Digital Transition Deadline for LPTV/TV Translators Officially Suspended

Class A deadlines remain in effect.

Last October, we wrote about FCC proposals looking toward the future of Low Power Television (LPTV) stations after the upcoming incentive spectrum auction and associated repacking the TV spectrum into a smaller number of channels. One of the FCC’s proposals was to defer the September 1, 2015, deadline for LPTV stations and TV translators to complete construction of digital facilities and to terminate analog operation. The FCC tentatively concluded that it should grant that relief, because LPTV licensees should not be forced to invest in new facilities until they know whether they will be able to find channels after the spectrum repack.

While the FCC’s overall LPTV rulemaking has not yet been wrapped up, the Media Bureau has now announced an immediate suspension of the September 1, 2015, deadline for LPTV and TV translator stations. As a result, those stations may, if they wish, continue to transmit analog signals indefinitely, until the FCC says otherwise. There is no need to file applications to extend the expiration date of granted digital construction permits; in fact, the FCC does not want to have to deal with extension applications.

The suspension applies ONLY to the expiration date of construction permits for an existing analog LPTV or translator station’s initial digital facilities. This includes both flash-cuts from analog to digital on the same channel and permits to build companion digital stations on a different channel. The extension does NOT apply to the expiration date of construction permits for modification of facilities of stations that are already on the air with digital signals. Those permits still expire on the date indicated on the face of the permit.

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NAB to FCC: Erase, Replace White Space Database

Citing raft of errors, NAB urges suspension, overhaul of database requirements

The television white space (TVWS) database system, intended to increase the efficient use of TV spectrum, is a mess, according to the National Association of Broadcasters (NAB). Because of that, the NAB has asked the Commission to suspend operation of the system until the “serious design flaws” in the system can be fixed. The FCC is thinking about the NAB’s proposal, and has solicited comments on it.

The TVWS database system has been an ambitious undertaking since Day One. The idea, of course, is that there is some TV spectrum everywhere that is not being used at any one time by any licensed operator. Such spectrum can be put to good use by various low-power unlicensed devices (dubbed TV band devices, or TVBDs). But how is a TVBD user supposed to know where, when and what spectrum can be used? Enter the database.

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Brrrrr - FM Minor Mod Freeze Announced

With the deadlines for FM Auction 98 now on the books, the Commission has also announced that it will not accept ANY commercial or noncommercial minor mod applications between May 18 and May 28, 2015. That’s the filing window for short form (Form 175) applications for Auction 98.

These freezes are standard operating procedure when it comes to broadcast auctions. The goal is to avoid the creation of any conflicts (unforeseeable or otherwise) with auction proposals that could muck up the auction process. So if you have any intention of filing for a minor mod in the near term, you’d best be sure to get it filed before May 18 or be prepared to cool your heels for ten days until the freeze thaws on May 28.

For more information on the auction itself, see our related posts here.

Auction 98 - The Dates Are Set

You weren’t planning on taking summer vacation this year, were you? Good, because the dates for Auction 98 have now been set, and it looks like they’ll suck up most of the summer. So get out your calendar and mark these dates:

May 18, 2015 – 12:00 noon ET – Short-Form Application (FCC Form 175) filing window opens.

May 28, 2015 – prior to 6:00 p.m. ET – Short-Form Application (FCC Form 175) filing window deadline. The deadline for applications marks the beginning of the FCC’s very strict anti-collusion period. Bidders that intend to form consortia or otherwise partner with other bidders should have reached an agreement and disclosed it to the FCC by this deadline. Auction communications between or among bidders after this date could expose bidders to disqualification and hefty fines.

June 29, 2015 – 6:00 p.m. ET – Upfront Payments (via wire transfer). Based upon the markets that a bidder has selected in its May Short-Form Application, funds must be wired to the FCC as an upfront deposit to prove that the bidder is genuinely interested in participating in the auction.

July 23, 2015 – Auction Begins. 

At least a week before the July 23 start date, the FCC will let bidders know how many rounds of bidding will take place during the first few days. Depending upon the level of participation, it may take as little as a few days or as many as several weeks for the auction to end. The FCC’s anti-collusion rules will remain in effect throughout the auction (and for some time beyond the close of the bidding – keep an eye out for an announcement of when the coast is clear).  Those rules should be carefully followed.

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Copyright Tug of War: How May "Fair Play Fair Pay" Fare?

Music industry and NAB gear up – again – for war over performance rights.

Like the swallows returning to Capistrano, the debate about “performance rights” has again returned to Washington – this time signaled by the introduction of H.R. 1733, the “Fair Play Fair Pay Act” (FPFPA). While this year’s version of the perennial effort to impose additional copyright obligations on broadcasters features some new twists, its passage is far from guaranteed, although no one should be surprised if it advances at least part way through the legislative process.

“Performance rights”, of course, is the short-hand expression for a particular type of copyright interest, one held by recording artists. The right covers the artist’s particular recorded performance. (For more detail, check out my 2009 blog about an earlier performance rights effort.) While the “performance right” has been around since the 1990s, broadcasters have not been subject to it. That’s because Congress acknowledged that recording artists and radio broadcasters enjoy a unique relationship through which each side benefits from the other: radio stations get program content from recording artists who in turn get free promotion from airplay. The classic win-win situation. Rather than disrupt that, Congress chose instead simply not to impose any performance rights obligations on broadcasters for over-the-air play. (Note: Webcasting is another story: broadcasters are liable for performance rights royalties for material that they webcast, even if that material is identical to the broadcaster's over-the-air programming.)

But for years the recording industry has been pressing Congress to eliminate that exemption. The FPFPA – which is sponsored by a bipartisan group of folks including Rep. Jerrold Nadler (D-NY), Rep. Marsha Blackburn (R-TN), Rep. John Conyers (D-MI) and Rep. Ted Deutch (D-FL) – is this year’s try. It would amend the Copyright Act in several ways. You can read the entire 26 page bill if you want, but for a very good summary of all provisions, I suggest you check out this post from the Future of Music Coalition.

How would this bill affect broadcasters?

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Field Office Phase Out?

FCC Chairman on offensive for proposed Field Office closures – but will "tiger teams" really do the trick?

Word on the street (first reported last month by our friends at Radio World, as far as we can tell) is that the FCC’s Field Offices are on the budgetary chopping block: according to a memo reportedly circulating within the Commission (and co-authored by the Chief of the Enforcement Bureau and the Managing Director), the number of Field Offices would be sliced by two-thirds (from 24 to 8), and staffing would be cut almost in half (from 63 to 33). Field Offices in major cities – think Seattle, Denver, Boston, Philadelphia, Houston – would all be gone.

Ding Dong, the (Enforcement) Witch is Dead! Good news, right?

Not really.

Sure, visions of surprise inspections and write-ups for hypertechnical violations may plague the fevered imaginations of some, but the fact is that Field Offices are, and have long been, the friend of the licensed, street-legal operator. As a practical matter, voluntary inspection programs have largely removed the threat of drive-by, “gotcha” inspections. And while we may all chafe a bit at the occasional citation for a broken tower fence lock or unmown grass at the transmitter, such things tend to be rare, at least for licensees who are reasonably attentive to regulatory compliance.

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Intern-al Affairs III: The Interns Are Learning - and That May be Bad for You

Class drop-out tries to upset NBCUniversal settlement.

Spring break is fading in the rear view. Summer’s just around the corner. Soon the interns will be flocking to your door – if they haven’t already jammed your inbox – all looking for an opportunity to add a way cool media-related internship to their résumés.

So it’s a good time to remind you that you should think hard about whether you need to pay those interns instead of claiming that their “compensation” consists solely of school credit. I specifically use the word “compensation” and specifically put it in quotes because, if you’ve read any of our prior posts on this topic, you know that claiming school credit as interns’ compensation is a recipe for disaster. You’d be much better off if you were to take the time to study the Department of Labor’s Fact Sheet # 71: Internship Programs Under the Fair Labor Standards Act. That way you’re more likely to offer an internship program that falls on the right side of the “trainee/employee” line.

And being on the right side of that line is important, because being on the wrong side can be very expensive. Just ask NBCUniversal.

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OSHA Eyeing Possible Tower Worker Safety Standards

Injuries, fatalities to tower workers prompt inquiry into possible regulation.

Everyone in the communications industry must be concerned about the safety and well-being of the tower workers. Tower workers, quite literally, put their lives on the line to put up or keep up the towers that make communications possible. So we should all take notice that the Occupational Safety and Health Administration (OSHA) is considering whether it can, and should, take regulatory steps aimed at preventing injuries or deaths during tower work. In a formal Request for Information, OSHA has requested input that will help it figure out “what steps, if any, it can take to prevent injuries and fatalities during tower work.”

OSHA’s interest here is not new. As we reported last year, an OSHA official, prompted by a rash of fatal tower accidents in 2013, issued a letter reminding all “communications tower industry employers” of their “responsibility to prevent workers from being injured or killed while working on communication towers”. Now it’s delving deeper into the tower business, casting a regulatory eye on safe work practices, training and certification practices for communication tower workers, and “potential approaches [OSHA] might take to address the hazards associated with work on communication towers”.

Of course, a number of existing standards – developed both by OSHA and by other authorities – already apply generally to some aspects of the tower construction/maintenance process. (These include the “general duty to protect” workers imposed by Occupational Safety and Health Act.) But OSHA has no standards for comprehensive coverage of tower workers … not yet, at least.

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Wheeler to AMers: I've Got Your Revitalization Item ... Right Here

Action on AM rescue items may come soon, but things aren’t looking good for an AM-only FM translator window.

About 18 months ago, the Commission adopted a Notice of Proposed Rulemaking (AM Revitalization NPRM) that represented, in the words of then-Acting Chairwoman Clyburn, “the next significant step in our effort to buttress AM broadcast service and ease regulatory burdens on AM broadcasters.” Commissioner Pai, a long-time supporter of the AM industry, declared the NPRM a “landmark effort … to energize the nation’s oldest broadcasting service”. Optimism ran high that AM was about to catch a break.

Then things went quiet. We here in the CommLawBlog bunker have received a boatload of inquiries asking where the much-vaunted AM Revitalization proceeding stands. And now we have some idea: In a recent post on the FCC’s blog, Chairman Wheeler has announced that he “intends to conclude” this proceeding “in the coming weeks”.

There’s good news and bad news here.

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Attention, TV Licensees: The Pre-Auction Technical Certification Form Has Been Approved

One more step toward the incentive auction ...

Late last year we reported on a draft of Form 2100, Schedule 381. That’s the form (technical title: “Pre-Auction Technical Certification Form”) to be completed and filed by (a) all full-power and Class A TV licensees entitled to mandatory protection in the upcoming incentive auction as well as (b) those with Commission-afforded discretionary protection. (Don’t worry if you’re not sure whether you’re in the universe of those who will have to file: the FCC is going to be releasing, possibly by the end of this summer, an “Eligibility Public Notice” spelling out the facilities that the Commission believes to be entitled to protection.) Schedule 381 is designed to provide the Commission assurance that the technical profile of the television industry as reflected in the FCC’s database is accurate.

The latest news: The Office of Management and Budget has approved Schedule 381, so the form is now technically “effective”. It doesn’t appear to have changed significantly since our December, 2014 report on the draft. You can check out a copy of the schedule on the OMB website.

The deadline for completing and filing Schedule 381 has not yet been set. It’s expected to be announced in the Eligibility Public Notice. Still, many if not most affected licensees presumably know whether or not they’ll be on the list. Anybody likely to be on the list would be well-advised to take a close look at the form – NOW – and begin to gather the necessary information. Some should be relatively easy – transmitter and antenna specs in particular. Other stuff, not so much. F’rinstance, do you know when the last structural analysis of your tower was performed? How about the structural standard under which that analysis was performed? (Hint: Two possibilities are TIA 222-Revision F and TIA 222-Revision G. There’s also a general “Other” option – you’re on your own for that one.)

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Update: Comment Deadlines Set in STELAR Market Mod Proceeding

Last week we reported on the FCC’s Notice of Proposed Rulemaking (NPRM) triggered by the STELA Reauthorization Act of 2014 (STELAR). The NPRM has now been published in the Federal Register, which sets the deadlines for comments and replies. Comments may be filed by May 13, 2015 and replies by May 28. Comments and replies may be filed through the FCC’s ECFS online filing system; refer to Proceeding No. 15-71.

No Contest? Enforceability of Broadcast Contest Rule In Question

If you’re a broadcaster and you’re worried that you may have violated the on-air contest rule – or if the FCC has concluded that you did violate that rule – you may be in luck.

As we all know, the hilariously-named Paperwork Reduction Act (PRA) requires the FCC to get the approval of the Office of Management and Budget before the FCC can unleash “information collection” obligations on its regulatees. The PRA process – which provides not one, but two separate opportunities for public comment, thereby ironically doubling the potential paperwork to be created – often appears to involve little more than rubber-stamping, with no apparent attention paid to any public input that might be submitted.

What does this have to do with the FCC’s contest rule? Read on.

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STELAR Redux: FCC Launches Market Mod Rulemaking

Some old, some new standards likely for MVPD, satellite market modification proceedings, thanks to Congress

When you think of satellite TV, with its nation-wide reach, you may not immediately think of “local” service. But local service is an important element of Sat TV, and the FCC is now developing a way to tweak local TV markets for satellite carriage purposes.

Carriage of a TV station’s signal, whether by terrestrial MVPD’s or by satellite services (i.e., DISH and DirecTV), is dependent to a significant degree on the market to which the station is assigned. A station’s local market affects both its claim to mandatory carriage and the MVPD/satellite operator’s ability to take advantage of the compulsory copyright license. But the market to which a station is technically assigned by Nielsen – whose DMAs are used by the FCC to define TV markets for carriage purposes – does not always reflect the station’s actual audience. In order to insure the ability of stations to better serve their local communities, the Commission has long provided a process for “market modification”, a process by which a station’s community of license can be added to or deleted from a particular Nielsen DMA. But that process has thus far been available only with respect to cable carriage.

Now the FCC is proposing a market modification process for satellite carriage as well.

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Update: Wireless Microphone Coordination Provision of Incentive Auction Order Now In Effect

As we all know, last June the Commission adopted its massive Report and Order setting out the rules for implementation of the spectrum incentive auction. The auction, of course, is one element of a major reorganization of the spectrum in which (among other things) television stations will be “repacked” into a narrower portion of the spectrum. The repacking affects more than just TV licensees. Wireless microphones and other licensed low power auxiliary stations (LPASs) are allowed to operate on unused TV channels on a secondary, non-exclusive basis, so reduction in TV channels reduces LPAS opportunities as well -- a special problem for wireless microphone users in congested areas.

Deep in the fine print of the magnum opus, the FCC – concerned about the impact that the re-pack will likely have on LPASs, and wireless microphones in particular – sought to ensure that LPAS licensees would have access to as many TV channels as possible post-repack.

One way to achieve that was to permit LPAS operation co-channel with TV stations at distances less than those specified in Section 74.802(a) of the Commission’s rules, provided such use was coordinated in advance. To that end, Section 74.802(b) was revised to read: 

Low power auxiliary stations may operate closer to co-channel TV broadcast stations than the distances specified in paragraph (b)(1) of this section provided that their operations are coordinated with TV broadcast stations that could be affected by the low power auxiliary station operation. Coordination must be completed prior to operation of the low power auxiliary station.

While portions of the incentive auction Report and Order became effective last October, the revised Section 74.802(b) did not because it had to be run through the Paperwork Reduction Act drill at the Office of Management and Budget. According to a notice published in the Federal Register. that process has been completed, OMB has given its thumbs up, and the revised Section 74.802(b) is effective as of April 1, 2015.

Another Month, Another Spectrum Auction - But This Time, With a Couple of Twists

Coming soon: Innovative auction to dispose of innovative spectrum.

The FCC has announced yet another spectrum auction. Ho-hum, right?

WRONG – this isn’t like any previous auction.

First, there’s the spectrum that’s up for bids. According to the FCC, bidders will be bidding on “newly-discovered” spectrum. It appears that the Commission has had a task force of its best engineers running elaborate tests at the Columbia, Maryland lab. Their quest: any and all spectrum that might have escaped everybody’s attention thus far.

The effort appears to have paid off, in spades, with the first new spectrum unearthed since James Clark Maxwell predicted radio waves in 1867. “It must have been lying there the whole time,” said an FCC engineer who requested confidentiality. “We just happened to look in the right place.”

Sources indicate that the spectrum about to make its debut is being referred to by FCC insiders as the “Bleen Band”, a tongue-in-cheek homage to social commentator George Carlin. The Commission is officially mum (apparently preferring to avoid rampant market speculation and potential legislative or judicial interference). But reports leaking from the Columbia lab say that Bleen Band spectrum has propagation characteristics ideal for a vast range of services, including broadcast, fixed and mobile wireless, radar, Wi-Fi, and those things that unlock your car from across the street. FCC sources say that signals on the Bleen Band “go forever”, “penetrate just about anything”, aren’t susceptible to any known atmospheric conditions, and require very little power.

In the words of one knowledgeable Commission insider, it’s “like El Dorado, the Fountain of Youth, desktop fusion and a perpetual motion machine all rolled into one, with an antenna – and a small antenna at that.” Despite these rave reviews, though, don’t count on any pre-auction guarantees of performance from the FCC. According to more than one Commission rep (all speaking on condition of anonymity), the agency’s usual auction-related disclaimers (“The FCC makes no representations or warranties about the use of this spectrum for particular services, yada yada yada”) will apply, but “just to make the lawyers happy”.

And how better to sell innovative spectrum than with an innovative auction format?

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FM Licensee Says "Optimization", Audio Division Says "Directionalization"

Dramatic “optimizing” of FM antenna gets the hairy eyeball from the Audio Division

In the FM radio world, there are supposed to be only two kinds of antennas: directional and non-directional. While it has long recognized that that simplistic, idealized notion is not entirely valid, the Audio Division hasn’t acted on that recognition – until now.

In a decision that likely disappointed at least one Texas FM licensee, the Division has ordered that licensee – whose station is licensed to operate, nondirectionally, with ERP of 100 kW – to explain why its license shouldn’t be changed to specify directional operation. Such a change would result in a reduction by more than half (from 25 kW to 9.1 kW) of the station’s transmitter output power.

Non-directional antennas (a/k/a/ “non-D’s” or “omni’s”), of course, are supposed to transmit an equally strong signal in all directions. On the other hand, directionals – or “DA’s” – are designed to produce a signal that is stronger in some directions than others. They come in handy when a station needs to avoid interfering with a co- or adjacent-channel station in one direction.

But things are not as simple as they might appear – mainly because, thanks to technical considerations, omni antennas do not necessarily provide an idealized circular signal contour. Perhaps most obviously, if a non-directional antenna is mounted on the side of a tower, rather than the top, the interaction of the signal with the tower structure itself can distort the signal in a number of ways. Recognizing this, antenna manufacturers have sought to adjust some omni’s to “optimize” their performance, i.e., to counteract such distorting effects.

But once you start down the “optimization” road, things can leave the rails pretty quickly.

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One-A-Day Sponsorship IDs?

FCC invites comments on proposal by coalition of nine radio licensees to shift sponsorship IDs primarily to Internet

In an unusual petition that was filed last November – but took five months to hit the FCC’s public radar screen – a group of radio station owners is asking the Commission to waive the sponsorship identification requirements for a “defined class of qualifying radio broadcasters”. While the prospects for a grant of the requested waiver may be limited (because it may be asking for something the FCC can’t provide), the fact of the request itself raises some interesting questions.

The petitioners, who call themselves the Radio Broadcasters Coalition, consist of nine companies, including several major radio group owners – iHeart Media (née Clear Channel), Emmis, Cox, Entercom, Greater Media, among others. According to the FCC’s summary, they would like the Commission to let “radio broadcasters airing music or sports programming … provide information about sponsored material through a combination of less frequent on air announcements together with enhanced online disclosures.”

Under the proposal, a qualifying radio station would, after a three-week “listener-education” period, have to make on-air sponsorship ID announcements only once each day (sometime between 6:00 a.m. and 7:00 p.m.), notifying listeners generally that (a) some programming on the station had been sponsored by certain identified sponsors and (b) listeners can find more details on the station’s website. At its website, each qualifying station would have a page, specifically accessible through a tab or link identified as “Enhanced Disclosure of Sponsored Programing”, containing “enhanced” sponsorship ID information. Such information would include a list of the names of sponsors, the names of the programs in which the sponsored material had aired, a list of the artists and music (or sports teams) affiliated with particular sponsor entities, and the types (but not amounts) of payments/services exchanged between sponsors and the station.

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Update: TIS Tweaks Tweaked

Technical Content Alert!!! The rule changes discussed below are highly technical. If you’re OK with stuff like “attenuation [must be] greater than the attenuation at 1 kHz by at least: 60 log10(f/3) decibels, where ‘f’ is the audio frequency in kHz”, you should have no problem. Others should proceed with caution.

A couple of years ago we reported on a number of changes made by the FCC to its rules governing Travelers' Information Stations (TIS), the first changes to the TIS rules since TIS were established in 1977. Now those changes have been tweaked, although not as much as some might have liked.

As noted above, the tweaks are highly technical, so much so that we won’t go into detail here. (There's a reason we chose law school rather than a career in engineering.) TIS cognoscenti should take a close look at the FCC’s decision for the real nitty-gritty. To summarize:

The filtering requirement for TIS has been changed from 3 kHz to 5 kHz. The expectation is that this should improve the quality of TIS signals to match commercial AM station signals – but TIS operators who might prefer, for whatever reason, to continue to use 3 kHz filters may do so. (The Commission declined to eliminate the filtering requirement entirely.)

The roll-off curve relative to signal attenuation has been adjusted in light of the changed filtering requirement.

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FCC Flexes Its Indecency Muscle - Despite Long Hiatus and Unclear Standard

Apparently horrified by a three-second video clip inadvertently aired during newscast, FCC slams licensee with $325K fine

It’s been a while since we checked in on the FCC’s indecency policy. When last we did, the constitutionality of that policy remained unresolved (and, in the minds of at least two Supreme Court justices, seriously in doubt). And the FCC had cryptically announced that it had re-jiggered the policy in some undescribed way(s) that permitted the Commission to summarily dismiss (apparently in a matter of minutes, if not seconds) a million or more indecency complaints that had been sitting around for years. And the Media Bureau had invited comments on possible, unspecified, revisions to the policy.

In other words, things on the indecency front seemed as muddied as ever.

So it was something of a surprise to hear that the Commission had suddenly lowered the boom on a Roanoke, Virginia TV station, fining it the maximum – $325,000 – for a single three-second instance of alleged indecency, the broadcast of which, during a 2012 newscast, was admittedly unintended. It looks like the FCC wants to send a signal to broadcasters.

The facts are relatively straightforward.

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Getting Rulemaking Petitions On File Online

 New option allows filing of petitions for rulemaking through ECFS.

 If you’re planning on filing a petition for rulemaking with the FCC but you’re out of paper, or maybe your printer is low on toner and the local Kinko’s is closed, we’ve got good news for you. The Commission has announced that petitions for rulemaking may now be filed electronically!

As we reported last December, the FCC has been tweaking its Electronic Comment Filing System (ECFS) to accommodate a wide range of electronic filings that previously could be filed only on paper. Thanks to those efforts, ECFS will now accept rulemaking petitions along with the other non-docketed filings we listed in our December post.

The drill for petitions for rulemaking is essentially the same as for other non-docketed filings:

  1. Go to the ECFS home page;
  2. Click on the “Submit a Non-Docketed Filing” link in the list of “ECFS Main Links” (top left corner of the screen);
  3. From the first drop-down menu, select the FCC “inbox” to which your filing is to go – for a rulemaking petition, that would be (unsurprisingly) “Section 1.401 Petition for Rulemaking”; from the “Filing Type” drop-down, pick “Petition for Rulemaking”;
  4. Complete the rest of the form;
  5. Upload the document you want to file;
  6. Click the “Continue” button;
  7. Follow the remaining prompts.

You’ll know that you’ve successfully navigated the maze when you see a confirmation screen with a unique confirmation number. (Practice tip: It’s always a good idea to make and keep a screen grab copy of the confirmation screen, just in case any question ever arises.)

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Now Available: Kevin Goldberg on Music Licensing - The Online Version

Frequent CommLawBlog contributor and copyright guru Kevin Goldberg (that's his smiling face next to the post) presented a 90-minute webinar on “Everything You Wanted (or Needed) to Know About Music Licensing, But Were Afraid to Ask” on March 25. Kevin covered the full landscape of licensing issues for broadcasters and webcasters – his PowerPoint was more than 75 pages long, for crying out loud (but trust us, as Kevin took us all through it, it was highly accessible).

We promised all attendees that we’d be providing a link to the recording of the Swami’s show, and here it is. This will get you the audio and video. Even if you didn’t happen to be one of the lucky attendees, we welcome you to check it out (but you’ll have to register by providing your name and email address).

Also, if you want a copy of the PowerPoint slides, you can access one here. It provides an excellent reference guide for anyone using music for broadcasting or webcasting.

Tomorrow's Broadcast Leaders: Their Future's So Bright, They've Gotta Wear Shades

FHH Profs Montero and Kirkpatrick show up-and-comers the ropes.

Another class of the brightest and the best is working its way through the Broadcast Leadership Training Program, and FHH is there to help. The BLT, of course, is a 10-month Executive MBA-style program created by the National Association of Broadcasters Education Fund (NABEF) to provide rising executives the specific knowledge and skills they’ll need when it comes time for them to assess, buy, own and operate radio and television stations. The BLT provides “a blueprint for talented businesspeople to become a greater part of the industry and increase the diversity of voices available to the public”, according to the BLT website. (Check out this page of the website for information on how to apply for next year’s program; applications are due by May 31, 2015.)

BLT participants don’t have to suffer through dry presentations offered by ivory-tower-cloistered lecturers. Au contraire, they are taught by a wide range of professionals who know what they’re talking about because they’ve experienced it all first hand – including (and here we’re quoting the BLT website) “leading communications attorneys”. So it should not surprise you that the most recent session,on “Closing on the Acquisition of a Broadcast Station”, was led by none other than FHH mavens (and CommLawBlog contributors) Frank Montero and Dan Kirkpatrick. Frank and Dan took their tutees through practical issues they’re likely to confront, including preparing closing documents, obtaining necessary consents, getting all financing in order, and the like.

This year’s class includes: Anthony Arbucias, Graham “Skip” Dillard, Manny Fantis, Jacqué Freeman, Marlon George, Dustin Hall, Kelly Landeen, Sarah Miles, Brian Paul, Erica Pefferman, Claudia Puig, Mary Rogers, Deborah Salons, Ryanne Saucier, Scott Schurz, Matt Smith and Robert Yanez. They’re shown in the photo below, along with Michelle Duke (of the NABEF), DuJuan McCoy (an NAB Board Member and a BLT Trustee and alum), and Frank and Dan. That’s Frank on the right, giving the thumbs-up. But you don’t need his imprimatur to know that you’re dealing with the broadcast industry’s next generation of up-and-comers. You can tell that because they’re all sporting their CommLawBlog shades. (Don’t you wish you had your pair?)

Copyright Office Offers A Sketch of the Future of Music Licensing

245-page report takes no action, but suggests important changes to the music licensing process

Almost one year after launching a far-reaching inquiry into the “effectiveness of existing methods of licensing music”, the Copyright Office (CO) has released the 245-page report setting out its conclusions. Titled “Copyright and the Music Marketplace”, it doesn’t actually change anything – but it sets out a wide range of observations and recommendations that could resonate for years in Congress and elsewhere, possibly leading to major changes throughout the music licensing universe.

I wrote about the CO’s initial two Notices of Inquiry last March and July. They posed 24 questions across eight different subjects relating to music licensing. The CO also held public roundtables in Nashville, Los Angeles and New York. It is therefore not surprising that the CO’s report is comprehensive. And here’s a surprise: Despite my earlier prediction that the CO’s eventual conclusions would likely be unfavorable for broadcasters, as it turns out several recommendations actually favor users of copyrighted music, including broadcasters. And to the extent that the CO is looking to a possible overhaul of pretty much all aspects of the licensing process, all participants in that process could end up benefiting from a less fragmented, more consistent system.

But the report clearly urges Congress to move legislation that would create a performance right applicable to over-the-air broadcasting (though not exclusively), so one side of the industry is still likely to benefit more.

Before delving into some of the details, we should probably note some general principles identified in the report. According to the CO, the study revealed broad consensus on four key principles:

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Brrr - The Auction 98 FM Freeze is On

With Auction 98 now in the works, the Commission has frozen, effective immediately (i.e., as of March 16, 2015):

  • All applications proposing to modify any of the 131 vacant non-reserved band FM allotments scheduled for Auction 98 (currently slated to kick off on next July 23);
  • All petitions and counterproposals that propose a change in channel, class, community, or reference coordinates for any of the Auction 98 allotments; and
  • All applications, petitions and counterproposals that fail to fully protect any Auction 98 Allotment.

Filings in any of the above categories that happen to be submitted after the release of the FCC’s public notice will be dismissed. (Can’t remember what channels are up for grabs in Auction 98? Click here for the current list.) This freeze will remain in effect until the day after the deadline for Auction 98 long form applications – which will likely be sometime in late Summer/early Fall, 2015, at the earliest.

The freeze notice does not impose a freeze on any and all minor mod applications (for commercial or noncommercial stations) during the filing window for short form (Form 175) applications for Auction 98.  (The Form 175 filing window hasn’t been announced yet – look for that announcement in a month or two.) Such blanket freezes barring all minor mods during the Short Form window have been standard operating procedure in the last several FM auctions. Given that precedent, if you have a minor mod you’d like to file that doesn’t fit into any of the three freeze categories noted above, you might want to plan on getting it filed before the opening of the Form 175 filing period, just to be on the safe side. Otherwise, your ability to file could be delayed by a month or more. Check back here for updates on the auction schedule.

Freezes like this are routine when it comes to broadcast auctions. The goal is to avoid the creation of any conflicts (unforeseeable or otherwise) with auction proposals that could muck up the auction process.

For more information on Auction 98 itself, see our related post here.

Auction 98: 131 FM Allotments on the Block

The bidding won’t start until July, but there’s no time like the present to check out this year’s opportunities.

The FM construction permits available in the 2015 auction have hit the show room floor. If you’re thinking about bidding on any of the 131 new and used models up for grabs, start looking now. The bidding action won’t start until July, but that doesn’t mean that it’s too early to formulate your game plan. This year’s listings include 113 brand new construction permits, seven used permits (i.e., permits that were sold once but never built) and 11 permits – including Muleshoe, Texas – that went unsold during the last auction.

You can find a list of this year’s offerings here. As you peruse the list you’ll note that more than half (73 to be exact) are located in Texas. The remaining permits cover the map from New Hampshire to California and from Washington State to Georgia; there’s even a C2 up for grabs in Hawaii. 

As always, potential bidders should bear in mind that the FCC does not warranty what it sells. In fact, the FCC has included its standard four paragraph disclaimer, some in bold print, at page two of its notice. Among other tidbits, the Commission expressly disavows the useability of the CP’s on the auction block: “The FCC makes no representations or warranties about the use of this spectrum for particular services.” You have been warned.

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Update: Comment Deadlines Announced in Digital Remote Pickup Proceeding

A couple of weeks ago we reported on a Notice of Proposed Rulemaking and Order (NPRM/O) that resolved some questions related to broadcast remote pickup (RPU) authorizations and proposed a number of changes to the RPU rules. (Among the proposals: allowing broadcasters to use digital technology for their RPUs.) The NPRM has now been published in the Federal Register, so we know that comments in response to the NPRM are due to be filed by April 3, 2015, and reply comments are due by April 20.  Comments and replies may be filed through the FCC’s ECFS online filing system; refer to Proceeding No. 15-36.

Update: Effective Date Set for STELAR-mandated Rule Changes

Last month we reported on an FCC order implementing several rule changes dictated by Congress in the STELA Reauthorization Act of 2014. Those changes include the ban on joint negotiation for retransmission consent agreements by any two same-market TV stations not under common control (as that term is defined by the FCC rules). The Commission’s order has now been published in the Federal Register, so we can tell you when the revised rules will take effect. The magic date: April 2, 2015. Mark your calendars.

TV Stations: The SESAC Check is (Almost) in the Mail

TVMLC settlement with SESAC gets the thumbs up from judge; important forms to be sent to participating stations to get the refund process rolling

If you’re a full-power TV operator in the U.S. (or its territories) and you obtained a performance license from SESAC any time after January 1, 2008, make sure you keep an eye out for a form you’re likely to receive from the Television Music License Committee (TVMLC) or its attorneys entitled Settlement Antitrust Class Action Settlement Refund Payments.” Fill it out, return it, pass GO, collect much more than $200 and roll again. (Note: Stations own or operated by Univision or Telefutura (now UniMas) or any station that opted out of the settlement don’t qualify. We suspect that you know who you are.)

The settlement in question resolves claims made by the TVMLC against SESAC. I’ve already written in considerable detail about the settlement itself, so if you’re at all hazy on the details, take a look at my earlier post. As I reported last November, the TVMLC and SESAC had reached a settlement agreement and submitted it to Judge Paul A. Engelmayer, the federal judge presiding over the case.

The mere fact that the parties had resolved their differences was not the end of the story; the judge had to sign off on the deal, too. So a court-issued Notice was circulated giving any malcontents the right to protest the settlement terms or opt out. This was followed by a hearing held on February 18, 2015 – and one day later Judge Engelmayer sealed the deal in an Opinion and Order. With that, if you’re a qualifying station, the money will now start coming your way once TVMLC crunches some numbers.

The bulk of the Opinion and Order is legal mumbo jumbo addressing certain necessary issues, like whether the class was properly certified (it was), whether the settlement was “fair, adequate, and reasonable, and not a product of collusion” (no problem there, either), whether the plan of allocation was also “fair and adequate” (yup), and whether the contemplated attorney’s fees and costs make sense (they do).

But really, most affected TV licensees are probably far more interested in another set of questions, like:

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Update: Comment Deadlines Set for Form 323 RUFRN NPRM

We recently reported on the FCC’s proposal to revise its broadcast ownership reporting requirements to permit all attributable interest holders to utilize a “Restricted Use FCC Registration Number” (RUFRN) in connection with both commercial and noncommercial broadcast ownership reports (FCC Forms 323 and 323-E, respectively). The RUFRN would largely replace the Special Use FRN which the Commission invented in 2009-2010 when its initial plan – which would have required all individuals listed in commercial ownership reports to identify themselves with Social Security Number-based FRNs – ran into some rough sledding. The Notice of Proposed Rulemaking has now been published in the Federal Register, which triggers the deadlines for comments and replies. If you are itching to file comments, you’ve got until March 30, 2015; replies may be filed by April 13. Comments and replies may be filed through the FCC’s ECFS online filing system; refer to Proceeding Nos. 07-294 and 10-234.

Update: Comment Deadline Announced in FAA Drone Rulemaking

Last week we reported on a Notice of Proposed Rulemaking (NPRM) issued by the Federal Aviation Administration relative to the operation of “Unmanned Aircraft Systems” – what the rest of us out here in the Real World would refer to as “drones”. The NPRM has now made it into the Federal Register, so we know that comments in response to the NPRM are due by April 24, 2015.

FAA Throws in the Towel On FM Spectrum, Apparently

After nearly a decade, the FAA advises that it is no longer pursuing a proposal that would have inserted it deeply into the regulation of FM stations.

For years, the Federal Aviation Administration has toyed with the idea of regulating use of some portions of the spectrum – including particularly the FM band (approximately 88 MHz–108 MHz) – even though conventional wisdom says that such matters are statutorily (not to mention logically) controlled by the Federal Communications Commission. The FAA backed down from these aspirations to some degree in 2010, but in doing so it sniffed, in effect, that we all hadn’t heard the last from it on this point.

Now, five years later, the FAA appears to have thrown in the towel. In a three-sentence letter to the FCC’s Office of Engineering and Technology, the FAA has advised that it is “no longer pursuing the proposed frequency notification requirements for FM radio stations” which it has long had its regulatory eye on.

Ideally, this means that the FAA has finally abandoned any hope of affirmatively regulating FM radio transmission facilities.

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Is There a Geofencing Exemption from Digital Performance Royalties? Concentrate and Ask Again

VerStandig lawsuit tossed on technicalities.

Will geofencing really provide webcasting broadcasters a shield that they can deploy against royalty claims? While that question was raised in a lawsuit last spring, it won’t be getting answered soon: the case has been dismissed … for the time being, at least. Thanks to considerations that many may view as “technicalities”, U.S. District Judge Michael F. Urbanski tossed the suit filed last April by Verstandig Broadcasting. But he did so “without prejudice”, meaning that the core question remains unanswered and may still be raised, and resolved, in a later suit.

As we have previously reported, “geofencing” is a technology that, in theory, permits a webcaster to limit access to its programming based on the physical location of the computers receiving the webcast. It works by checking the “receiving computer’s IP address, WiFi and GSM access point, GPS coordinates, or some combination against a real world map of those virtual addresses”.

Why would that give a webcasting broadcaster a way around webcaster royalties?

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FCC to Remote Pickup Licensees: Let's Get Digital!

Commission proposes technical adjustments to help remote pickup operations enter the digital age.

It looks like broadcasters’ Remote Pickup (RPU) operations may finally be getting pushed into the digital 21st Century. In response to separate petitions filed by the Society of Broadcast Engineers (SBE) and the Engineers for the Integrity of Broadcast Auxiliary Services Spectrum (EIBASS), the Commission has issued a Notice of Proposed Rulemaking and Order (NPRM/O) resolving a couple of RPU-related questions and proposing a number of changes to the RPU rules.

An RPU, of course, is one type of Broadcast Auxiliary Station. RPUs are used to send program-related information – including programming – from remote sites back to the station or network. They operate in one of three bands which are either shared with PrivateLand Mobile Radio Services (PLMRS) or close to PLMRS frequencies. Back in 2002 the Commission took steps to “harmonize” RPU standards and PLMRS standards in the hope that broadcasters would use PLMRS gear, which tends to be more spectrum efficient (largely because PLMRS gear is digital).

But that hope has been frustrated by a couple of practical problems.

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STELAR Aftermath: Ban on Joint Retrans Negotiations, Other Rules Revised

At Congress’s direction, FCC narrows, considerably, the ability of same-market stations to negotiate retransmission consent deals jointly.

Back in November (as we reported), Congress passed the STELA Reauthorization Act of 2014 (a/k/a STELAR). Among other things STELAR required the Commission to modify certain rules to implement a number of Congressionally-dictated changes. STELAR also required that those modifications take effect pronto – some within 90 days, others within nine months of STELAR’s enactment. Obviously mindful of both the chores Congress assigned it and the limited time frame provided by Congress to get those chores done, the Commission has taken the first step in that direction, releasing an Order amending its rules to incorporate four STELAR-mandated provisions. The four provisions address sunset dates, the ban on joint retransmission consent negotiations, expanded protections for significantly viewed stations and elimination of the “sweeps prohibition.” 

Don’t be fooled by its meager five-page length and ostensibly limited scope: the Order will undoubtedly have far-reaching impact.

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LMS Watch: Form 2100 Gets Four More Schedules

Attention LPTV, Class A TV and TV Translator CP and license applicants: Form 2100 is your ONLY option as of February 23.

Last September we introduced our readers to the new “Licensing and Management System” (LMS) that the Commission plans to use as a one-stop-shop for all broadcast forms. Once LMS is fully operational, our old friend the Consolidated Database System (CDBS) will be put out to pasture. (Before you think about cheering for the demise of CDBS, you might want to take Form 2100 out for a test spin - CDBS may be a devil, but it's the devil we know.)

As we previously reported, in LMS all the various broadcast applications and forms which have traditionally been identified by separate numbers will now all have a common form number, Form 2100, but will be identified as separate “schedules” to that form. So, for example, where a full-power TV construction permit applicant used to have to file Form 301 in CDBS, in LMS the applicant will file Form 2100, including Schedule A. Full-service TV license applicants used to have to file Form 302-DT; in LMS they’ll file Form 2100, including Schedule B.

As initially rolled out last fall, LMS offered only Schedules A and B. But progress is clearly being made on the LMS front: a recent public notice advises that four more schedules (Schedules C, D, E and F) have now been added to the Form 2100 options.

The new schedules are to be used by Class A, LPTV and TV Translator applicants for the following purposes:

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Newsgathering Drones: Prepare for Takeoff?

FAA announces NPRM indicating that it will reverse course on commercial use of drones.

It’s a time-honored Washington tradition that, when an agency wants to avoid press coverage of a controversial action, it will release notice of that action late on a Friday afternoon, ideally just before a three-day weekend. So it looked like the Federal Aviation Administration (FAA) was taking that tradition a bit further by announcing, on Saturday of Presidents Day weekend, that the next day (yes, that would be a Sunday) it would be announcing proposed rules for Unmanned Aircraft Systems – what the FAA refers to as “UAS” but what many of the rest of us refer to as “drones”.

Since the FAA has in recent years been trying to impose the strictest regulation of drones possible – a trend with which I (and many others) have taken issue – I feared the worst.

So imagine my surprise when the proposed rules turned out to be … not so bad. In fact, adopting of the proposal would largely clear the way for the use of drones by media organizations. 

Those who read our earlier posts on the subject will recall that the FAA considers journalism to be a “commercial” use of drones – something which can’t occur without express FAA approval (at least according to the FAA). The agency threatened media entities using drones in a newsgathering capacity, sending cease and desist letters to innovators. (To our knowledge only one case has been actually litigated, and there the FAA suffered an initial set-back before winning on appeal before the National Transportation Safety Board. The case was then settled, with no admission of guilt by the drone operator and withdrawal of a number of charges by the FAA.)

But the recently announced (but not yet formally released) Notice of Proposed Rulemaking (NPRM) opens the door to eventual drone use. At 197 pages, it provides considerable detail which anyone planning on filing comments should review carefully. The rest of us can rely on the FAA’s Press Release and accompanying “Overview” of the proposal.

The bottom line: While the FAA will still impose certain conditions on commercial (i.e., “non-recreational”) use of “Small UAS”, those conditions are not as onerous as I’d have envisioned.They include:

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Form 323: So Long, SUFRNs; Hello, RUFRNs?

Another ownership reporting cycle, another acronym: the FCC continues to struggle to devise an ownership reporting mechanism that will give the Commission what it wants.

The Commission has once again waded into the muck of how individual interest holders listed in broadcast ownership reports should be required to identify themselves. Six years after a failed effort to require all such interest holders to provide social security number-based FCC Registration Numbers (FRNs), five years (and three full ownership reporting cycles) after implementing an alternative ID approach based on “Special Use FRNs” (SUFRNs), and two years after proposing to scrap SUFRNs altogether,  the Commission is now proposing to require use of something it calls a “Restricted Use FRN” (RUFRN). To get an RUFRN, an individual would have to provide his or her name, residence address, date of birth and the last four digits of his/her social security number (SSN).

For readers who missed the initial rounds of this long-running matter (and who aren’t inclined to read through our archives explaining it all – like herehere, here and here, for openers), some background. In 2009, at the Commission’s direction, the Media Bureau attempted to revise its commercial broadcast ownership reports (Form 323). One goal of the revision was to insure that every individual interest holder identify himself or herself with an FRN – which would have required that each such interest holder provide the FCC with his or her personal SSN. That proposal met with significant opposition arising not only from security concerns but also from the inappropriate and less-than-transparent manner in which the Bureau attempted to make the change.

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Reminder: Sponsorship ID's Required Even When the Government is the Sponsor

If Uncle Sam is paying for the time, Uncle Sam is the sponsor. 

Long-time reader, broadcaster, Friend of the Blog, client (and, yes, attorney) Tom Taggart has suggested that a reminder about sponsorship identification might be useful in light of a recent situation he encountered. An ad agency bought time on behalf of the Centers for Medicare and Medicaid Services, a federal governmental agency, which was promoting enrollment in Obamacare in advance of the mid-February filing deadline. No problem there. The instructions accompanying the 30-second script indicated that it should be read “like a PSA with a sense of urgency”. Again, no problem there.

But the script didn’t happen to include any indication of who was paying for the spot – and there was the problem.

The mere facts that the spot was supposed to be read “like a PSA” and that it involved a subject that could qualify for PSA treatment were immaterial, since it was acknowledged by one and all that money was to change hands in exchange for broadcasting the spot. That being the case, an appropriate sponsorship identification was definitely called for, notwithstanding the omission of any such ID from the spot’s script. Having recognized that omission, the station was entirely within its rights to take steps to insure that an appropriate sponsorship ID was included in the spot.

We don’t know whether this incident arose from an over-enthusiastic, under-informed ad rep (or ad agency), or possibly a sponsor who preferred to avoid a sponsorship ID because it might somehow dilute the intended message, or possibly some inadvertent miscommunication somewhere along the line. Whatever the source of the problem, the solution was clear. If money is being paid in return for the broadcast of particular content, that must be disclosed, and it’s the broadcaster’s obligation to make sure that it is disclosed. It doesn’t make any difference if the sponsor is a governmental agency, or if the subject matter of the spot might otherwise qualify as PSA-worthy.

Tom noted our recent reports on the FCC’s recent enforcement efforts relative to the sponsorship ID requirement – here and here, for example – and thought a reminder about the rule might be appropriate. We agree – consider yourselves reminded.

Update: Comment Deadlines Set in Online Public Inspection File Proceeding

In the waning days of 2014 we reported on the release of a Notice of Proposed Rulemaking (NPRM) in which the Commission proposed to expand the online public inspection requirement to include radio broadcasters, cable operators and satellite broadcast services. The NPRM has made it into the Federal Register, which means we now know the comment deadlines. Comments may be filed by March 16, 2015 and reply comments by April 14. Comments and replies may be filed through the FCC’s ECFS online filing system; refer to Proceeding No.14-127.

Update: Comment Deadlines Extended in MVPD-Redefinition Proceeding

Last month we reported on the FCC’s proposal to redefine the MVPD universe  to include services “untethered” from any infrastructure-based definition – in other words, to include Internet-delivered, “over-the-top” services. The Media Bureau has now extended the comment deadlines in that proceeding. As a result, comments are now due by March 3, 2015 and reply comments by March 18. Comments and replies may be filed through the FCC’s ECFS online filing system; refer to Proceeding No.14-261.

Incentive Auction Update: Projected Opening Bids Shoot Up in Latest Greenhill Report

Latest Greenhill estimates incorporate more sophisticated procedures and analytics, results of AWS-3 auction.

[Blogmeister’s Note: Oops. It appears that the FCC and its pals at Greenhill may have attempted to goose broadcaster interest in the Incentive Auction by some fancy footwork in the latest Greenhill Report, and we here at CommLawBlog initially fell for it. In our post as originally published here, we mistakenly assumed that a table appended to the most recent report was intended to correspond to a similar table included with the October report. The differences in dollar values between the two certainly attracted attention, which may have been the point. But closer examination of the two tables indicates that they are quite different and not really comparable. As a result, while the numbers in the new table are indeed considerably higher than the October numbers, the fact is that the anticipated walk-away dollar values for auction participants do not appear to have changed appreciably. We have corrected our original post accordingly.]

 

Let’s say that you’re a TV broadcaster (full-service or Class A), and you’ve been thinking about participating in the Incentive Auction but, so far, at least, you haven’t been quite persuaded. Maybe the FCC’s new estimated opening bids will change your mind. Or will they?

The Commission has released an update to the now-infamous Greenhill Report released just last October. This updated version is revised to incorporate procedures and analytics currently out for comment at the Commission, including: elaboration on the options to go to high- or low-VHF; the proposed “bid hierarchy” of multiple bidding options and the “preferred” bid option; and additional fleshing out of the post-auction transition, payment of proceeds, and disbursement of relocation funding for repacked stations. It also incorporates consideration of the results of the recently-closed, wildly successful AWS-3 auction.

The result? Lots of cha-ching … or so it would seem until you look a bit closer.

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Update: Official Deadline Announced for Top Ten Nonbroadcast Video Net Exemption Requests

 Last month we reported on the FCC’s triennial designation of the Top Ten nonbroadcast video networks, a designation that looks like an honor of sorts (until you realize that larger (i.e., >50,000 subs) MVPD’s must provide 50 hours per calendar quarter of video-described prime time or children’s television on the designated Top Five nets). The Commission’s January announcement offered listed networks an opportunity to try to get themselves excused from the list by seeking an exemption. That opportunity extends 30 days from publication of the announcement. The January public notice did not, however, state expressly what the triggering “publication” date was – and we suggested that it might be a good idea to assume that the issuance of the public notice itself constituted publication. As it turns out, the FCC planned to publish the notice in the Federal Register, an event that would officially start the 30-day period for requesting exemption. And now that notice has been published. As a result, petitions for exemption from inclusion on the list must be filed by March 5, 2015.

Incentive Auction Inquiry: Wide Range of Technical Questions Out for Comment

FCC tries to tie down crucial elements of underlying auction design, including definitions of “clearing targets”, “spectrum impairments”

While the schedule may have slipped some, the Incentive Auction is still on its way. And even if the Auction may not start until sometime in 2016 (at least according to the current thinking), the Commission is facing – now – the monumental task of working out the myriad details that will govern the auction process. To that end, last month the FCC invited comment on a mind-numbing array of highly technical questions about both the reverse and forward components of the Incentive Auction. We’ll summarize a few of the highlights concerning the reverse auction. (And let’s be clear, this is just a summary of about 80 pages – i.e., half of the 160+-page request for comments – of densely-packed Commission-ese.) We’ll address forward auction highlights in a separate post. 

Setting the Clearing Target and Impairment, Categories of Licenses 

The principal goal of the reverse auction is to clear UHF spectrum of current TV broadcast licensees in order to make that spectrum available to wireless operators. A couple of years ago, the Commission was hoping to be able to clear a nationwide “clean swath” of spectrum amounting to as much as 126 MHz. The thought was that the reverse auction software could be set up to use that level as a starting point from which the on-going reverse auction calculations would be based. In other words, unless a set of particular reverse auction deals would clear that pre-identified amount of spectrum, those deals would be non-starters.

The FCC now seems to be accepting the reality that using a fixed 126 MHz starting point (or even some lower level, like 108 MHz) might be a tad ambitious because of various practical constraints (for example, border interference considerations). As a result, it is now proposing an approach that would rely on a dynamic, rather than static, clearing target concept. The target would be the highest clearing target possible from among the available options depending on broadcaster participation in the reverse auction. But the Commission makes clear that it would like to hear from commenters relative to the notion of omitting any initial clearing targets.

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Looking for Protection in the Repack? Get Those Facilities Licensed by May 29, 2015

Media Bureau announces “Pre-Auction Licensing Deadline” by which full power and Class A TV facilities must be licensed to be eligible for protection when the repack happens.

If you’re a full power or Class A TV licensee and you’d like your facilities to be eligible for protection in the channel repacking process, heads up. You’ve got until May 29, 2015 to get those facilities licensed (or at least to get a license application for them on file). That’s the latest word from the Media Bureau, which has officially designated May 29, 2015 as the Pre-Auction Licensing Deadline.

Earlier on in the development of the Incentive Auction (and related spectrum repacking) process, the Commission had concluded that all full power and Class A facilities that had been licensed by February 22, 2012 would get mandatory protection. But it also acknowledged that “discretionary protection” should be afforded to a separate subset of station facilities that had not obtained a digital license by that date. To qualify for discretionary protection, those facilities would have to be licensed by some “pre-auction licensing deadline” that would eventually be announced.

Now that deadline has been announced.

Facilities eligible for discretionary protection include:

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Annual Webcaster Wake-Up Call! SoundExchange Reports and Payments Due Soon

Plus ça change, plus c’est la même chose - If you’re a webcaster, you’ve got until February 2 to wrap up your annual SoundExchange homework. 

Sigh. Every year brings us another year closer to death. It sure feels that way as we do our Webcaster Wake-Up Call for 2015 – the last year for the rates and terms set in the Webcasting III decision. (The rates and terms that will govern for the next five-year term, i.e., 2016-2020, will be set by the Copyright Royalty Board in the Webcasting IV proceeding it cranked up last year and is still pending.)

Since these rates and terms have been in existence for almost five years, I’m running out of ways to cleverly remind those engaged in non-interactive webcasting about their filing and payment obligations because, well, nothing has changed.

But even if the underlying substance hasn’t changed, I can still spiff it up with a new presentation, one that might help readers navigate the SoundExchange trails a bit more easily. So as we say an early goodbye to Webcasting III (though we didn’t think so, we may yet miss you!) and look forward (or not) to whatever the CRB may do to us in Webcasting IV, here’s a chart that provides about as stripped down a reminder as you can get of the various SoundExchange options.

Before you test-drive the chart, though, keep a couple of things in mind:

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The Bigger They Come ...: Size Still Matters to M&A Regulators

But increase in antitrust review thresholds is the smallest inflation adjustment in years.

Another annual ritual is upon us: the Federal Trade Commission has announced the dollar value thresholds that will trigger automatic federal review of mergers and acquisitions for the next year or so. And it’s good news (sort of) for readers who keep Hart-Scott-Rodino checklists at the ready, because they won’t have to update much this year. That’s because the 2015 annual adjustment is the smallest we have seen in years – barely noticeable at one-half of one percent, well down from the annual 3%-7% leaps we had seen in recent years.

The FCC has the option of choosing to review, or not to review many, if not most, communications-related transactions in detail before issuing an approval. But under federal antitrust law, the Department of Justice and the Federal Trade Commission must review transactions that cross certain dollar amount thresholds. So if you’re considering a merger or acquisition, bear in mind that the administration will automatically be sending at least two agencies to take a closer look at transactions where either:

  • the total value of the transaction exceeds $305,100,000; or
  • the total value of the transaction exceeds $76.3 million and one party to the deal has total assets of at least $15.3 million (or, if a manufacturer, has $15.3 million in annual net sales) and the other party has net sales or total assets of at least $152.5 million

The new thresholds are set to take effect as of February 20, 2015.

Bear in mind, too, that the filing fees that parties to a deal have to pay the government for the pleasure of going through the review process have also been adjusted. (Fees are split between the FTC and the Department of Justice.) For most of 2015, parties to any deal subject to review and valued at less than $152.5 million will pay a $45,000 fee.  For deals valued at more than $152.5 million but less than $762.7 million, the review fee will be $125,000. And if you’re proposing a deal valued at more than $762.7 million, get set to fork over a tidy $280,000.

When negotiating deals, all parties would be well-advised to bear these thresholds in mind. Once those lines are crossed, the prospect of additional (and considerable) time, expense and hassle to navigate the federal review process is a virtual certainty.

Dear NFL: Would You Mind if We Registered "Scandal Bowl"?

The biggest scandal this time of the year tends to be the NFL’s heavy-handed efforts to protect trademarks, even those it doesn’t own.

It’s no secret that we here in the CommLawBlog bunker don’t fully approve of the NFL’s aggressive efforts to protect trademarks that the NFL doesn’t happen to own. Who can forget the famous “Who Dat” contretemps in 2010? And how about the NFL’s successful effort to squelch an average Joe’s (actually, an average Roy’s) attempt to register the term “Harbowl” in 2013. (Not that we’re bitter or anything, but it was CommLawBlog, not ESPN, that unearthed that particular tidbit, although you wouldn’t have known that from ESPN’s reporting.) We didn’t see a similar effort last year when somebody tried to register “Bong Bowl”, but that may have been because the applicant pulled the plug on the application before it got on the NFL’s radar.

This year, if anybody’s looking for a catchy alternative name for this year’s Super Bowl®, how about the “Scandal Bowl”? After all, it wasn’t but a few hours after the Patriots beat the Colts that ESPN began reporting that the Pats were being investigated for doctoring the game balls. (We take no credit for uncovering that particular story; credit apparently goes to Station WTHR in Indianapolis, which the ESPN report acknowledged.) Of course, it’s not like this is the first time the Pats have been charged with cheating during the Belichick era (cough, “Spygate”, cough).

And on the other side of the field will be the Seahawks, whose head coach, Pete Carroll, high-tailed it out of Southern California just before penalties were levied against the program he coached at USC.

And how particularly appropriate would “Scandal Bowl” be this year, when the NFL has been awash with serious bad press. (Concussions, anyone? Or how about Messrs. Rice or Peterson or Hernandez, among others?)

So “Scandal Bowl” might make sense like “Bong Bowl” made sense last year (when the two teams happened to be from states that legalized marijuana use.)

I just checked the USPTO and, so far at least, it looks like no one has tried to register “Scandalbowl” or any other combination of “Scandal” and Bowl” as a trademark in conjunction with any goods and services. So, should you do it?

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Proposed MVPD Redefinition Out for Comment

FCC looks to open ranks of MVPDs to Internet-delivered services – a move that could save what’s left of Aereo

It looks like the universe of multichannel video programming distributors (MVPDs) is going to be expanding considerably. Previously populated by the likes of cable, MMDS and broadcast satellite operators, the MVPD universe is set to be redefined to include services “untethered” from any infrastructure-based definition … if, that is, a proposal laid out in a Notice of Proposed Rulemaking (NPRM) last month (and just published in the Federal Register) takes hold. The result should expand consumer options for video program service, and might even revivify whatever may be left of Aereo once Aereo exits the bankruptcy process. And even if Aereo doesn’t survive, we can look for new Aereo-like services.

The proposed redefinition of what it means to be an MVPD is part of the Commission’s overall effort to encourage innovation and serve the “pro-consumer values embodied in MVPD regulation”. It’s also one more reflection of the FCC’s embrace of the technology transition – from old-fashioned, relatively inefficient analog service to digital, Internet protocol (IP) delivery – that is sweeping virtually all aspects of U.S. communications.

The Communications Act defines MVPD as a person (or entity) who “makes available for purchase, by subscribers or customers, multiple channels of video programming.” The Act cites some examples – “cable operator, a multichannel multipoint distribution service, a direct broadcast satellite service, or a television receive-only satellite program distributor” – but makes clear that those are not the only possible MVPDs. So the FCC appears to have some latitude when it comes to filling in the blanks Congress left.

And that’s what it’s now trying to do.

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Update: Start-Date for Certain Mandatory ECFS Filings Set

Last month we reported on the FCC’s expansion of the use of its ECFS (short for “Electronic Comment Filing System”) online filing system to permit – and, in five cases, require – certain non-docketed materials to be filed through ECFS. For the five types of filing that must be filed through ECFS, the dates by which that requirement is to take effect had not yet been fixed as of our last report.

For two of those types, we were able to calculate the effective date to be January 12 and, sure enough, the Commission has since confirmed the correctness of our calculatio: January 12 is indeed the date as of which Section 224 pole attachment complaints and formal Section 208 complaints must be filed through ECFS.

And thanks to a notice published in the Federal Register, we know the effective date as of which the remaining three types of filings will have to be filed electronically. .

The following types of filings will have to be submitted electronically as of February 12, 2015 :

  • Network change notifications by incumbent local exchange carriers
  • Domestic Section 214 transfer-of-control applications
  • Domestic Section 214 discontinuance applications

Once accepted through ECFS, each such notice or application will be assigned its own ECFS docket number, so related follow-on submissions should be filed through the conventional, docket-number-based ECFS interface.

Top Ten Nonbroadcast Video Networks? The Winners Are ...

Video description rules bring FCC into the ratings game ... every three years

When you’re trying to track down the national rankings of video programming networks, you may not think to check with the FCC – but, thanks to the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA), that’s the first place you should look. Every three years, at least.

As long-time readers may recall, back in 2011 the Commission, pursuant to Congress’s direction in the CVAA, adopted extensive video description rules applicable to broadcasters and multichannel video programming distributors (MVPDs). As to the latter, the rules require that MVPDs with more than 50,000 subscribers must provide 50 hours per calendar quarter of video-described prime time or children’s television on the five most popular cable channels.

Popularity in this context is determined based on (take a deep breath) an average of the national audience share during prime time of nonbroadcast networks that reach 50 percent or more of MVPD households and have at least 50 hours per quarter of prime time programming that is not live or near-live or otherwise exempt under the video description rules. (The relevant Nielsen ratings period this time around was September 30, 2013-September 28, 2014; the relevant stats were Nielsen’s “live +7 day” ratings, i.e., the ones that include incremental viewing that takes place during the seven days following a telecast.)

While the calculation of Top Five nets could presumably be performed annually (or even more often), the Commission chose to update its list only every three years. The first three-year term has screamed by since the 2011 adoption of the rules. And as promised, the Media Bureau has now announced the Top Five nonbroadcast video networks that will trigger MVPD video-description obligations until July 1, 2018. (Actually, it announced the Top Ten, presumably to provide for alternates should they be needed.)

The lucky networks:

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Put It In Writing, Part II: Call for Comments on Closing Closed Captioning Loophole

FCC seeks input on possible regulation of “video programmers”.

As we reported recently, the FCC has ratcheted up its video captioning requirements for “Video Programming Distributors” (VPDs), a universe defined as “all entities who provide video programming directly to customers’ homes, regardless of distribution technology used (i.e., broadcasters and MVPDs)”. (Note that, despite that last “regardless of distribution technology” language, captioning requirements don’t apply to programming distributed solely on the Internet if it was not previously broadcast.) The new rules specify new caption quality standards for which VPDs are technically responsible – but VPDs can avoid penalties for captioning violations that are outside their control by making certain “best efforts”.

Those “best efforts” entail trying to get a certification from each “video programmer” (the definition of which we’ll come back to in a minute) confirming either that (a) the video programmer’s programming complies with FCC captioning standards; (b) the video programmer adheres to certain FCC-defined “best practices”; or (c) the video programmer is exempt from captioning obligations (exemptions can be based on financial hardship but are becoming increasingly difficult to get).

This approach may seem a reasonable allocation of responsibilities between VPDs and video programmers. But to the extent that it does not impose on non-exempt video programmers any independent obligation either to comply with the Commission’s captioning standards or utilize Commission-defined best practices, the approach may create a loophole of sorts because it doesn’t allow the FCC to take enforcement action directly against video programmers, as opposed to VPDs.

Apparently sensing this, the Commission has issued a Second Further Notice of Proposed Rulemaking (SFNPRM) looking for ways to close that loophole.

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Push to Expand Online Public File Obligations Moves Ahead at Warp Speed

NPRM would include broadcast radio, cable, satellite providers in FCC-maintained online system.

Back in July – that would be less than six months ago – three public interest groups asked the Commission to revise its rules to require cable TV and satellite TV (DBS) operators to maintain online public inspection files akin to the online files that conventional TV broadcasters have been required to maintain for about two years. As we reported in August, the Media Bureau wasted no time in seeking public comment on the proposal (which the Bureau expanded to include radio broadcasters and satellite radio (SDARS) operators as well) a couple of weeks after the proposal’s submission.

And now, a mere four months later, the Commission has issued a Notice of Proposed Rulemaking (NPRM) formally proposing that cable and satellite operators (both TV and radio) – and radio broadcasters – all be subject to essentially the same online public file regime to which TV licensees are already subject.

While the FCC is moving unusually fast on this, we probably shouldn’t be surprised: the shift to online public files for TV licensees has proven to be relatively uneventful, and it has yielded a bounty of data for national public interest groups eager to slice and dice trends in political advertising. (That eagerness has already led to multiple complaints – check out our posts here and here, for example – in which watchdog public interest groups have questioned stations’ compliance with the political file requirements.) With this success under its belt, the Commission presumably figures that it’s a no-brainer to bring TV’s cable, satellite and radio sibs to the online public file party, too.

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Put It In Writing: New Video Captioning Standards Coming Soon

Effective date set for new video captioning requirements

In its continuing effort to assure that television programming is more accessible to the deaf and hard of hearing, last February the Commission ratcheted up the captioning requirements for Video Programming Distributors (VPDs) and video programmers. And now, thanks to a low-key announcement in the Federal Register, we know when the last of the new requirements will kick in: March 16, 2015. Anyone involved in the production and/or delivery of video programming to residential consumers should start getting familiar with the new rules as soon as possible, if they haven’t already done so. The whole shooting match may be found in the Commission’s 153-page “Report and Order, Declaratory Rule, and Further Notice of Proposed Rule Making” (R&O/DR/FNPRM) released February 24, 2014.

The new rules apply to both VPDs and video programmers. VPDs are defined as “all entities who provide video programming directly to customers’ homes, regardless of distribution technology used (i.e., broadcasters and MVPDs.” In essence, these are the folks who are ultimately responsible for delivering programming directly to the consumer. Video programmers, by contrast, are “entities that provide video programming that is intended for distribution to residential households including, but not limited to, broadcast or nonbroadcast television networks and the owners of such programming.” We can think of these as the folks who produce the programming that VPDs then deliver to consumers. Of course, with respect to some programming – local news programs, for example – a single entity may be both VDP and video programmer.

The new rules may be summarized as follows:

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D.C. Circuit Rebuffs SoundExchange in CRB Appeal of SDARS/PSS Royalty Rates

But Sirius XM, which succeeded before the CRB, may not be happy that its victory was upheld.

When it comes to setting copyright royalty rates, the Copyright Royalty Board (CRB) enjoys considerable leeway. Just ask the U.S. Court of Appeals for the District of Columbia Circuit.

In an across-the-board victory for the CRB, the Court has upheld the CRB’s final 2013 ruling determining royalty rates for the Satellite Digital Audio Radio Service (SDARS, a service with only one operator, Sirius XM) and Pre-existing Subscription Services (PSS) (e.g., the appellant in this case, Music Choice). While the particular rates at issue in the appeal are probably not of much direct interest to most of our readers, a couple of aspects of the Court’s opinion could come into play when the CRB eventually resolves “Webcasting IV”. That’s the proceeding that will establish rates and terms for webcasting by radio stations and other non-interactive services for the years 2016-2020.

First, there’s the question of how the CRB reaches a particular royalty rate. If the affected parties (i.e., service providers and copyright owners) can’t come to mutually agreeable terms, the question goes to the CRB, which conducts a trial-type proceeding. The interested parties propose rates, or rate ranges, and then offer evidence to support their respective proposals. Each side gets to challenge the other’s evidence. In the end, the CRB reviews all the evidence and comes up with rates to apply over the coming five-year term.

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Coming Soon to More Screens Near You: FCC Labels!

Thanks to Congress, electronic labeling may be an option for more FCC-authorized RF devices

Most radiofrequency (RF) equipment certified by the FCC is required to carry a physical label listing the FCC ID and making various other FCC-mandated disclosures. Observant users of electronic products will recognize those labels as the ones with a (usually) long ID number, sometimes an FCC logo, and verbiage like: “This device complies with part 15 of the FCC Rules. Operation is subject to the condition that the devices does not cause harmful interference.”

But, thanks to Congress and President Obama, those physical labels may increasingly be a thing of the past – at least for pieces of gear that include screens. The recently enacted E-LABEL Act (that’s short for “Enhance Labeling, Accessing, and Branding of Electronic Licenses Act of 2014”) directs the FCC to provide (through rules or otherwise) that manufacturers of RF devices with electronic displays (i.e., screens) have the option of using electronic labeling, instead of physical labeling, for their equipment.

As those immersed in the FCC’s equipment authorization procedures know, the FCC’s rules already allow for electronic display on software-defined radio products and modular transmitters with user display screens. The rules also already provide for alternative labeling procedures when permanently affixing a label is not “desirable” or “feasible”, like if the item is too small or when etching the notice on the item would damage it. In fact, just last summer the Commission provided guidance for electronic labeling, at least for devices which (a) are subject to certification or Declaration of Conformity requirements and (b) have non-removable display screens. (For those really curious, the FCC’s Knowledge Database – known to the in-crowd as “KDB” – advises that electronic labels must be accessible to users without special codes, lengthy steps, or use of accessories, and that the information included in the label cannot be modified.) The KDB guidance did not, however, extend to equipment subject to “verification”, a third type of FCC equipment authorization requiring that equipment be "uniquely identified".

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Sponsorship ID Police Strike Again

$115,000 consent decree for questionable “Special Reports” on Las Vegas TV station

The fake news business appears to have been booming in 2009 – at least as far as we can tell from a couple of FCC enforcement actions. Last February we reported on a $44K fine issued to a Chicago radio station for airing, in 2009, a number of bought-and-paid-for announcements gussied up to sound like newscasts. And now the Enforcement Bureau has announced a consent decree with a Las Vegas TV licensee, the terms of which call for payment of a $115,000 “civil penalty” for the broadcast of some 2009 “Special Reports” that (a) looked a lot like news but (b) were apparently bought-and-paid-for as well.

Don’t let the fact that it took the Bureau five years to lower the boom on these stations distract you: that just demonstrates that the current Commission intends to enforce the sponsorship identification rules aggressively, regardless of when the violations may have occurred.

The sponsorship ID rule (Section 73.1212) is mandated by Section 317 of the Communications Act, which requires that broadcasters identify whoever is paying for the broadcast of any matter. To that end, Section 73.1212 requires that stations “fully and fairly disclose the true identity” of anybody paying to have any particular content broadcast.

Precisely what the Vegas station (KTNV-TV) did is not clear from the consent decree, which summarizes the violations only as follows:

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Update: Comment Deadlines Set in Contest Rule Proceeding

Last month we reported on a Notice of Proposed Rulemaking (NPRM) aimed at dragging the on-air contest rule (i.e., Section 73.1216) into the 21st Century. The NPRM has now made it into the Federal Register, which means that we now know the deadlines for filing comments and reply comments in response to the FCC’s proposal. Comments are due by February 17, 2015, and replies are due by March 19. Comments and replies may be filed electronically through the FCC’s ECFS filing site; refer to Proceeding No. 14-226.

Professional Football Team in Nation's Capital Loses Name, Logo, Colors

A tale of two cities – Washington and Bucharest – and two trademark battles

It’s big news when a storied sports franchise loses its identity. And that’s what’s happened with a prominent professional football team in its nation’s capital, a team with which you’re all doubtless familiar: No, not the Washington, D.C. NFL team, but Steaua (“Star”) Bucharest, the most successful football (or what a small minority of the world refers to as “soccer”) team in Romanian history.

Or should I refer to the team formerly known as “Steaua Bucharest”? More on that below.

You might have thought that I was talking about the Washington, D.C. NFL team with the controversial name. Not today. In fact, the team has just won an indirect victory at the FCC (and trust me, this year the team can use any victory it can get its hands on): the Media Bureau’s Audio Division has dismissed several petitions to deny the license renewals of stations that mentioned the team’s name on the air. The decision is relatively short and sweet and totally right on the money: however offensive the name may be to however many people, there is no basis in the FCC’s rules (or any other law, for that matter) to deny a station’s license because of its use of racial or ethnic epithets. Indeed, as my colleague Steve Lovelady pointed out when the petitions were first filed, the FCC itself has expressly taken that consideration off the table. So stations can continue to play “Hail to the Redskins” without fearing for their next renewal.

All is not so copacetic in Bucharest, however.

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Now Available for Your Review and Comment: Form 2100, Schedule 381

Still a work in progress, but an excellent opportunity both to see what the FCC has in mind  and also to suggest possible improvements to the form before it takes final shape.

A couple of weeks ago we reported on a Federal Register notice announcing the start of a two-month period for the filing of comments about a new FCC form (Form 2100, Schedule 381, to be exact - a/k/a “Certification of TV Broadcast Licensee Technical Information in Advance of Incentive Auction”). We noted then that no copy of the form was included in the Federal Register notice and that our request for a copy (emailed to the Commission) had gone unanswered, so we couldn’t shed much light on what the form might look like.

We got word earlier today that the form is indeed available and, sure enough, when we emailed the Commission again asking for a copy, we got one lickety-split. Here’s a link to what was sent to us. (Actually, we received a Word version, which we have converted to PDF.)

As a quick glance indicates, it’s still something of a work in progress. That’s to be expected when the FCC invites comments on a form: by definition the form is subject to change based on the comments that get submitted. So here’s your chance to take a look at the Commission’s current draft and chip in your two cents’ worth.

As we noted previously, Schedule 381 is designed to provide the Commission assurance that the technical profile of the television industry as reflected in the FCC’s database is accurate. That’s obviously important because that profile will be used both to identify the facilities to be sold in the reverse auction and to form the starting point for the spectrum repacking effort which is the ultimate goal of the auction. Secondarily, the completed forms will provide the FCC with a comprehensive database of all the specific transmission equipment (transmitters, antennas, transmission line) currently in use. The detailed information about equipment will be used in determining relocation reimbursements.

All full-power and Class A TV licensees entitled to mandatory protection in the auction – and those with Commission-afforded discretionary protection – will have to complete and submit Schedule 381. Those folks all presumably have an idea of who they are, but they will know for sure when the FCC issues its “Eligibility Public Notice” spelling out the facilities that the Commission believes to be entitled to protection. The notice will specify a deadline by which protected licensees will have to submit Schedule 381. (We’re guessing that that won’t happen before the late summer of 2015, but you never know.) Completion of the form will entail a number of separate and distinct chores.

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Ah, Wilderness! Forest Service Re-examining Standards for Media Access to Wilderness Areas

Agency looks to tighten up vague standards that have led to inconsistent access decisions.

If you as a broadcaster, producer, or artist want to head into a congressionally-designated wilderness area to create some programming (both newsgathering and other programming), you will likely have to get a permit to do so from the National Forest Service (NFS). And yes, the power to require a permit also encompasses the power to require a fee for that permit, so you can expect to have to pay for the privilege.

For years the standards imposed by the NFS on requests for such permits have been considerably subjective, which is never a good thing: the First Amendment frowns on governmentally-imposed limitations on freedom of expression and the press, especially when those limitations can be arbitrarily applied. To its credit, though, the NFS is considering tightening up its criteria. Whether the end result will assure broadcasters a constitutionally acceptable set of standards remains to be seen. But any broadcaster operating near a federal wilderness area – or who might at some point want to send a crew into such an area – should be aware of the NFS’s proceeding.

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ECFS Now Available for Non-Docketed Filings

New “Submit a Non-Docketed Filing” module allows some filers to eschew paper.

In a move presumably designed to make everybody’s lives easier, the Commission has expanded its Electronic Comment Filing System (ECFS) to accept a wide range of filings that previously could be filed only on paper. That’s good news. But before you take advantage of this new opportunity, be sure you’re familiar with the fine print.

Historically, ECFS has been available only for materials being submitted in docketed proceedings. Since many FCC activities don’t involve such proceedings, paper filings have continued to be the order of the day in many areas. (Two years ago the Media Bureau opened up its CDBS system for pleadings directed at particular applications, but that still left many filings plodding the paper trail.)

Now the Commission has included a new “module” (dubbed, not surprisingly, the “Submit a Non-Docketed Filing” module) in ECFS to accept, electronically, certain non-docketed submissions.

The new module is currently up and running and ready to receive your non-docketed filings, so feel free to use it for the any of the types of filings listed below starting now. Use of the module is voluntary for the time being – so if you want to burn through those last couple of toner cartridges and boxes of copy paper, feel free to stick with hard-copy filings – but note that electronic filing for items so identified in our list below will be mandatory in the near future. (The dates when voluntary turns to mandatory have been set for some types, but remain To Be Determined for others, as indicated below.)

Filings accepted by “Submit a Non-Docketed Filing” module in ECFS: 

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JSA Update: Compliance Deadline Extension Confirmed

As we reported just before Thanksgiving, Congress passed the STELA Reauthorization Act of 2014 (STELAR), which the President promptly signed just after Thanksgiving (also as we reported). STELAR is a law with lots of provisions affecting lots of different areas of the video universe, as Paul Feldman’s pre-Thanksgiving post revealed. Attentive readers may have noticed the following, tucked in toward the end of that post:

Delayed Application of JSA Attribution Rule. Also as we reported in April, the Commission has determined that certain TV joint sales agreements (JSAs) will now give rise to attributable interests under the multiple ownership rules. As a result, in many markets, longstanding arrangements that had been viewed as consistent with the multiple ownership rules will have to be modified or unwound in order to bring them into compliance. The FCC has given affected parties until June 19, 2016 to take care of that. STELAR extends that compliance deadline by six months. (While the FCC will presumably issue a notice specifying the new deadline, we calculate it to be December 19, 2016.)

Sure enough, as predicted, the Media Bureau has issued a notice confirming that the deadline for bringing JSA arrangements into compliance with the revised rules adopted by the Commission last spring has been extended for six months to December 19, 2016. Mark your calendars!

Update: Two Wireless Mic Proceedings, One Set of Comment Deadline Extensions

A couple of months ago we reported on two proceedings, initiated simultaneously, looking into possible solutions to the problems that the upcoming repack of the spectrum will cause to wireless microphone users and manufacturers as well as various other users of the TV spectrum. While technically separate and distinct dockets, the two proceedings have obviously been linked from Day One. And now the FCC has announced, in a single consolidated order, that the comment deadlines for both proceedings have been extended. As a result, comments in either or both of the dockets may be filed by February 4, 2015; reply comments will be due by February 25. 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.

FAA to Ease (a little) Its System for Reporting Tower Light Outages

But the FCC isn’t planning to give tower owners much slack as a result.

If you’re responsible for a tower subject to lighting requirements imposed by the Federal Aviation Administration, your life may be getting a bit easier early next year. According to an advisory issued by the FCC’s Wireless Telecommunications Bureau, the FAA is modifying its notification process to allow folks reporting lighting outages to specify, in their initial notices, the amount of time they expect to need to get the outage fixed.

We all know that the FAA imposes lighting requirements on certain tower structures, and the FCC adds extra muscle to those requirements when it comes to FCC regulatees responsible for such structures. Under the Commission’s rules, folks with a tower subject to FAA lighting requirements must monitor the tower lights at least once every day, either by directly eyeballing the tower or by observing “an automatic properly maintained indicator designed to register any failure of such lights”.

And when there’s an outage, things are supposed to happen.

The FCC requires that a record be made of the nature of the outage, the date and time the outage was noticed, the date and the outage is corrected (and the nature of the corrections) … and the date and time the FAA is notified.

Wait – notify the FAA?

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STELAR - It's the Law!

Five more years of DBS, coming up!

We recently reported on the passage of the STELA Reauthorization Act of 2014, affectionately referred to by the cognoscenti as “STELAR”. As expected, it didn’t take long for the President to sign off on it. According to the White House website, STELAR was signed into law on December 4.

FCC Invites Comments About Not-Yet-Available Spectrum Auction Form

Can we all agree that responding to the invitation to comment on Form 2100, Schedule 381 would be easier if the form were available for review?

[Update: Form 2100, Schedule 381 has since been made available for review. See our follow-up post, which includes a link to the draft form.]

Like the first sparse snowflakes heralding a major blizzard long predicted but slow to arrive, an announcement in the Federal Register confirms that the spectrum auction is indeed approaching. The public notice invites comment on a new “information collection” – dubbed Form 2100, Schedule 381 – which all full-power and Class A television licensees will have to complete and submit prior to the incentive auction.

The form – formal name: “Certification of TV Broadcast Licensee Technical Information in Advance of Incentive Auction” – will require each licensee to certify that (a) it has reviewed the “technical data on file with the Commission related to its current license authorization” and (b) those data are “correct with respect to actual operations”. Basically, the Commission wants to be sure that the technical profile of the television industry as reflected in the FCC’s database is accurate, since that profile will be used both to identify the facilities to be sold in the reverse auction and to form the starting point for the spectrum repacking effort which is the ultimate goal of the auction. Licensees will also have to provide “basic data” concerning gear currently used by their stations; this information will be used to “facilitate the channel reassignment process following the completion of the incentive auction”.

The fact that the Commission is designing a form along these lines is not surprising – careful readers of the 400+ page behemoth incentive auction Report and Order will doubtless recall footnote 615 (nestled comfortably on page 86), which expressly flagged the FCC’s intent along these lines. But what is surprising is the fact that, while the Federal Register notice asks the public to comment on the proposed “information collection”, the form itself does not appear to be currently available. The Federal Register notice includes no copy of the proposed form, and a request emailed to the Commission has thus far elicited no response.

In other words, at this point it looks like Form 2100, Schedule 381 is the regulatory equivalent of vaporware.

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Update: Comment Deadlines Extended in LPTV/TV Translator Proceeding

 Last week we reported that the deadlines for comments and reply comments on a raft of proposals likely to affect the future of LPTV/TV translator operations had been set. And also as we reported, the odds of getting those deadlines extended were looking good.

Sure enough, the Media Bureau has granted a two-week extension. As a result, comments are now due by January 12, 2015, and replies are due by January 26.

Unconsented-to Phone Call Recording + Unresponded-to Inquiry = $35,000 Penalty

Former TV licensee cops plea to violating telephone rule, ignoring Enforcement Bureau

Ah, the telephone call rule. Section 73.1206. The fact that we’ve written about it at all is surprising – surprising because the rule is so clear and so simple that any violation of it comes as something of a surprise. And now we have an even more surprising instance: a television licensee (make that former licensee – more on that below) managed to get cross-wise with the telephone rule. While such TV violations are not unheard of, the more common instances of phone rule transgressions involve radio station announces who place on-air prank calls to unwitting victims. So the fact that the Enforcement Bureau has brought a $35,000 hammer down on a TV station serves as a reminder that Section 73.1206 limits all broadcasters, radio and TV alike.

Unfortunately, we don’t know many details of the violation in question. That’s because the guilty licensee entered into a Consent Decree, i.e., essentially a plea deal. The Decree itself says only that, on August 21, 2012, the Commission received a complaint alleging that, the day before, Station KTVX had “twice broadcast a recorded telephone conversation without prior notification to the other party to the conversation”, a telephone rule violation to which the licensee eventually confessed without further elaboration.

Despite this lack of specifics, the Consent Decree does provide a few take-home lessons.

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Update: Comment Deadlines Set in LPTV/TV Translator Proceeding

Last month we reported on a Notice of Proposed Rulemaking (NPRM) advancing a number of proposals likely to affect the future of LPTV/TV translator operations, particularly following the spectrum repack. As we mentioned there, the FCC has given LPTV and TV translator licensees a lot to think about but not much time to do their thinking. The NPRM has now been published in the Federal Register, which means that the comment deadlines have been set – so we now know just how little time is available. Comments on the FCC’s proposals are due by December 29, 2014, and replies are due by January 12, 2015. Note, however, that a two-week extension of those deadlines has already been requested, and we understand that there's an excellent chance that that request will be granted. Check back here for updates.

Five More Years! With STELAR, Congress Re-Ups STELA

Cable TV and broadcast provisions tweaked as Congress re-authorizes satellite carriage of local TV stations.

Christmas is coming early this year … if, that is, you’re a direct broadcast satellite (DBS), cable or other MVPD operator, or a low power TV licensee. Not so much if you’re a full-power TV licensee, although there may be a little something under the tree for you, too.

All this is thanks to Congress, which has passed the STELA Reauthorization Act of 2014, commonly known as “STELAR”. All that remains is for President Obama to put his John Hancock on it, which we can expect to happen before New Year’s Eve. While the primary purpose of STELAR is (as its name suggests) to extend the provisions of STELA (i.e., the Satellite Television Extension and Localism Act of 2010), Congress couldn’t resist the temptation to tweak a number of provisions relating to MVPDs (DBS and others).

The major DBS-specific provisions of STELAR include:

Five More Years for STELA.The principal purpose of STELAR is to extend provisions of STELA, and, in particular, the exemption enjoyed by DBS operators from having to obtain retransmission consent for the carriage of distant network signals to “unserved households”. STELAR extends those provisions five years beyond their current expiration date of December 31, 2014.

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Finally Bringing Broadcast Contest Rules into the 21st Century?

Three years in the making, a notice of proposed rulemaking would give the thumbs up to online contest rules.

Big News! The Commission has taken the unusual step of proposing a rule revision requested by broadcasters and of potential benefit to broadcasters, both TV and radio! The on-air contest rule – Section 73.1216 – is up for a long-overdue overhaul. And while there may be plenty to criticize in the FCC’s less-than-prompt attention here, let’s not focus on that just now. Instead, let’s take a look at how the Commission figures to make broadcasters’ lives a little better.

As we have reported previously, the contest rule requires (among other things) periodic on-air disclosure of all material elements of the contest. You can find some examples of the rule in action here, here and here. For many contests, that imposes a considerable burden on both stations (who must be sure to intone the rules on the air, often at auctioneer speed – or scroll them in infinitesimal print – regardless of how much that can interrupt program flow) and audience members (who have to suffer through the interruptions).

Nearly three years ago, Entercom filed a petition for rulemaking advancing an unquestionably reasonable proposal: instead of the over-the-air requirement, why not let broadcasters post contest rules on their websites (or, if a broadcaster doesn’t happen to have a website, on a state broadcast association site) for all the world to read whenever all the world happens to want to read them? As Entercom put it, this would be consistent with “how the majority of Americans access and consume information in the 21st century.”

The Commission is now on board with the idea.

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Flo and Eddie Take Their Siriusly Winning Ways to the East Coast

Sirius XM loses on public performance claims for pre-1972 sound recordings … again.

I’ve already written about two lawsuits – both in California – based on infringement claims arising from Sirius XM’s public performance of sound recordings created before February 15, 1972. (You can read those two posts here and here.) In both cases Sirius XM suffered adverse rulings. It remained to be seen, however, whether Sirius XM (and other potential defendants engaged in the digital transmission of “pre-1972” sound recordings) might be in trouble elsewhere.

The answer is (drum roll, please) “YES”.

The plaintiffs in one of the California cases – former Turtles Mark Volman and Howard Kaylan, better known to many by their noms de disque, Flo and Eddie – also sued Sirius XM in New York. And now Judge Colleen McMahon of the U.S. District Court of the Southern District of New York has joined her West Coast colleagues by taking a big step toward granting Flo and Eddie summary judgment on the liability element of their claim against Sirius XM. (If she concludes that summary judgment is the way to go, the case will proceed to a damages phase where a dollar figure can be attached to that liability.)

But Judge McMahon went a bit beyond the California decisions: her opinion may pave the way for judges in other states to hop on the bandwagon more easily, and it may also include a veiled warning for broadcasters as well.

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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.

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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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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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!

Court Preliminarily Approves TVMLC-SESAC Settlement

Lawsuit begun in 2009 could be wrapped up next March. Check your mailbox for more details.

If you’re a full-power TV licensee, in the near future you can expect to be receiving (or you may already have received) a note from the Television Music License Committee (TVMLC) notifying you that a court has preliminarily approved a settlement the Committee has reached with SESAC. You have the option of objecting to the settlement or opting out of it, but if you do neither you’ll be bound by its terms (unless you happen to be Univision or Telefutura, in which case you’re not part of the Settlement Class).

In any event, this is something you should pay attention to. (Spoiler alert: I generally agree with the TVMLC’s assessment that the settlement is “fair and a good result, providing long-term protection” for television broadcasters.)

The settlement represents the near-culmination of a lawsuit brought by a number of broadcasters and funded by the Committee. In 2009, Meredith Corporation, The E.W. Scripps Company, Scripps Media, Inc. and three Hoak Media companies – “individually and on behalf of all other similarly situated local television stations” – sued SESAC. They alleged various violations of federal antitrust law. (Such allegations have previously been raised by radio broadcasters as well. It will be interesting to see what effect, if any, the TVMLC settlement may have on radio’s lawsuit against SESAC.)

Until 2007 the rates and terms for performance, by TV broadcasters, of musical works in the SESAC catalog had been subject to an industry-wide deal. But that deal expired in 2007 and no extension or replacement deal was cut. So since then broadcasters have been left to negotiate individually with SESAC while the litigation chugged on.

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Audio Division Calls a Spade a Spades

Decision narrows Mattoon Waiver policy, tortures language in the process.

“When I use a word, … it means just what I choose it to mean – neither more nor less.”

While that quote is, of course, from the noted wordsmith Humpty Dumpty, you’d be forgiven if you guessed that it came from the FCC’s Audio Division. The Division based a recent decision on the odd notion that the filing of a single application may constitute a “history of serial modification applicationS”. (We have capitalized and boldfaced the “S” in “applications” to highlight the conceptual difficulty of a single application being deemed “serial applications”.)

And with that linguistic tour de force, the Division made it considerably more difficult to get a Mattoon Waiver. This is not especially good news for AM licensees.

Readers will recall that, in 2011, the Media Bureau invented the Mattoon Waiver, a policy designed to afford FM translator licensees flexibility in transmitter site moves. Its ultimate goal was to create additional opportunities for AM stations to acquire or utilize FM translators for fill-in purposes.

Because not every translator was located where it might be used by an AM station, lots of translators had to move closer to AM stations. But FCC restrictions on translator site changes often precluded making the necessary relocation in one fell swoop. Creative folks determined that they could achieve through a series of shorter moves, or “hops”, that which they couldn’t achieve with a single application proposing a much more distant move. The “hopping” approach was not prohibited by the rules – indeed, the Audio Division staff granted a lot of “hop” applications – but that doesn’t mean that the staff liked it. In an effort to squelch the “hopping” trend, the staff eventually declared “hopping” to be an abuse of process.

But if AM licensees were to be able to avail themselves of the use of translators, there had to be some way to get the translators moved closer to the AMs.

Enter the Mattoon Waiver.

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Just in Time for Halloween: Zombie Aereo!

Preliminary injunction kills Aereo’s “live” retransmissions, but leaves it partly alive and still shuffling

It’s still alive!!!

Given up for dead by many, our old pal Aereo has managed to sidestep the Grim Reaper yet again. (Rule No. 2 in Zombieland: Always double tap.) But just barely, and its future prospects are not good.

We’ve already covered Aereo’s arc from Nothing to Big Deal to, well, whatever it is now that Judge Alison Nathan has enjoined it from doing some, but not all, of the things it was originally set up to do. To recap briefly for newcomers, Aereo marketed itself as a way to watch over-the-air television, live or recorded, through Internet-connected devices. It rolled its new service out in New York in 2012 and was immediately sued by broadcasters who insisted that Aereo’s system infringed on their copyrights. After losing three rounds in the Second Circuit, the broadcasters finally prevailed in the Supreme Court, which concluded that, to the extent Aereo offered effectively real-time retransmission of over-the-air programming, it was indeed infringing. The Supremes then sent the case back down to the trial court (Judge Nathan presiding) to decide what to do with Aereo.

And now we know.

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Effective Date of TV JSA Filing Requirement Set

Readers will recall that, last spring, the Commission decided that certain TV joint sales agreements (JSAs) may create attributable interests for the purposes of determining compliance with the multiple ownership rules. And, thanks to that change, JSAs that do create such interests have to be filed with the Commission. That applies any arrangement – new and old – that authorizes one TV station in a market to sell 15% or more of the advertising time of another station in the same market.

But as we reported back then, the requirement to file JSAs didn’t kick in when the rest of the revised JSA rules did. That’s because the filing provision constitutes an “information collection” that has to be approved by the Office of Management and Budget (thanks to the hilariously-named Paperwork Reduction Act) before that provision can take effect. In May we speculated that it would likely take about four-six months to wrap up that review process.

And sure enough, just like clockwork, OMB gave the FCC the official thumbs up on October 17 – according to a notice in the Federal Register.

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Response Dates Set for Spectrum Auction Recons

Meanwhile, back at the ranch …

While the NAB and Sinclair press their appeal of the Commission’s Incentive Spectrum Auction Report and Order (R&O), a number of other folks have expressed their discontent with various aspects of the R&O in petitions for reconsideration that the FCC will have to address and resolve. A list of those petitions has been published in the Federal Register. That notice sets the deadlines for oppositions and replies.  Oppositions to any or all of these petitions must be filed by November 12, 2014; replies to any oppositions are due by November 21.

More than 30 separate petitions have been filed on behalf of:

  • Abacus Television
  • Artemis Networks, LLC
  • GE Healthcare
  • Competitive Carriers Association
  • Advanced Television Broadcasting Alliance
  • T-Mobile USA, Inc.
  • Beach TV Properties, Inc.
  • Free Access & Broadcast Telemedia, LLC
  • Bonton Media Group, Inc./Raycom Media, Inc.
  • Block Communications, Inc./FBC Television Affiliates Association,
  • Gannett Co., Inc./Graham Media Group/ICA Broadcasting
  • Qualcomm Incorporated
  • CBS Television Network Affiliates Association/NBC Television Affiliates/ABC Television Affiliates Associates Association/FBC Television Affiliates Association
  • Cohen, Dippell and Everist, P.C.
  • the American Society for Healthcare Engineering of the American Hospital Association (WMTS Coalition)
  • Journal Broadcast Corporation
  • NBC Telemundo License LLC
  • Radio Television Digital News Association
  • LPTV Spectrum Rights Coalition
  • Sennheiser Electronic Corporation
  • the Dispatching Printing Company
  • Media General, Inc.
  • the Videohouse
  • Public Broadcasting Service, Inc./Association of Public Television Stations/Corporation for Public Broadcasting
  • American Legacy Foundation
  • Signal Above, LLC
  • the Walt Disney Company
  • International Broadcasting Network
  • U.S. Television, LLC
  • Mako Communications, LLC.
  • Expanding Opportunities for Broadcasters Coalition

You can take a look at the various petitions on ECFS – just go to the ECFS Search page and enter “12-268” in the “Proceeding Number” box and, in the “Type of Filing” box in the “Advanced Options” sections, select “Petition for Reconsideration from the drop-down menu. (Note that the list in the Federal Register does not correspond exactly to the petitions available on ECFS, but it’s reasonably close. One apparent omission: When we performed the ECFS search, it turned up a petition filed on behalf of Sprint that isn’t listed in the Federal Register notice.)

After the FCC has ruled on these petitions, interested parties will have the opportunity to seek judicial review of the FCC's reconsideration order. If (as may reasonably be expected) this leads to more appeals on the spectrum auction front, there's no telling what impact that might have on the start date of the auctions. As we reported last week, the anticipated start has already moved from 2015 to "early 2016" because of (among other things) the already-pending NAB and Sinclair appeals.

Check back here for updates.

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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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!

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.

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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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

     

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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Petitioner Wants FCC to Ref "Redskins" Debate

Petition against a broadcast license renewal cites offensive nature of “Redskins” name as basis for denial. Should the FCC really be involved with this?

For years there’s been a steady drumbeat for the owners of the Washington, D.C. National Football League team to change the team’s name to something other than “the Redskins”. The contention is that the word “Redskins” is – in the eyes of both American Indians and non-Indians – an offensive ethnic slur. (In response, the team -- which has used that name for more than 80 years – says that it’s a tribute to American Indians' strength and courage, i.e., the antithesis of a slur.)

And now the FCC has been invited to blow the whistle, throw a flag, and rule the use of the term to be a license-ending infraction.

The Redskins-as-ethnic-slur controversy is not new, but it has seemed to gain momentum over the last couple of years, perhaps fueled by aggressive efforts to bring governmental authority to bear. For example, while a number of American Indians have waged an extended battle to get the U.S. Patent and Trademark Office to cancel the team’s registered trademarks, those efforts had been generally unsuccessful until mid-2014.

The response from the Redskins camp has been unequivocal: in a 2013 USA Today interview, the team’s owner, Dan Snyder, said that he will never change the name, adding famously that the interviewer could capitalize the word “NEVER”.

That hasn’t stopped various prominent folks from urging a change.

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The Form of Things to Come: Media Bureau Previews Relocation Fund Reimbursement Process

Comments sought on new Reimbursement Form and related instructions to be used by TV/MVPD’s for post-Incentive Auction claims

The Media Bureau has given the television industry a sobering glimpse of what life will be like immediately after the close of the Incentive Auction. All full-power and Class A licensees would be smart to take a look now so that they’ll be ready when the time comes. And make no mistake: the FCC is confident that the time will come.

This opportunity to gaze into the future is afforded by the Bureau’s draft TV Broadcaster Relocation Fund Reimbursement Form (Reimbursement Form), about which the Bureau is soliciting comments.

When the Incentive Auction rolls around, stations opting to participate will either give up their channels or agree to shift channels in return for a share of the proceeds from the auction. Stations electing not to participate in the auction will be squeezed (“repacked” is the term the Commission uses) into the lower end of the spectrum now allocated to TV. As a result, an unknown number of TV stations will be forced to change channels. Implementation of such changes will necessarily force the affected stations to spend money.

Not to worry (too much), however: the TV Broadcaster Relocation Fund (Fund) will come to the (partial) rescue.

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New Hope for Old Performance Right Holders

Turtle vets Flo and Eddie walk all over SiriusXM, relying on state law in copyright infringement case. A boost for possible Federal performance right royalties?

The concept of performance rights royalties has been given a limited, but potentially significant, shot in the arm by a Federal judge in California. As a result, the date of February 15, 1972 could become less of a barrier preventing artists who recorded songs prior to that date from demanding royalties for the public performance of their recordings.

This is thanks to two of the Turtles, Howard Kaylan and Mark Volman a/k/a Phlorescent Leech and Eddie a/k/a Flo and Eddie. (Curious about those alternative names? It’s a long story that involves the Mothers of Invention .) They successfully sued SiriusXM Radio for royalties arising from its performance of pre-2/15/72 Turtles tunes.

The court win opens the door for mid-20th Century artists to recover royalties from services like Sirius XM, Pandora – and even, in some instances, broadcasters – for playing their songs. And make no mistake, the number of artists in question is huge, including the Turtles, obviously, but also the Beatles, the Stones, Hendrix, Led Zeppelin, the Beach Boys, the classic Motown acts, etc., etc., to name just a small handful of artists whose works are still on many playlists today, more than 40 years down the road.

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Audio Division to AM Licensee: Tell City is No Mattoon

Division dismisses AMer’s request for waiver that would have allowed move-in of distant FM translator.

A Hail Mary tossed up by an AM licensee looking for quick access to an FM translator has fallen short of its mark with the Audio Division’s rejection of the licensee’s request to extend the Division’s “Mattoon waiver” policy. As a result, we can kiss good-bye (at least for the time being) to the notion of a “Tell City waiver”.

This is not particularly good news for the AM industry.

The story starts with Station WTCJ in Tell City, Indiana, an AM station saddled with a relatively meager 0.85 kW ERP. Presumably looking to improve its service by adding an FM translator to the mix, the licensee arranged to buy one and move it to Tell City. But the translator it contracted to buy had a couple of problems: it wasn’t anywhere near Tell City, and the frequency it was authorized to operate on wouldn’t work in Tell City anyway. In fact, its license would have to be moved about 61 channels up the dial to make it work.

Those factors were potential roadblocks because the translator moves (both geographically and spectrum-wise) necessary to make the translator useable in Tell City constituted “major changes” under the rules, and no opportunity for seeking “major changes” is currently available. The application appeared, therefore, to be a non-starter.

No problem. Knowing that the Audio Division has evinced some flexibility with respect to FM translator relocations in some contexts – most specifically, the Mattoon waiver policy adopted by the Division in 2011 to assist AM licensees – the WTCJ licensee figured that that spirit of flexibility and accommodation might work for him, too. So he asked for a waiver so that the proposed translator move could be treated as a “minor change”.

Nearly two years after the application was filed, the Division dismissed it.

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Update: Effective Date of (Most) Revised Tower Rules Set

Last month we reported on the FCC’s overhaul of its antenna structure regulations. The Commission’s Report and Order has now made it into the Federal Register. That, of course, establishes the effective date of most of the revised rules – and that date is October 24, 2014. We say “most” of the revised rules because, wouldn’t you know it, a couple of the revisions involve “information collections” that have to be run past the Office of Management and Budget thanks to the Paperwork Reduction Act. Those revisions – which involve Sections 17.4, 17.48 and 17.49 – will kick in once OMB has given them the once-over. Check back here for updates.

Intern-al Affairs II: Inviting More Former Interns to the Litigation Party

Two former interns take important step toward “class action” status.

Class. Some litigants have it. Some don’t.

A couple of folks who worked as interns at Gawker Media have managed to convince a Federal District Court Judge in New York that they might have it. And that’s bad news for Gawker.

If you’ve read my August, 2013 post about lawsuits brought against media companies by unpaid interns, you should have an idea of what I’m talking about. Two former interns (originally there were four, but two of them bailed) sued Gawker, claiming, among other things, that Gawker hadn’t paid them as required by the Fair Labor Standards Act (FLSA). To beef up their case, the two interns think that they might be able to expand the suit to become a “class action” in which they would be joined by bunches of other similarly-situated former Gawker interns.

And in August a U.S. District Judge in New York (and not just any judge – Judge Alison Nathan of Aereo fame! Is there anything she can’t do?) gave the plaintiffs the green light to go out and round up potential co-plaintiffs. (The name of the case is Mark v. Gawker Media LLC.)

The case is exactly what you’d expect in a Former Interns v. The Man lawsuit. The plaintiffs allege that they were never paid for the time they spent performing work that was “central to Gawker’s business model”. (For readers not au courant with everything on the Internet, Gawker is an “Internet publisher” which reportedly bills itself as “the source for daily Manhattan media news and gossip”.) The interns’ tasks included “writing, researching, editing, lodging stories and multimedia content, promoting content on social sites, moderating the comments forum and managing the community of Gawker users” – in the interns’ view, basically the stuff that kept Gawker up and running. Only they didn’t get paid.

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Now Available: Kevin and Harry's Excellent "Whither Aereo" Webinar

If you missed the webinar Kevin Goldberg and Harry Cole presented on the latest twists and turns in the Aereo case (and the prospects for more twists and turns to come), worry not: it, like pretty much everything else, is on the Internet. The folks at Team Lightbulb, who arranged and promoted the webinar, have posted a recording of the show here – all audio and video included. It’s free.

Google Makes It to Finish Line In White Space Coordinator Race, Again

Google joins Key Bridge Global LLC, Spectrum Bridge, Telcordia and, um, Google, in the ranks of “approved” database coordinators.

Add one more (sort of) database coordinator to the “approved” list of white space database coordinators. The Commission has announced that Google has made it to the finish line – it's been approved to coordinate unlicensed “TV white space” devices. This is the second time Google has completed the process. As we have previously reported, Google was first approved in May, 2013. But then last June the Commission announced that Google had come back with a “major modification” to its already approved system – so much of a modification that it needed to go through the approval process again. (While that process chugged on, Google used the also-approved Spectrum Bridge system.) Now that modified Google system has been approved.

Google’s latest success has been included in the appropriate box below.

Five down (if you count Google twice), six 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

LS telcom AG

June 18, 2013

     Nov. 14, 2013

 

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

Telcordia Technologies

Dec. 2, 2011

Feb. 1, 2012

March 26, 2012

   WSdb LLC

     

 

Now Available: Dan and Paul's Excellent Must-Carry Webinar

If you missed the webinar Dan Kirkpatrick and Paul Feldman presented on the basics of the must-carry/retransmission consent process, never fear: you can catch it in re-runs. We’ve posted a recording of the show here – all audio and video included. It’s free.

Look for a follow-up webinar exploring further details of the must-carry election process in coming months.

Issue-Oriented Spots: Who's The REAL Sponsor?

Bureau tosses two complaints alleging inadequate sponsorship IDs – but that may not be good news in the long run.

Several months ago we reported on complaints filed against a dozen or so TV stations with respect to the stations’ alleged failure to include in their online political files all of the various detailed information required by applicable political advertising laws. We expected that that was just an opening salvo.

Turns out we were right.

The same two complainants (this time joined by a third compadre) have since filed a couple more, based not on the political rules, but rather on the more general sponsorship identification requirements of Section 317 of the Communications Act.

The Media Bureau has already turned away those two complaints. BUT it left the door wide open for more. And, unfortunately, in so doing the Bureau provided little if any useful guidance for broadcasters, but considerable encouragement for complainants. As a result, we can expect to see more such complaints rolling in.

The recently-tossed complaints were filed by the Campaign Legal Center and the Sunshine Foundation (the folks who had filed the complaints we reported on last May), along with Common Cause. One was directed to Station KGW(TV), Portland, Oregon, the other to WJLA-TV, Washington, D.C. In each case the station had run a flight of spots paid for by a “Super PAC”. (In KGW’s case, the PAC was the American Principles Fund; in WJLA’s it was the NextGen Climate Action Committee.) The spots all included sponsorship ID’s identifying the respective PAC.

But, according to the complainants, that wasn’t enough.

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2014 Reg Fees Set, Payment Deadline Announced

 Fire up your computer, free up some space on your credit cards and get your FRN information ready – you’ve got until SEPTEMBER 23, 2014 to get your reg fees paid … and they must be paid electronically.

Apparently intent on re-defining the terms “last minute” and “eleventh hour”, the Commission opted to wait until late on the afternoon of August 29 before it announced the final 2014 regulatory fees. For those of you anxious to cut to the chase, here’s a link to a convenient table setting out the new fees for broadcast-related services. (The table also provides, for TV-related services, comparisons of the 2014 fees against last year’s fees.)

Presumably because its adoption of the 2014 fees has come so late in the government’s fiscal year, the Commission has also taken the unusual step of simultaneously announcing the deadline for reg fee payments. That would be 11:59 p.m. (ET) on September 23, 2014.

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Upcoming Webinar: Whither Aereo? (or should that be "Wither Aereo?")

As we all know, the Supreme Court issued its decision in the Aereo case two months ago – but that wasn’t the end of the matter by any means. The Court’s decision left a number of questions unanswered. And, as has been the case since it burst onto the scene, Aereo is nothing if not creative, which means that, despite its loss in the Supremes, it has not exited the scene by a long shot.

While maybe you took the summer off, our Aereo watchers, Kevin Goldberg and Harry Cole, did not. They’ve been keeping track of the fall-out following the Supreme Court’s decision, and they’re ready to bring you all up to date in a free one-hour webinar on September 10 at 1:00 p.m. (ET).

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

Are Deferred Radio Renewals Headed for Hearings?

Audio Division may be considering designating some renewal applications for hearing, but practical considerations could, and should, make it think twice. 

Last February my colleague Howard Weiss reported on a decision by the Audio Division that boded ill for radio stations that had been off the air (or operating with inadequate power) for too much of the preceding license term. Faced with a renewal application in which the station had been off the air for approximately one-half of the term, the Division granted the station only a two-year “short term” renewal, instead of the standard eight-year term.

 That decision hinted that more stringent actions might be taken in some situations. And now we hear rumblings that the Division is indeed thinking seriously about putting license renewal applicants who were off the air for more than half their license terms into hearings to determine whether to renew or cancel their licenses.

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Upcoming Webinar: What You Need to Know About The Must-Carry/Retrans Consent Election Process

Attention TV licensees: MVPD carriage elections must be formalized by October 1 for carriage arrangements through 2017. Have YOU tied everything down yet?

With Summer, 2014 on the wane and Labor Day just days away, full-service TV licensees probably should already have a clear idea of the steps they’ll be taking to tie down cable and satellite carriage for the next three-year election term. But we’re guessing that some of you may still be a bit behind the curve.

Never fear.

On September 9, 2014 at 2:30 p.m. (ET), Fletcher, Heald will be presenting a free webinar on the ins and out of the must-carry/retransmission consent process.

The next three-year carriage term begins on January 1, 2015 – which means that must-carry/retrans elections must be formalized by October 1, 2014, barely a month from now. If you’re eligible to make an election but you haven’t wrapped things up already, this webinar is for you.

MVPD carriage is critically important for television broadcasters. It’s crucial that TV folks know what their rights are, including the upsides and the downsides of the available alternatives. And once you’ve figured out your target, you’ve got to know what steps you need to take and when (and how) you need to take them to insure that you achieve the results you’re looking for.

The webinar will be presented by FHH cable gurus Dan Kirkpatrick and Paul Feldman. They’ll  explain: the rights and obligations of broadcasters and cable and satellite operators under the FCC’s rules; what has changed since the last round of must-carry/retransmission consent elections; potential pitfalls and hidden concerns regarding carriage; and what the future of retrans may involve.

The webinar is free. You can register for it by clicking on the Register Now button below.

Update: Deadlines for Seeking Reconsideration, Appeal of Spectrum Auction Report and Order Set

Exactly three months after its adoption, the FCC’s Report and Order (R&O) setting the preliminary ground rules to cover the ambitious incentive auction and repacking of the TV band has now been published in the Federal Register. While this does not mean that the auction is imminent – the FCC is still hoping that it will happen next year – the Federal Register publication does set the effective date of some (but not all) of the rules adopted in the R&O. Perhaps more importantly, it starts the clock on a number of important deadlines.

First and foremost, the effective date of some of the new rules is October 14, 2014. But heads up, because that does not apply to §§1.2105(a)(2)(xii) and (c)(6); 1.2204(a), (c), (d)(3), and (d)(5); 1.2205(c) and (d); 1.2209; 2.1033(c)(19)(iii); 15.713(b)(2)(iv); 15.713(h)(10); 27.14(k) and (t)(6); 27.17(c); 27.19(b) and (c); 73.3700(b)(1)(i) through (v), (b)(2)(i) and (ii), (b)(3), (b)(4)(i) and (ii), and (b)(5); 73.3700(c); 73.3700(d); 73.3700(e)(2) through (6); 73.3700(f); 73.3700(g); 73.3700(h)(4) and (6); 74.602(h)(5)(ii) and (iii); and 74.802(b)(2). Those sections all involve “information collections” that must be run past the Office of Management and Budget (thanks to the Paperwork Reduction Act) before they can take effect.

Irrespective of the effective date, the R&O’s appearance in the Register establishes the dates for seeking reconsideration or judicial review.

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Update: Comment Deadlines in FM Class C4 Proceeding Extended

Last month we reported that the Commission had formally acknowledged the petition for rulemaking filed by SSR Communications proposing the creation of a new class of FM channel – Class C4 – to be shoe-horned in between current Class A and Class C3. Comments on the proposal were invited. The Media Bureau has now announced that the comment period has been extended a month, to September 18, 2014. Additionally, the deadline for replies to any incoming comments has been extended to October 3.

While a one-month extension isn’t necessarily the end of the world – particularly since the SSR petition was filed in January, 2013, some 18 months before the Commission deigned to acknowledge it, indicating that, as far as the FCC is concerned, time isn’t of the essence here – this particular extension could signal trouble for the proposal.

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Regulatory Weed-Whacking: The FCC Cleans Up its Antenna Structure Regulations

Nearly a decade in the making, FCC tower rules brought into the 21st Century

If you’ve got one or more tower structures, you may be in luck. The FCC has at long last taken a weed-whacker to Part 17 of its rules, a long-overgrown regulatory briar patch governing the construction, painting and lighting of antenna structures. While the substantive requirements remain largely intact, a number of procedural changes should make life at least a little easier for tower owners as well as the Commission’s Staff. At a minimum, the changes should make the rules easier for real people to grasp.

The only real question here: What took so long?

Tower Inspections. The current rules require that tower lights be monitored at least once every 24 hours, either by observation of the tower itself or through an alarm system that takes care of the process automatically. In addition, any automatic or mechanical control devices, indicators, and alarm systems associated with a tower-lighting system must be inspected quarterly to confirm that the gear is working properly. Some major tower owners have set up Network Operations Centers (NOCs) which are staffed at all times, have highly sophisticated equipment that sounds an alarm at any tower lighting malfunction, and stores records of all alerts. An alert is sent not only if the lights fail at a tower but also if the monitoring system fails. Historically, the FCC has granted several waivers of the quarterly inspection requirement to companies that have demonstrated that their NOCs are adequately staffed and equipped.

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Coming Soon: Online Public File Obligations for Cable, Satellite . . . AND Radio?

Media Bureau solicits comments on very recent petition for rulemaking – and expands inquiry beyond the petition.

Well, that didn’t take long . . . on a couple of levels. The Media Bureau has requested comments on a proposal to impose online public file requirements on cable and satellite operators. And the Bureau has gone the proponents one big step further by suggesting that radio stations as well should be posting their public files online.

The notion of online public files is, of course, of relatively recent vintage. Since August, 2012, TV stations have been required to post most of their public files to the FCC-maintained online system. Political file information was initially required to be posted only by Top Four network licensees in the top 50 markets . . . until July 1 of this year (yes, just a tad more than a month ago), at which time all commercial TV licensees joined the club. If you’re at all fuzzy on the history of the online public file, click here and just keep scrolling – we followed the whole process pretty closely.

Given the long gestation of the TV online public file, some observers (well, us, at least) expected that the FCC might let things settle down for a minute or two.

Surprise, surprise.

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Update: D.C. Circuit Downs Drone Appeal

Last May we reported on an appeal that had been filed with the U.S. Court of Appeals for the D.C. Circuit with respect to the FAA’s efforts to regulate the use of drones. We noted that there were some likely problems with the appeal, not the least of which was the fact that the FAA order being appealed wasn’t really an order. Rather, it was just an email – and a pretty informal email at that – from an FAA representative describing the FAA’s policy. As we noted back then, it didn’t look much like an official agency action

And that, as it turns out, is what the Court thought, too. It concluded that the challenged email wasn’t a formal decision, it didn’t reflect any final FAA decisionmaking, and it didn’t really have any legal consequences (notwithstanding the email’s ominous and threatening tone). In a terse two-page order, the Court shot the appeal down.

While the usual flight paths are available for reconsideration or appeal to the Supremes, we think it unlikely that we’ll see the case winging in that direction: the probability that this decision might get flipped would appear to be somewhere between zero and nil. So this appeal has crashed and burned. But you never know. If the case takes back off, we’ll let you know.

Performance Royalties: The State of Play

[Blogmeister’s Note: The following post by FHH’s Frank Montero first appeared in Radio Ink Magazine. Our good friends at Radio Ink have given us permission to reprint Frank’s piece here, for which we thank them.]

There is much afoot these days in the world of copyrights and performance rights and royalties. Any radio station owner knows about the license fees collected by ASCAP, BMI, and SESAC, which pay royalties to composers and publishers. Less familiar are royalties collected by performers and the recording industry. For musical recordings, radio stations pay SoundExchange when streaming music over the Internet, but not for over-the-air broadcasts. The logic has been that the recording industry already reaps a huge benefit from having its records played over the air. In fact, traditionally the money stream has flowed in the opposite direction, with radio stations, DJs, and PDs being paid to play recordings on the air. There’s even a name for it: payola.

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Testing Completed For Seventh White Space Database System

Google wraps up trials on its modified system; FCC invites comments

Looks like it’s time to fill yet another white space in on our white space grid. According to the FCC, hot on the heels of Comsearch (which wrapped up its testing just last month), Google has completed the testing of its modified white space database system. With the report of those tests now on file, the Commission is soliciting comments on the report and on Google’s tests generally. Comments are due by August 13, 2014; replies are due by August 19.

As our handy-dandy white space chart indicates, of the 11 database systems proposed thus far, only four have made it through the FCC’s gantlet to achieve approval so far – and it’s been that way since last November. But with the completion of Comsearch’s testing last month and Google II’s now, we may be looking at a couple more approvals in the not too distant future. Check back here for 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

 

LS telcom AG

June 18, 2013

     Nov. 14, 2013

 

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

Telcordia Technologies

Dec. 2, 2011

Feb. 1, 2012

March 26, 2012

   WSdb LLC

     

Music Licensing Study Gets an Encore

Copyright Office seeks more input in proceeding as it considers possible overhaul of the music licensing system.

As readers should know by now, the long-stable music licensing  system may soon be in flux. Nearly every aspect of the licensing process is under scrutiny – even attack – on several fronts, and the possibility of change looms large.

Of course, you’ve got your Congressional hearings, which could lead to changes in the Copyright Act. Then you’ve got the Department of Justice review of the decades-old consent decrees governing ASCAP and BMI (remember, SESAC isn’t subject to a consent decree). And the Copyright Office (CO) is looking not only at those same consent decrees, but also at a much wider range of licensing-related questions.

With so many governmental fingers in the pie, what’s likely to get done? 

A CO Notice of Inquiry requesting more comments in its “Music Licensing Study” may shed some light on that question.

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Looking for a Way Around a Statute of Limitations?

Video Division forfeiture order shows flexibility, but not necessarily in a good way

One thing you can say about the FCC: If they think they’ve caught a licensee in a violation, they can be persistent in their efforts to impose penalties for that violation. Whether those efforts are entirely consistent with the law is another question entirely.

With respect to any fine it issues, the Commission must consider the relevant statute of limitations. FCC forfeitures are subject to two separate such statutes. First, under Section 503 of the Communications Act, it can levy forfeitures for actions going back to the beginning of the current license term or one year, whichever is earlier. 

Once the Commission has issued its formal “forfeiture order”, a licensee can simply ignore that order. If the Commission wants to collect the fine in the face of such licensee inaction, it must convince the Department of Justice to sue the target licensee in federal district court. But a second, separate, statute (28 U.S.C. § 2462) says that law suits to enforce penalties must be started within five years of “the date the claim first accrued”.  

A recent forfeiture order reflects the Video Division’s awareness of that latter limit and at least one way the Division has devised to try to sidestep it.

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Aereo Loses First Round in Copyright Office, While Dish Wins its Next Round in the Ninth Circuit

More developments in the realm of Internet retransmission of OTA signals.

Aereo – the gift that keeps on giving, at least when it comes to blogworthy content. As we reported, after it got its clock cleaned at the Supreme Court, Aereo bounced back with Plan B, which amounted to declaring itself (a) a cable system and, thus, (b) eligible for the compulsory copyright license granted to cable systems. But you can’t just say “I’m a cable system” and expect anybody to believe you. So Aereo went ahead with some of the paperwork required of f’real cable operators; among other things, it filed a bunch (14, to be exact) of Statements of Accounts with the U.S. Copyright Office, along with some royalty and fee payments amounting to the princely sum of $5,310.74.

A nice gesture, but wouldn’t you know it, the Copyright Office (CO) was not inclined to play along with the gambit. In a brief letter dated July 16, 2014, the CO let Aereo know that, as far as the CO is concerned, Aereo is not a cable system entitled to the compulsory license. As it turns out, more than a decade ago the CO had concluded that “internet retransmission of broadcast television fall outside the scope” of the compulsory license. That’s bad news for Aereo, whose system is firmly – indeed, exclusively – based on Internet retransmission.

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Media Bureau Invites Comments on Blanket Extension for New Unbuilt Digital LPTV/TV Translator CP's

Uncertainty created by upcoming TV repacking brings call for uniform, blanket extension.

If you’re holding onto a construction permit for an unbuilt digital low power television (LPTV) or TV translator station, listen up. The Advanced Television Broadcasting Alliance (ATBA) has asked the FCC for a blanket extension (or rule waiver) – to September 1, 2015 – to complete construction of such stations. And the Media Bureau has now requested comments on ATBA’s proposal (which was filed last February).

Although all full power television stations had to convert to digital operation in 2009, in 2011, in 2011 the FCC extended the deadline for existing LPTV stations to terminate analog operation until September 1, 2015. That date was set as the expiration for all construction permits for flash cut from analog to digital on the same channel, or for digital facilities on a different channel (companion stations). But the FCC denied requests for similar relief for holders of construction permits for new digital LPTV stations. Instead, the construction deadlines for such permits were left at their original dates (i.e., three years from their issuance), which meant that some such permittees face a deadline prior to September 1, 2015. Demonstrating that this was not just some inadvertent bureaucratic oversight, the Commission denied a request for reconsideration of the decision not to extend  such permits.

ATBA, whose Executive Director is Louis Libin, is one of two groups currently representing LPTV interests before the FCC. The other is the LPTV Coalition, headed by Mike Gravino.

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Is the Fuse Lit on the C4 Proposal?

Commission invites preliminary comments on 18-month old petition for establishment of new class of FM station.

A proposal to shoe-horn in another class of FM station between existing Classes A and C3 has taken a small but at least observable step ahead. We wrote about the proposal back when it first walked in the door at the FCC in January, 2013. Essentially, the idea is that the FM spectrum could be put to more efficient use if a new class of station – proposed ominous name: Class C4 – were to be established with maximum ERP of 12 kW and maximum antenna height of 100 meters.

The latest – actually, to this point, the only – indication of progress? The Commission has released a public notice formally identifying the petition for rulemaking (now dubbed “RM No. 11727”) inviting interested folks to file “statements opposing or supporting” the petition within 30 days, i.e., by Monday, August 18, 2014.

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Update: Comment Deadlines Set in Latest EAS Proceeding

As we reported last week, the FCC is looking into a number of possible changes to the Emergency Alert System (EAS) in the wake of the first-ever nationwide test of the system conducted in November, 2011.  The Commission’s Notice of Proposed Rulemaking has now been published in the Federal Register. As a result, we can now report that the deadline for comments is August 14, 2014 and the deadline for reply comments is August 29. Comments and replies can be submitted electronically at this site; use Proceeding No. 04-296.

Update: Effective Date Set for Updated Spectrum Screen

Federal Register publication also establishes deadlines for reconsideration, appeal, of spectrum screen Report and Order.

CORRECTION!!! In this item as originally posted, we reported that the full text of the FCC’s spectrum incentive auction Report and Order, FCC 14-50, had been published in the Federal Register. That was incorrect. What appeared in the Federal Register was the related Report and Order, FCC 14-63, concerning the updated spectrum screens adopted in anticipation of the incentive auctions. We wrote about that latter order here. While the two orders are obviously related, they are also obviously separate and distinct, and – to put it bluntly – we messed up this time. While the deadline dates described in our original post are accurate, they apply only to the spectrum screen decision and not to the spectrum incentive auction Report and Order. We have revised the post accordingly. We apologize for this error.

Last June the Commission released its order adopting new spectrum screens in advance of the spectrum incentive auction. We reported on that order last month. The FCC’s spectrum screen Report and Order has now been published in the Federal Register. As a result, we now know that the rules adopted by the Commission are set to take effect on September 9, 2014.

Anyone who wants the FCC to rethink any part of the Report and Order has until Monday, August 11, 2014, to file for reconsideration. (The niceties of the recon drill may be found here.) Anyone who wants to take the matter straight to one of the courts of appeals has until September 9.

And anybody in that latter category who has his or her heart set on having the appeal heard by a particular Circuit will have to comply with the rules governing the judicial lottery procedures. Those rules kick in when petitions for review of a single order are filed in multiple Circuits. In that event, the determination of which Circuit gets to hear the appeal is made by lottery conducted by the Judicial Panel on Multidistrict Litigation. In order to get your preferred Circuit into the drum from which the lucky Circuit will ultimately be drawn, you have to file your petition for review within 10 days of July 11 (i.e., by July 21) and, also by July 21, you have to have a paper copy of the petition bearing the “received” stamp of the court delivered to the General Counsel’s office at the FCC. (Here’s a helpful guide about all this prepared by the FCC’s Office of General Counsel.)

It's ALIVE!!!! Aereo Lurches Back to Life, Sort of

Trying to make lemonade out of the lemon handed to it by the Supreme Court, Aereo has come up with Plan B.

The best stories never really end when you think they’re going to, do they? There’s always a nifty twist that keeps the plot chugging along.

So we really didn’t expect that the Supreme Court’s decision was the last word in the Aereo case, did we?

And right we were.

After pulling the plug on its service within a couple of days after taking a seeming knock-out punch from the Supreme Court, Aereo has come up with a plan. According to a letter filed by Aereo with Judge Alison Nathan of the U.S. District Court for the Southern District of New York (where the Aereo saga first got our attention back in 2012), Aereo is now a cable company that is entitled – by Congress, thank you very much – to retransmit over-the-air broadcast programming. As long, that is, as Aereo files the necessary “statements of account” and “royalty fees”required of cable systems. And in its letter Aereo advises that it “is proceeding” to file just those items.

Following the adage about making lemonade when handed lemons, Aereo has taken the Supreme Court’s decision and tried to turn it to Aereo’s advantage. Since the Supremes said that Aereo is “highly similar” to a conventional cable company, well then (according to Aereo), Aereo is a cable system and, therefore, “is entitled to a license” under Section 111 of the Copyright Act.

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Update: FCC Re-Whacks TV Max

Despite extremely harsh assessment of TV Max claims, Commission sticks with its original multi-million dollar fine.

If you’ve been wondering whatever happened to TV Max, wonder no more. As you may recall from our post here last summer, TV Max is the MVPD in the Houston area that – in the FCC’s view – broke the television carriage rules by retransmitting over-the-air stations without getting their permission to do so. If that doesn’t ring a bell, how about $2.25 million, which is the amount of the fine the Commission proposed to dump on TV Max in a Notice of Apparent Liability for Forfeiture and Order (NAL).

As is customary, TV Max was given an opportunity to plead its case in response to the NAL, or at least argue that the forfeiture amount should be reduced. It did so, and  after giving TV Max’s the usual compassionate consideration you might expect, the Commission has now reaffirmed the $2.25 mil in a harsh Forfeiture Order.

The only real surprise here is that the Commission didn’t hammer TV Max for even more. For at least a couple of reasons.

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FCC Seeks Input on EAS Fixes

Problems with the EAS system surfaced in the 2011 nationwide test; now the Commission is looking to fix them, but it could take a while and be pricey for EAS participants.

Following up on the request for comments released last September, the Commission has issued a Notice of Proposed Rulemaking (NPRM) seeking comment on a number of possible changes to its Emergency Alert System (EAS) rules in the wake of the first-ever national EAS test conducted nearly three years ago.

While the test went reasonably well, all things considered, it did reveal a number of rough spots that need smoothing over. A couple of the problems involve header codes; others relate to the accessibility of messages, particularly for those with disabilities. Despite the fact that the changes may seem minor, though, they could impose some hefty new costs on EAS participants – so attention should be paid.

As to the header codes, first some explanation. The EAS system is, of course, a “daisy-chain” arrangement by which alerts percolate down through EAS participants and out to the public. An EAS alert – real or test – is triggered when a message is sent by an authorized person or office. The message contains a “header” consisting of certain coded components that permit EAS equipment down the daisy-chain to identify the originator of the message, the type of event in question, the geographic area affected by the alert and other useful information. It is obviously important that this coded information – particularly the “event” and “location codes” – be interpreted correctly by EAS gear downstream so that the message is accurately transmitted to the audience.

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Supreme Court Lets Red Lion Live

The hunt for Red Lion goes on.

The Supreme Court has declined to review the latest case that offered the Court the opportunity to declare its 1969 Red Lion decision – and, more importantly, the spectrum scarcity rationale on which it was based – no longer viable. As a result, broadcasters will continue to bear the second-class First Amendment status to which they have been officially subjected for nearly 50 years.

That status was confirmed by the Supreme Court in its 1969 decision in Red Lion Broadcasting Co. v. FCC. The Court there upheld the constitutionality of the Fairness Doctrine, an FCC-crafted policy (abandoned decades ago) that unquestionably would have been unconstitutional if applied to, e.g., print media. The Court’s rationale? Spectrum is scarce, and more people want it than can have it, so the government can regulate it in ways not permitted with respect to other, supposedly less scarce, media.

Minority Television Project (MTP), licensee of Station KMTP-TV in San Francisco, challenged the continuing validity of that notion. But the Supremes declined to take the bait. As is customary, no reason was given.

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The Supreme Court's Aereo Decision: What It Says, What It Means

The Supremes have spoken, and now it’s the Swami’s turn.

[Blogmeister’s Note: As we have already reported, the Supreme Court has reversed the Second Circuit in the Aereo case, giving the TV broadcasting industry a major victory. Yes, that’s the result that the Swami, Kevin Goldberg, had predicted. So we asked him to review the two opinions out of the Supremes – Justice Breyer’s majority opinion and Justice Scalia’s dissent – and let us know what he found. Here’s his report – but note that we are dispensing with our routine summary of what Aereo is and how the case got to the Supremes. If you’re just getting to the Aereo party now and don’t know the background, check out our extensive Aereo-related coverage at this link. And if you want to see Kevin talking about Aereo, check out his appearance on LXBN TV.]

As I observed following the April 22 oral argument in Aereo, for the most part the Justices on the Supreme Court can’t really be described as “tech savvy”. Nothing in either the majority or the “dissenting” opinion changes that. (Why the quotes around “dissenting”? We’ll look at that below.)

But the Justices’ seeming unfamiliarity and general discomfort with New Technology may be a good thing. The Court appears to have taken care to limit its Aereo decision to areas with which it is familiar. And it also tried hard to make sure that its decision will not disrupt what it believes it knows about new media such as cloud computing.

Let’s take a look at Breyer’s majority opinion (which was joined in by Chief Justice Roberts and Associate Justices Kennedy, Ginsburg, Sotomayor and Kagan), and then the dissent by Scalia (writing for himself and Justices Thomas and Alito). Then I’ll field some questions that I’ve been frequently asked.

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Aereo Update: Supreme Court Rules for Broadcasters!

The Supreme Court has decided the Aereo case! And the answer is (dramatic drum roll): The Supremes, in a 6-3 vote, have reversed the Second Circuit’s decision – which means that the broadcasters have won this round.

You can read the two opinions (those would be Justice Breyer's majority and Justice Scalia's dissent) here. We are hunkering down here in the CommLawBlog bunker to take a careful look at the opinions, which run to 35 pages in toto; we’ll be posting our analysis once we’ve had a chance to digest it. (In the meantime, feel free to read the inevitable accounts in the Main Stream Media, but don’t take them as gospel. Wait for us to chime in.)

For all of you who were, in anticipation of the decision, engaging in intra-office competitions (in the nature of “pools”, but purely recreational and not amounting in any way to “gambling”), here are some aspects of the decision that may be of interest:

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Sixth White Space Coordinator Completes Tests

Comsearch wraps up tests, FCC invites comments.

The FCC has asked for comment on white space database tests recently conducted by Comsearch.  Comsearch’s test report can be found here.

It’s been about three and a half years since Comsearch (and eight other database administrator wannabes) got the initial nod from the FCC. But things have moved slowly since then. The original group of nine was eventually expanded to ten when Microsoft arrived late to the party, and most recently to 11 when Google tossed in a "major modification" to its previously-approved system. Before any administrator can be finally approved, its proposed system has to be tested, and the test results must be made available for public comment. Only four of the 11 systems have made it all the way through to final approval thus far. One other (LS telcom AG) has finished its testing but still hasn’t gotten the FCC thumbs up.

Our CommLawBlog entry reporting the commencement of Comsearch’s tests may be found here.

Comments on the Comsearch test report are due by July 8, 2014 and reply comments by July 15.

For background on the databases and what they do, see this article.

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

 

 

LS telcom AG

June 18, 2013

     Nov. 14, 2013

 

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

Telcordia Technologies

Dec. 2, 2011

Feb. 1, 2012

March 26, 2012

   WSdb LLC

 

 

 

Update: Media Bureau Confirms JSA Attribution Effective Date

From our "Gee, haven't we heard this before somewhere?" file

If you happened to read our post from a month ago, you already know that the effective date for the new attribution rules relative to TV joint sales arrangements is June 19, 2014. The Media Bureau has now confirmed that in a public notice.

The Bureau’s notice sheds no new light on anything. Au contraire, it confirms our previous observations that: (a) the new filing requirements relative to the TV JSA rules are not yet effective (thanks to the need for OMB review mandated by the Paperwork Reduction Act) and (b) the two-year compliance period wraps up on June 19, 2016. On that last point, the public notice doesn’t say anything about the fact that, at least according to our official CommLawBlog calendar, June 19, 2016 is expected to be a Sunday.

Of course, as of their effective date, the new rules apply to new JSA's -- that is, the two-year compliance period relates only to JSA's already in existence prior to the effective date.

So no real news here, but now we do have official confirmation.

Aereo in the Supremes: What Are the Odds?

Supreme Court junkies doubtless know that there are, as of June 17, 2014, only 14 cases that have been argued, but not yet decided, by the Supreme Court this term. One of those is the Aereo case which we here in the CommLawBlog.com bunker have been following for the last couple of years.

The Court has announced that it will be handing down opinions on June 19, 23 and 30; there’s also the possibility that it will add more dates, although, obviously, time is fast running out. Since the Supremes traditionally resolve all pending cases before they split every year toward the end of June, we can be reasonably confident that the Aereo decision is on its way, real soon.

But, as Tom Petty cogently observed, the waiting is the hardest part. We are plagued by the near-palpable tension and anxiety produced by the knowledge that a decision is coming, but we just don’t know when.

No worries. We here at CommLawBlog are happy to provide a distraction in the form of seven separate Aereo-related points about which to speculate and prognosticate. We’ve presented them in an attractive one-page format, suitable for printing, distributing and posting prominently. Think of this as a Supreme Court version of your annual Final Four pool – an amicable way to increase camaraderie in the workplace.

We'd be very interested in seeing how our readers come out on these questions -- so please feel free to send us your results through the "comments" option, below. Or you can share them via Twitter (letting us know by using “@commlawblog” and/or “#aereowatch”).

And don’t forget to check back here at CommLawBlog once the decision gets released.

2014 Reg Fees Proposed: Good News for Radio, VHF TV; UHF TV, Not So Much

It happens every spring: the annual announcement of proposed regulatory fees that the FCC’s regulatees will be called upon to shell out toward the end of summer. While the Notice of Proposed Rulemaking (“NPRM”) laying out the proposed fees has in recent years tended to pop up in early May (or even April, back in 2010), the Commission is running a tad late this time around. 

Never fear – the proposed 2014 reg fees are here!

While the final figures (usually adopted in July or early August, payable in late August or September) may vary here and there from the proposals, generally any changes will be minor. The issuance of this year’s NPRM gives one and all an opportunity to comment on the proposals before they get etched in stone (although many may question the utility of trying to sway the Commission on the fee front).

There’s some interesting news for both TV folks and radio folks in the FCC’s proposals.

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Spectrum Hold 'Em: FCC Updates Spectrum Holding Policies

Low-band spectrum gets special treatment in the upcoming “Incentive Auction” and in the FCC’s case-by-case analysis of secondary market transactions.

We hold these truths to be self-evident, that not all spectrum is created equal, that they are endowed by their Creator with certain unalienable-but-unequal attributes, that among these are frequency, wavelength, and the transmission of energy. That to secure rights to use spectrum, Government agencies are instituted among Men, deriving their just powers from the Communications Act . . .

That’s right. Not all spectrum is created equal. No need to feel bad for the spectrum. We doubt it cares. Spectrum is utilized for a countless number of applications including radio, television, wireless Internet, mobile telephony, even cooking your food. Certain spectrum bands are just better suited for some tasks than for others.

More specifically, for mobile telephony/broadband applications, low-band (i.e., below 1 GHz in frequency) spectrum offers better signal propagation for enhanced geographic coverage than high-band (i.e., above 1GHz) spectrum, but high-band is better at transmitting larger amounts of data (albeit over shorter distances). Low-band spectrum, which wireless carriers covet due to better coverage capabilities and lower deployment costs, is in shorter supply than high-band spectrum. As directed by Congress and the Communications Act, the FCC is responsible for allotting spectrum among various uses and users. According to the FCC, ensuring access to low-band spectrum by multiple carriers helps to enhance competition and is, therefore, desirable.

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Brrrrrr! The Freeze is On for LPTV/Class A/TV Translator Displacement Applications

If you’re an LPTV, Class A TV or TV translator licensee and you haven’t gotten around to filing for displacement facilities (or, in the case of translators, digital replacement translator (DRT) facilities), we’ve got bad news for you: effective immediately (that is, as of June 11, 2014), the Media Bureau has put a freeze on such filings. While the abrupt announcement of an in-effect-immediately freeze is always a bit surprising, the reason underlying the freeze is not. It’s necessary to ensure a static frequency landscape as the FCC gears up for the incentive auction.

Unlike many other freezes, this one is not expected to cause much disruption. That’s because, given the fact that the television digital transition was largely completed nearly five years ago, the Bureau figures that “there should be little occasion for new DRT and displacement applications to be filed.”

The freeze will remain in effect until after the incentive auction is completed. The Bureau will then announce a special filing window to be opened for existing DRT, LPTV, and TV translator stations displaced by the incentive auction-induced channel repacking.

This is not what you might call a Han Solo-in-carbonite freeze – there is a little wiggle room. During the freeze, LPTV and TV translators will be able to request a waiver to seek displacement if they can demonstrate that they are causing or receiving “new actual” interference to or from a full power television station. Here’s what the Commission has to say about “new actual interference”:

By “new” interference, we mean interference that is a result of the initiation of new or modified service by a full power station during the freeze. To qualify for the waiver, the displacement applicant must demonstrate either actual interference within the noise limited contour of the full power station or actual interference to the displacement applicant’s LPTV or TV translator station, either of which will result in the immediate loss of service to viewers, thus necessitating the grant of its application.

This waiver opportunity will not ordinarily extend to applications for new DRTs or Class A displacements. The need for such facilites has presumably already been identified and addressed.

The Bureau will continue to process DRT and displacement applications already on file prior to June 11. Also, during the freeze the Bureau will accept minor change applications and applications for digital flash cut and digital companion channels filed by existing LPTV and TV translator and Class A stations.

Throwing More Gas on the Music Licensing Fire: DOJ Opens Review of Music Licensing Consent Decrees

Broadcasters feeling the heat as another agency tries to help the music industry 

In its never-ending push-and-pull relationship with the music industry over copyright royalties, the radio industry currently faces assaults on multiple fronts. While the creation of a “performance right” (or, as broadcasters view it, a “performance tax”) appears to have been staved off for another year (according to the NAB), there are plenty of other threats headed the broadcasters’ way.

For example, the radio industry is already subject to a performance right obligation requiring stations to pay recording artists, through SoundExchange, for the digital performance of sound recordings. That burden is almost certain to increase as a result of the “Webcasting IV” proceeding that will set new streaming rates for 2016-2020. Also, the Copyright Office is looking at whether changes to all aspects of music licensing are warranted. And lurking just beyond the horizon we have the “Respect Act” recently introduced in Congress. That would require digital radio services (Pandora, Sirius XM and anyone engaged in webcasting, including broadcasters) to pay royalties for sound recordings created before February 15, 1972. Such recordings are currently covered by most state copyright laws but not by federal law.

Now we can add another potential flashpoint: the Antitrust Division of the Department of Justice has initiated a review of the longstanding ASCAP and BMI Consent Decrees that mandate federal court oversight of the rates paid by radio broadcasters to ASCAP/BMI-repped songwriters/composers.

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Update: Revised CALM Act Rules Adopted

The rules implementing the CALM Act have been changed. But don’t worry: the revised version won’t take effect for another year.

The CALM Act, designed to make LOUD COMMERCIALS a thing of the past, was enacted in late 2010. The Commission diligently undertook the necessary follow-up rulemaking to implement the Act. The resulting rules were adopted in December, 2011; they took effect in December, 2012, per the schedule dictated by Congress.

And, as we reported last year, by 2013 the rules already had to be amended.

That led to a further rulemaking proceeding which has now been concluded. Since Congress gave the FCC no discretion in the matter, the rule changes proposed last fall have been adopted.

If you want more background on all this, check out our post from last November. The short version: The CALM Act ordered the FCC to incorporate into its rules ATSC A/85 Recommended Practice (RP), a standard for monitoring and controlling the loudness level of digital TV programming. At the time, the latest and greatest version of that RP was vintage 2011, so that’s the one the FCC adopted. But, recognizing that standards and technology are constantly evolving, Congress also ordered the FCC to update its rules to incorporate any subsequent changes to the RP.

Sure enough, the RP was updated in early 2013, which meant that the FCC had to do likewise with its rules.

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Pursestrings 2014: New, Improved Effective Date for New Application Fee Schedule Announced

Last month we reported on the FCC’s announcement that its new application fee schedule would kick in as of June 6. We also suggested that there would likely be some slippage and that the actual effective date would be later. Sure enough, the Commission has announced that the real effective date of the new fee schedule will be July 3, 2014. The Commission promises that it will issue a further public notice confirming the date before then; it also says that new fee filing guides will be posted on its website before as well. We’ll keep an eye out and, if the date starts to move again, we’ll let you know.

In the meantime, if you have any applications that could be filed by July 2, you can save yourself at least a couple of bucks by getting them in before the prices go up.

Now Available: The Incentive Auction Report and Order

The full Report and Order in the FCC’s incentive auction proceeding has finally been released. If you had 484 pages in the office pool relative to the document’s total length, you’re a winner. Ditto if you had 329 pages for the length of the report itself, sans appendices and separate statements. And if your office pool was truly hardcore, you may be pleased to know that there are a total of 2,279 footnotes.

All of which is to say that, while we will be reporting on exactly what the decision says, we won’t be reporting on it today. (The new rules won't take effect until 60 days after they get published in the Federal Register -- and even then, the "information collection" components of the rules will have to await OMB review thanks to the hilariously-named Paperwork Reduction Act.)

But since we recognize that there is intense interest in the incentive auction proceedings, we’re posting this notice that the order is now out. You can access it here. To help find your way through it, you might also want to take a look at the FCC’s public notice describing its action and/or the somewhat more detailed Staff Summary of the order.

And, of course, check back with us here at CommLawBlog.com for updates.

New Technologies Once Again Blurring the Lines of Copyright Law

[Blogmeister’s Note: The following article by Frank Montero appeared in Bloomberg BNA’s Telecommunications Law Resource Center. The folks at Bloomberg BNA have kindly given us permission to reprint it here.]

It seems like copyright law is always trying to catch up with new technology. That’s not a new phenomenon. Take the player piano and the 1908 Supreme Court case of White-Smith Music Publishing Co. v. Apollo Co., in which the high court ruled that manufacturers of music rolls for player pianos did not have to pay royalties to the composers.

The composers were understandably worried that the player piano – then a burgeoning new technology – would make sheet music (and, more importantly, the copyright royalties they earned from the sale of sheet music) obsolete. In response, Congress, in the Copyright Act of 1909, created the compulsory license, allowing anyone to copy a composer’s work without permission as long as they paid a predetermined license fee.

The same scenario is playing out today: New technological developments are outstripping decades-old copyright law, forcing changes in the law, challenging old models, and blurring long-established lines. The traditional “silo” mentality that addressed TV, radio, publishing, recording, cable – and now, the Internet – as separate and distinct areas cabined off from one another is eroding. Record companies are battling radio broadcasters. TV broadcasters are battling cable and satellite companies. Internet audio streamers are battling publishers. Publishers are battling record labels. Internet video streamers are battling Internet service providers.

A principal source of these issues: the Copyright Act’s definition of the “public performance” of copyrighted work.

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White Space Database Update: Google v.2 Now in Beta

There’s been some movement on the white space database administrator front – but it’s hard to call it progress. Readers will recall that Google got its database system approved nearly a year ago. But now comes word from the Office of Engineering and Technology that Google has come up with a “new registration system” which is a “major modification” to the Google system previously approved. That means that the new version will have to be run through the same hoops as the original. Accordingly, for a 45-day test period beginning on June 2, 2014, Google’s new system will be available for public trials. Interested folks can give it the once-over, kick the tires, take it for a spin and see if it does what it’s supposed to.

When the test wraps up – on July 17, or maybe later if the FCC decides more testing is called for – we’ll see the usual drill: Google will have to file a report on the test, public comment on the report will be invited and, if everything works out Google’s way, the FCC will eventually re-approve it as a coordinator. If and when that happens, Google’s new system will rejoin the others already approved.

OET’s public notice indicates that Google is currently relying on Spectrum Bridge (another already-approved coordinator) to manage registration of protected entities on Google’s behalf. Google’s new system is intended to “replace [Google’s] use of the Spectrum Bridge procedures”. What precisely has become of Google’s originally approved system is not clear.

Four other candidates have still not reached the testing phase, so check back here for updates.

In keeping with our white space database SOP, we have updated our handy-dandy table charting the progress of each of the would-be administrators by inserting a new row (for “Google Inc. II”) to track the progress of the latest test process:

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Update: Effective Date Set for New JSA Limits

Federal Register publication also sets deadlines for comments on changes to ownership rules proposed in 2014 Quadrennial Regulatory Review.

What with the Federal Register publication of the new retrans consent restrictions, you had to know that the new limits on TV joint sales agreements (JSAs) couldn’t be far behind. And sure enough, the FCC’s 2014 Quadrennial Regulatory Review (2014 Quad Reg Review) decision has now been published in the Federal Register in two separate parts – one covering the Report and Order component and the other covering the Notice of Proposed Rulemaking (NPRM) component.

As a result, we now know when the new JSA rules for TV licensees will take effect – that would be June 19, 2014. We also know that comments on the various proposals in the NPRM are due by July 7, 2014 and reply comments by August 4.

While the new JSA rules require that TV JSAs old and new be submitted to the Commission (and placed in stations’ online public inspection files), that requirement will not kick in on June 19. Because that aspect of the rules constitutes an “information collection”, it must first be run past the Office of Management and Budget pursuant to the hilariously-named Paperwork Reduction Act. As a result, we don’t expect the file-with-the-FCC/place-in-the-public-file component to take effect for another four-six months or so. Check back here for updates.

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Update: Effective Date, Appeal/Recon Deadlines Set for New Restrictions on Retrans Consent Negotiations

Last month we reported on the Commission’s decision to prohibit joint retransmission consent negotiations between two non-commonly owned “Top Four” stations in the same market. The Report and Order component of that decision has now been published in the Federal Register. That establishes the effective date for the prohibition: June 18, 2014. Any TV licensees preferring some kind of joint retrans negotiations should thus be sure to wrap them up before then – but it’s probably best not to get your hopes up on that score, since the folks on the other side of the table will also be aware of the approaching effective date and may therefore not be especially motivated to close a deal before then.

The Federal Register publication also starts the countdown for (1) petitions for reconsideration asking the Commission to re-think things and (2) petitions for review asking a Federal appeals court to reverse the Commission. Recon petitions are due at the Commission no later than June 18, 2014. Petitions for review are due by July 18.

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An Anchor's Reminder About the Importance of Broadcast Emergency Alerts

Noted with CommLawBlog approval: TV anchor Nancy Naeve gives churlish audience members what for.

When it comes to emergency alerts about, e.g., dangerous, fast-approaching, weather conditions, a broadcaster’s lot is not enviable. It is often difficult simply to marshal, in very short order, the important details and reduce them to reliable words and images that can be grasped quickly and accurately by the audience. There are regulatory concerns: even the best-intentioned broadcaster doing his or her utmost to get the word out to the public can be unpleasantly whacked after the fact by the FCC for an inadvertent failure to comply 100.000% with certain regulatory requirements. (You can find examples here, here, here, here or here.) And let’s not forget members of the audience, occasionally ungracious and unappreciative, who call to complain when emergency reports interrupt their favorite program.

In other words, broadcasters might have considerable reason not to jump at the opportunity to break into their programming with bad news about bad weather.

Still, emergency alerts save lives and property. It is difficult to conceive of a public service of greater importance. And despite the difficulties and risks to their own operations, broadcasters have historically stepped up to the plate over and over again to serve their audiences in this valuable way.

We say all this because the video clip below caught our attention this morning.

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Auction 84 Update: What If They Held a Spectrum Auction and Nobody Came?

AM auction ends with more than half the permits unsold.

Through the history of spectrum auctions, the FCC has seemed motivated by a Field of Dreams-like belief: “If you hold the auctions, they will come.” And sure enough, for the most part the bidders have indeed shown up.

So it’s got to be a disappointment, if not a surprise, that Auction 84, the most recent auction of AM construction permits, has ended with only five of the available 22 permits drawing any active bidding beyond the opening minimum, and more than half not attracting any bids at all.

The full details of Auction 84, which was first announced last November and concluded on May 13, 2014, may be found at the FCC’s website. As noted, a total of 22 AM CP’s were up for grabs, of which five went for the minimum bid (or, in one case, just a tad over that minimum) and five sold after active bidding – leaving 12 unsold on the auction block. The ten that got sold gave the U.S. Treasury a total take of only $891,500, the bulk of which was attributable to two CP’s, one each in the New York and Los Angeles markets. The final bid for the Los Angeles-area permit (that would be in Culver City) was $409,000; which is precisely the same as what the New York City-area permit (Stony Point Town) fetched.

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Here Come The Political File Complaints!

Easy online access to TV stations’ political files leads to charges of shortcomings.

Two years ago, when TV stations were first required to post their local public inspection files online, a number of observers anticipated that the ubiquitous availability of the now-misnamed “local” files would lead to an influx of complaints from non-local parties enjoying easy Internet access to once distant files.

The complaints have started.

In one of the first – if not the first – instance, two Washington, D.C.-based public interest firms have filed complaints against a total of 11 TV stations. The complainants – the Sunlight Foundation and the Campaign Legal Center – base their charges entirely on political advertising materials obtained from the stations’ online public files. The essential claim running through all the complaints is that the target stations failed to include various bits and pieces of legally-required information.Following up on the complaints, the Commission has sent letters of inquiry (with Chairman Wheeler’s blessing) to the targeted stations.

First, let’s focus on the disclosure information that the complainants allege to be missing. Section 315(e)(1) of the Communications Act requires broadcasters to maintain (and make available for public inspection) certain information with respect to any request to purchase airtime when the request is either (a) made on behalf of a legally-qualified candidate for public office or (b) “communicates a message relating to any political matter of national importance”. That latter provision includes messages concerning a legally qualified candidate, any election to federal office, or a “national legislative issue of public importance”.

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FTC to Trade Associations: No Antitrust Slack for Associations

Agency blog post reminds industry groups that “competitors are expected to compete”.

If you’re a trade association and you’ve recently had that creepy feeling that someone’s watching you, you’re probably right. That would be the Federal Trade Commission (FTC), one of whose missions is to preserve competition in the marketplace. Since trade associations are cooperative entities composed of members who normally compete against one another, the potential for anticompetitive conduct is evident.

And in case anybody had forgotten about that, the FTC has in a recent blog post on its website reminded trade associations that they are subject to the same antitrust rules as other businesses. In particular, the FTC cautioned that it remains vigilant about trade association activity that restrains competition among its members without a legitimate business justification.

While acknowledging the great benefit that a trade association can provide to its industry, the FTC noted that some association practices have been condemned by the courts for antitrust violations. The FTC was focused particularly on association rules and bylaws that constrain the normal give-and-take among competing association members in the marketplace.

The FTC’s message in a nutshell: “Competitors are expected to compete” and “there are no special antitrust rules for trade associations.”

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Pursestrings 2014: Possible Effective Date for New Application Fees Announced

NOTE: This post has been UPDATED and CORRECTED since it was originally published (see explanatory note, below).

 As we previously reported, the Commission announced its routine cost-of-living-based application fee increases in an Order released in March. That Order has now been published in the Federal Register, as a result of which the new fees are set to kick in on June 6, 2014.

We understand that, as a practical matter, there may be some, probably minor, slippage of the actual effective date, as the Commission has to adjust its various online filing systems to reflect the changed fees. But since we know that the new fees will not in any event become effective prior to June 6, if you’ve got any applications you’re thinking about filing, you can save yourself at least a couple of bucks by filing now rather than waiting until June 6.

[Blogmeister’s Note: Nostra Culpa, Nostra Maxima Culpa – As noted, the post above has been substantially updated and corrected since it was originally published earlier today.

In its original form we referred to Section 158(b) of the Communications Act, which requires that the Commission provide Congress with any revised application fee schedule no less than 90 days before that schedule is to take effect. We suggested that that requirement might delay the effectiveness of the amended application fee schedule.

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Drone Update: While FAA Continues to Swat at Drones, an Appeal of its Policy Takes Off

FAA “looks into” commercial drone use while Texas group seeks D.C. Circuit review of FAA drone policies.

A couple of weeks ago we reported on the FAA’s efforts to discourage the use of drones a/k/a “Unmanned Aircraft Systems” (UAS) a/k/a model aircraft. We have a couple of updates on that front.

First, in the aftermath of the recent spate of tornadoes that ripped through the South, it’s been reported that the FAA is investigating a “storm chaser and videographer” who used a drone to document the effects of a tornado in Arkansas. The captured images were apparently used by a Little Rock TV station in its coverage of the storm damage. According to a report in the Arkansas Democrat-Gazette, the FAA “is looking into” the station’s use of the drone-acquired footage. (The report also indicates that other Arkansas stations are using drones, although whether the FAA is “looking into” their drone use is not clear.) Since post-storm damage assessment is a use for which drones are especially well-suited – a use which reduces the need for exposing additional personnel to potentially dangerous circumstances – the FAA’s vaguely menacing consideration of that use seems a bit churlish.

But if you really want churlish, check out our second update.

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Geofencing, Webcasting and Performance Rights Royalties: How Far Does The Exemption Go?

A radio broadcaster is arguing that geofencing exempts it from performance royalties for webcast songs; Could this lawyered loophole backfire on the industry?

For two years, TV broadcasters have railed against Aereo’s innovative interpretation of the Copyright Act based on what Aereo claims to be technological developments. According to Aereo, its interpretation would relieve Aereo of copyright obligations. Now, in an ironic turn of events, a radio broadcaster is asserting its own innovative interpretation of a separate provision of the Copyright Act, an interpretation that (a) is based on technological developments and (b) would relieve the interpretation’s proponent of copyright obligations.

If this new argument is ultimately endorsed by the courts, it could lead to major changes in webcasting copyright law – including some changes not likely to be welcomed by broadcasters. Those changes could include, at least theoretically, creation of the Performance Right that the broadcast industry has fought for years.

The broadcaster in question is VerStandig Broadcasting (VerStandig), licensee of some FM stations in Virginia. The technological development VerStandig is relying on: geofencing, which permits a webcaster to limit accessibility to its programming based on the physical location of the computers receiving the webcast. Geofencing works by checking the “receiving computer’s IP address, WiFi and GSM access point, GPS coordinates, or some combination against a real world map of those virtual addresses”.

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FCC Clearing the Decks of Long-Pending Applications for Review

FCC breaks logjam on appeals of Audio Division decisions.

Along with spring daffodils, there has been a refreshing burst of FCC activity in the last few weeks on applications for review relating to decisions (mainly FM matters) from the FCC’s Audio Division. An “application for review,” in FCC parlance, is the pleading by which one asks the full Commission to review an adverse decision by one of the Commission's delegated authorities, such as the Wireless Bureau or Media Bureau. This allows the five Commissioners to review a decision by their subordinates and either approve it or correct any errors that might have been made. The presidentially-appointed Commission is, after all, the body charged with fulfilling the regulatory functions under the Communications Act, so it naturally has the last word when it comes to agency actions. In fact, an FCC action is technically not “final” (and, therefore, ripe for judicial review) until the full Commission has passed upon the matter one way or another.

Unfortunately, in recent years – in fact, as long as we can remember – the five Commissioners have seemed to regard applications for review much as Superman regards Kryptonite. The matters at issue tend to concern issues of local interest and small importance to most: should this site change be approved, should this waiver be granted, did this application have a defect? These issues, though often vitally important to the parties out in the hinterlands, must seem of small consequence compared to the Great Issues of Our Day that typically fill the Commissioners’ ex parte meeting schedules. Net neutrality, spectrum access, auction policy – these are the grave and weighty issues that our philosopher-Commissioners prefer to debate and ponder in their offices up in the clouds of the 8th floor.

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Comment Deadlines Extended in Non-English EAS Inquiry

Last month we reported that comment deadlines had been set with respect to the long-pending proposal to establish a “designated hitter” approach to assure that EAS announcements are broadcast in foreign languages when the audience includes a significant number of non-English speaking folks. If you’re thinking about filing comments in that proceeding, get your calendar and your eraser out. The Public Safety and Homeland Security Bureau has just pushed the deadlines back a month. The Bureau was happy to do so particularly because the original proponent, the Minority Media and Telecommunications Council, was the one asking for more time. Comments in response to the Bureau’s request for comments are now due by May 28, 2014 and replies are due by June 12.

Aereo in the Supremes: A Post Mortem Post

So the storm that had been brewing for some months – the long-impending Aereo argument in the Supreme Court – has now come and gone, and we are left to sift through what remains to try to figure out what’s next.

We are pleased to report that, as planned, our intrepid reporters on the Aereo beat, Kevin Goldberg and Harry Cole, attended the argument (nearly front-row seats, thank you very much) and were able to provide an overview of the festivities on CommLawBlog Live! less than three hours after the gavel came down in the courtroom. (That’s just a metaphor – Chief Justice Roberts did not appear to wield an actual gavel.) For those of you who missed it, you can catch a recording of the audio portion here, although you’ll miss the video of Kevin and Harry – which is, of course, the price you pay for not signing up for the live presentation.

Several highlights, in no apparent order:

  • The Supreme Court’s head was in the clouds . . . literally. Many of their questions centered on how cloud computing might be affected by any decision in this case.
  • At least four justices observed that Aereo looks just like a cable system, and at least a couple reflected an awareness that Aereo’s design was intended to allow it to avoid copyright obligations – but it’s not clear that that alone will convince them to find for the broadcasters.
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Drone Even Go There: On Newsgathering, Drones and the FAA

The FAA’s anti-drone posturing: procedurally, practically and constitutionally unsound

They say that tragedy plus time equals comedy. Sometimes that may be true. But when the tragedy is severe enough, tragedy plus time equals tragedy – leading, at best, to reflection.

Reflection on a recent tragedy has led to this post.

In March, a KOMO-TV News helicopter crashed in Seattle, killing two people. This kind of tragedy can be avoided in the future, at least in part through the use of Unmanned Aircraft Systems (UAS) – more commonly referred to as “drones”. But I fear that the current Federal Aviation Administration (FAA) stance on the use of drones will prevent news operations from employing this more nimble, informative and safer option in the future.

Note that I referred to the FAA’s “stance” on drones, rather than its “rules”. That’s because the FAA does not now have (and apparently has never had) any actual “rules” governing drone use. But that’s not stopping the FAA from engaging in bluff and bluster – along with at least one threat of a five-figure fine – in an effort to discourage drone use by, among others, news gatherers.

The good news – at least from my admittedly-biased-in-favor-of-journalists perspective – is that courts may not stand for the FAA’s shenanigans.

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Aereo Update: Alito Back On The Case

In case you ever wondered whether there’s such a thing as “unrecusal” – and, frankly, we hadn’t – here’s the answer: yes. The Supreme Court has announced that Justice Alito, who had recused himself from any participation in any aspect of the Aereo case (which, we remind you, is set for oral argument next week), is no longer recused. The Supremes aren’t required to explain their recusals and, it appears, the same is true of unrecusals. Whatever the reason, with Alito back on board the full nine-member court is now set to hear the case. That eliminates the possibility of a 4-4 tie among the justices (which would have left the Second Circuit’s decision in place, albeit without any approval by the Court)

JSAs On the FCC's Hit List

Increased restrictions and an at-best-vague waiver policy threaten continued viability of many if not most joint sales arrangements.

Everybody knows that, back on March 31, the Commission significantly altered the playing field for television broadcasters. In two separate items adopted that day the FCC (a) barred non-commonly-owned Top 4 network affiliates in a given market from engaging in joint retransmission consent negotiations, and (b) changed its approach to ownership attribution of joint sales agreements (JSAs). The full text of the retrans consent decision was released the day of the meeting. (You can check out our post on it here.) But the JSA order has been MIA . . . until now.

On April 15, more than two weeks after its adoption, the Further Notice of Proposed Rulemaking and Report and Order (JSA R&O) laying out the new JSA rules and policies was released. (The JSA R&O also kicks off the Commission’s statutorily mandated quadrennial review of its ownership rules.) Despite the delay in the document’s release – and the fact that it runs to 236 pages (and 1,147 footnotes) – the JSA R&O doesn’t add significant insight into how JSA attribution, and in particular the standards for waiver, will be implemented. 

The new JSA rules and policies govern any arrangement which authorizes one TV station in a market to sell 15% or more of the advertising time of another station in the same market. Reversing a couple of decades of precedent, the JSA R&O provides that such JSAs will now be attributable to the owner of the station doing the selling. This means that, in many markets, longstanding arrangements that have been viewed as consistent with the multiple ownership rules will now have to be modified or unwound in order to assure compliance with those rules. Such modifications/unwinding must be done within two years of the effective date of the new rules. While the Commission will entertain requests for waivers of the rules, the prospects for getting a waiver are at this point far from clear.

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Forgotten But Not Gone: Annual Broadcast Employment Form 395-B Re-Surfaces

A Federal Register notice suggests that the FCC may be thinking about re-imposing the Form 395-B requirement – but the notice neglects a couple of problems.

It’s baaaack – maybe. The Commission’s decade-dormant annual employment report form has stirred. In a Federal Register notice the FCC has advised that it is cranking up the process (mandated by the hilariously-named Paperwork Reduction Act) to secure the approval of the Office of Management and Budget (OMB) to continue to keep Form 395-B in the FCC’s roster of forms.

There are multiple problems here.

As longtime Commission watchers may recall, Form 395-B calls for broadcast stations to provide information, annually, detailing the racial, ethnic and gender composition of their full-time and part-time staff according to job category. If you’re a recent arrival to the broadcast industry – “recent” being within the last 15 years or so – you may not be familiar with Form 395-B. You can read about the history in this post of ours from last year.

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TV Channel-Sharing Study: A Report on the Report

Does the report on the first formal tests of a TV channel-sharing arrangement really say what FCC Chair Tom Wheeler says it says? YOU make the call.

At the recent NAB Show in Las Vegas, Chairman Wheeler came on like a cheerleader at a pep rally, touting the upcoming incentive auction program. (For readers who weren’t there, it was something like Darth Vader trying to sell the Rebel Alliance on the obvious benefits available to Empire participants.) According to Wheeler, the auction presents “a terrific financial opportunity for broadcasters” – and that’s because of the possibility of certain cooperative agreements between TV licensees. This is, of course, the same Chairman Wheeler who, just days earlier, had put the kibosh on cooperation between TV licensees in the shape of joint sales agreements (while also raising a critical eyebrow at shared services agreements and joint retransmission consent negotiations).

But those types of cooperation are different.

In Vegas, Wheeler was talking about channel-sharing arrangements in which two stations use common transmission facilities, arrangements which can provide “under-considered and under-appreciated” benefits.  And how is he so sure about that?  It turns out that a report has been prepared describing the first formal test of channel sharing and, to hear the Chairman tell it, the report makes a “compelling case” for that practice.  He said that he hopes broadcasters “closely study” the report.

Trouble is, the report itself doesn’t appear to have been widely circulated.  So we figured we’d take a look at it and let our readers know what we found – and also give them a direct link to the report so they can read it themselves.

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Reminder: Aereo Webinar Set for April 16

As we announced several days ago, we’ll be presenting a FREE webinar next Wednesday, April 16 (at 3:00 p.m.), on the Aereo case. The Supreme Court will be hearing arguments in the case on April 22, so our webinar – hosted by Kevin Goldberg and Harry Cole – will provide attendees a comprehensive overview of the history of the Aereo litigation leading up to the Supremes. The webinar is designed to provide background and perspective to help make sense of both the arguments before the Court and the speculation likely to follow the arguments.

While space is limited, we still have some capacity, but it will be filled on a first-come, first-served basis. If you want to get yourself up to speed on All Things Aereo in advance of the Supreme Court argument, here’s your chance. Just click on the “Register Now” button below and sign yourself up.

Update: Comment Deadlines Set re Proposed Elimination of Network Non-Dupe and Syndex rules

Last week we reported on the FCC’s Report and Order and Further Notice of Proposed Rulemaking, the “proposed rulemaking” component of which sought comments on the possible elimination of the Commission’s existing network non-duplication and syndicated exclusivity rules. (Those rules allow broadcasters to ask the Commission to enforce exclusivity rights granted in network affiliation or syndication agreements. While not themselves establishing such rights, the FCC’s rules do set out the maximum areas in which such rights may be granted, and provide a framework through which broadcasters can enforce those rights to prohibit MVPDs from importing distant signals.) The Further Notice of Proposed Rulemaking has now been published in the Federal Register, so we now know the deadlines for comments on the proposal. Comments may be filed by May 12, 2014 and replies by June 9. Comments may be uploaded at the FCC’s ECFS filing site; the relevant “Proceeding Number” is 10-71.

CommLawBlog - On the Air!

Blogmeister Harry Cole makes it to the big time with an interview on NPR.

CommLawBlog’s own Harry Cole has hit the NPR airwaves, expounding on the advertising of marijuana in places where the Killer Weed can be legally sold. We’re not saying Harry’s prior stint on the Howard Stern Show adds to his expertise on the topic, but it doubtless contributes to his mellifluous delivery. Hear him for yourself on the NPR website, as he explains what the marijuana munchies have to do with broadcast law.

Free Webinar on Aereo - April 16

Live on the Intertubes: Kevin (“The Swami”) Goldberg and Harry (“The Blogmeister”) Cole, recapping the Aereo story on (almost) the eve of the Supreme Court argument.

Hey, CommLawBlog readers (you know who you are)! Kevin Goldberg (a/k/a/ the Swami) and Harry Cole (a/k/a the Blogmeister) have put up scads of posts here covering the ongoing drama of Aereo vs. the Broadcasters (and its various spin-offs, including Aereo: Los Angeles, better known as Aereokiller vs. the Broadcasters). You’ve been reading their stuff for years – now you can listen to them, too!

Back in December, Kevin speculated that we could be seeing Aereo Armageddon sooner rather than later in the form of a Supreme Court showdown. And sure enough (we don’t call him the Swami for nothing), that showdown is on the Court’s schedule for April 22, when Aereo and its various nemeses are set to face off in an epic oral argument before the Supremes.

The outcome – likely to be decided by the end of June – could have a major impact on the Future of Broadcast Television (as well as other incidentals, like the Future of Cloud Computing). Suffice it to say, we can expect the argument and its aftermath to be big news.

To help make sense of it all before the argument – and to help make sense of the argument once it happens – Kevin and Harry will be presenting a FREE webinar on Wednesday, April 16 at 3:00 p.m. ET to review and explain the legal issues and judicial decisions that have brought Aereo to the Supreme Court. Their goal will be to provide attendees background to help them understand the arguments before – and the ultimate decision of – the Court. They’ll track the legal history from which Aereo emerged, sort out the various different lawsuits that have cropped up across the country, and look at possible outcomes.

You can register to attend the free 75-minute webinar by clicking on the link below. Space is limited and registration is available on a first-come, first-served basis only.


(Messrs. K and H assure the public their production will be second to none . . .)

TV Online Public File Update: Political File Exemption Set to Expire as of July 1

Media Bureau “reminder” seems to eliminate any hope of extension of exemption for non-Top Four affiliates outside of top 50 DMAs.

If you’re a TV licensee who doesn’t happen to be either (a) in any of the top 50 DMAs or (b) affiliated with one of the top four commercial networks (ABC, CBS, FOX and NBC), we’ve got some news for you: it looks like you’ll be having to upload all your new (but none of your old) political file data to your online public inspection file starting July 1, 2014.

That, at least, is the unmistakable take-away message from a public notice issued by the Media Bureau.

The notice reminds one and all of a wrinkle the Commission included when it imposed the online public file requirement for TV licensees back in 2012. At that time, the obligation to upload the political file component of each station’s public file was limited to Top Four affiliates in the top 50 DMAs. All other stations were still required to maintain a political public file, but only on paper, as they had done for years.

In 2012, the Commission said the exemption would be good only until July 1, 2014. BUT the FCC held out at least a glimmer of hope that the exemption might be extended: in 2013 the Media Bureau was to invite comments on whether “any changes [to the online political file rule] should be made before it takes effect for the other stations.” The Bureau dutifully solicited comments in June, 2013 and, as we reported last year, the response was less than overwhelming.

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FCC to TV Licensees: You're On Your Own in Retrans Negotiations

Commission prohibits same-market Top Four stations from joining forces in any way in striking retransmission consent deals.

It’s official. After several weeks of grim anticipation (marked by, among other things, an unusual, ominous public notice from the Media Bureau), the Commission has significantly altered the playing field for television broadcasters. In two separate items, the FCC has (a) changed its approach to ownership attribution of joint sales agreements (JSAs) and (b) barred non-commonly-owned Top Four ranked stations in a given market from engaging in joint retransmission consent negotiations. The following is an analysis of the retrans consent decision; we’ll follow up with a review of the JSA order when it is released by the Commission.

The short version: when the FCC’s Report and Order and Further Notice of Proposed Rulemaking (Retrans R&O) takes effect, joint retransmission consent negotiations between two non-commonly owned “Top Four” stations in the same market will be prohibited. And before you get any ideas, the term “joint negotiations” as the FCC uses it is extraordinarily broad, as we will discuss below.

The back story on retransmission consent is well known. For the last 20 years TV stations have been able to elect cable and satellite coverage either by “must carry” or “retransmission consent”. When a broadcaster opts for the latter, it is required by statute to negotiate in “good faith” with cable and satellite providers (collectively, MVPDs). The Commission has the statutory authority to enforce this good faith negotiation requirement, but historically it has identified only a small handful of relatively obvious indicia of a lack of good faith – e.g., refusing to negotiate at all, or failing to respond to the other party’s offer.

The Retrans R&O adds one more indicium.

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Incentive Auction Plan B: Government-Subsidized Cable?

Public notices suggest apparent redirection of auction funds to provide universal cable service.

To the bafflement of many, the FCC has consolidated its Incentive Auction and Open Internet proceedings. The public notice announcing that move sheds no light on exactly what the Commission might have in mind – the only reason given is that the FCC wants to “streamline consideration of issues common to both dockets”. Interestingly, it also mentions (in a footnote, maybe because it figures that nobody reads the footnotes anyway) that the soon-to-be-incoming Comcast-Time Warner Cable merger will also get channeled into the Grand Unified Docket.

Interests common to both dockets? What could those be? And what’s the Comcast merger got to do with anything?

Thanks to our old friend, the hilariously-named Paperwork Reduction Act (PRA), we have an idea.

The PRA, of course, requires the FCC to run new “information collections” past the Office of Management and Budget. And PRA requests have to be published in the Federal Register, where they seem to be largely ignored by everybody but us. (Our motto: We read them because we know you won’t.)

And what should appear in this morning’s Federal Register? A PRA notice indicating that the Commission is contemplating reallocation of at least some of the $1.75 billion TV Broadcaster Relocation Fund to a program that would provide universal cable TV service to everybody in the U.S. (The PRA notice describes, very generally, two questionnaires the FCC plans to send out – one to all U.S. households to determine who’s got cable and who doesn’t, and one to all U.S. cable providers, to get an idea of subscription prices.)

Is this a great country or what?

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Non-English EAS Update: Deadlines Set for Refreshing the Record

Earlier this month we reported on the FCC’s invitation for comments to “refresh the record” with respect to the MMTC suggestion that broadcasters should adopt a “designated hitter” approach to assure that EAS announcements are broadcast in foreign languages, particularly when non-English speaking folks comprise a significant portion of the market’s population. The invitation has now been published in the Federal Register, which sets the deadlines for comments. If you are inclined to accept the FCC’s invitation, you have until April 28, 2014 to get your comments in; replies may be filed by May 12.

Good Day Sunshine: "The Federal Communications Commission Process Reform Act of 2014"

Rob Schill shares his views on the latest Congressional effort to bid “good day” to the Sunshine Act.

[Blogmeister’s Note: The House recently passed H.R. 3675, the Federal Communications Commission Process Reform Act of 2014. If passed by the Senate and signed by the President, this bill would require the FCC to set certain deadlines and time limits for some of its activities, and also prepare some extra routine reports and the like. We’d go into greater detail on these nitty-gritty points if the bill were likely to get through the Senate, but the smart money currently says that that’s not going to happen, so we won’t bother our readers with unnecessary information. If the smart money turns out to have been wrong, for sure we’ll be reporting on the final bill.

One aspect of the House bill did attract our attention: a provision that would permit FCC Commissioners to meet in nonpublic sessions to discuss business. The longstanding Government in the Government in the Sunshine Act (the Sunshine Act) would ordinarily prohibit such closed door meetings, but the House is nevertheless apparently OK with letting the FCC bar the doors and shutter the windows. A nearly identical proposal was introduced in 2013. Our colleague, Kevin Goldberg, wrote – somewhat disparagingly – about it back then. In the interest of fairness and balance, this time around we’re offering a different take on the matter from our colleague, Rob Schill.]

The Federal Communications Commission Process Reform Act of 2014 (the 2014 Reform Act) raises the same essential question my friend and colleague Kevin Goldberg addressed last year: Is it conducive to “good government” to create an exception to the Sunshine Act that would allow more than two commissioners to meet privately when a few key transparency safeguards are included? Kevin and I reach different answers to that question.

The 2014 Reform Act seeks the happy medium between the competing needs of openness and administrative efficiency. The bill looks to provide for transparency and accountability while acknowledging the reality that the FCC often does not move at a pace consistent with the changing technology world it is tasked to oversee. The fact that the bill has bipartisan Congressional support, as well as the support of FCC members and industry representatives, suggests that perhaps Congress is onto something here. 

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Pursestrings 2014: New Application Fees Announced

Effective date TBD

If you’re planning on filing any applications in the near future, you can save yourself a few bucks by getting them on file sooner rather than later. That’s because the FCC’s schedule of application fees has just been given its semi-regular overhaul, resulting in an across-the-board uptick of about 8%. (That reflects the net change in the Consumer Price Index for all Urban Consumers since the last increase, a formula specified by Congress in Section 158 of the Communications Act.)

The Act gives the FCC no latitude when it comes to fee application cost-of-living adjustments: they’re supposed to be done every two years. Since the last increase took effect in 2011, we’re running a bit late this time around, but who’s keeping track?

The good news is that, while the 2014 fee hikes have been announced, they won’t become effective for at least a few months. The precise effective date is, well, not all that precise just now. Historically, this is where the fun begins. Long-time readers may remember our original “Pursestrings” series of posts, starting in September, 2008, and stretching out until mid-May, 2009. (Short version: Despite adoption of a new fee schedule in September, 2008, with an anticipated effective date of January 1, 2009 or thereabouts, that date was missed, and then several later announced effective dates passed as well. The fees announced in September, 2008, finally kicked in for real until May, 2009.) Things worked a bit more smoothly in 2011, the last time the fee schedule was hiked, but you never can tell.

According to this year’s announcement, the effective date of the new rates will be 30 days after the order is published in the Federal Register. Perhaps so, but Section 158(b) of the Communications Act requires that the Commission notify Congress of application fee adjustments “not later than 90 days before the effective date”. So the FCC’s going to have to let Congress know about the new fees, and then wait 90 days. It will also have to publish a notice in the Federal Register 30 days before they can take effect.

Bottom line: you’ve probably got another three, maybe four, months to take advantage of the current lower fees. We’ll keep our eyes open for further Federal Register notices and report on them in future posts.

TV Repacking Update: Widelity's Price List, and Itinerary, for the Road Ahead

What will channel repacking require in money and effort? FCC-commissioned report itemizes licensees’ anticipated costs of repacking, likely steps toward completion, probable sticking points.

The incentive auction and related spectrum repacking are coming. If you’re a TV licensee and you’ve avoided thinking about what might happen to you when the repacking happens, it’s time to get off the dime. The repacking is approaching. You will need to be ready when it arrives.

To remind us all of that fact, the Commission has released a report providing a reasonably clear, if unpleasant, glimpse of the practical tasks the TV industry has to look forward to.

The Commission hired Widelity, Inc., a communications consulting firm, last September to give the agency, and the TV industry, a better idea of the steps that licensees will need to take, and the expenses they’re likely to face, in carrying out the coming spectrum repacking. The report is the result of Widelity’s efforts. (If you’re fuzzy on the whole repacking idea, take a look at our series on the incentive auction, particularly this post and this post.)

The short version of the bad news: the per station repacking process is likely to cost anywhere from the mid-six figures (in uncomplicated TV markets) to eight figures in the largest urban areas. It’s likely to drag on for at least the better part of a year in even the simplest case and could stretch out for several years in others (and those estimates all assume – unrealistically – that no glitches crop up). And it’s likely to be subject to a wide variety of practical problems.

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Non-English EAS? The FCC Wants to Hear From You!

Commission looks to “refresh the record” in 10-year old proceeding, seeks comments on MMTC “designated hitter” proposal

The FCC is thinking about further tweaking its broadcast Emergency Alert System (EAS) to assure non-English speaking audience members access to emergency information.

The proposal is an offshoot of a more comprehensive set of proposals submitted by the Minority Media and Telecommunications Council (MMTC) and several other public interest groups back in 2005. (Yes, that’s 2005 – nearly a decade ago. More on that below.) Last December, some MMTC reps met with folks at the Commission to try to move things along. In the course of that meeting MMTC emphasized that it believes that broadcasters should be required to “work together”, along with “state and market counterparts”, to identify each party’s “responsibility based on likely contingencies”. Accountability – which MMTC characterized as “awareness of the plan/responsibilities” – would be “encouraged” by requiring broadcasters to “certify or explain their role in such a plan” in their renewal applications.

In an ex parte memo describing the December meeting, MMTC explained that its plan

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The Future of Music Licensing?

Major overhaul of all music licensing may be in the offing as Copyright Office opens far-ranging inquiry.

Congress could not have foreseen all of today’s technologies and the myriad ways consumers and others engage with creative works in the digital environment. Perhaps nowhere has the landscape been as significantly altered as in the realm of music.

With that observation nestled in the opening paragraph of a Notice of Inquiry (NOI), the Copyright Office (CO) has kicked off a wide-ranging evaluation of “the effectiveness of existing methods of licensing music”. The CO’s study could eventually have a dramatic impact on the uses and distribution of recorded music in all areas of American business and culture.

The CO’s statement quoted above is certainly accurate (although similar technological changes have transformed the delivery of video programming, too). Think about the changes in recorded music since 1976, when Congress last overhauled the Copyright Act. Where we had vinyl discs (33-1/3 LPs, 45s and maybe even 78s) in 1976, we’ve since run through eight-tracks, cassettes and CDs. And now we can obtain recorded music digitally from MP3 and Internet streaming and MP3s. Where we once received music via broadcast radio, we now have satellite and Internet radio.

Despite these wholesale changes, the process of licensing recorded music has remained largely static for decades. That’s why many music industry participants – including songwriters, recording artists, broadcasters, Internet radio services – agree that revision of the process is long overdue. 

Music licensing is complex. It includes multiple separate and distinct components that may not be immediately apparent to the casual observer. Anyone even tangentially interested in the CO’s study should read the CO’s NOI at least for background purposes. Before we look at the questions the CO has posed, let’s review the various components of music licensing.

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JSAs and SSAs: DOA?

Recent developments at the FCC and in Congress set up major fights over sharing arrangements and retransmission consent negotiations.  

In the last week, the FCC’s increased scrutiny of joint sales agreements, shared services agreements, and other sharing arrangements between broadcasters has picked up significant steam.  A recent flurry of action in this area peaked (at least for now) – and perhaps boiled over – on Wednesday, March 12 when the Media Bureau released a Public Notice providing some “guidance” on how the Bureau would analyze pending and future applications proposing sharing arrangements (check out our posts from 2011 and 2012 for a description of TV sharing agreements—a.k.a. JSAs and SSAs).

The Notice, which drew sharp criticism from Republican Commissioners Michael O’Rielly and Ajit Pai, suggested that the Bureau would apply enhanced scrutiny to any assignment and transfer applications that include sharing arrangements, particularly where those agreements also involve a financial interest such as option to buy.  While the Bureau promised to continue to review applications on a case-by-case basis, the Notice clarified that the Bureau will now demand that each applicant provide documentation that “fully” describes the proposed transaction.  The Bureau will review that documentation to determine whether those documents provided the station providing services with excessive “influence” over the proposed licensee.

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Tenth Circuit to Aereo: That's Right, NOT in this Circuit!

Aereo’s losing streak continues.

Readers will recall that last month a U.S. District Judge in Utah granted broadcasters’ motion for an injunction preventing Aereo from operating in the six states that comprise the Tenth Circuit. Not surprisingly, Aereo appealed that decision to the U.S. Court of Appeals for the Tenth Circuit. Acting on an expedited basis, a three-judge panel from the Circuit has turned Aereo down.

As a result, Aereo is now required to shut down operations in Utah, Colorado, Kansas, New Mexico, Oklahoma and Wyoming at least until the Supreme Court decision on Aereo’s Second Circuit case comes down, likely in late June. And if the Supremes reverse the Second Circuit and hold instead for the broadcasters, Aereo may not be able to crank back up at all.

The Tenth Circuit’s decision denying Aereo relief from the injunction is unexceptional – two pages long, which is par for the course in such orders. But it does underscore a continuing theme running through the extended Aereo/FilmOn X litigation: in reaching its conclusion that Aereo is not likely to succeed on the merits, the three-judge Tenth Circuit panel split 2-1. In other words, there continues to be disagreement among federal judges relative to the merits of the opposing arguments here.

Which, of course, merely heightens the likely drama at the Supreme Court. Stay tuned.

"There Is a Warning on that One, OK?"

SCBA exec reportedly warns SoCal stations of charcoal spot containing EAS tones.

"The warning that I've received, you may take it with however many grains of salt you wish, is that the brown acid that is circulating around us is not specifically too good. It's suggested that you do stay away from that. Of course, it's your own trip, so be my guest, but please be advised that there is a warning on that one, OK?"

Readers of a certain age may recognize those as the words of Chip Monck from the stage at Woodstock. We feel kind of like Mr. Monck when we note the following.

The NAB has passed along to us a report in NTS MediaOnline Today that the Southern California Broadcasters Association has advised its members that a new radio commercial for Kingsford Charcoal appears to include EAS (or at least EAS-like) tones the transmission of which could violate FCC rules. According to the report – which you are now getting, let’s see, one, two, um, at best third-, maybe fourth-hand – Kingsford’s ad agency is supposedly cutting a new spot for Southern California stations, but the original, questionable, spot may be circulating, and may possibly already be on-the-air, in other markets.

Ordinarily, we might leave this kind of heads-up to others. But in view of the FCC’s recent aggressive enforcement of the prohibition against transmitting EAS tones in non-emergency situations – enforcement about which we have reported (here and here) – we figure it makes sense to pass this one along.

So with the same caveats that accompanied the brown acid alert, please be advised that there’s a warning on a Kingsford Charcoal radio spot, OK?