FilmOn X Loses in Latest Bid to be a Cable System

aeroNinth Circuit is the latest to say that Internet-based services are not cable systems.

Remember Aereo? Sure you do, if you were a regular CommLawBlog reader pretty much anytime between 2012 and 2015. Aereo was the upstart looking to revolutionize the way cord-cutters watched TV: its dime-sized antennas were designed to receive and capture local broadcast signals for viewing (either virtually “live” or delayed, à la a DVR) through the Internet. It flew high for a while, thanks to an accommodating Second Circuit, but was eventually shot down when the Supreme Court refused to embrace Aereo’s view of the copyright law. (For a trip down Memory Lane, click here for a collection of our Aereo-related posts.)

One of the interesting sub-plots of the Aereo saga was the appearance of other Aereo-like services that sprang up nearly simultaneously with Aereo. They included, most notably, a service initially dubbed “Aereokiller”. It was the brainchild of one Alkiviades “Alki” David. Like Aereo, Aereokiller – which has since changed its name to FilmOn X – was promptly sued for copyright infringement by the major broadcast networks. The Supreme Court’s Aereo decision gutted FilmOn X’s copyright argument just as it did Aereo’s, forcing FilmOn X to come up with a Plan B.

Under that Plan B, FilmOn X claimed that it was a “cable system” under Section 111 of the Copyright Act.

For those unfamiliar with the Section 111, a brief refresher. Under Section 111, a “cable system” is allowed to retransmit a performance or display of a copyrighted work without having to go directly to the copyright owner for permission. The cable system needs only pay a statutory fee to the Copyright Office and comply with a few relatively minor requirements. It’s a pretty sweet deal for the cable systems, and FilmOn X wanted to hop on that gravy train – especially since, following the Supreme Court’s beat-down of Aereo, that was pretty much the only way forward for it (and Aereo and any similar services). Continue Reading

Upcoming FCC Broadcast, Telecom Filing Deadlines

Do you know what upcoming FCC filing deadlines early April through early May apply to you? We do. Note our list is not comprehensive. Other proceedings may apply to you. Please do not hesitate to contact FHH if you have any questions. 

April 1, 2017  – EEO Public File Reports – All radio and television stations with five (5) or more full-time employees located in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas must place EEO Public File Reports in their public inspection files. All TV stations, as well as radio stations in the top 50 markets, must upload the reports to their online public files. All other radio stations may continue to place hard copies in the paper public file for the time being. For all stations with websites (including those with online public files), the report must be posted there as well.

EEO Mid-Term Reports – All radio stations with eleven or more full-time employees in Texas, and all television stations with five or more full-time employees in Indiana, Kentucky, and Tennessee must electronically file a mid-term EEO report on FCC Form 397, with the last two EEO public file reports attached.

Annual Telecommunications Reporting Worksheet – All telecommunications carriers and certain Interconnected VoIP providers must report annual revenues for the preceding calendar year on FCC Form 499-A.

Automated Reporting Management Information System (ARMIS) Reporting – Certain incumbent local exchange carriers (ILECs) must provide financial, service quality, infrastructure, and operational data for the preceding year across applicable ARMIS reports.

Federal Excise Taxes – Deadline for payment of federal excise taxes by certain telecommunications carriers and Interconnected VoIP providers.

Rate of Return Reporting – Certain local exchange carriers or groups of affiliated carriers must report compliance with FCC rate-of-return and price cap regulations on FCC Forms 492 and 492A.

Recordkeeping Compliance Certification and Contact Information Registration – All equipment manufacturers and providers of certain telecommunications services and Interconnected VoIP services must file annual recordkeeping certification and updated contact information for disability access services covered by Sections 255, 716, and 717 of the Communications Act.

Section 43.21(c) Letters – Certain common carriers subject to Section 32.9000 of the Commission’s rules must file with the Chief of the Wireline Competition Bureau a letter detailing its operating revenues and the value of its entire communications plant for the prior calendar year.

April 10, 2017 – Children’s Television Programming Reports – For all commercial television and Class A television stations, the first quarter 2017 children’s television programming reports must be filed electronically with the Commission.

Commercial Compliance Certifications – For all commercial television and Class A television stations, a certification of compliance with the limits on commercials during programming for children ages 12 and under, including those limits related to the on-air display of website addresses, or other evidence to substantiate compliance with those limits, must be uploaded to the online public inspection file.

Issues/Programs Lists – For all commercial and noncommercial radio, television, and Class A television stations, a listing of each station’s most significant treatment of community issues during the past quarter must be placed in the station’s public inspection file. Radio stations in the top 50 markets and in an employment unit with five or more employees will have to place these reports in the new online public inspection file, while all other radio stations may continue to place hard copies in the paper file for the time being. Television and Class A television stations will continue upload them to the online file.

Class A Television Continuing Eligibility Documentation – The Commission requires that all Class A Television maintain in their online public inspection files documentation sufficient to demonstrate that the station is continuing to meet the eligibility requirements of broadcasting at least 18 hours per day and broadcasting an average of at least three hours per week of locally produced programming.

April 12, 2017 – Comments are due April 12 on the National Highway Traffic Safety Administration (NHTSA) connected vehicle technology Notice of Proposed Rulemaking.

May 9, 2017 – ATSC 3 Television Broadcast Standard – Comments due with regard to the Commission’s Notice of Proposed Rulemaking proposing to authorize television broadcasters to use the “Next Generation” broadcast television transmission standard developed by the Advanced Television Systems Committee and known as ATSC 3.

Please contact Anne Goodwin Crump and Dan Kirkpatrick for broadcast items and Cheng-yi Liu about telecom items if you have questions about any of these filings.


Drones for Tower Inspections? Lookout for FAA Regulations

FAA Waivers May Be Required

Last summer, the Federal Aviation Administration (FAA) issued its first regulations allowing commercial flights of small unmanned aircraft (sUAS, colloquially known as drones). As we reported, those rules place a number of restrictions on flying drones for commercial use, although the agency provided the opportunity to obtain waivers of some rules.

For tower owners and inspectors, there is a growing appeal for using drones to perform inspections – and perhaps someday, when the technology is ripe, to actually make repairs. Given the risks involved in climbing towers, the ability to substitute a machine for a human makes sense.

But be aware that the current FAA rules will restrict tower inspections by drones in certain situations. For one, there currently is a 400 feet altitude restriction on commercial drone flights, unless the operator is able to fly the UAS within a 400 foot radius around a structure and does not fly higher than 400 feet above the top of that structure. The current rules also restrict drones to certain airspace without prior authorization from the local air traffic control (ATC), namely “Class G” airspace. Class G airspace, uncontrolled by ATC, is essentially low-altitude airspace away from airports (the required distance depends on the size and type of airport, with the greatest areas of protection around the largest airports).

In sum, urban areas are generally blanketed with controlled airspace. Many towers located in urban areas and near airports cannot be inspected by drones without prior ATC authorization. And even if prior ATC authorization is requested, some airspace, such as the protected airspace over Washington, D.C., as well as near military bases and other sensitive government locations, will essentially always be restricted. (One more point to consider – Notices to Airmen (NOTAM) also list locations where there are temporary flight restrictions.)

Other rules that may impact tower inspections include restrictions on flights over people, flights outside of daylight hours, and flights beyond line-of-sight. The FAA has set out a means of obtaining certificates of waiver of these rules and certain others, which will require the right set of facts demonstrating that a particular flight can be conducted safely.

And as always, fly safe, and lawful, out there. And please contact us if you think you may need a waiver of these FAA rules or have questions on this process.

Effective Date Announced for Relaxed FM Translator Siting Rules

fcc building-1The last “T” has been crossed and the last “I” dotted in the FCC’s proceeding to adopt new rules relaxing siting requirements for FM translators seeking to rebroadcast AM stations. In a Federal Register notice, the FCC announced that the Office of Management and Budget has approved the information collection requirements associated with the Commission’s Second Report and Order in Revitalization of the AM Radio Service.

The changes now become effective on April 10. The Media Bureau recently had said it wouldn’t process such FM translator applications until the new rules take effect. In order to be fair to all stations that may want to take advantage of the new rule, the Media Bureau said at that time in a Notice that “any application or notification that does not comply with the current siting rule, including those that seek a waiver of the order’s effective date,” would be dismissed.

The bureau said this processing policy will ensure that all AM stations “have the same opportunity to propose potentially conflicting facilities in spectrum-congested areas and to prevent filers from gaining cut-off protection for proposed facilities that at the time of filing are patently defective.” Any FM translator licensees or permittees now know when they will be able to take advantage of that opportunity – April 10. In the meantime, please contact FHH with any questions.

AM Owners: Don’t Jump the Gun on FM Translator Applications

The FCC’s Media Bureau is not processing FM translator applications for AM owners until its new rule takes effect. At its public meeting last week, the agency adopted an order to relax restrictions on siting FM translators to be used as fill-ins for gaps in AM coverage. However that change has not yet become effective.

In order to be fair to all stations that may want to take advantage of the new rule, the Media Bureau said in a Notice that “any application or notification that does not comply with the current siting rule, including those that seek a waiver of the order’s effective date, will be dismissed.”

The bureau says this processing policy will ensure that all AM stations “have the same opportunity to propose potentially conflicting facilities in spectrum-congested areas and to prevent filers from gaining cut-off protection for proposed facilities that at the time of filing are patently defective.” The bureau will issue a notice announcing the effective date of the rule changes. In the meantime, please contact FHH with any questions.

FCC Drops 40-Mile FM Translator Siting Cap for AMs

tower-4As anticipated, the FCC adopted at its February 23 meeting a rule change to ease FM translator siting restrictions for AM owners. (The FCC signaled previously that such a change was forthcoming by releasing a draft decision three weeks before the meeting at which the item was voted upon. That release was part of an experiment to increase transparency in the agency’s rulemaking process led by new Chairman Ajit Pai.) The rule change, enacted through the “Second Report and Order” (2nd R&O) in the AM revitalization docket, concerns only where an FM translator used as an AM fill-in may be located. The Commission states in the document the agency has now opened and closed two filing windows in which more than 1,000 applications were granted so AM owners could acquire and move FM translators to increase their signal coverage. Because of the strong need for siting flexibility, the FCC acted on this proposal now. Action on other AM revitalization proposals will come later.

Under the previous rule, an FM translator rebroadcasting an AM station must be sited so that the 60 dBμ contour of the FM translator is contained within both (a) the 2 millivolts per meter (mV/m) daytime contour of the AM and (b) a 25-mile radius centered at the AM transmitter site. Continue Reading

ATSC 3.0 NPRM Adopted

ATSC logo-1The FCC has adopted its anticipated Notice of Proposed Rule Making looking toward allowing television broadcasters to transition from the present ATSC 1.0 technical standard to the new, recently developed ATSC 3.0 standard. ATSC 3.0 is Internet Protocol (IP) based and offers many potential benefits, including both multiple broadcast streams and non-broadcast IP services; but it is not compatible with existing receivers, so viewers will have to buy add-on devices or new TV sets to receive the new services.

The transition will be completely voluntary. No station will have to convert to ATSC 3.0, and no multi-channel video program distributor (MVPD, cable or satellite) will have to carry an ATSC 3.0 signal under must-carry rules. The FCC has also tentatively concluded that it will not mandate that ATSC 3.0 reception capability be built into television receivers.

However, the FCC has proposed some roadblocks that impose burdens that may keep some broadcasters from making decisions in a completely free marketplace.

First, and most importantly, every TV station that converts to ATSC 3.0 will be required to continue to provide ATSC 1.0 service. Because a given facility can broadcast in only one standard, that means that ATSC 3.0 cannot be implemented unless the converting station enters into an agreement for carriage of its programming in ATSC 1.0 by some other station that is not converting; in other words, some stations have to stay behind for a while and be willing to host their competitors. (Duopoly owners, however, could potentially operate one station in each standard, avoiding the need to negotiate with, or involve, third parties). No station will be required to agree to serve as an ATSC 1.0 host, nor will the FCC regulate how much the host station may charge for its services or whether it may charge different amounts to different stations.

Second, MVPD must-carry rights will apply to only the ATSC 1.0 service. The FCC asks whether it should permit TV stations that have elected retransmission consent to demand ATSC 3.0 carriage as part of their negotiations with MVPDs. Since most TV stations deliver their signals to MVPDs over fiber or microwave in an IP format that is neither ATSC 1.0 nor ATSC 3.0, we are not sure why the FCC is so concerned about this issue, other than the fact that they have been pressured by MVPD interests to block broadcaster pressure to carry ATSC 3.0 streams.

Finally, stations will be obligated to undertake, and absorb their own costs for, a consumer education program with announcements warning viewers about the migration of their ATSC 1.0 service to another station.

The FCC is concerned that viewers not lose any services they now enjoy, so requirements for children’s programming requirements by full power and Class A stations and local programming by Class A stations will apply to ATSC 3.0 broadcast streams. This new concern about loss of service to the public contrasts rather starkly with the position the FCC took during the recently concluded incentive auction that there would be no harm to the public if a community were left with no public television, or no television station at all, as a result of station shut-downs after the auction. (In the end, few enough stations were bought in the auction that it is not likely that any community will be left without any service.)

The Commissioners have expressed considerable excitement about the potential of the new technology, including hyper-local content directed to sub-zones of a station’s service area and the numerous benefits of IP format transmission. However, they may not recognize some of the complexities they have put on the table. For example, concern was expressed over loss of high definition (HD) ATSC 1.0 service. If stations convert to ATSC 3.0 and move their ATSC 1.0 service to another station acting as a host, there may not be enough room for continuation of ATSC 1.0 services in HD rather than standard definition (SD) format, because one station can normally accommodate only two HD streams. In addition to technical concerns, compressing signals onto a single ATSC 1.0 host will create business issues that will need to be worked out between stations and their program providers (e.g. networks and syndicators). Moreover, Commissioner Clyburn expressed concern about the loss of diverse programming now carried on ATSC 1.0 subsidiary streams (dot 2, dot 3, etc.). Will the FCC require all ATSC 1.0 streams to be moved to a host station? If so, there will likely not be room for all the streams, and the conversion to ATSC 3.0 will be stymied.

The draft NPRM that we saw included Class A and low power television (LPTV) stations in the proposal, rather than leaving those stations out of the transition until later (LPTV was left out of ATSC 1.0 digital transition until after full power rules were in place). However, the problem of finding a host for ATSC 1.0 service may be more difficult for LPTV stations than for full power stations, as not all communities have enough LPTV stations to serve as hosts to accommodate many streams, and many LPTV stations transmit 4 or more program streams that would be too numerous to accommodate on a host station in anything but a low-grade SD format.

In other words, the FCC is not really ready to let television evolve in a completely free marketplace. But with the recent resurgence of over-the-air viewing, and the ability of ATSC 3.0 to reach ever more pervasive mobile receivers, should the TV industry instead be left completely free to use their best judgment all around? Will the demands and preferences of viewers and advertisers act as sufficient constraints to allow the FCC to take a fully “hands-off” approach? These questions and others will undoubtedly be addressed in comments on the NPRM.

The deadline for comments in GN Docket No. 16-142 will be known when the NPRM is published in the Federal Register.

If you have any questions about the FCC’s proposals or the potential benefits and detriments of converting to ATSC 3.0, FHH attorneys stand ready to help.

Wi-Fi Holds its Breath as FCC OKs LTE-U

wifi-in-tsunami-1Wi-Fi is one of the great technological successes of our age. It gives fast, reliable data transmission by anyone for any purpose. No FCC license is needed. No single provider controls the technology. The equipment is inexpensive and available in a large, competitive marketplace. It almost always works.

Was it too good to last?

We explained a year ago that carriers want to move traffic off their expensive auctioned frequencies and onto the same free-of-cost, and unlicensed, frequencies that Wi-Fi uses. We kept you current on the process of setting standards for the various technologies the carriers want to use, to include LTE-U, LAA, and MulteFire – see here and here – including the controversial issue of whether LTE-U would interfere with Wi-Fi.

Interference to Wi-Fi? Isn’t that illegal? Prepare to be surprised. The convenience of Wi-Fi being unlicensed has a cost: no unlicensed technology has any legal protection from interference. (We’ll pass over a minor exception.) The FCC regulates the power and other properties of unlicensed equipment to make sure it doesn’t interfere with licensed services. The very smart people who invented the Wi-Fi standards, and who design other devices for the same bands (like Bluetooth), are careful about coexistence, which is why all this equipment usually works well together. But coexistence is not a factor in whether the FCC will certify a device for sale as being compliant with its rules.

The FCC has now issued its first certifications for LTE-U devices. (The first LAA devices, a tad less controversial as to their ability to co-exist, were approved months ago.) The announcement reiterates that coexistence with other unlicensed devices is not an FCC requirement. But it mentions that the new devices were successfully evaluated for coexistence under a test plan worked out by industry – in this case, LTE-U and Wi-Fi stakeholders under the auspices of the Wi-Fi Alliance. That last is the group responsible for making sure that Wi-Fi-branded devices all connect to each other properly.

The real test of coexistence between Wi-Fi and LTE-U begins now, in the millions of homes and offices that rely on both Wi-Fi and cell phones to stay connected.

Mobile Now Legislation, Moving Along

capitol-unlicensed search-1High-stakes spectrum lobbying gears up

Last year, we reported on the proposed Mobile Now Act, the darling of U.S. Senators John Thune (R-S.D.) and Bill Nelson (D-FL), the Chairman and Ranking Member of the Senate Commerce Committee, respectively. The bill aims to encourage broadband deployment. At that time, we noted that the Act had a chance of being one of the few non-routine pieces of legislation to be approved in the last Congress. While it ultimately died, the Act has been teed up again by the Senate Commerce Committee, and we think that it has a good chance of being passed this year.

The current version is substantially the same as last year’s, with provisions to open more federal spectrum to both licensed and unlicensed commercial users in various frequency bands. As we highlighted last year, the legislation notably addresses:

  • Making up to 500 MHz of spectrum available for wireless broadband;
  • Considering permitting mobile or fixed wireless operations on mmWave federal spectrum;
  • Opening 3100-3550 and 3700-4200 MHz for shared (federal and non-federal) use; and
  • Providing for unlicensed use of newly formed guard bands.

Additional provisions to facilitate broadband deployment include improving access to easements, rights of way and leases on federal property, and providing “relocation incentives” to pay federal users to move to different frequency bands.

The cellular industry and others looking to make big plays in the Internet of Things will be pushing this legislation along.

As with most legislation this year, there is uncertainty as to the impact of the new administration on the Hill’s agenda. While Congressional Republicans are certain that they will be able to adopt much more legislation with a Republican in the White House, it is unclear what type of support this type of legislation will receive. For one, the legislation would require a good deal of work by a host of federal offices and agencies, including the Departments of Commerce and Transportation, the Federal Communications Commission, the Office of Management and Budget, and even the Government Accountability Office. And, it would require new regulations. Since this work is at odds with the President’s agenda of freezing new regulations, reducing government spending and cutting the federal workforce, the ultimate fate of the legislation, even if adopted, is not clear.