FCC to TV Licensees: Where Are You?

tower inspection-1In a somewhat unusual move, the FCC’s Media Bureau and Incentive Auction Task Force have issued a joint public notice encouraging “all television licensees” to “ensure that their contact information on file with the Commission is accurate and current”. As the notice reminds everybody, licensees are generally required to do so anyway, but it’s especially important now in light of the impending spectrum repack process. The Commission will be reaching out directly to stations concerning channel reassignments, and it wants to be sure that it will be able to reach each affected station. Note that this includes not only stations whose reassignment is made as a result of participation in the reverse auction but also non-participating stations subject to repack. 

For stations participating in the reverse auction, the Commission will be using the contact information set out in the Form 177 filed last January in the run-up to the auction. For other stations, it will be using contact information currently showing up in the FCC’s Licensing and Management System (LMS). The public notice provides detailed step-by-step instructions for checking (and, if necessary changing) contact info in both places.  

In view of the importance of repack-related notifications, it would be a good idea for all TV licensees to take a couple of minutes to double- and triple-check the contact information currently on file, just to be sure.

Repack Update: FCC Invites Comments on Widelity II

Input sought on revised catalog of likely repack expenses

As we all know, TV stations forced by the Incentive Auction/spectrum repack process to modify their facilities will be entitled to reimbursement of their reasonable repacking-related costs. And as we reported a couple of years ago, to give everybody – FCC and affected broadcasters (and MVPDs) alike – an idea of the expenses they’re likely to face, the Commission hired Widelity, Inc. to come up with a standardized catalog of likely costs. The Commission published Widelity’s preliminary list in 2014 and invited comment on it.

That was more than two years ago, and we’re still months (or more) away from the repack. So the FCC is already thinking about updating the initial Widelity catalog. To that end, it asked Widelity to take a look at the original list. Widelity has come up with a number of suggested changes, and now the Commission is looking for more input from the public.

To come up with its proposed revisions, Widelity sought input from a number of industry stakeholders (including this firm), looking not only for updates on prices that might have gone up but also for categories of expenses that might have changed or might need to be added. The result: an updated catalog which: eliminates some expenses that technological advances have made unlikely; increases baseline costs for many items; and adds new reimbursement categories to cover items that either were overlooked or have developed since the first catalog. (For example, liquid cooled solid state UHF transmitters are now available in more power ranges, additional types of antennas are listed, and a provision for professional fees in connection with transition timing or co-ordination has been added.)

Here’s the revised list (with the proposed revisions clearly and conveniently identified). Continue Reading

DIRS Activated as Hurricane Matthew Approaches Southeast States

As we had anticipated, the Commission has officially activated its Disaster Information Reporting System (DIRS) in connection with the arrival of Hurricane Matthew. Because of the urgency of the situation, the FCC has asked the NAB to get the word out to broadcast stations, and we here in the CommLawBlog bunker are more than happy to help out in that effort.

If you have communications equipment in any of the areas listed below, the FCC wants you to use DIRS to report in daily on the status of your equipment if it is less than fully operational. (No need to report on stations, facilities, or switches that are fully operational.) You can access DIRS at fcc.gov/nors/disaster. You’ll need to login with your DIRS User ID and password to get started. (If you don’t have a User ID already, there’s a link on the login page that will allow you to get a user ID and password. If you do have a user ID, but can’t remember your password, use the forgotten password link on the login page.) After you login, complete the reports for the types of equipment that you’re using in the areas subject to the DIRS activation.

Important: This DIRS activation – and the consequent reporting request – are directed only to folks who have communications equipment in the areas hardest hit by the storm already and those in its projected path. They include in particular the following counties in Florida, Georgia and South Carolina: Continue Reading

Coming Soon: Webinar on FCC’s Post-Incentive Auction Transition Scheduling Plan

webinar-1On September 30 the Commission released a public notice soliciting comment on a plan for the post-Incentive Auction transition. As you might expect, the plan is complicated and dense with detail – we here in the CommLawBlog are still working our way through it – but the FCC’s initial plan is to get the public’s input on the plan within six weeks. Comments are due by October 31, 2016, replies by November 15. That’s obviously an ambitious timeframe.

And, perhaps in recognition of that, the Commission will be presenting a webinar on the transition plan. Mark your calendars: the webinar is set for October 17, 2016, 1:00-4:00 p.m. (ET). (Scheduling note: The webinar was initially set for October 13, but that would have been a direct conflict with the IEEE Broadcast Technology Society’s Annual Broadcast Symposium, preventing many likely attendees from participating in the FCC’s confab. Smartly, the Commission moved its date.)

If you’re interested in attending the webinar – and anybody who plans to be involved in the post-Auction transition should be – you’ll be able to do so from the comfort of your home or office. It’s going to be streamed live (yes, with open captioning) on the Commission’s website. The slide deck will be available here (click on the “Notices/Guidance” tab) before the webinar cranks up. And you’ll be able to submit questions during the show – just email them to IAtransition@fcc.gov. (But heads up: any communications are subject to the prohibition communications rule, so broadcasters and forward auction applicants should be sure NOT to include anything about their bids or bidding strategies.)

If your dance card is already full for October 17, no problem. A recording of the show will be posted on the FCC’s website.

As Matthew Makes Its Move, FCC Provides Emergency Response Information

With Matthew, the first big hurricane to threaten Florida and the Carolinas in several years, barreling up the coast, the FCC has started its anticipatory disaster response. A public notice released this afternoon alerts the public that Commission personnel will be available, 24/7, to assist communications providers as they deal with the effects of the storm. Emergency communications providers – a universe that includes broadcasters, cable operators, wireless and wireless providers, and, of course, first responders – should contact the FCC’s Operations Center if they need help in initiating, resuming, or maintaining communications operations during the weekend. The phone number for the Operations Center is 202-418-1122, and its email address is FCCOPCenter@fcc.gov.

Although the public notice doesn’t mention it, folks in the storm zone might also want to take a look at the FCC’s “tips” on communicating during emergency conditions. The tips, developed by the Commission in partnership with the Federal Emergency Management Agency (FEMA), aren’t what you’d call radical or cutting-edge by any means, but they serve as an excellent reminder that, in emergencies, caution, cool heads and common sense are among the most useful tools available.

Historically, the Commission has also activated its Disaster Information Reporting System (DIRS) in advance of approaching major storms. Such activation has not yet been announced by the FCC (as of 4:00 p.m. on Wednesday, October 5), but we won’t be surprised if word comes down before too long that the DIRS is open for business. Check back here for updates.

Redskins “Offensive” Line May be Tested by Supreme Court

By agreeing to hear “The Slants” case, Court may decide whether USPTO can cancel “Redskins” trademark registrations.

[Blogmeister’s Note: To say our blogger, Kevin “The Swami” Goldberg, is opinionated is something of an understatement. One particular bug up his butt: the NFL team which is titularly Washington, D.C.’s, even though it practices in Virginia and plays home games in Maryland. As far as Kevin is concerned, we may as well refer to them as the Voldemorts. In any event, the opinions in this post are the Swami’s own, and are not necessarily shared by FHH, its attorneys or its clients. You have been warned.]

We can all safely assume that, for years, Daniel Snyder, owner of the [Voldemorts], has wanted nothing more than to see the team he supported as a child and owns as an adult win the Super Bowl®. (Reminder to broadcasters: if you’re advertising with a football-related theme – especially in December, January or February – that would be “The Big Game”.) With the team’s 1-2 start this season (and yes, both two losses were at home, including one to hated rival Dallas Cowboys), it’s unlikely that the team is going to end the 2016 season on top.

At least not the NFL season.

But thanks to an all-Asian, “ChinatownDanceRock” band, Danny may get a win that he may really want more than an NFL title. Continue Reading

Nationwide EAS Test Update: FCC “Recommends” Time Slots for Form Two Filings

As we all know, the FCC has been planning the second nationwide test of the Emergency Alert System for months. To monitor how the test goes, the Commission developed a whole new online reporting system – the EAS Test Reporting System (ETRS) – for which all EAS participants had to register separately a month ago. And for some reason, the Commission ordered all participants to file their preliminary post-test reports (a/k/a Form Two) by 11:59 p.m. (ET) on the day of the test.

So you might be surprised to learn that, about 24 hours before the long-scheduled test, the Commission posted the following information on its website:

To maximize the resources available to process Form Two filings, we recommend that EAS Participants file Form Two in accordance with the following schedule:

Facilities in Eastern Time Zone –
2:30 pm to 5:00 pm EDT

Facilities in Central Time Zone –
5:00 pm to 7:00 pm EDT (4:00 pm to 6:00 pm CDT)

Facilities in Mountain Time Zone –
7:00 pm to 8:00 pm EDT (5:00 pm to 6:00 pm MDT)

Facilities in Pacific Time Zone –
8:00 pm to 9:30 pm EDT (5:00 pm to 6:30 pm PDT)

       Facilities in all other time zones – 9:30 pm to 11:59 pm EDT

If you cannot file for your facilities at the recommended time, you may file at any other time. Relatedly, we urge all EAS Participants to submit Form Three no earlier than September 29.

Call us crazy, but that suggests that the FCC may not have confidence that its ETRS will be able to handle the surge of Form Two filings that the FCC itself ordered up. Does that inspire confidence in the planning at work here?

Whatever. The important take-home message is that, if you’re an EAS participant, you may want to time the filing of your Form Two to fit into the appropriate time slot, and also hold off on filing your Form Three for a couple of days. Or not. It’s not mandatory.

Nationwide EAS Test Still Set for September 28

Just a quick reminder for all EAS participants. The second-ever nationwide test of the EAS system is still set for Wednesday, September 28, 2016 at 2:20 p.m. (ET). This is a command-performance-all-hands-on-deck gig for all participants, so you should be sure that your EAS gear is ready to go and your staff has been alerted to the test.

There will be a quiz afterward … actually, not a quiz, but a report that will have to be filed – again, by all participants – through the Commission’s new ETRS (EAS Test Reporting System). If you haven’t already set up your account in ETRS and submitted Form One, shame on you. That was supposed to have been done a month ago. The post-test report is technically called Form Two. It’s supposed to be filed by 11:59 p.m. (ET) on September 28. Don’t worry – it’s not complicated.

In a public notice about the test, the Commission has also shed some light on the “secondary test date” of October 5 (at 2:20 p.m. (ET)). We mentioned that date in an earlier post after the Commission alluded to it, in passing without explanation in a footnote, in an earlier notice. According to the most recent notice, the October 5 date is a “back-up date” for the test “in case the September 28 test is cancelled due to widespread severe weather or other significant events”. So presumably, if the September 28 test happens on schedule, we need not worry about any test on October 5, but we’ll have to wait and see to be sure.

Six-Figure Fine for Failing to Focus on Former Felonies

Many FCC forms completed on a “routine” basis may need extra attention.

police-book em-1Anyone who fills in pretty much any FCC form should be familiar with the certifications required by those forms. Anyone who “signs” an FCC form (whether electronically or otherwise) must be familiar with them; more importantly, the signatory must be sure that the certification being made is accurate. Failure to do so can be a pricey mistake.

One common certification, for example, asks the licensee or applicant to verify that it hasn’t engaged in certain types of misconduct that might disqualify the licensee/applicant from holding an FCC license. For example, FCC Form 314, used for the assignment of broadcast licenses, requires the proposed buyer to certify that:

[W]ith respect to the assignee and each party to the application, no adverse finding has been made, nor has an adverse final action been taken by any court or administrative body in a civil or criminal proceeding brought under the provisions of any law related to any of the following: any felony; mass media- related antitrust or unfair competition; fraudulent statements to another governmental unit; or discrimination.

In the same vein, all FCC applications require an “Anti-Drug Abuse Act Certification,” indicating that the applicant is not “subject to denial of federal benefits pursuant to Section 5301 of the Anti-Drug Abuse Act of 1988, 21 U.S.C. Section 862.” And, of importance to the Siemens Corporation, Question 50 to Form 601, which is used for applications for wireless licenses, asks whether “the Applicant or any party to this application, or any party directly or indirectly controlling the Applicant [has] ever been convicted of a felony by any state or federal court?”

Thanks to the fine-print-legalese nature of these certifications, it can be tempting not to bother to pay much attention to them. After all, the “correct” answer (usually, “yes”) is obvious, a fact that tends to discourage careful consideration of the certification language.

Our friends at Siemens, though, have just brought us a cautionary tale, after failing to disclose on Form 601 that Siemens’ parent company, as well as a subsidiary of that parent company, had pled guilty to multiple felonies. And for this oversight, Siemens has agreed to pay the government $175,000 in a consent decree with the Enforcement Bureau.

According to the decree, the parent company, Siemens AG, pleaded guilty to violating the Foreign Corrupt Practices Act (FCPA) back in 2008, while a subsidiary of a subsidiary of Siemens AG pleaded guilty to a single federal felony charge of obstruction of justice in 2007. Despite that, Siemens Corporation kept filing Form 601s (and also a few others) certifying that no party directly or indirectly controlling it had “ever been convicted of a felony.”

Obviously, those certifications weren’t accurate, a fact that didn’t escape the attention of the Enforcement Bureau. Continue Reading