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

FCC adopts 307(b) “Tribal Priority”, other incentives for Native American radio proposals, but defers overhaul of basic 307(b) analysis

As we reported back then, in April, 2009, the Commission issued a sweeping set of proposals designed to re-vamp the AM/FM allotment processes. The overhaul seemed primarily intended to instill order into the chaos that had become (and largely remains) of Section 307(b) analysis. A crucial secondary aim was to stem the seemingly inexorable movement of radio stations out of rural areas and into more densely populated areas. After devoting the first half of its Notice of Proposed Rule Making to those proposals, the Commission used the second half to toss in a laundry list of far less ambitious suggestions.

On February 3, the Commission issued a First Report and Order and Further Notice of Proposed Rule Making in which it grabbed the low-hanging fruit but declined – at least for the time being – to take on the more complex and controversial Section 307(b) issues. The primary beneficiaries of the changes that were adopted will be Native American Tribes, for whom the Commission has tried to clear a path toward easier acquisition of radio stations on tribal lands.

Here’s the scoop.

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NFL backs off trademark claim to "Who Dat"

We weren’t the only ones who weighed in on the NFL’s questionable decision to claim trademark rights in “Who Dat”. As we reported, Senator David Vitter was all over the issue like a cheap suit, as was Louisiana Governor Jindal and his Attorney General Buddy Caldwell, according to reports here and here (among others). And the winners in the beat down are: common sense, reason, the Who Dat Nation, and just about everybody but the NFL.

Of course, the NFL couldn’t just cowboy up and fess up to a mess up. No, it sniffed that it wasn’t really trying to stop the widespread use of “Who Dat” – rather, it was just trying to prevent use of that phrase “only if a Who Dat item also contained NFL or Saints trademarks or if it is falsely claimed that an unauthorized item is affiliated with the Saints or NFL”, according to an MSNBC report.

Wait a minute. The Wall Street Journal’s WSJ.com reported that in late January the NFL had filed in Florida to register (under Florida’s local trademark laws) the expression “who dat” on apparel. And the Journal quoted the NFL’s blunt instrument cease-and-desist letter as saying that using “who dat” is likely to “confuse the purchasing public into believing” that items with the slogan are sponsored by the NFL. The Journal also quoted an NFL rep as saying that for 20 years the NFL has been “using and enforcing its rights in the ‘who dat’ mark to refer to Saints football”.   So the latest spin they’re trying to apply to their problem appears to be, well, spin.

Be that as it may, reason has apparently prevailed here, so now we can get back to the matter at hand: getting ready to stuff ourselves beyond belief on food and alcohol while a bunch of overly large men beat each other senseless.

And, we’ll remind you yet again, that the NFL does have a valid, registered trademark in the term “Super Bowl” and will, if prior experience is any indication, continue to prosecute unauthorized uses of that term to the fullest extent possible.

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S.2881 would assure tech advisor slot in each Commissioner’s office

Way back in the day, each Commissioner enjoyed not only an in-office lawyer (dubbed “legal assistant”), but also an engineer to help guide the Commissioner through the technical arcana that necessarily inform most FCC decisions.  Somewhere along the line, what with belt-tightening and all, the “engineering assistant” positions got sloughed off.  As a result, the Commissioners – none of them engineers – have increasingly relied on the FCC’s Office of Engineering and Technology (OET) for direction on the technical nitty-gritty. 

That has not been a bad thing, by any means. Fortunately for us all, OET houses some of the most seasoned and well-respected engineers in the Commission.  Their shop runs efficiently, largely out of the public eye, and maintains an admirable level of consistency in engineering standards and practices.  Driven by physics, rather than politics, they do their job and do it well.

But look out.  There’s a move afoot on Capitol Hill to bring individual technical advisers back to the Commissioners’ offices.  Senators Snowe (R-ME) and Warner (D-VA) introduced a bill in December that would do just that. Under their bill, each Commissioner would be able to appoint “an electrical engineer or computer scientist” to provide the Commissioner “technical consultation”.  (The only catch is that the engineer/scientist would have to have an undergraduate or graduate degree “from an institution of higher education in their respective field of expertise”.

The proposal is no doubt born of the best intentions.  Warner wants to make sure the Commissioners have “access to the best information possible, from all relevant disciplines, and in a timely manner.”  Snowe wants each Commissioner to have “in-house technical expertise to make well informed regulatory decisions.” 

Hard to argue with that . . . except for the unstated assumptions – namely, that Commissioners do not already have timely access to expertise, and that additional staffing would automatically improve the pace and quality of the FCC’s decisionmaking.  Those assumptions may not be accurate.  To the contrary, the addition of personal “technical advisers” for each Commissioner could lead to the unnecessary politicization of technical issues, not to mention additional delay in resolving proceedings as more individuals get injected into the process.

Do we really need five separate assessments of each scientific/physical/technical conclusion – which, at least in theory, should not be open to much debate? Agreed, we all can dicker about the policy implications of data. But that’s what lawyers are for.  Generating, organizing, and presenting technical data in the first place – that’s OET’s job.

So while there may be some surface appeal to the Snowe/Warner proposal, it seems at least unnecessary and possibly counter-productive – particularly when the Commissioners have OET just one flight down.

At this point it’s impossible to reliably predict whether the Snowe/Warner bill will make it into law -- but you may want to start to spiff up your resume anyway, just in case.

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Dismissal of reconsideration request comes with qualified endorsement of open-source systems.

Someone – let’s call him Bob – wants to secure a room. But in Bob’s universe, there are no locks. So Bob invents one, and installs it. And realizes he has a huge advantage over would-be intruders. Only Bob knows how the lock works. So no one else knows how to pick it. Bob sets about keeping his lock design a secret.

Alice also needs to secure a room, and she also invents a lock.  Unlike Bob, though, Alice publishes her design – not the set-up for a particular key, of course, but the details of the overall mechanism.

Bob thinks Alice is nuts. Why tell people how your lock works? They’ll just pick it more easily.

Fine, says Alice, good luck keeping your design a secret. It’s going to get out, no matter what you do. And frankly, Bob, your lock probably isn’t all that great. Okay, neither is mine. Not yet. But now that it’s published, people will suggest improvements. Students will do Ph.D. dissertations on making it better. Companies will compete to develop stronger versions. And long after your design has leaked, and instructions for picking it are all over the Internet, my vastly improved lock will be far more secure. Even though everybody will know how it works.

Alice, in short, supports open-source systems. Bob favors what open-source fans deride as “security through obscurity”.

Software-Defined Radio

For the last few years, the FCC has been playing a Bob-like role. Not about mechanical locks, of course, but over security precautions for software defined radios (SDRs). Those are radios that can change their FCC-regulated properties – frequency band, power, bandwidth, modulation, etc. – under software control.

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The NFL illustrates our point, again.

A couple of days ago we ran our annual alert about the fact that some folks – large professional sports organizations in particular – seem to be trying to take control of our language by registering as trademarks just about every word or phrase in sight . . . and then telling us we have to pay to use those words and phrases. For those who may not have believed us, check this out: reports out of New Orleans indicate that the NFL is claiming that “Who Dat” – long the catch-phrase of the Super Bowl-bound (oops, make that Super Bowl ®-bound) Saints, and before that a staple of minstrel shows and vaudeville acts back into the 1800s – is a registered NFL trademark. 

According to those reports, the NFL has gone after local Big Easy tee-shirt vendors, trying to get them to stop selling their own home-grown “Who Dat” tees. Seems a bit heavy-handed, particularly in view of the hard times folks in N’awlins have suffered in recent years. (That’s what Senator David Vitter thought, at least. He fired off a letter to the NFL advising that he is printing up, for sale, a bunch of tee shirts emblazoned with the message “WHO DAT say we can’t print Who Dat!” His message to the NFL: “Please either drop your present ridiculous position [asserting control of “Who Dat”] or sue me.”)

“Ridiculous” seems about right to describe the NFL’s practice of going after local business owners for something like this. That’s especially so when any rational person would understand that this is one of those situations where you're better off cultivating support for one of your more hard-luck franchises, even if it costs you a few bucks here or there.  

But for our purposes here at CommLawBlog.com, it helps us make our point: if the NFL is willing to swim against the tide of goodwill that’s flowed into New Orleans since Hurricane Katrina, you should figure that the NFL will be perfectly happy to go after you for misuse of “Super Bowl” – darn, we messed up again – “Super Bowl ®”. Who dat ® say you haven’t been warned?

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Billions in broadband stimulus cash up for grabs – Deadline for applications: March 15, 2010

In the American Recovery and Reinvestment Act of 2009, known to some as the Gravy Train Act, but more generally known as the Stimulus Act, Congress allocated $2.5 billion to the Rural Utilities Service (RUS) and $4.7 billion to the National Telecommunications and Information Administration (NTIA). The money was to be doled out, in the form of grants or loans, to worthy projects designed to bring new or improved broadband service to America. As we reported last year, NTIA and RUS originally planned to make these awards in three tranches beginning in June, 2009 and ending before the September 30, 2010 award deadline imposed by the Stimulus Act.

Unfortunately, it’s harder to give out millions of dollars than you might expect. So far these agencies have managed to open only one application tranche, and have issued only a handful of grants.   Of course, they did get far more applications (2,200) than they had expected, which slowed things down. And the applications themselves required vast amounts of supporting data that was onerous in the extreme (the word “overkill” comes to mind) that had to be generated by the applicants and digested by the agencies. That slowed things down, too.

With the September 30 deadline fast approaching, each of these agencies has issued a second “Notice of Funds Availability” (NOFA) to distribute the remaining Stimulus Act funds for broadband projects.  Given the time constraints and the amounts of money already applied for, the third application window has been eliminated – meaning that this is the last opportunity to make a grab for any of this stimulus cash.    The deadline for filing applications for these funds is March 15, 2010. While applications can be submitted as early as February 16, there is no advantage in filing early other than beating the last minute rush.

Even if you are familiar with the NOFAs issued last year for the first tranche of funding, you still need to study these new NOFAs closely, because substantial changes have been made to the funding programs. Happily, many of these changes simplify what was universally understood to be an unnecessarily complex application process developed for tranche 1. Other changes relate to the prioritization of the awards.

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* (With a two-year contract. Fees may apply.)

You know those pesky penalties the cell phone companies impose when you cancel your service before the contract period has expired?  How they keep you from switching providers even when the service turns lousy or the competition offers a better deal? Or a better phone? To folks in the biz, those are referred to as Early Termination Fees (ETFs), and they’re back under the FCC’s microscope.

Cell phone companies offer deep discounts on the phone du jour, but only if the customer signs up for a one- or two-year contract, during which the company recoups the subsidy (and more) from monthly charges. Locking the customer into the contract is an ETF that can range up to $350. Worse, the ETF often remains at the full amount up to the last day of the contract period. Customers have complained their company charges the fee even when they move to an area the company doesn’t serve.

Back in December, we reported that the FCC had put Verizon’s ETF in its crosshairs after public outcry moved Congress to act, or to at least to threaten action. The FCC asked about Verizon’s customer notification policy on ETFs: what do the customers know and when do they know it?

Recently, the FCC widened its scope to include AT&T, Google, T-Mobile, Sprint, and another letter to Verizon. The first, Verizon-only, round of questions focused on how the consumer learns about the ETFs. Now the FCC is interested in how the ETFs are calculated, how they are applied to various phones and service plans, whether (and how) ETFs are prorated, and whether it possible for consumers to avoid ETFs altogether.

The companies’ responses are due by February 23, 2010.

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Not as momentous as the Julian-Gregorian shift, but changes you might want to note nonetheless

A couple of updates on comment deadlines that have changed since our last reports on the underlying proceeding:

Parental Empowerment – Back in November the FCC set comment dates in the “parental empowerment” inquiry. Those dates have since been extended. Comments are now due on February 24, and replies on March 26.

National EAS Test – And a couple of weeks ago we noted the issuance of an NPRM in which the Commission is proposing the establishment of an annual, nation-wide EAS test. The initial comment deadlines in that proceeding were announced on January 29: comments are due March 1, replies March 30.

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Our annual cautionary reminder about trademark protection

Hmmmm. Rumour has it that there’s some kind of important football game coming up in a week or so, down in Miami (the anglicized spelling is another nod to the fact that I don’t consider this “real football”). 

That means it’s time for the obligatory reminder that the term “Super Bowl ®” has been registered as a trademark by the NFL, so using the term without the NFL’s permission . . . yadda, yadda, yadda, serious financial penalties for infringement.

There’s a term for this type of recurring annual story in the journalism world: “evergreen”.   Rather than waste your time and ours, we’ll simply link to the story we posted on this issue last year.  Just substitute “Colts” and “Saints” for “Steelers” and “Cardinals”. The legal principles remain exactly the same.

We should also point out that the NFL is not the only organization which has managed to stake a claim to particular words or phrases that get considerable public attention periodically. For example, just over the horizon but closing in fast we have the “Olympics ®”, the “Oscars ®”, and the “FIFA World Cup ®” (you know, the real football). And there are lots more where these came from. Some trademark owners are more obnoxious than others about enforcing their rights in the mark against every little Tom, Dick or Harry – the NFL’s hard-nosed efforts along those lines are quasi-legendary. Still, the fact is that, by jumping through the trademark registration hoops, these folks have obtained the right to control the use of their marks to a significant degree. They have also obtained the right to sue anyone who infringes on their marks. You should contact us if you have any questions as to whether a term by which you might ordinarily refer to a major event – sporting or otherwise – is a registered trademark subject to these limitations.

The preceding has been brought to you as a public service by CommLawBlog ®.

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