the November, 2011 date of the EAN Event code, so they responded as though it were a real live EAS message, which they dutifully retransmitted to other EAS participants further downstream.

The result: “a multi-state cascade of false EAS alerts”. Oops.

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Positive Train Control: Putting Spectrum to Use for the Safety of Life

The FCC plays an important, if little known, role in railroad safety.

In the aftermath of this week’s tragic Amtrak train derailment in Philadelphia, the issue of Positive Train Control (PTC) – previously a subject familiar only to relatively few – has burst into the public consciousness. PTC is a technology that likely would have prevented the accident had PTC been functioning in the Philly portion of the Amtrak line. While we here at Fletcher Heald & Hildreth are not railroad lawyers, we do know a lot about PTC, because PTC requires spectrum to function, and the FCC – an arena with which we are very familiar – is the go-to agency when it comes to spectrum. We have been working for a number of years with one of our rail carrier clients to obtain spectrum for implementation of PTC.

PTC systems are designed to monitor train activity, prevent train collisions and worker injuries, and enhance public safety. PTC is a spectrum-based technology: radio devices located onboard a train transmit and receive data to and from radio devices installed along the track and at network operations centers. The components of the system onboard each train automatically monitor the train's speed and location with respect to the area in which the train is authorized to travel. Through this complex flow of real-time information, PTC systems can manage track congestion and improve safety by imposing limits (e.g., speed, location) on trains while they are in motion. PTC is also designed to provide a wide range of additional safety-related functions: for example, it can continuously monitor and report train diagnostics, issue alarms (about, for example, broken rails and incorrect switch alignments), and monitor radio transmissions from “wayside” systems.

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Update: Net Neutrality Appeal Headed Back to D.C., For Sure

 We recently reported that the destination of the appeal of the FCC’s “Open Internet” decision might be up in the air because parties had sought review in three different U.S. Courts of Appeals. That would normally mean that a random drawing would have to be held to determine which Circuit would get the nod. But the FCC was taking the position that an earlier drawing – in which the D.C. Circuit had been selected – should control, even though the FCC was simultaneously arguing that the appeals that had triggered that earlier drawing were fatally premature and should be tossed.

Potential crisis averted! The two petitioners who went to non-D.C. Circuits have now advised their respective Circuits that they’re cool with having their appeals transferred to D.C. Those would be Alamo Broadband, Inc. (which filed in the Fifth Circuit) and a group of four petitioners led by Full Service Network (which filed in the Third Circuit). That appears to eliminate any lingering question of venue, so all concerned should now be able to focus on the merits.

Oh, wait, we forgot to mention the stay requests.

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Announcing FCC Boot Camp

Three-day program in San Francisco will feature FHH’s Harry Cole along with other eminent FCC practitioners providing insight into All Things FCC.

Attention, all you Friends of CommLawBlog!

If you’re looking for an excuse to travel to San Francisco in late June, look no further. The American Conference Institute is presenting an “FCC Boot Camp” program there from June 22-24. And CommLawBlog’s own Harry Cole will be among the featured speakers.

The curriculum covers a wide range of topics, from the basics of FCC jurisdiction and the Commission’s role in various regulatory areas to helpful practice tips and even a “Master Class on Net Neutrality, Politics, Policies and Rules”. You can learn about the Commission’s enforcement procedures, equipment authorization process, spectrum policies, interactions with other state and federal regulators, and more. Harry’s presentation will focus in particular on the FCC’s regulation of video services, from traditional broadcasting to cable and satellite. He’ll even take a look at the proposal to redefine MVPD to include Over-the-Top providers. (For a copy of the official brochure with all the details, click here.)

Joining Harry on the faculty will be more than 20 other eminent practitioners ready to provide attendees a strong working knowledge of core FCC competencies. If you’re looking for a good way to immerse yourself in All Things FCC with a top-notch roster of presenters ready to make that immersion as useful (and as painless) as possible, this FCC Boot Camp should be ideal.

And get this: CommLawBlog readers can get a $200 break on the registration. Just click on this link to get to the official registration site and enter your special Priority Service Code (that would be 774L15.S) and your Special Discount Promo Code (that would be FHSPK), and claim your $200 discount! (You can also register by phone at 888-224-2480.)

Beyond that, we’ll be sure that Harry brings along a supply of our much-coveted CommLawBlog sunglasses. He’ll totally hook you up with a pair if you ask.

Update: FCC Officially Releases Pre-Auction Technical Certification Form, Reminds TV Licensees of Pre-Auction Licensing Deadline

Our regular readers know that the FCC has developed – and obtained OMB approval of – Form 2100, Schedule 381. That’s the form that will have to be completed and filed, at some point in the upcoming months, by (a) all full-power and Class A TV licensees entitled to mandatory protection in the upcoming incentive auction as well as (b) those with Commission-afforded discretionary protection.

Schedule 381 started to take shape last December, when the FCC sought comment on it – even though the draft of the form about which comments were sought was a bit hard to track down. (When we managed to get a copy of the draft, we provided a link to it for everybody’s ease of access.) As we reported last month, the Office of Management and Budget signed off on the form in late March, but still the only available copy of the form appeared to be the Word version buried on OMB’s website.

That’s changed. The FCC has now formally released Form 2100, Schedule 381. And it did so in connection with a public notice reminding full-power and Class A licensees of the upcoming May 29 Pre-Auction Licensing Deadline.

We, of course, had already reminded our readers of that deadline, but an extra heads-up never hurts. That’s especially true in view of the importance of both the May 29 deadline and the Certification Form. (Take a look at our last post on the topic if you’re unsure of what’s involved here.)

And we’ll take this opportunity to again urge anybody who expects to be filing Form 2100, Schedule 381 to review the form carefully NOW and to take any steps NOW that might be useful to insure that, when the time comes to file it, there will be no problems in getting it accurately completed and filed. The form will be due 30 days after the FCC releases its “Eligibility Public Notice” listing the facilities eligible for both protection in the repacking process and relinquishment in the reverse auction. That list will be based on the technical information on file in the FCC’s database as of May 29, 2015. While the precise date of the Eligibility Public Notice has yet to be announced, we do know that it’s expected shortly after the May 29 Pre-Auction Licensing Deadline, which obviously is right around the corner.

Consider yourself reminded.

Scamming Jammer Slammed ... Again

The FCC has reprised a 2011 Show Cause order, but with a difference

Whoa, déjà vu!

An Order to Show Cause and Notice of Opportunity for Hearing (Show Cause/HDO)issued last month may look eerily familiar to you. And it should, because it’s nearly a duplicate of an order issued more than four years ago. (We reported on the earlier order here.) Could there be a glitch in the Matrix?

No. Rather, it appears that there may have been a glitch in the way the FCC sent the 2011 order out to its intended target. Now, perhaps motivated by a suggestion included in one of our posts last year (we can dream, can’t we?), the Enforcement Bureau is trying a different approach to tag the culprit here.

That culprit is a manufacturer, Shenzhen Tangreat Technology Co., LTD. (STTC), located in Shenzhen, China. As we reported back in 2011, STTC manufactures and markets a device – dubbed the “TxT Stopper” – that is little more than a cellphone jammer. As we all know, jammers are illegal in the U.S., so the fact that STTC was apparently happy to ship TxT Stoppers to U.S. buyers got the FCC’s attention.

Upon further investigation, it turned out that STTC actually had an FCC authorization for the TxT Stopper BUT, in order to get that authorization, Shenzhen had inaccurately described the device as a “computer peripheral”. Once the Commission had figured out in 2011 that Shenzhen had, in effect, lied to get its device approved, STTC was directed to show cause why that authorization should not be revoked.

So why are we seeing a nearly identical Show Cause/HDO more than four years later?

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Update: One More Aspect of New AWS-3 Rules Now in Effect

Almost a year ago we reported that the then-new AWS-3 service rules had become effective except for a handful of sections that couldn’t kick in at that point for various reasons. One of the sections that remained in limbo was Section 2.106, which added Fixed and Mobile allocations for the 2025-2110 MHz band to the Federal Table of Frequency Allocations. The hold-ups on that section? First, the total cash proceeds of the AWS-3 auction (which wrapped up in January, 2015) would have to meet the level specified in Section 309(j)(16)(B) of the Communications Act. Second, the Secretaries of State and Defense as well as the Chairman of the Joint Chiefs of Staff would have to certify to Congress that essential military capability would not be lost as a result of DoD’s surrender of the 1755-1780 MHz band for non-governmental use. (The certification would have to specify that alternative spectrum to be identified by NTIA and made available to DoD for its primary use would be an adequate replacement for the surrendered spectrum.)

Both conditions have now been met and, according to a notice in the Federal Register, Section 2.106 as amended last year is in effect as of May 12, 2015.

Police Body Cameras: Kevin Goldberg Takes a Stand, On the Stand

The Swami testifies in D.C.

One of the most hotly debated topics at the state and local levels around the country is that of police body cameras. Should they be used? If so, when should they be turned on and when should recording not occur due to privacy and other concerns? Since recordings made with police body cameras are public records, should they be accessible through state and local freedom of information or open records laws? What about the costs associated with collecting, maintaining, reviewing, redacting and releasing those recordings?

These and other questions are being thrashed out in more than 30 state legislatures and virtually every big city in the country, including the District of Columbia. In addition to moonlighting as the “Swami”, our own Kevin M. Goldberg is the President of the DC Open Government Coalition, a non-profit organization which focuses on improving both public access to government information and the transparency of government operations in D.C. Kevin testified in that capacity on the topic of police body cameras at a public roundtable convened by the D.C. Council’s Committee on the Judiciary on May 7, 2015.

We expect that many, if not most, of our readers are interested in the body camera issue, so we thought we should make Kevin’s written remarks available. You can find them here. There’s also a link to an on-demand stream of the video of the May 7 roundtable here, but head’s up – we couldn’t get it to work. (Because we couldn’t view the official video, we couldn't get a screen grab of Kevin in action, so for our graphic, above, we’re relying on a shot of Kevin on the JumboTron taken during his appearance.)

Quo Vadis, Net Neutrality?

Appeals, reconsiderations, judicial lotteries – there’s never a dull moment when it comes to net neutrality.

Just because the FCC finally released its behemoth Report and Order (R&O) in the net neutrality proceeding last month, don’t think that the fun and games are over. Not by a long shot.

Au contraire, the battles rage on … and they will soon be waged in two separate arenas, the FCC and one or another U.S. Court of Appeals. As might be expected, we’re already seeing new twists and turns that may further complicate an already complicated proceeding.

When the FCC releases a decision, folks unhappy with the decision generally have two obvious options: they may go back to the FCC and seek reconsideration, essentially trying to convince the Commission to change its mind; or they can run to an appropriate U.S. Court of Appeals, in which case they are asking the court to tell the FCC that its decision was in some way(s) flawed. In a rulemaking proceeding (like net neutrality), it’s not unusual for some disgruntled parties to take one approach which others take the second approach.

And that’s the way things seem to be shaping up here.

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In Search for Copyright Relief, Pandora Opens Box of Ownership Requirements

Alien ownership conditions imposed on Internet radio service when it tries to buy small-town radio station

This is the story of how Pandora, in an effort to cut its copyright royalty costs, managed to saddle itself with a complex array of ownership reporting requirements designed by the FCC to keep Box Elder, South Dakota safe from aliens. It’s a true story.

Pandora, of course, is the prominent Internet music streaming operator. Since its business consists of transmitting recorded music digitally, it’s on the hook for a lot of copyright royalties payable, through ASCAP, BMI and SESAC, to the composers of the music it transmits. The precise rates it pays are generally subject to direct negotiation between Pandora and the performance rights organizations (PROs).

In contrast to Pandora and other streaming services that are limited exclusively to Internet distribution, radio broadcasters do not have to negotiate individually with respect to royalties. Rather, broadcasters’ rates are set industry-wide through negotiations between, on the one hand, the Radio Music License Committee (RMLC) acting on behalf of broadcasters and, on the other, the various PROs. (The federal courts are also involved in the process to a degree.) Those negotiations have been good for traditional over-the-air broadcasters, who as a result pay lower royalties for their own digital transmissions than do Pandora and other Internet-only services. And those lower rates apply even if the broadcaster’s stream(s) carry content other than what the broadcaster is sending over-the-air.

Pandora has been involved in acrimonious negotiations, and even litigation, with ASCAP regarding its royalty rates. But then it had an idea: why not take advantage of the attractive over-the-air broadcaster rates by simply becoming a broadcaster?

And so it was that Pandora came to Box Elder (pop. 7,800), where the only local radio station in town was for sale.

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FHH Plays Host to Local Student Through Shadow Day Program

FHH had the pleasure of participating in Thurgood Marshall Academy’s Shadow Day Program, which provides students from the D.C. Charter School the opportunity to meet with local attorneys and get a sense of what being a lawyer is all about. We were visited by sophomore Christina Price (pictured at the left, sporting her CommLawBlog shades), who spent the day with FHH attorneys, watching us work. It wasn’t all boring; Christina was also treated to a primo viewing spot on the rooftop patio of our building where she could see the Arsenal of Democracy Flyover in honor of the 70th Anniversary of V-E Day. 

Christina is interested in going to law school, but she’s got lots of other interests as well that might win out.

Thank you to Christina for coming to visit, and to the folks at Thurgood Marshall for including us in their great program!

FCC Seeks 411 on LTE-U

Making good on the Chairman’s promise, the FCC is looking for input into Unlicensed LTE and LAA.

As we recently reported, when the Commission created the new Citizens Broadband Radio Service which will use the 3.5 GHz band, Chairman Wheeler promised to open a separate docket in which folks could “file their perspectives” on LTE-Unlicensed (LTE-U) and Licensed Assisted Access (LAA) technology. And sure enough, the Office of Engineering and Technology and the Wireless Telecommunications Bureau have promptly issued a Public Notice (PN) seeking comment on “current trends” in that technology.

LTE-U/LAA presents one of the most controversial aspects of the future unlicensed use of the 3.5 GHz and 5 GHz bands. That’s because LTE-U/LAA is designed to use some of that same spectrum, spectrum which is viewed by Wi-Fi proponents as vital to handling ever increasing Wi-Fi traffic.   

The PN seeks information on LTE-U/LAA “technologies and the techniques they will implement to share spectrum with existing unlicensed operations and technologies such as Wi-Fi that are widely used by the public.” 

The PN suggests ten topics for comment, including:

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Sunrise for .SUCKS

The new top level domain that many love to hate is now available to registered trademark holders – but pretty soon it’ll be open to everybody else.

We told you to expect it, and now it’s happening: new generic Top Level Domains (gTLDs) are becoming available almost daily. (Fuzzy on gTLDs? Check out our post from last year for more background.) Now would be a good time for businesspeople to focus on the new gTLD that many love to hate – .SUCKS.

Dot-SUCKS is currently in its “Sunrise Period”. That’s important if you’ve got a registered trademark, because that means that you’ve only got until May 29, 2015 to take advantage of your rights as a registered trademark holder. The “Sunrise Period”, of course, is the time during which trademark owners who have registered their marks in ICANN’s Trademark Clearinghouse can get first dibs on registration of their mark in the .SUCKS domain. After the Sunrise Period closes (on May 29), registrations will be on a first-come/first-served basis and your trademark registration won’t necessarily help you out if somebody else – a competitor, a disgruntled former employee, an unsympathetic consumer advocacy group, etc., etc. – happens to get in line ahead of you.

So if you (a) hold a registered trademark and (b) want to keep anybody else from signing up for “[Your Trademark].SUCKS”, NOW is the time to act. Don’t worry, you won’t be the first. Far from it: a convenient ticker running on the website of Vox Populi Registry (the folks who run the .SUCKS registry) indicates that the following big names have already signed themselves up: XBOXLIVE, GUITARCENTER, CITIBANK, PLAYTEX, WALMART, UNDERARMOUR, VISA, TUPPERWARE, among lots of others.

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Public Inspection File Rule: The FCC Asks (Again) If It's Really Necessary

Thanks to the Paperwork Reduction Act, the public file rule is out for comment … again

The Paperwork Reduction Act strikes again! As we all know, the PRA requires the FCC to get clearance from the Office of Management and Budget for “information collections” the FCC wants to impose on its regulatees. OMB clearances have a shelf-life of three years, meaning that the Commission has to truck on back to OMB every three years to re-up previously issued clearances.

Those of you with reasonably long memories may see where this is heading.

Three years ago was when OMB last approved the Commission’s local public inspection file (and related political file) rules for broadcast and cable operators. (Those rules may be found at §§73.3526, 73.3527, 73.1943 and 76.1701.) And sure enough, the FCC has now solicited comments on those rules yet again as part of the process necessary to secure another three-year OK from OMB.

We reported on the 2011 proceedings back when they first got started. You may want to take a look at that report, because not much has changed this time around. The Commission is again inviting comment on several boilerplate questions, including:

(a)    whether the public file rules are “necessary for the proper performance of the functions of the Commission, including whether the [collected] information shall have practical utility”; and

(b) whether the Commission’s burden estimate is accurate.

As to that “burden estimate”, the numbers continue to amuse and amaze. Recall that in 2011 the Commission estimated that 52,285 respondents (providing a total of 52, 285 responses) would require anywhere from 2.5-109 hours to comply with the public file rules, resulting in a “Total Annual Burden” of “1,831,706” (the 2011 notice didn’t put any units on that total burden estimate, but we figure it probably referred to hours) and a “Total Annual Cost” of (are you sitting down?) “none”.

This time around, the corresponding estimates are: 24,558 respondents (providing a total of 63,234 responses); one hour to 104 hours per response; “Total Annual Burden” – 2,375,336 hours; “Total Annual Cost” – $882,236.

If these numbers look a bit odd to you, join the club.

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