Update: Anticipated Spectrum Auction Date Pushed Back

If you picked “mid-2015” in your office pool for the date the FCC’s incentive spectrum auction would be held, we’ve got some bad news for you. While that was probably a pretty good bet up to now (since Commission officials have tenaciously stuck with the “mid-2015” date for some time), it’s not looking so good anymore. According to an item just posted on the FCC’s blog, the current target date is “early 2016”.

Gary Epstein, Chair of the Commission’s Spectrum Auction Task Force, alluding to “undeniable impediments” in the auction’s path, has this to say:

As Chairman Wheeler indicated several weeks ago, the court challenges to the auction rules by some broadcasters have introduced uncertainty.  Earlier this week, the court issued a briefing schedule in which the final briefs are not due until late January 2015.  Oral arguments will follow at a later date yet to be determined, with a decision not likely until mid-2015.  We are confident we will prevail in court, but given the reality of that schedule, the complexity of designing and implementing the auction, and the need for all auction participants to have certainty well in advance of the auction, we now anticipate accepting applications for the auction in the fall of 2015 and starting the auction in early 2016. Despite this brief delay, we remain focused on the path to successfully implementing the incentive auction. [Emphasis added]

With briefing wrapping up very late in January, the “court challenges” mentioned – one from the NAB, the other from Sinclair – probably won’t be argued until mid- to late spring, 2015. In our experience, the D.C. Circuit usually takes at least two-three months following oral argument to crank out a decision on relatively easy cases. More complex cases can take significantly longer. (Extreme example: One of my colleagues once had to wait more than three years for a decision following oral argument.)

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Stevie Wonder - Live at the Portals!

High on the superstar's wish list: Increased video description services.

Yes, you heard it right! Stevie Wonder, the legendary songwriter and recording artist, made the rounds, live and in person, at the FCC recently. He met with the Chairman and the other four Commissioners to advocate for greater availability of audio description services to provide better access for the blind to television programming. Mr. Wonder noted that he can go to his choice of movies in many theaters today and get a headset that delivers video description; but when the same movies are shown on television, the video description is absent. Captioned television for viewers with impaired hearing has made great strides over the years, and it’s time for video description to make similar progress.

Mr. Wonder believes that the availability of video description can be increased by taking advantage of screenplay information already created for most staged productions. The process of turning that information into audio description can be automated. Prominent personalities, with Mr. Wonder himself taking the lead, could provide their voices, so that machines could read descriptions of the action on the screen and translate them into the listener’s choice of a celebrity voice. Video description might even be downloaded into a smartphone and have the smartphone “listen” to the audio dialog and synchronize the video description to the audio.

If the process can be automated sufficiently, the hope is to drive production costs down to minimal levels; and downloading video description over the Internet would eliminate the need to use data capacity in a TV or cable channel. Mr. Wonder hopes that modern technology can make video description so practical and cost-effective that the video industry will voluntarily embrace it, without regulatory compulsion, in much less time than it has taken for captioning to reach today’s widespread distribution.

FHH’s Peter Tannenwald escorted Mr. Wonder during his visit to the FCC. It was a memorable day. After the FCC sessions, Mr. Wonder was kind enough to visit our offices, where cameras clicked, and he even serenaded our Firm Administrator. He invited a few of us to join his entourage for a vegan dinner, reported in the Washington Post.

Peter has worked with Mr. Wonder for almost 35 years. He prepared the initial petition that led the FCC to adopt captioning rules some 40 years ago, helped establish the National Captioning Institute, has worked on increasing cellphone compatibility with hearing aids, and now looks forward to helping Mr. Wonder realize his dream of making television programming more accessible to the blind.

FCC KO's Sports Blackout Rules

The clock is running down for the FCC’s sports blackout rules. The two-minute warning (actually, the 31-day warning) has been whistled.

As pretty much everybody expected, the Commission abolished its blackout rules late last month. That action is now set to take effect on November 24, 2014, according to a notice in the Federal Register.

Despite an aggressive defense mounted by the NAB and various sports leagues (including, most notably, the NFL), the Commission punted on the rules because they believed the rules were no longer necessary to ensure that sporting events remain widely available on television. Instead, the FCC was content to let blackout provisions be thrashed out privately between the leagues and their broadcast, cable, and satellite partners. In other words, sports blackouts may still occur, but not as a result of any FCC rule.

In a nutshell, the sports blackout rules prohibited MVPDs from carrying a live sporting event if that event was not available on local over-the-air television in a certain geographic area. The ability to invoke the rule required prior, private blackout-related agreements between leagues or teams and local broadcasters; the rules simply provided a separate mechanism for enforcing those private agreements.

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Serial Petitioner Update: 15 is Not the Charm

More from our "Mother May I" file

We have reported regularly on the plight of an applicant who has been denied 14 times in his efforts to get the FCC to grant the same two sets of applications. Given our previous attention to this, we would be remiss if we didn’t update our readers on the latest, if perhaps unsurprising, development: the applicant’s 15th try has been denied.

As readers may recall, after the 11th adverse ruling, the FCC forbade this particularly persistent party from again asking for reconsideration without first getting the Commission’s permission. That, of course, led to three more rounds. In the last (that would be the 14th) rejection, the Commission was none too subtle. It advised the applicant that “he should not expect further administrative review” and, presumably for emphasis, declared not once, but twice, that the “proceeding is now terminated.”

As if.

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Update: Deadline Extended for "TV Broadcaster Relocation Fund Reimbursement Form" Comments

In late September we reported on the FCC’s request for comments about its proposed “TV Broadcaster Relocation Fund Reimbursement Form”. That’s the form that the Commission plans to use when, after the incentive spectrum auctions, TV licensees put pen to paper and figure out what it’s going to cost to move to their repacked facilities. Many (if not most) licensees will then be looking to Uncle Sam to cover those costs – and the Reimbursement Form (and related procedures described in the draft instructions to the form) will provide those licensees the access to the cash. In other words, the reimbursement process is a Big Deal that TV licensees should be focusing on now so as, ideally, to reduce the chances of disappointments down the line.

The Commission originally provided a paltry 30 days in which to review the proposed form and related procedural provisions, cogitate on the various issues they present, and then submit comments thereon. The National Association of Broadcasters figured that that just wasn’t enough time to gather all necessary and useful responsive information – for example, from engineers who have first-hand knowledge and experience in modifying TV transmission systems. The NAB asked for an extension and now, mirabile dictu, the Commission has agreed.

As a result, the deadline for comments has been extended to November 26, 2014. Happy Thanksgiving!

FCC Further Tweaks Signal Booster Rules

Some rules relaxed while measures added to prevent interference to wireless networks 

Back in early 2013, the FCC took steps to help consumers deal with the dreaded cell phone phenomenon of dead spots by allowing the use of private signal boosters. (Readers should recall that boosters receive and re-transmit cell phone signals to improve coverage in their immediate vicinity.) And now, underscoring its interest in encouraging such devices, the Commission has tweaked its rules. But be forewarned, the tweaks are highly technical and unless you’re deeply involved in the manufacturing side of the booster universe, you shouldn’t expect to notice any dramatic changes.

To recap, there are two classes of approved boosters, Consumer and Industrial. Consumer boosters, in turn, come in two flavors, Wideband Consumer Boosters (designed to boost signals of more than one cell provider) and Provider-Specific Consumer Signal Boosters (designed to boost the signals of just a single cell provider). All Consumer Boosters are subject to “Network Protection Standards” (NPS), although those standards differ somewhat between the two different types of Consumer Boosters.

Among the NPS imposed on manufacturers of Wideband Consumer Boosters was a testing requirement – involving downlink noise limits, if you really must know – which proved problematic for manufacturers. (As it turned out, neither the FCC’s Office of Engineering and Technology nor most Telecommunications Certifying Bodies had the filtering equipment necessary to measure the downlink noise as required, which obviously complicated the testing process.)

So several manufacturers, noting that the downward noise testing element was not included in the NPS as a means of protecting against interference, suggested that it could be tossed. They also suggested that bidirectional capability, which was what the downward noise limit test was designed to help achieve and confirm, could be addressed in other ways (for example, by adding downlink gain limits to the Transmit Power Off Mode requirement – we warned you that the tweaks are highly technical, didn’t we?).

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On Censoring Political Ads

With SuperPAC money flowing and political ads running on Internet streams, caution in dealing with political spots is in order.

There may be just a few weeks remaining in this election season, but broadcasters should be paying attention – now and in future elections – to an important aspect of the political advertising business: the extent to which they may be able to demand changes in, or refuse to air, political ads because of their content. One key protection that covers the broadcast of some political spots does not cover all such spots, and it definitely does not appear to cover any non-broadcast distribution of even the spots that are protected when broadcast.

The Communications Act and the FCC’s rules prohibit broadcasters from censoring political candidates’ ads in any way if those ads are “uses”. In this context, a “use” is an ad, sponsored by a legally qualified candidate or the candidate’s campaign committee, that includes a recognizable likeness or image of the candidate. The candidate may be seeking a federal office or a state or local office. The ad buy may be the first one run by a candidate for that particular office, or it may be bought by a candidate taking advantage of the “equal opportunity” requirement created by the fact that the candidate’s opponent aired a “use” already.

If it’s a political “use”, broadcasters can’t touch the content.

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Upcoming Webinar: "Cable TV Must-Carry & Retransmission Consent: Negotiating Agreements & Enforcing Rights"

Even though October 1 – and the triennial election between must-carry and retransmission consent that had to be made by then – may be fading in our rear views, TV licensees and cable operators still have much to think about. Tying down the details of the retrans deal is an important project for anyone who chose that route. And for those on the must-carry side, there are a slew of practical considerations about which to be aware: for example, TV stations should be up on how must-carry elections can be enforced; and both cable operators and TV stations should be aware of the steps available to insure that must-carry claims are indeed valid and enforceable. On that latter score, there are a number of factors that can de-rail seemingly straightforward must-carry demands.

In other words, just because the must-carry/retrans election has been made, don’t think that you can simply stick this in the finito file and move on.

On October 23, 2014 at 1:00 p.m. (ET), FHH cable gurus Dan Kirkpatrick and Paul Feldman will present a FREE webinar entitled “Cable TV Must-Carry & Retransmission Consent: Negotiating Agreements & Enforcing Rights”. This will be a follow-up to their September webinar on the must-carry/retrans election process. It will address a long list of post-election issues that both TV folks and cable folks should be focused on.

You can sign up for the webinar here. It’s a Team Lightbulb production and it’s free.

Snow Job: Comments Sought on Use of LMS Spectrum for Avalanche Rescues

RECCO asks FCC for waiver of Location and Monitoring Service rules.

The Location and Monitoring Service (LMS), a somewhat obscure service nestled in Subpart M to Part 90 of the FCC’s rules, is back in the news. This could be of considerable interest to you if you’re a skier who prefers avalanche-prone slopes.

LMS was originally envisioned as a service enabling fleet operators to pinpoint the locations of their vehicles around a city. That was 20 years ago. Since then, GPS has provided a more accurate, more cost effective alternative, leaving LMS without much of a market. In 2006, a company called Progeny LMS, LLC proposed that the FCC broaden the range of services possible under an LMS license. The Commission eventually abandoned that proposal, but in the meantime Progeny managed to obtain – over considerable objections from unlicensed users of the 902-928 MHz band – a waiver permitting it to use its LMS licenses for the location of items other than vehicles, like cell phones.

Now the FCC is considering another request for waiver of the LMS rules, and it has invited public comment.

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Update: More New 911 Rules Take Effect

Slowly but surely, the new set of rigorous requirements for 911 system service providers adopted last December in the wake of the 2012 “derecho” storm are coming on line. Most of those requirements took effect in February, but four particular rules did not. That’s because they involve “information collections” that had to be run past the Office of Management and Budget thanks to the Paperwork Reduction Act. OMB’s review process has now been wrapped up for three of the four – those would be Sections 12.4(c), 12.4(d)(1) and 12.4(d)(3) – and they have now taken effect, according to a notice in the Federal Register. (To refresh your recollections, Sections 12.4(c) and 12.4(d)(1) relate, respectively, to the required submission of annual reliability and initial reliability certifications. Section 12.4(d)(3) imposes certain record retention obligations.)

Still waiting in the wings: Section 4.9(h), which requires reporting on outages potentially affecting a special 911 facility. Apparently OMB hasn’t given that one the thumbs up yet. When that does happen, look for another Federal Register notice. We’ll let you know when that pops up.

The Future of LPTV/TV Translator Service Taking Shape?

FCC finally begins to address what post-repack life might look like for LPTVs and TV translators – but it presents more questions than answers.

Of all television operators, LPTV and TV translator licensees have faced the greatest uncertainties as the anticipated repacking of the TV band has begun to loom. That’s because the FCC’s repacking plans thus far have disregarded LPTVs and translators. As a result, LPTV/translator licensees don’t whether their stations will continue to exist post-repack: the repacking process will squeeze full-power and Class A stations into considerably less spectrum than they currently occupy, leaving precious little extra space for LPTVs/translators (except possibly in areas populated more by prairie dogs than by people). And anyone holding a construction permit to convert an existing analog LPTV/translator station to digital or to build a whole new station has been left to wonder whether, if they proceed with construction, they will be able to use those re-built facilities after the repack has been completed.

Now, at long last, the FCC has begun to turn its attention to these concerns.

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FCC Rethinks Wireless Microphones

The steady shrinkage of the TV bands is forcing the FCC to look elsewhere for wireless microphone spectrum.

Having inadvertently threatened a key industry with extinction, the FCC is now trying to reactivate it.

We see wireless microphones used on TV stages, live concerts, and in Broadway and Las Vegas shows. TV and film studios use technically similar equipment. So do backstage personnel for intercom and cueing in all of the above productions. Other uses for wireless microphones include public meetings, political events, school and college classrooms, and live music in bars, garage-band garages, and just about everywhere else.

For decades, wireless microphones have operated successfully in locally vacant TV channels. Three recent FCC developments, though, are making those channels scarce. First, the FCC authorized unlicensed TV White Space (TVWS) operation to provide Wi-Fi-type service in many of the same vacant channels. Second, the transition to digital TV eliminated 18 channels from TV use – and also took them away from TVWS and wireless microphones, which greatly increased pressure on the channels that remain. Third, the upcoming “incentive auction” will reallocate still more TV channels to wireless broadband, leaving insufficient spectrum for wireless microphones.

A thick Notice of Proposed Rulemaking takes a long-term view of the problem.

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Update: Text-to-911 Rules Now in Effect

Sure, text-to-911 capabilities by December 31, 2014 is now the law, with mandated implementation by June 30, 2015 at the earliest. But your best bet, in an emergency, is still to make a voice call to 911, if possible.

R U rdy 4 txt 2 911? For the texting illiterate, that’s text-speak (somewhat similar to Newspeak from George Orwell’s Nineteen Eighty-Four) for “Are you ready for text to 911?” If you’re a commercial mobile radio services (CMRS) provider or “interconnected text provider”, you’ve got fewer than three months: the FCC’s rules now require all CMRS (CMRS) providers and “interconnected text providers” to support text-to-911 by the end of 2014.

What do you think, will this be doubleplusgood or doubleplusungood?

Followers of our blog will recall that last year the major CMRS carriers voluntarily agreed to make text-to-911 services available by May 2014. As we reported earlier this year, in January the FCC proposed rules mandating that all texting providers support text-to-911. And now those rules have been finalized, adopted and published in the Federal Register. Most took effect earlier this month (although some, involving new information collections, are still subject to Office of Management and Budget approval).

While the rules may technically be effective now, don’t expect text-to-911 to be working everywhere for a while yet.

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Laura Stefani Joins FHH

Wilkommen, Bienvenue, Welcome!

Fletcher, Heald & Hildreth is pleased to announce that Laura Stefani has joined us as Of Counsel. She’ll be focusing on emerging technologies, wireless, broadband, and RF equipment issues. Laura is no stranger there: She has more than a decade of experience (most recently with another Washington, D.C.  telecom law firm), having represented clients before the FCC, NTIA and other federal agencies with respect to wide range of regulatory matters. Think spectrum allocation and sharing, equipment authorizations, enforcement issues, to name a few.

Laura is a graduate of the George Washington University School of Law.  She got her BA in Economics (magna cum laude, thank you very much) from Lawrence University (home of the Lawrence Vikings). Her senior thesis focused on public policy agenda setting.

Laura lives in Washington, D.C. with her son and an escape-artist beagle named Polly. When she’s not in the office, she generally can be found hiking, biking, running, kayaking, or engaging in any other activity that keeps her outside.

Laura can be reached at stefani@fhhlaw.com or by phone at 703-812-0450.

Medical Body Area Networks Expand to Untether More Patients

FCC tweaks two-year-old MBAN rules.

Two years ago the Commission authorized Medical Body Area Network (MBAN) devices to operate in the 2360-2400 MHz region, immediately below the heavily-used unlicensed band that houses Bluetooth, and most Wi-Fi, along with many other applications. (We reported on that here, if you want to refresh your recollection.) MBANs relay information about a medical patient’s condition to data-gathering terminals, allowing patients to get up and move about without dragging wires behind or pushing carts full of equipment in front of them.

In August the FCC acted on petitions for reconsideration of its MBAN rules, making a few tweaks which mostly relaxed restrictions on MBAN use. The Commission also adopted procedures for frequency coordination and selection of an MBAN coordinator. That Second Report and Order has now been published in the Federal Register, so now we know that the tweaks will take effect as of November 5, 2014 except for Section 95.1225(c) (which requires the MBAN frequency coordinator to operate as a nonprofit entity and to provide information on a nondiscriminatory basis and to pass its database along to any eventual successor coordinator). That rule, which was added on reconsideration, must first be run past the Office of Management and Budget pursuant to the Paperwork Reduction Act.

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