Field Office Phase Out?

FCC Chairman on offensive for proposed Field Office closures – but will "tiger teams" really do the trick?

Word on the street (first reported last month by our friends at Radio World, as far as we can tell) is that the FCC’s Field Offices are on the budgetary chopping block: according to a memo reportedly circulating within the Commission (and co-authored by the Chief of the Enforcement Bureau and the Managing Director), the number of Field Offices would be sliced by two-thirds (from 24 to 8), and staffing would be cut almost in half (from 63 to 33). Field Offices in major cities – think Seattle, Denver, Boston, Philadelphia, Houston – would all be gone.

Ding Dong, the (Enforcement) Witch is Dead! Good news, right?

Not really.

Sure, visions of surprise inspections and write-ups for hypertechnical violations may plague the fevered imaginations of some, but the fact is that Field Offices are, and have long been, the friend of the licensed, street-legal operator. As a practical matter, voluntary inspection programs have largely removed the threat of drive-by, “gotcha” inspections. And while we may all chafe a bit at the occasional citation for a broken tower fence lock or unmown grass at the transmitter, such things tend to be rare, at least for licensees who are reasonably attentive to regulatory compliance.

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Intern-al Affairs III: The Interns Are Learning - and That May be Bad for You

Class drop-out tries to upset NBCUniversal settlement.

Spring break is fading in the rear view. Summer’s just around the corner. Soon the interns will be flocking to your door – if they haven’t already jammed your inbox – all looking for an opportunity to add a way cool media-related internship to their résumés.

So it’s a good time to remind you that you should think hard about whether you need to pay those interns instead of claiming that their “compensation” consists solely of school credit. I specifically use the word “compensation” and specifically put it in quotes because, if you’ve read any of our prior posts on this topic, you know that claiming school credit as interns’ compensation is a recipe for disaster. You’d be much better off if you were to take the time to study the Department of Labor’s Fact Sheet # 71: Internship Programs Under the Fair Labor Standards Act. That way you’re more likely to offer an internship program that falls on the right side of the “trainee/employee” line.

And being on the right side of that line is important, because being on the wrong side can be very expensive. Just ask NBCUniversal.

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OSHA Eyeing Possible Tower Worker Safety Standards

Injuries, fatalities to tower workers prompt inquiry into possible regulation.

Everyone in the communications industry must be concerned about the safety and well-being of the tower workers. Tower workers, quite literally, put their lives on the line to put up or keep up the towers that make communications possible. So we should all take notice that the Occupational Safety and Health Administration (OSHA) is considering whether it can, and should, take regulatory steps aimed at preventing injuries or deaths during tower work. In a formal Request for Information, OSHA has requested input that will help it figure out “what steps, if any, it can take to prevent injuries and fatalities during tower work.”

OSHA’s interest here is not new. As we reported last year, an OSHA official, prompted by a rash of fatal tower accidents in 2013, issued a letter reminding all “communications tower industry employers” of their “responsibility to prevent workers from being injured or killed while working on communication towers”. Now it’s delving deeper into the tower business, casting a regulatory eye on safe work practices, training and certification practices for communication tower workers, and “potential approaches [OSHA] might take to address the hazards associated with work on communication towers”.

Of course, a number of existing standards – developed both by OSHA and by other authorities – already apply generally to some aspects of the tower construction/maintenance process. (These include the “general duty to protect” workers imposed by Occupational Safety and Health Act.) But OSHA has no standards for comprehensive coverage of tower workers … not yet, at least.

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Wheeler to AMers: I've Got Your Revitalization Item ... Right Here

Action on AM rescue items may come soon, but things aren’t looking good for an AM-only FM translator window.

About 18 months ago, the Commission adopted a Notice of Proposed Rulemaking (AM Revitalization NPRM) that represented, in the words of then-Acting Chairwoman Clyburn, “the next significant step in our effort to buttress AM broadcast service and ease regulatory burdens on AM broadcasters.” Commissioner Pai, a long-time supporter of the AM industry, declared the NPRM a “landmark effort … to energize the nation’s oldest broadcasting service”. Optimism ran high that AM was about to catch a break.

Then things went quiet. We here in the CommLawBlog bunker have received a boatload of inquiries asking where the much-vaunted AM Revitalization proceeding stands. And now we have some idea: In a recent post on the FCC’s blog, Chairman Wheeler has announced that he “intends to conclude” this proceeding “in the coming weeks”.

There’s good news and bad news here.

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Attention, TV Licensees: The Pre-Auction Technical Certification Form Has Been Approved

One more step toward the incentive auction ...

Late last year we reported on a draft of Form 2100, Schedule 381. That’s the form (technical title: “Pre-Auction Technical Certification Form”) to be completed and filed 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. (Don’t worry if you’re not sure whether you’re in the universe of those who will have to file: the FCC is going to be releasing, possibly by the end of this summer, an “Eligibility Public Notice” spelling out the facilities that the Commission believes to be entitled to protection.) Schedule 381 is designed to provide the Commission assurance that the technical profile of the television industry as reflected in the FCC’s database is accurate.

The latest news: The Office of Management and Budget has approved Schedule 381, so the form is now technically “effective”. It doesn’t appear to have changed significantly since our December, 2014 report on the draft. You can check out a copy of the schedule on the OMB website.

The deadline for completing and filing Schedule 381 has not yet been set. It’s expected to be announced in the Eligibility Public Notice. Still, many if not most affected licensees presumably know whether or not they’ll be on the list. Anybody likely to be on the list would be well-advised to take a close look at the form – NOW – and begin to gather the necessary information. Some should be relatively easy – transmitter and antenna specs in particular. Other stuff, not so much. F’rinstance, do you know when the last structural analysis of your tower was performed? How about the structural standard under which that analysis was performed? (Hint: Two possibilities are TIA 222-Revision F and TIA 222-Revision G. There’s also a general “Other” option – you’re on your own for that one.)

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The Net Neutrality Order Has Hit the Federal Register!

Get your calendars out. It’s time to calculate the date by which petitions for judicial review of the FCC’s Open Internet Report and Order (R&O) must be filed. That’s because the event that triggers that calculation – publication of the R&O in the Federal Register – has now occurred.

Petitions for review of this kind of FCC proceeding are due to be filed within 60 days of the release of the agency decision. The date of “release” is the date of Federal Register publication, i.e., April 13. That means that petitions for review of the R&O by a federal appeals court must be filed no later than June 12, 2015. BUT if you’ve got your heart set on having the appeal heard by a particular circuit, you should definitely NOT wait until the last minute.

That’s because, if petitions are filed by different parties in different circuits, a lottery is conducted by the Judicial Panel on Multidistrict Litigation (JPML) to choose one of those circuits to be the court which will hear the appeal. And to get your preferred circuit’s ball into the JPML drum from which the random selection will be made, you have to file your petition with your preferred circuit no later than April 23 (i.e., ten days after Federal Register publication). And that’s not all. Once your petition’s been filed, you have to have a paper copy of it, showing the dated “received” stamp from the court, delivered to the FCC’s Office of General Counsel – also no later than April 23. (Since that latter copy has got to be in the hands of the General Counsel within that 10 day period, hand-delivery is the recommended approach.)

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Update: Comment Deadlines Set in STELAR Market Mod Proceeding

Last week we reported on the FCC’s Notice of Proposed Rulemaking (NPRM) triggered by the STELA Reauthorization Act of 2014 (STELAR). The NPRM has now been published in the Federal Register, which sets the deadlines for comments and replies. Comments may be filed by May 13, 2015 and replies by May 28. Comments and replies may be filed through the FCC’s ECFS online filing system; refer to Proceeding No. 15-71.

No Contest? Enforceability of Broadcast Contest Rule In Question

If you’re a broadcaster and you’re worried that you may have violated the on-air contest rule – or if the FCC has concluded that you did violate that rule – you may be in luck.

As we all know, the hilariously-named Paperwork Reduction Act (PRA) requires the FCC to get the approval of the Office of Management and Budget before the FCC can unleash “information collection” obligations on its regulatees. The PRA process – which provides not one, but two separate opportunities for public comment, thereby ironically doubling the potential paperwork to be created – often appears to involve little more than rubber-stamping, with no apparent attention paid to any public input that might be submitted.

What does this have to do with the FCC’s contest rule? Read on.

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Mitchell Lazarus Says Thanks

[Blogmeister’s Note: Our colleague, collaborator, frequent CommLawBlog contributor and, most importantly, friend, Mitchell Lazarus, has asked us to post the following item. It doesn’t address any of the subjects we usually cover here, but so what? It being all too easy for us to lose sight of our capacity to help one another, we think it’s right to pass along to our readers a reminder of the importance of lending a hand.]

I am writing from a hospital room, hooked up to a machine that delivers multiple chemo drugs into my veins. The dosage is high enough to kill my leukemia cells before they kill me. The problem is, that level of chemo also stops the “stem cells” in my bone marrow from supplying me with fresh blood cells. My blood counts will soon drop to near zero. This puts me into a non-survivable situation.

But I still expect to walk out of here in a few weeks. What will save me is an infusion of stem cells from an anonymous donor, somebody in a database who is a fortuitous ten-for-ten match with my cell type. This person has taken time out of his (or her) life to undergo repeated testing and get injected with medication to step up the production of his stem cells. By now my donor has spent a few hours hooked up to a machine that extracts the surplus stem cells, which will soon be couriered to my bedside – all to save the life of a person whose name he is not allowed to know.

I fervently wish I could tell my donor how much his contribution means to me. It is not likely he reads CommLawBlog. But other donors probably do, and their patients are as deeply thankful to their donors as I am to mine. Here in the hospital, patients talking about their donors almost always tear up in gratitude.

I am lucky; not every patient who needs a matching donor has one. Possibly you could be the donor who saves the life of a total stranger, with no compensation except the inconvenience. Start at this website. There can be no greater gift one human can give to another. To my own donor, whoever and wherever he is: I’ll never be able to pay you back, but I sure wish I could try.

STELAR Redux: FCC Launches Market Mod Rulemaking

Some old, some new standards likely for MVPD, satellite market modification proceedings, thanks to Congress

When you think of satellite TV, with its nation-wide reach, you may not immediately think of “local” service. But local service is an important element of Sat TV, and the FCC is now developing a way to tweak local TV markets for satellite carriage purposes.

Carriage of a TV station’s signal, whether by terrestrial MVPD’s or by satellite services (i.e., DISH and DirecTV), is dependent to a significant degree on the market to which the station is assigned. A station’s local market affects both its claim to mandatory carriage and the MVPD/satellite operator’s ability to take advantage of the compulsory copyright license. But the market to which a station is technically assigned by Nielsen – whose DMAs are used by the FCC to define TV markets for carriage purposes – does not always reflect the station’s actual audience. In order to insure the ability of stations to better serve their local communities, the Commission has long provided a process for “market modification”, a process by which a station’s community of license can be added to or deleted from a particular Nielsen DMA. But that process has thus far been available only with respect to cable carriage.

Now the FCC is proposing a market modification process for satellite carriage as well.

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Back from the (Near) Dead: New Life for FiberTower's Licenses, Thanks to the D.C. Circuit

Last gasp appeal comes up big, possibly saving 689 24 GHz and 39 GHz licenses.

If you took the long odds and bet against the FCC in FiberTower’s last gasp effort to keep its 689 licenses alive, lucky you! The D.C. Circuit appears to have given FiberTower at least a chance.

FiberTower’s saga goes back several years. Check out our blog posts on that saga for a more complete history. In sum, FiberTower had 689 licenses in the 24 GHz and 39 GHz bands that the FCC cancelled for failure to construct sufficient facilities. FiberTower appealed.

At first glimpse, the Court’s opinion looked like bad news for FiberTower. A statutory argument it presented to the Court got tossed immediamente because it hadn’t been presented to the FCC below, as required by Section 405 of the Communications Act. And FiberTower’s arguments about the FCC’s interpretation of its substantial service renewal standards – i.e., that that interpretation is bad policy – didn’t get very far either (thanks to the deference to which the FCC is ordinarily entitled).

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Net Neutrality Update: D.C. Circuit Selected in Initial Circuit Lottery ... For Now

Panel picks despite possibly premature petitions.

The next time you find yourself at a roulette table in the Net Neutrality Casino, put all your chips on “D.C. Circuit”. It’s a good bet.

As readers may recall, back in 2011, the D.C. Circuit came out on top in a lottery conducted to determine which of six federal courts of appeals should hear appeals of the FCC’s Open Internet decision. And now, nearly four years later, lightning has struck again, with the prospect for a three-peat in the very near future.

The lottery involves the Judicial Panel on Multidistrict Litigation (JPML). The JPML decides which court gets to preside over appeals of FCC actions when different appellants file their petitions for review in different courts. When that happens, the competing circuits are tossed into a drum and one is picked by a JPML official (the “Random Selector”). All appeals of the FCC action in question are then consolidated before that one lucky court. (There are other niceties that have to be attended to in order to get your favorite circuit into the drawing, but you get the idea.)

The Commission released its much-anticipated Open Internet Report and Order on March 12, 2015. And on March 23, two parties filed for review: the United States Telecom Association in the D.C. Circuit, Alamo Broadband in the Fifth Circuit. Presumably each had its own reasons for choosing its particular circuit. The D.C. Circuit has not been particularly kind to the FCC on the net neutrality front the first two times that issue has been before that Circuit, which suggests that maybe it’s the place for petitioners to go. But the FCC did, in the eyes of many, make some headway the last time around. That might suggest that petitioners shouldn’t give D.C. a third shot. Why the Fifth Circuit? Who knows?

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A First Look Inside the Net Neutrality Order

Our Internet guru digs deep into the Open Internet decision and comes up with … questions.

I recently posted an item summarizing the broad strokes of the FCC’s new “Open Internet” (a/k/a net neutrality) rules and policies. Since the full text of those rules, and the accompanying Report and Order (“R&O”), had not been released when my summary was prepared, I had to work from the then-available public notices from the FCC. Now that the R&O is out, I’ve had a chance to slog through its 360+ pages of dense text, which has led me to one obvious conclusion: the R&O raises as many questions as it attempts to answer. Let’s look at two of particular aspects of the FCC’s decision that give rise to some of those questions.

Extending full net neutrality obligations to mobile broadband: What’s the number?

Historically, when it came to broadband Internet service, FCC efforts to craft Open Internet rules and policies drew a clear line between (a) fixed/wireline providers and (b) mobile providers. Mobile providers were regulated far more lightly than their fixed/wireline counterparts because of a number of distinctions between the two. In particular, mobile broadband networks at the time featured less speed and less capacity, meaning that more intrusive traffic management was acceptable on the mobile side because it was, as a practical matter, necessary. Further, consumers enjoyed some measure of protection simply because there was competition among mobile providers.

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Update: Wireless Microphone Coordination Provision of Incentive Auction Order Now In Effect

As we all know, last June the Commission adopted its massive Report and Order setting out the rules for implementation of the spectrum incentive auction. The auction, of course, is one element of a major reorganization of the spectrum in which (among other things) television stations will be “repacked” into a narrower portion of the spectrum. The repacking affects more than just TV licensees. Wireless microphones and other licensed low power auxiliary stations (LPASs) are allowed to operate on unused TV channels on a secondary, non-exclusive basis, so reduction in TV channels reduces LPAS opportunities as well -- a special problem for wireless microphone users in congested areas.

Deep in the fine print of the magnum opus, the FCC – concerned about the impact that the re-pack will likely have on LPASs, and wireless microphones in particular – sought to ensure that LPAS licensees would have access to as many TV channels as possible post-repack.

One way to achieve that was to permit LPAS operation co-channel with TV stations at distances less than those specified in Section 74.802(a) of the Commission’s rules, provided such use was coordinated in advance. To that end, Section 74.802(b) was revised to read: 

Low power auxiliary stations may operate closer to co-channel TV broadcast stations than the distances specified in paragraph (b)(1) of this section provided that their operations are coordinated with TV broadcast stations that could be affected by the low power auxiliary station operation. Coordination must be completed prior to operation of the low power auxiliary station.

While portions of the incentive auction Report and Order became effective last October, the revised Section 74.802(b) did not because it had to be run through the Paperwork Reduction Act drill at the Office of Management and Budget. According to a notice published in the Federal Register. that process has been completed, OMB has given its thumbs up, and the revised Section 74.802(b) is effective as of April 1, 2015.

Another Month, Another Spectrum Auction - But This Time, With a Couple of Twists

Coming soon: Innovative auction to dispose of innovative spectrum.

The FCC has announced yet another spectrum auction. Ho-hum, right?

WRONG – this isn’t like any previous auction.

First, there’s the spectrum that’s up for bids. According to the FCC, bidders will be bidding on “newly-discovered” spectrum. It appears that the Commission has had a task force of its best engineers running elaborate tests at the Columbia, Maryland lab. Their quest: any and all spectrum that might have escaped everybody’s attention thus far.

The effort appears to have paid off, in spades, with the first new spectrum unearthed since James Clark Maxwell predicted radio waves in 1867. “It must have been lying there the whole time,” said an FCC engineer who requested confidentiality. “We just happened to look in the right place.”

Sources indicate that the spectrum about to make its debut is being referred to by FCC insiders as the “Bleen Band”, a tongue-in-cheek homage to social commentator George Carlin. The Commission is officially mum (apparently preferring to avoid rampant market speculation and potential legislative or judicial interference). But reports leaking from the Columbia lab say that Bleen Band spectrum has propagation characteristics ideal for a vast range of services, including broadcast, fixed and mobile wireless, radar, Wi-Fi, and those things that unlock your car from across the street. FCC sources say that signals on the Bleen Band “go forever”, “penetrate just about anything”, aren’t susceptible to any known atmospheric conditions, and require very little power.

In the words of one knowledgeable Commission insider, it’s “like El Dorado, the Fountain of Youth, desktop fusion and a perpetual motion machine all rolled into one, with an antenna – and a small antenna at that.” Despite these rave reviews, though, don’t count on any pre-auction guarantees of performance from the FCC. According to more than one Commission rep (all speaking on condition of anonymity), the agency’s usual auction-related disclaimers (“The FCC makes no representations or warranties about the use of this spectrum for particular services, yada yada yada”) will apply, but “just to make the lawyers happy”.

And how better to sell innovative spectrum than with an innovative auction format?

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