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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Marriott Whacked for $600,000 for War on Rogue Wi-Fi Hotspots

Enforcement Bureau stretches meaning of “cause interference to” in order to reach the right result.

The Enforcement Bureau has struck a blow for those who prefer to use smartphones to set up their own personal mobile hotspots when they’re on the go – thereby avoiding the pricey wireless Internet access offered by various places, like hotels. In an Order and related Consent Decree, the Bureau has spanked the Marriott Corporation with a $600,000 “civil penalty” for using “containment capability” to prevent guests at the Gaylord Opryland (run by Marriott) from by-passing the hotel’s Wi-Fi system in favor of their own DIY hotspots.

To get to that result, though, the Bureau had to stretch the conventional definition of “interference to radio communications”.

It is, of course, well-known that many smartphone users can use their handsets as mobile hotspots to connect their laptops, tablets, and other Wi-Fi enabled devices to the Internet. When, as occasionally happens, that doesn’t work, users usually chalk it up to network congestion, or to the data network management practices (read – throttling) of their wireless carriers.

Turns out there may be other forces conspiring against the mobile hotspot user.

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LStelcom Joins the Ranks of Approved Whitespace Database Administrators

And then there were five (or six).

It never rains but what it pours. We went nearly 10 months without any new whitespace database administrators being approved, and now we’ve had the second approval in under a month. The Commission has announced that LStelcom AG has made it over the final hurdle and its system has now been approved for operation.

This brings to six the number of such approvals that have been issued. The others already admitted to the club: Key Bridge Global LLC, Spectrum Bridge, Telcordia Technologies and Google (twice). (Fun factoid: From the fine print of the LStelcom public notice we learn that Telcordia is now referred to as “iconectiv”. We have modified our table below accordingly.)

From our handy table, it looks like the next contestant likely to join the ranks of the approved will be Comsearch. Our guess on that score is based on the facts that: (a) Comsearch wrapped up its testing – i.e., the penultimate step in the approval process – back in June; and (b) none of the other four contenders has even started its testing.

So six down (if you count Google twice), five to go. Check back here for further updates. 

(Fuzzy on the whole white space database administrator question?  Check out this post for some background.)

Coordinator

Test Started

Test Finished; Comments Sought

Coordinator Approved

Comsearch

Feb. 24, 2014

June 23, 2014

 

Frequency Finder Inc.

     

Google Inc.

Feb. 27, 2013

May 29, 2013

June 28, 2013

Google Inc. II

June 2, 2014

July 29, 2014

Sept. 10, 2014

LStelcom AG

June 18, 2013

     Nov. 14, 2013

Oct. 1, 2014

Key Bridge Global LLC

March 4, 2013

May 29, 2013

Nov. 19, 2013

Microsoft Corp.

     

Neustar Inc.

     

Spectrum Bridge Inc.

Sept. 14, 2011

Nov. 10, 2011

Dec. 22, 2011

iconectiv  (f/k/a Telcordia Technologies)

Dec. 2, 2011

Feb. 1, 2012

March 26, 2012

   WSdb LLC

     

Regulating the Internet "Like a Utility" Won't Yield an Open Internet - Unless ...

Simply imposing Title II won’t work.

[Blogmeister’s Reminder: The views here are those of the author, not necessarily shared by FHH colleagues and clients. Responses are welcome.]

Many of the three million (or so) comments in the net neutrality proceeding, based on our own small sample, urge the FCC to impose net neutrality rules by regulating the Internet “like a utility.”

Sorry. It won’t work.

“Regulating like a utility” means bringing Internet service providers (ISPs) under Title II of the Communications Act, which is the statutory basis for common carrier regulation. Title II prohibits “unjust or unreasonable discrimination.” Preventing discrimination is also the purpose of net neutrality. That looks like a good fit. Why isn’t it enough?

Congress enacted Title II in 1934 primarily to regulate telephone service. Telephones of that era delivered exactly one functionality: real-time voice transmission. Non-discrimination meant that everybody got a dial tone on equal terms. That was easy to regulate. Enforcement was easy, too, since one company handled local service in nearly every city and town, and was also the country’s only long-distance provider.

The Internet is vastly more complicated, with astronomical numbers of providers and services. A simple rule saying nothing more than ISPs “shall not discriminate” would be meaningless. An ISP’s capacity is, after all, finite. At peak times it may not be able to accommodate 100% of all potential content – email, Facebook posts, Netflix video, VoIP calls, people working from home, casual browsing. At those times, some discrimination must necessarily occur in allotting access to providers. The question, then, is how to ensure that the discrimination is “fair”. An effective non-discrimination rule would give an ISP managing a traffic overload clear guidance on which bits to send on and which to hold back in every possible situation. More than that, a proper rule would let the ISP program in algorithms that make these decisions automatically, on the fly.

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Broadcasters: Meet the New E-Filing System

Same as the old e-filing system? Maybe not. All broadcast forms will be reduced to a single form – plus schedules, of course.

The Media Bureau has announced the partial debut of the “Licensing and Management System” (LMS), an online filing system which, eventually, will replace the current system (i.e., the Consolidated Database System –what we know and love as CDBS) that’s been in operation since the turn of the century.

So CDBS may not be long for this world. Just how long will depend on how long the FCC takes to set up the necessary filing capabilities in LMS. But enough have been set up so far to open the doors for two specific types of applications.

In this case, full-power TV licensees and permittees are the ones on the cutting edge of technology: if you’re a full-power TV licensee or permittee and you need to file for a construction permit or covering license, you’ll be the first to experience LMS. That’s because, as of October 2, 2014, full-power TV folks in that position will have to file not a Form 301 (for a CP) or 302-DT (for a license), but a whole new Form 2100 (for either). And you’ll be filing that through LMS, not CDBS. In fact, as of October 2, CDBS won’t even be an option for such applications.

All broadcasters should get used to the notion of having to file Form 2100 because the Bureau’s goal is to reduce ALL broadcast applications to that single form.

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