Update: Comment Deadlines Set in Two Wireless Mic Proceedings

Last month we reported on a couple of Notices of Proposed Rulemaking looking for possible solutions to the problems that the upcoming repack of the spectrum will cause to wireless microphone users and manufacturers in particular as well as other unlicensed users of the TV spectrum (who may include some wireless mic folks as well as white space device users). Both of those NPRMs have now been published in the Federal Register – here (for the wireless mic item) and here (for the more general item on unlicensed uses). Thanks to that development, we now know the deadlines for comments and reply comments in the two proceedings. For both, the comment deadline is January 5, 2015; replies are due by January 26. Comments can be filed through the FCC's online ECFS filing system. Use Proceeding Numbers. 14-166 and 12-268 for the comments in the proceeding dealing primarily with wireless mics; use Proceeding Number 14-165 for the proceeding dealing more generally with unlicensed uses.

Reminder: ALL DTV Broadcasters Must File Form 317 by December 1

If you’re broadcasting video in digital, we’re talking to you.

Attention, all DTV broadcasters! It’s that time of year again. Your Form 317 is due at the FCC by December 1. Since that’s the Monday following Thanksgiving weekend, you might want to start to focus on this now, before you get distracted by the holiday spirit.

Having trouble recalling just what Form 317 is all about? No problem. Form 317 is the “Digital Ancillary/Supplementary Services” Report on which you have to report whether, between October 1, 2013 – September 30, 2014, your DTV station provided any ancillary or supplementary services for a fee and, if so, how much revenue the station received. If you did provide any such services, then you’ve got to fork over five percent of the gross revenues you got from them (the payment to be accompanied by a completed Form 159, thank you very much.)

“Ancillary or supplementary services” include any services that are provided using the portion of a facility’s spectrum that is not needed for its required one free broadcast signal. Multiple video streams that are received free to the public are not considered to be ancillary or supplementary services.

The filing requirement applies to ALL digital broadcasters of television programming – commercial and noncommercial – including not only full service stations, but also TV translators, LPTV and Class A television stations, whether operating pursuant to a license, program test authority, or Special Temporary Authority. And it applies whether or not the broadcaster in fact offered any ancillary/supplementary services for a fee. Obviously, if you offered no such services, the report will be short and you won’t have to do any calculations or pay any money to the Commission – but, if you have a facility that is operating digitally to broadcast television programming, the FCC wants a Form 317 report from you, and it wants that report by December 1.

As has become an annual custom, in its public notice reminding one and all of the requirement, the Media Bureau darkly observes that failure to file “may result in appropriate sanctions”. Consider yourself warned.

As with most forms these days, the Form 317 must be filed electronically through CDBS. Also, keep in mind for planning purposes that only one station goes on each report. Thus, if you are a licensee with a number of digital translators, you’ll probably need to allow more time for filing.

Marriott Wants FCC Guidance on How Far Venues Can Go to Control Their Wi-Fi Networks

Petition for rulemaking follows $600,000 consent decree. Hotels, convention centers, universities, hospitals among those potentially affected.

Last month we reported that the FCC had whacked Marriott Corporation for a cool $600,000 for messing with guests’ Wi-Fi hotspots. (The hotelier had prevented guests at its Opryland resort from using their own hotspots by transmitting disabling signals to private hotspots, forcing them to pay what the FCC felt were exorbitant rates for the resort’s own Wi-Fi service.) The FCC’s theory was that Marriott was violating Section 333 of the Communications Act, which bars interference with lawful communications.

While Marriott appeared to have accepted its come-uppance willingly (by signing onto a Consent Decree), it turns out there was more to the story. While the consent decree was being negotiated, Marriott mustered some reinforcements and took the offensive. Last August, joined by the American Hospitality and Lodging Association and Ryman Hospital Properties, Marriott filed a Petition for Declaratory Ruling or, in the Alternative, for Rulemaking asking the FCC to clarify exactly what operators of large venues may do to protect the security and quality of their own Wi-Fi networks. The petition was filed on August 25, 2014, but it took the FCC nearly three months to invite preliminary comments on it. If you’ve got something to say about this, you’ve got until December 19, 2014 to do so.

The petition raises all kinds of alarms about what will happen if the FCC decides that unlimited operation of private Wi-Fi hotspots must be permitted, even on private property. For example, Bad Guys could set up a private hotspot with the same SSID (network name) used by a hotel network. With that, they could grab traffic from hotel guests and exhibitors who think, wrongly, that they’re attaching to the hotel’s network. From there, it’s a snap for the Bad Guys to snag commercial information, including credit card numbers.

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Upcoming FREE Webinar: Kathy Kleiman, Kevin Goldberg and Jon Markman on the Arrival of the New gTLDs

On the agenda: How to take advantage of the new Top Level Domains now coming available, and how to identify and avoid potential problems

As we have advised our readers repeatedly, new generic Top Level Domains are here, NOW, and more are coming online every day. And NOW is the time to learn about them: what they are, how to get them, how you can use them.

If you’re looking for an introduction into the brave new world of new gTLDs, here’s your chance. Internet gurus Kathy Kleiman, Kevin Goldberg and Jon Markman will be presenting a free webinar on Thursday, November 20, at 3:00 p.m. (ET) in which they plan to address such questions as:

  • What are new “Top Level Domains” and how will they change the Internet?
  • How can new gTLDs help your business stand out and attract customers?
  • What possible risks do you face from new gTLDs?
  • How can you protect your trademarks and existing domain names in the new gTLD environment?
  • What is the process (including likely costs) of taking advantage of new gTLDs?

The webinar is a production of Team Lightbulb. You can register here. Did we mention that it's FREE?

It's Almost December, 2014 - Do YOU Comply with the CALM Act?

The FCC’s rules contemplated waivers extending, at most, for two years. Those two years are just about up.

With December just around the corner, full power TV licensees and MVPDs should probably be checking their compliance with our old friend, the Commercial Advertising Loudness Mitigation Act (you probably know it as the CALM Act) and the related FCC rules.

When the FCC’s rules governing the “loudness” of TV commercials were first adopted, they were set to take effect on December 13, 2012. One-year waivers were available which, if granted, took the compliance deadline to December 13, 2013. One-year extensions of those waivers were also available; anybody who received such an extension has until December 13, 2014 – less than a month – to get with the program.

The two one-year waivers were expressly provided for by Congress in the CALM Act. But Congress also confirmed that the FCC retains its general authority to waive its rules if the public interest warrants. So theoretically, anybody currently facing a December 13, 2014 deadline may – and we emphasize may – be able to get a further extension.

But we wouldn’t count on it.

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CPB IG: Re-think Inclusion of In-Kind Trades for CSG/NFFS Purposes?

Low-profile Inspector General Report includes recommendation with potentially serious budgetary repercussions.

Noncommercial (NCE) stations that receive grants from the Corporation for Public Broadcasting (CPB) should pay attention to a recommendation made recently by CPB’s Inspector General (IG). She thinks it may be time for CPB to “evaluate the practicality” of continuing to allow CPB grant recipients include in-kind trades as part of the calculation of their grant amounts.

If this recommendation gets any traction, it could seriously rock the bottom line of many CPB grantees.

NCE stations receiving CPB grants rely on funding from various sources. Private support, in particular, is critical to a public station’s success. Such support can influence a station’s bottom line in two ways. First and most obviously, contributions are revenues which the station uses for continued operation. But second, private contributions are used in part to determine the size of the CPB Community Service Grant (CSG) that is made available to the station.

CSG amounts are based, in large part, on a matching principle pegged to the amount of private support each station raises in “non-Federal financial support” or “NFFS”. Not all forms of local support count as NFFS, and the CPB match is far less than 100% of a station’s NFFS. (For example, in Fiscal Year 2015, the CPB match starts at approximately 13 cents for every dollar in NFFS that a public television station reports it raised in Fiscal Year 2013.) But you get the idea: the more NFFS a station can show, the more CPB money may be made available.

NFFS is a statutorily defined term. (Check out Section 397(9) of the Communications Act if you don’t believe it.) NFFS can come in many forms, including: individual gifts (from viewers and listeners like you!); corporate underwriting; grants from private foundations and state or local governments; and in-kind support (e.g., donations of property, the use of property or professional services, and indirect administrative and occupancy support from an institution, like a university, that owns a public station).

The problem the IG found is stations aren’t correctly reporting the value of their in-kind transactions claimed as NFFS.

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Rural Call Completion Update: FCC Grants One, Tosses Four Petitions for Reconsideration

As we reported just about a year ago, the FCC adopted a number of rules to address the problem of rural call completion or, more accurately, rural call non-completion. Many calls placed to numbers served by small rural telephone companies don’t seem to make it to their destination. And that seems to happen especially when the calls are routed through “least cost” intermediate service providers who don’t take kindly to the high per-minute termination access charges imposed by many small telcos. In keeping with its priority goal of universal connectivity, the FCC adopted rules mandating that calls not be blocked, that carriers file quarterly reports on call completion success rates, and that a ring tone not be delivered to the calling party until the call has actually been connected to its destination.

Five petitions for reconsideration were filed and the Commission has now denied all but one of them.

In response to the one successful petition, filed by USTelecom and ITTA, the FCC has decided to exempt from call quality reporting requirements intraLATA toll calls that are: (a) carried entirely over the covered provider’s network or (b) handed off by a covered provider directly to a the terminating carrier or a terminating tandem switch. Some carriers don’t keep detailed records of such calls now, so the cost of reporting on such calls would likely impose significant new cost burdens. Since the benefit of reports on such calls would be limited, the scale balanced in favor of an exemption. The exemption does not apply to interLATA toll calls, even if they are directly handed off to the terminating carrier or tandem; the FCC said that the majority of on-net traffic is interLATA and will still be covered.

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Update: Last of the New Text-to-911 Rules Now Effective

Last month we reported that most of the rules adopted back in August to make text-to-911 service generally available took effect in October. As often happens, though, a small number of the new rules couldn’t kick in until the Office of Management and Budget gave them the go-ahead. That’s because those particular sections – Sections 47 CFR 20.18(n)(10)(i) and (ii), (n)(10)(iii)(C), and (n)(11) – are “information collections”.

Under the new rules, Public Safety Access Points (PSAPs) may voluntarily register when they are technically ready to receive text messages to 911. As PSAPs become text-ready, they may either register in the PSAP database (or, if the database is not yet available, submit a notification to PS Docket Nos. 10–255 and 11–153) or provide other written notification reasonably acceptable to a covered text messaging provider. To implement these requirements, the Commission seeks to collect information primarily for that database. Either approach will do the trick. (PSAPs and covered text providers may also mutually agree to an alternative implementation timeframe (other than six months). Covered text providers must notify the FCC of the dates and terms of the alternate timeframe that they have mutually agreed on with PSAPs within 30 days of the parties’ agreement.)

Additionally, some third-party notifications – to consumers, covered text providers, and the Commission – will need to be effective in order to implement text-to-911. The new rules provide for the collection of information about such notifications, which are essential to ensure that all affected parties are aware of the limitations, capabilities, and status of text-to-911 services.

According to a notice in the Federal Register, all these information collection rules have become effective as of November 14, 2014.

More on Getting Sued For Playing the Oldies

Sirius XM loses another ruling in California litigation about digital performance of pre-1972 recordings.

As I reported in September, Sirius XM (and, by extension, just about any other provider of streamed digital music) suffered a setback in a Federal District Court in California when the judge there ruled that performers have an exclusive public performance right to music they recorded prior to February 15, 1972. As it turns out, the news got worse for Sirius XM a couple of weeks later, when a California State Superior Court judge came down largely the same way.

As a result, Sirius XM, Pandora and other such services will likely be looking at a lot more liability for infringements as more pre-1972 artists join in the class action suit started by Flo and Eddie in California. While the outcome of the California end of that litigation doesn’t seem to be in much doubt – which is bad news for Sirius XM et al. – the chances of similar outcomes in other states is still up in the air, at least for the moment. Also up in the air: possible Congressional reaction.

For background on the issue of digital performance rights for pre-February, 1972 recordings, check out my earlier post about the Flo and Eddie case.

The more recent case doesn’t involve iconic individuals (like Flo and Eddie) as plaintiffs; it involves iconic record labels as plaintiffs.

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Paperwork Reduction(?) Act

A recent notice about DTV construction permit applications got us thinking about our old friend, the PRA.

Has the FCC changed the process for applying for DTV construction permits? Probably not, but a recent notice in the Federal Register seemed to suggest otherwise. It turns out, though, that the real story here is the hypnotic effect of the Paperwork Reduction Act (PRA).

The PRA – usually referred to as “hilariously named” here in the CommLawBlog bunker – is a pleasant vestige of the 1980s. It was intended to curb the wretched excesses of federal regulatory agencies. The idea was that, before an agency could impose a new paperwork burden on the public, the agency would have to take the time to quantify, and justify, the anticipated burden. The Office of Management and Budget (OMB) was appointed the final checkpoint on the regulatory assembly line to ensure that agencies were not overstepping.

This being Washington, the PRA process is more elaborate than might have been expected. The agency first devises the proposed “information collection” and determines who will have to submit the information and how much time it’s likely to take them. (While the former is generally easy for the FCC to pinpoint, the latter not so much. Example: Several years ago a Commission PRA notice advised that completion of a particular LPFM form was expected to take anywhere from one-seventh of a second (that would be 0.0025 minutes) to 12 hours. It’s hard to say which is more dubious, the accuracy of that estimate or its utility.)

The FCC then publishes that information in a nondescript notice in the Federal Register, giving anybody who wants to comment a generous 60 days to do so. Following that period, the FCC packs up the proposed form and any comments received, slaps on an explanatory cover memo, and ships the whole shooting match over to OMB, which then issues its own nondescript Federal Register notice soliciting a second 30-day round of comments. OMB then dutifully reviews any comments that roll in and, in nearly all cases, rubber-stamps the form.

Which brings us to DTV CPs.

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FCBA Charity Auction: Be There or Be Square!

The 25th Annual FCBA Charity Auction (a joint production of the FCBA’s Young Lawyers Committee and the FCBA Foundation) is happening on Thursday, November 7, 2014, from 6:30-10:00 p.m. in the Sphinx Ballroom at the Almas Temple, 1315 K Street, N.W., Washington.When you go – and you WILL go (because Davina wants you to) – you’ll get a prize book to guide you through the evening. Since it’s going to be unbelievably loud and crowded when you get there, and since they’re giving away two drinks for free (not to mention free food), and since it will be important to see and be seen, and since there are so many prizes that the book is 35 single-space pages long, you’re going to have a tough time navigating the prize book on the fly.

No problem. Here’s an advance copy to peruse at your leisure through the day leading up to the Big Event. (It looks enough like that contract from counsel for the other side of that big deal you’re working on that you can keep it up on your screen all day long and none of your colleagues will know.)

And you’ll probably need the whole day to digest the cornucopia of bitchin’ stuff available to the highest bidder. We recommend that you get started early.

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FCC Looking to Put Paging Spectrum to Better Use

Wireless Bureau invites comments on possible ways to encourage “more intensive” use of Part 22 paging spectrum.

Late on a Friday afternoon in mid-October, the Wireless Bureau issued a curious public notice reminding licensees in the Paging and Radiotelephone Services of various rules in Part 22 that they’re supposed to be complying with. Following the reminder, the notice veered sharply, creating a new docket that could open the door for increased use of channels historically allotted for use by paging and radiotelephone services.

The Bureau is requesting comments on how to promote “more intensive” use of this Part 22 paging spectrum by its licensees. In particular, the Bureau hopes that, by increasing “technical or operational flexibility”, it might encourage Part 22 paging licensees to deploy “innovative technologies” and/or narrowband equipment, or use offset frequencies if they hold adjacent channel blocks.

It’s no secret that for years the demand for paging services has declined steadily, presumably a victim of the overwhelming consumer acceptance of snazzier (and more effective) ways to contact people (like, for instance, cell phones and smartphones). The decline has been such that at times the Commission has struggled to get rid of remaining paging licenses. And when major bidders for those licenses have recently shown up, they appear to envision using the spectrum for various non-paging technologies, such as vehicle-to-grid, vehicular tracking or management, and smart grid and other energy management.

Over the years the Commission has taken a number of steps to encourage use of Part 22 paging spectrum: permissible operations for paging licenses have been expanded (allowing them to offer fixed, mobile, and hybrid services); burdensome common carrier regulatory treatment has been eliminated; and other technical and licensing restrictions have been lifted. The Public Notice continues in that vein.

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Bob Winteringham Joins FHH

Wilkommen, Bienvenu, Welcome!

Fletcher, Heald & Hildreth is pleased to announce that Bob Winteringham has joined us as Of Counsel. A former Deputy General Counsel at the Corporation for Public Broadcasting, Bob will focus on assisting clients in the public broadcasting industry. He’ll be advising stations and other CPB grant recipients with CPB grant compliance issues as well as other areas of public broadcasting decision-making.

Bob is a 15+ year veteran of CPB’s Office of General Counsel (and CPB’s Deputy GC from 2005-2013). He has also collaborated with CPB financial reporting compliance professionals through the Public Media Consulting Group. At FHH Bob will be providing, among other services: guidance with respect to CPB Community Service Grant agreements, including on-site compliance reviews and compliance-oriented strategic advice on policy formulation, policy updates, best practices, and documentation development; assistance to CPB grantees facing a CPB OIG audit; and facilitation of public broadcasting meetings or training seminars. 

Bob got his J.D. (cum laude) from Indiana University – Bloomington (Go Big Red!), where he was the Articles Editor for the Federal Communications Law Journal. Before that he received his undergraduate degree (with high honors) from Michigan (Go Blue!). During college, he worked as a riverboat captain at an amusement park (“Here at Cedar Point, we have two docks for our boats, one in front and one in back.  You could say we have an interesting … paradox!”).

On the fun side, Bob is a cinema devotee who has seen every movie nominated for a Best Picture Oscar® since 1998.

Bob can be reached at winteringham@fhhlaw.com or by phone at 703-812-0417.

Spectrum Auction Recon Update: Corrected Reply Deadline Announced

Last week we reported on the establishment of opposition and reply deadlines with respect to a couple dozen or so petitions seeking reconsideration of the Commission’s spectrum auction Report and Order. According to a follow-up notice in the Federal Register, it turns out that the reply deadline announced by the Commission last week was off by a few days. If you want to file a reply to any oppositions to the recon petitions, you will have until November 24, 2014. That gives you an extra weekend – lucky you!

Update: Last of the New 911 Rules Now in Effect

Almost a year ago we reported on the adoption of a number of rules designed to improve performance of the 911 system in the aftermath of the 2012 “derecho” storm. Most of the new rules had taken effect by February of this year, but a couple lingered on in limbo, awaiting OMB approval. All but one of those stragglers made it through the Paperwork Reduction Act process last month, leaving only Section 4.9(h) on the outside looking in. (For those who may have lost track over the last year or so, Section 4.9(h) requires “Covered 911 Service Providers” to notify Public Safety Answering Points (PSAPs) and other “911 special facilities” of major disruptions in 911 service within time limits established by the Commission.)

The wait is over! According to a notice in the Federal Register, OMB has signed off on Section 4.9(h), so it has become effective as of November 4, 2014.