FM Translator Application Update: Last Chance Settlement Window Opened

Media Bureau provides MX applicants one last opportunity to avoid going to auction.

If you’ve still got one or more FM translator applications pending from the infamous 2003 window, listen up! The Media Bureau has opened a 62-day “Settlement Period” – up to and including July 22, 2013 – during which applicants with mutually exclusive (MX) applications may attempt to resolve their differences through engineering amendments or settlements.

For those of you who may have forgotten exactly which (if any) of your applications may still be alive and kicking, the Bureau has provided a list of the apps that the Bureau thinks are eligible for settlement (i.e., applications MX with one or more other applications). You can check that list out here (or in a more sliceable and diceable Excel version here). There are a total of 539 MX groups, so you’d better start looking now.

Important alert: The Bureau recognizes that its list may not be 100% complete, and it expressly encourages anybody who believes that one or more applications may have been omitted to get in touch with the Bureau immediately. Remember, to be on the list, your application has to be MX with at least one of the applications already listed.

Continue Reading...

NCE On-Air Fund-Raising For Oklahoma Tornado Relief Efforts

FCC announces procedures for waiver requests by noncommercial broadcasters.

The time has come, yet again, for broadcasters to respond to a natural catastrophe with their characteristic humanity, offering help wherever and whenever possible. As the horrific stories and images from tornado-devastated Oklahoma – and particularly the community of Moore – make their way out of the storm’s heartless swath, broadcast stations may want to undertake fund-raising efforts to support relief efforts. The FCC clearly does not want to do anything to discourage such laudable humanitarian impulses. However, rules are rules – and the Commission’s rules (Sections 73.503(d) for radio and 73.621(e) for TV) generally prohibit noncommercial educational (NCE) broadcasters from engaging in on-air fund-raising activities on behalf of anybody but the station itself.

Not to worry. The Commission has historically waived that prohibition following “disasters of particular uniqueness or magnitude” – Hurricane Katrina, the 2010 Haiti earthquake, the 2011 Japanese tsunami and Superstorm Sandy come to mind as ready examples. And just to be sure that we all know that the FCC views the Oklahoma tornado to be in the same league, the Commission has issued a public notice laying out the procedures by which NCE licensees may request waivers so that they can engage in fund-raising for relief efforts.

Stations seeking such waivers should prepare an informal request providing the following basic details of their fund-raising activity:

  • the nature of the fund-raising activity;
  • the proposed duration of the activity;
  • the organization(s) to which fund will be donated; and
  • whether the fund-raising activity will be part of the station’s regularly-scheduled pledge drive or fund-raising efforts

The informal request should then be emailed to the FCC.  NCE television licensees should address their requests to Barbara Kreisman (barbara.kreisman@fcc.gov). NCE radio licensees should address their requests to Peter Doyle (peter.doyle@fcc.gov) and Michael Wagner (michael.wagner@fcc.gov). Those points of contact are also available for any particular questions you might have about such things.

Bungled Bundle Bill? McCain Introduces the "Television Consumer Freedom Act"

Proposed law looks to address multiple aspects of TV in the MVPD era, including bundling, broadcast abandonment and blackouts.

True to his reputation as a maverick, Arizona Senator John McCain has authored a bill seemingly designed to please nobody, while arguably disserving just about everybody. Dubbed the “Television Consumer Freedom Act of 2013”, it consists of clumsily crafted legislative language that mashes together in one bill three disparate and contentious aspects of the current video delivery system. In only one of those three areas does McCain’s proposal come to remotely practical terms with the problem it seeks to address.

McCain’s bill aims to: (1) promote “a la carte” program availability for MVPD subscribers; (2) discourage broadcasters from removing their programming from over-the-air availability (in response to the success that Aereo has recently enjoyed); and (3) eliminate broadcast blackouts of sports coverage in certain situations.

Promoting “A la Carte” MVPD offerings

McCain has long been an advocate of an a la carte approach to program availability. Under that approach, cable and satellite TV subscribers would be able to sign up for only those channels they want to watch – no more required “bundles” or “tiers”, i.e., packages of channels including some really desirable choices and a bunch of others that probably won’t be watched much, if at all. 

The practice of “bundling”, of course, is not unique to the MVPD operator/MVPD subscriber relationship.

Continue Reading...

Enforcement Relief for "Student-run" NCE Stations

New Media Bureau policy opens door for reduced fines for first-time violators of some paperwork rules.

The FCC’s enforcement actions often leave us shaking our heads wondering if the bureaucracy recognizes the challenges faced in real life by those it regulates. But occasionally there are rays of hope.  Case in point: the Media Bureau has revised its policy for enforcing certain paperwork obligations against student-staffed noncommercial educational (NCE) radio broadcast stations. The revised policy provides an opportunity for such stations to avoid crushing forfeitures which could end up shutting the stations down.

Last July, we blogged about the stifling impact of the FCC’s forfeitures on student-operated stations. Because of frequent student staff turnover, such stations can be prone to rule violations, which in turn result in steep forfeitures often amounting to a substantial portion of -- indeed, sometimes even more than -- the station’s annual budget. That happens when the fine is based on the Commission’s schedule of “standard” forfeitures even without any upward adjustments.

While some stations hit with fines have argued to the Commission that their budgets can’t sustain the forfeiture amount, the FCC has historically ignored such claims. Instead, it has looked to the resources of the entire educational institution, rather than just the station itself, presumably (but unrealistically) assuming that the institution would pay up.  Unfortunately, as we reported in our earlier post here,even though many institutions do pay up, the threat of further severe regulatory enforcement has apparently led some institutions to sell their stations, thereby eliminating opportunities for entry and training of young people in the art of broadcasting.

But now the Bureau has a new policy.

Continue Reading...

Update: Deadlines for Indecency Comments Extended

If you have the vague sense that you might like to file comments in response to the bizarre invitation for comments relative to the FCC’s indecency policies, but you’re still trying to figure out exactly what those policies are in the first place, you're in luck. The General Counsel’s office and the Enforcement Bureau have extended the deadlines. Comments are now due by June 19, 2013 and reply comments by July 18. Unfortunately, the public notice announcing the extensions does not shed any more light on the indecency inquiry. As previously reported here, the inquiry posed on April Fool’s Day is, at best, cryptic and unilluminating, so much so that it’s difficult to imagine that anything useful could possibly come from it. But for those of you who may be champing at the bit to toss in your two cents’ worth, you now have a little more time within which to hone your prose.

FCC Seeks Comment on Receiver Standards - Again

Request reopens matter laid to rest just six years ago.

The FCC has reopened the difficult question of technical standards for radio receivers.

Everyone agrees that poor receivers impair efficient use of spectrum. In particular, receivers that respond to a wider swath of frequencies than necessary can receive interference from unwanted signals close by the intended signal. Just ask LightSquared, whose plans to use mobile satellite frequencies on terrestrial towers failed because its signal was close enough to GPS frequencies to overpower some GPS receivers.

Less selective, more interference-prone receivers are cheaper to manufacture. Market forces are not much help because a more selective (and hence more expensive) receiver is rarely of immediate benefit to the purchaser. The improved receiver does benefit other users seeking to operate on frequencies nearby, as better GPS receivers would have benefited LightSquared. But the manufacturer gains no competitive advantage to offset the higher price. So manufacturers, especially of consumer equipment, tend to supply the least selective (and least expensive) receivers that will work in the current spectrum environment.

A situation like this, where market forces act against the public good, is a classic set-up for regulation.

The FCC tried. Just over ten years ago it issued a Notice of Inquiry on whether to include “receiver interference immunity performance specifications” in its rules. After sifting through sixty-odd comments, and then waiting a few years, the FCC terminated the proceeding in a terse one-pager.

Now the issue is back.

Continue Reading...

Closing Gavel - and FM CP Prices - Come Down in Auction 94

It’s a buyer’s market when it comes to FM construction permits.

[WARNING! While Auction 94 has closed, strict federal anti-collusion rules remain in effect for several more weeks. Parties who were involved in any way in the auction – including folks who filed applications but then elected not to participate in the auction – should refrain from discussing any aspect of the auction with anyone who was similarly involved in the auction.]

Another auction of FM construction permits has come to an end (although the FCC has not yet posted the final results – we’ll update this post when that happens). Plenty of happy bidders are now presumably basking in the warm auction afterglow – because successful bidders in Auction 94 were, in many instances, able to snatch up permits for bargain-basement prices. It’s a buyer’s market out there.

Of course, as usually happens, a handful of markets saw exuberant bidding, with final price tags hitting six digits and beyond. At a cool $2.015 million, Lake Park, Florida (a community adjacent to Palm Beach) topped the bidding leader board. The Southeast also produced two $400,000+ markets – Silver Springs Shores, Florida (near Ocala) and St. Simon’s Island, Georgia. But Big Ticket permits were few and far between: of more than 110 permits on the block, only 11 fetched more than $100,000. 

On the other end of the scale, nearly three dozen permits sold at or very near the minimum prices that had been set for them. Looking for a swell Class C-0 opportunity in Grand Portage, Minnesota? It could have been yours for $750 – and even less if you could claim bidding credits. (True fact – once bidding credits are factored in, the Grand Portage C-0 will end up having cost less than $500.)

Continue Reading...

Tower Hot Potato: Ownership Dispute Doesn't Shield Station Licensee From Tower-Related Obligations

YOU own it. No, YOU own it. No, YOU own it  . . . .

A recent decision from the full Commission teaches us a couple of valuable lessons when it comes to potential liabilities both for tower owners and for those who may not think that they’re tower owners.

It all started in 2006, when Ely Radio, LLC bought KWNA(AM), Winnemucca, Nevada. The deal provided, in standard contractual terms, that the buyer would be acquiring all the “property and fixtures . . . used or useful” in the station’s operation. The average reader might leap to the conclusion that the “property and fixtures” in question would necessarily include the station’s tower. Don’t be so sure. 

Fast forward a couple of years. The Enforcement Bureau’s San Francisco Field Office determines that the station’s tower hasn’t been lit at night; making matters worse, the tower’s owner hasn’t been making the required observations and, as a result, hasn’t reported the outage to the FAA. When the Enforcement folks check the FCC’s database, they determine that the tower’s owner is listed not as Ely Radio, LLC, but rather the company that had sold the station back in 2006.

Covering all their bases, the Field Office reps notify both the 2006 seller and buyer of the problem. The seller promptly writes back to advise the Commission that the tower was sold to Ely Radio as part of the 2006 deal, even though the seller did apparently hold onto the land on which the tower is situated. Based on that information, the Enforcement Bureau issues a Notice of Apparent Liability to Ely Radio for the tower lighting, observation and notification violations; the Bureau throws in an additional violation – failure to notify the Commission of the 2006 change in the tower’s ownership. Ely Radio responds that, contrary to what the 2006 seller may be saying, Ely Radio did not acquire the tower as part of its deal, so the seller is the one who should be liable for any tower-related violations. 

At this point, let’s recall the Commission’s longstanding policy of refusing to adjudicate issues relating to local law.

Continue Reading...

Update: TVStudy Version 1.1.2 Now Available

From our Moving Targets File, the latest word from the FCC is that it has released a new version (Version 1.1.2) of the TVStudy software that the Commission “plans to use in connection with” the anticipated spectrum auctions. We wrote about TVStudy back in February, when it first burst – without discernible prior notice – onto the scene. Apparently, a number of folks have since provided the FCC with some “feedback” which, in turn, has caused the Commission to fiddle with the software.

According to the Commission, the revised version

addresses an issue with calculation cell indexing that can result in the population of some cells not being correctly considered, and which may cause the program to crash in unusual instances. The update affects only the command-line program (C code); the graphical user interface (Java code) is unchanged and its version remains the same (Version 1.1.1). To facilitate the update process, the 2013Jan_tvstudy_files (which included both the software and all of the required databases) have been replaced with separate files for 2013Apr_tvstudy (software only) and the databases (cdbs, terrain, census), which are unchanged from the initial release. This means that only the TVStudy software (less than 2 MB) needs to be downloaded and updated; the various CDBS, terrain, and census databases need not be replaced.

Presumably, this makes sense to somebody.

It appears that the Commission plans to use the revised version for auction-related computations, since the FCC’s public notice cautions that “[i]t is recommended that all TVStudy users apply this update so that results will match those obtained by the FCC.”

If you understand the stuff in the block quote, above, it will probably also make sense to you that the FCC advises that “a separate build (executable file and source code) for Debian-based Linux systems (such as Ubuntu) is also being released along with instructions for configuring the software for use on Debian/Linux platforms.” All you Debian/Linux folks (yes, that means you Ubuntu fans, too, we think) can access the relevant files here.

The public notice invites continued input from the interested parties “to help insure consistent results”. Notwithstanding Ralph Waldo Emerson’s take on consistency, it seems to us that the FCC is on the right track in that regard.

Broadcast Renewal Trifecta: Improper "Menu" Underwriting Announcements, "Renewal Expectancy" . . . and Chesterfields!

Staff renews NCE-FM license – but not before fining the licensee for including too much detail in underwriting announcements, admonishing it for overly relying on PSA’s, and referring it to the Department of Justice for cigarette advertising!

A relatively obscure Audio Division decision involving the renewal application of a noncommercial educational (NCE) “community” radio station in Batavia, Ohio hits the trifecta. It sheds interesting (if not entirely illuminating) light on the standards governing noncommercial underwriting practices. It touches on the apparently-forgotten-but-not-gone question of the adequacy of nonentertainment programming performance for renewal purposes – an area of potentially vast consequence to all broadcasters. And as an extra bonus, it reveals the FCC’s current regulatory take on cigarette advertising.

There’s something for everybody here. Not all of it, though, makes much sense.

The case arose when a presumably disgruntled former officer of the licensee filed an informal objection directed to the station’s license renewal application last year. According to the complaint, the station had violated the prohibition against airing “commercials” on at least three occasions. Further, during the last five months of the license term, the station had broadcast no issue-responsive programming other than some PSA’s aired between midnight and 5:00 a.m. At least that’s what the complainant claimed. The Division has now granted the renewal, but not before running the licensee through the wringer several different ways.

Continue Reading...

LPFM Update: Effective Date Set for Remaining Changes from 6th Report and Order

In December of last year we reported on the Commission’s “Fifth Order on Reconsideration and Sixth Report and Order” (we refer to it as the 6th R&O) in which it (a) tied up some loose ends relative to LPFM and FM translator matters and (b) adopted new rules and policies governing LPFM applicants. The 6th R&O was published in the Federal Register the following month, but (as we reported in January) that didn’t mean that all the new rules went into effect back then.

Rather, the changes to Sections 73.807, 73.810, 73.827, 73.850, 73.853, 73.855, 73.860 and 73.872 – and the revised version of FCC Form 318 – all had to be run past the Office of Management and Budget for its approval. (Those changes all involved “information collections” requiring OMB review thanks to the Paperwork Reduction Act.)

The Commission has now announced that OMB is happy with the changes. As a result, they will all take effect on May 23, 2013. It’s unlikely that the changes will have any immediate impact, since they relate primarily to LPFM applications, and there’s currently no opportunity to file for new LPFM authorizations. However, as we all know, the Commission is hoping to be able to open a window for new LPFM applications sometime in the near future – October, 2013 is one target date, although many are doubtful that the Commission will be able to hit that target. Anyone who expects to be filing any LPFM apps in that window should be sure to make note of the effectiveness of the 6th R&O changes.

Aereo Update: Next Stop, En Banc?

Broadcasters ask full Second Circuit to review panel’s decision allowing Aereo to continue to operate pending trial of infringement claim

We told you the Aereo saga wasn’t over. 

Having lost the most recent (but certainly not the last) round in their litigation war with Aereo, the broadcast plaintiffs have filed a “petition for rehearing en banc” with the U.S. Court of Appeals for the Second Circuit. In that petition, the broadcasters are asking the full 13-member court to review the 2-1 decision of a three-judge panel that affirmed a lower court ruling allowing Aereo to continue to operate while the trial of the case moves ahead.

[Before we get into the nitty-gritty of the petition, let’s take a brief introductory side trip into the world of appellate procedure. Each of the 13 federal courts of appeals consists of between six (in the First Circuit, covering New England) and 29 (in the Ninth Circuit, which sprawls across nine western states and a couple of territories) judges. When an appeal is filed, it is normally heard by a panel consisting of three judges from the particular circuit court where the appeal is filed. 

After the panel issues its decision, if the losing party believes that that decision was wrong, the loser has three options. It can ask: (1) the three judges to re-think their disposition of the case; (2) all the judges in the circuit, sitting “en banc”, to review the panel’s decision; or (3) the Supreme Court to look the case over. Supreme Court review is usually the longest of long shots. Similarly, since the panel has just deliberated over the issue and come up with the result at hand, it’s usually a pretty good bet that the panel won’t be eager to reverse itself. But en banc review brings a bunch of different judges into the mix, so it presents at least some source of hope to the party unhappy about the panel decision.

But the rules are set up to make en banc review hard to get.

Continue Reading...

Update: Indecency Comment Deadlines Established

Indecency public notice hits the Federal Register.

Earlier this month we reported on an odd public notice soliciting comments about the FCC’s indecency policy. That notice has now been published in the Federal Register – but that doesn’t mean that the notice makes any more sense now than it did when it first appeared.

The title of the notice still says that the FCC is seeking “comments on adopting egregious cases policy”, but that’s the only time the term “egregious cases policy” shows up. As a result, it’s far from clear exactly what we’re supposed to be commenting on. You would think that, if the FCC does have some “egregious cases policy” currently in effect – which is what the full text of the public notice released on April Fool’s Day indicated – the Commission might let us all in on the precise details of that policy so that we might be able to comment on it at least quasi-intelligently. Apparently not.

As we noted in our initial post, the utility of any record likely to be compiled in response to the notice’s nebulous invitation for comments is dubious. How, after all, is a commenter supposed to organize his/her/its comments in a coherent and useful way? And how can the Commission’s staff be expected to process those comments? Without any apparent context or direction, it’s hard to see what the staff can do with them.

If this is how the Commission proposes to deal with the indecency issue, that issue is likely to be with us, unresolved, for many years to come.

In any event, the Federal Register publication establishes the deadlines for comments in response to the notice. Comments are due by May 20, 2013, and reply comments by June 18.

Auction 94 Update: Bidder List, Final Procedural Rules Set

With just 12 days to go before Auction 94 is set to kick off, the FCC has identified the 85 bidders who have qualified to participate in this year’s FM Construction Permit Sell-a-Thon. At the same time, the Commission has laid out the final ground rules that will govern both the auction and everybody who filed an application, whether or not they actually opt to participate in the auction.

As we previously reported, the FCC initially received 109 applications, but, as so often happens, the herd got thinned along the way: two dozen applicants have dropped out of the running and will only be watching from the sidelines when the action cranks up on April 23, 2013.

In order to assure their place in the race, each of the 85 surviving bidders ponied up upfront payments ranging from a paltry $750 to a considerably more robust $250,000+. Upfront payments establish a bidder’s initial eligibility for the auction and the permit(s) which each bidder may bid for. When the bidding starts, however, nothing – other than common sense and financial ability – limits the amount(s) that can be bid.

Continue Reading...

Aereo in the Second Circuit: Wha' Happened?

Fox seems to think that the Second Circuit’s decision was a Big Deal. We’re not so sure.

So Aereo recently kept its winning streak alive with a favorable ruling from the U.S. Court of Appeals for the Second Circuit . . . and the next thing you know, the Fox Network is making noises about kissing good-bye to its over-the-air operations and moving to some alternative delivery system, possibly as a subscription service.

If you were to buy into Fox’s over-the-top reaction, you might get the impression that the Second Circuit’s decision marks a major, and possibly irreversible, turning point in the struggle between broadcasters and the proponents of various Internet-based programming systems. But that’s why you read CommLawBlog, right?

 As Mike LaFontaine might say, “Wha’ happened?”

Correct answer: Very little, at least as far as we can tell from the Second Circuit decision.

Continue Reading...

Regulation in Retrospect: "New" FCC Rule Books Now Available

In a quaint tip-of-the-hat to the Way Things Used To Be, the FCC has issued its annual public notice advertising the availability of printed versions of its rules. According to the notice, for less than $300 – $298, to be precise – you can grace your bookshelves with all five volumes that comprise Title 47 of the Code of Federal Regulations. Hot off the presses, straight from the Government Printing Office (GPO) to your door.

Before getting out your checkbook, though, take a closer look at what the FCC’s public notice is touting: hard copies of the rules as they were as of October 1, 2012. That’s right, for $298 you can buy a set of rules that are already more than six months out of date. Such a deal. It’s the kind of thing you might expect to find if you cruise a lot of yard sales on the weekends. Just the ticket if you’re looking for neat stuff to put in an October, 2012 time capsule.

For many of us there is something curiously reassuring about holding a real book in your hand, leafing through its fine-print pages to find just the rule you’re looking for. The problem with the books the government is selling is that the rule you find there may not be the rule that’s in effect anymore.  (And let's be clear here -- it's the GPO which is selling these books, not the FCC.  The FCC has simply announced their availability, and is presumably standing ready to throw them at wrong-doers.)

Many old timers in the communications bar swear that the Commission used to require that all licensees have on hand at their stations copies of the rules relevant to their service. If such a requirement did exist (and we suspect that it did), it appears to have gone by the boards. Nowadays, the FCC’s website says nothing about such a requirement. Instead, it refers the reader to the e-CFR website maintained by the GPO. That GPO site – which, by the way, we here at CommLawBlog swear by and strongly recommend – is generally up-to-date within 24 hours, meaning that even the most recent rule changes are reflected in their version. Oh yeah, and it’s free.

The Chill Is On: Bureau Freezes Full-Power/Class A TV Applications to Increase Facilities

Need for a “stable database” to assist in development of “repacking methodologies” puts TV mod applications on ice.

Attention all full-power and Class A TV licensees!!! The Media Bureau has placed a freeze on the filing and processing of most modification applications for full power and Class A television stations, effective April 5, 2013

As of April 5, the Bureau will no longer routinely accept any applications from full-power or Class A television stations proposing modifications that would increase the station’s currently authorized (by license or granted construction permit) contour in any direction. The single exception to the freeze applies to certain Class A stations filing minor change applications to implement their transition to digital broadcasting. (The freeze may also be waived for other licensees in exceptional circumstances.)

Also frozen is the processing of any already pending application that would increase a station’s protected service area in any direction. However, in announcing the freeze the Bureau has provided that applicants with such pending applications will have a 60-day period to amend to specify facilities that do not increase the station’s service area. Any such applications that are not amended will be held by the Commission and processed only after the adoption of final rules regarding the Incentive Auction.

Continue Reading...

FM Translator Application Update: Bureau Announces Ten-Day Window for NCE "De-Selection" Amendments

Window follows rejection of Request for Declaratory Ruling looking to get multiple NCE applications dismissed.

We’ve got good news for you if (1) you’ve got an FM translator application still pending from the 2003/Auction 83 filing window and (2) you identified yourself as a noncommercial educational (NCE) applicant when you first filed the application. The Media Bureau has announced that, between April 8-17, you will have an opportunity to “de-select” that NCE filing status. If you want to keep your application alive, you’ll take advantage of that opportunity.

In announcing this amendment window (and in a separate letter ruling), the Bureau made short work of a recently-filed Request for Declaratory Ruling which looked to thin the herd of pending applications by effectively prohibiting such amendments.  

The problem being addressed here arose when the Auction 83 window first opened in March, 2003. Back then, applicants seeking NCE authorizations were permitted to participate in such proceedings. At the time, NCE applicants were explicitly instructed to designate their status as “noncommercial educational” in the box provided on the Form 175.

Continue Reading...

Indecency Alert: New Unannounced "Egregiousness" Standard Now Apparently in Effect, But More Changes May Be On the Way, Eventually

Odd public notice also touts herculean accomplishment: summary dismissal of “more than one million” pending indecency complaints

In a public notice that surely ranks among the most bizarre any of us are likely to see, the FCC’s Enforcement Bureau and General Counsel have made three startling announcements about the Commission’s broadcast indecency policy. According to the notice, for the last seven months or so the Enforcement folks have been applying a new – but not formally announced – standard of “indecency” which is not subject to any official definition, as far as we can determine. And while the Enforcement Bureau and GC both commit themselves to continuing to implement that undescribed “standard”, they have now initiated, in a semi-comic way, an inquiry into some possibly significant changes to major elements of the Commission’s indecency policy.

This could have been an April Fool’s Day prank, but we’re guessing it wasn’t.

Continue Reading...

FCC Announces Restoration of Media Bureau

The Media Bureau is back! Did YOU miss it? WE did.

Looks like the successful hack of the FCC’s computer network in September, 2011 – which we reported on back in February – may have been more intrusive than the government has let on so far. In an unusual public notice, the FCC has acknowledged that the entire Media Bureau apparently went missing sometime in the late summer/early fall of 2011. The agency’s internal computer records reflect that, as of October 1, 2011, all traces of the Media Bureau – historically one of the hardest working and most productive operations within the agency – had been purged from all Commission systems.

As a result, there have been no references to the Bureau on the FCC’s website for the last 18 months or so. The disappearance was apparently not noticed by visitors to the website. We’re guessing that that’s because, thanks to the redesign of the site, those seeking the Media Bureau pages generally gave up in frustration, assuming that the Bureau’s pages (a) were there somewhere, but (b) had been buried so deeply behind various blogs, dashboards, consumer notices and other higher priority matters that they could not, as a practical matter, be located through routine search techniques. (Vestigial cached versions of Bureau materials, including some CDBS records, apparently remained accessible from some computers external to the FCC’s systems, creating the comfortable illusion within the private sector that all systems were still go and things were still Business As Usual within the Bureau.)

While the Commission’s notice stops short of explaining exactly what happened, there’s plenty of solid information from which we might cobble together a reasonable theory.

Continue Reading...

Mission Abstract Data: Developments Aplenty, Clarity Not So Much

Delaware judge, USPTO take actions in long-running patent matter, but it’s hard to say what it all means.

Talk about mixed signals! March 25 very likely marked a crucial turning point in the up-and-down, back-and-forth tug of war between Mission Abstract Data (MAD) and many radio broadcasters, but it’s hard to tell for sure which way it turned and in whose favor.

On the one hand, in the federal court lawsuit in Delaware, on March 25 the judge denied MAD’s motion to lift the stay that has held that case in suspended animation for more than a year already. But in the same order the judge held that the stay would be lifted “upon the issuance” by the U.S. Patent and Trademark Office (“USPTO”) of “Notices of Intent to Issue Reexamination Certificates” (NIRCs) with respect to MAD’s two patents. As our loyal readers know, those patents have undergone not one, but two separate reexaminations at the USPTO over the last year or two.   Indeed, it appears that the judge in Delaware has held his case in abeyance until the USPTO reaches some final conclusion about the nature and validity of the patents.

But in a remarkable coincidence, also on March 25 it appears that the USPTO issued an NIRC relative to Patent No. 5,809,246 (the 246 Patent) and a “final rejection” relative to at least some aspects of Patent No. 5,629,867 (the 867 Patent). (The term “final rejection” appears in the PTO’s online description of the document.)

If you weren’t confused already, hang on.

Continue Reading...

Update: PSAP Do-Not-Call Registry Now Effective

Compliance deadline still up in the air pending finalization of operational details

Late last year we reported on the FCC’s adoption of new rules establishing a “do-not-call” registry for Public Safety Answering Points (PSAP’s). PSAP’s, of course, are places where your 911 is answered; the phones there are associated with conventional 10-digit telephone numbers which are accessed when you dial 911 for emergency assistance. The new registry is part of a Congressionally-mandated system intended to prevent automatically-generated marketing calls – the dreaded “robocalls” – from being made to PSAP numbers.

As noted in our earlier post, noncommercial TV and radio stations which use automatic dialing equipment in connection with their fund-raising activities will need to be careful to comply with the new rules. Historically, charitable and political organizations have been allowed to call numbers on the FTC’s “Do Not Call” list because their calls are deemed to be noncommercial and, thus, entitled to greater First Amendment protection. But the FCC’s new PSAP Do-Not-Call regime does not include any such exemption. Since it does impose very serious penalties for violations, attention should be paid by anyone using automatic dialing equipment.

While the PSAP Do-Not-Call rules were adopted by the Commission last October, they did not become effective immediately. That’s because some aspects of those rules needed first to be run through the Paperwork Reduction Act drill at the Office of Management and Budget (OMB). According to a notice published in the Federal Register, however, OMB has now signed off on the rules (principally, Section 64.1202). As a result, they have become effective as of March 26, 2013.

But just because the underlying rules are now effective does not mean that the PSAP Do-Not-Call registry is yet up and running. In its Federal Register notice, the Commission advises that, “[o]nce the operational details of the PSAP Do-Not-Call Registry have been finalized”, the Commission will be issuing a public notice alerting affected entities of the date by which compliance must begin. Check back here for updates.

Will ivi Wither on the Vine?

Supreme Court rejection may be the end of the road for the upstart, Internet-based MVPD wannabe.

It looks like the Supreme Court may have dumped a final, fatal treatment of Roundup on ivi, Inc.  In a standard nine-word order (“The petition for a writ of certiorari is denied.”), the Supremes unceremoniously rejected ivi’s last-gasp effort to get out from under the preliminary injunction imposed by the federal District Court in NYC two years ago.  As a result, ivi is still barred from operating in the Second Circuit, and its future prospects are decidedly dim.

We’ve reported on several occasions on ivi.  It’s one of a handful of companies seeking to revolutionize television viewing by making broadcast signals available to viewers via the Internet.  ivi’s approach involves a liberal interpretation of the Copyright Act that would allow it to stream television programming directly to your computer, tablet or smartphone.  

ivi claims that its Internet-based streaming operation is the equivalent of a cable system as defined in Section 111 of the Copyright Act.  Under that theory, it has argued that it’s entitled to retransmit broadcast programming without the prior consent of the broadcasters as long as it pays applicable copyright royalties.  The broadcast industry has disagreed, naturally; in 2010, even before ivi started operation, broadcasters peppered ivi with cease and desist letters.  Undaunted, ivi went on the offensive, filing a lawsuit in the U.S. District Court for the Western District of Washington seeking a declaratory judgment that ivi is a cable system under the Copyright Act.  The broadcasters promptly countered with their own suit (alleging copyright infringement) in New York.

ivi’s Washington case was tossed by the judge there in January, 2011.  The following month, the broadcasters convinced the judge in the New York case to preliminarily enjoin ivi from operating pending the outcome of the case.  ivi appealed that ruling to the Second Circuit, to no avail.  In its trip to the Supreme Court it was trying to get the Supremes to lift the injunction.

Continue Reading...

FM Translator Application Update: Bureau Provides More Guidance on Preclusion Showings

Bureau gently prods applicants in the proper direction with a public notice that reads like “Preclusion Showings for Dummies"

As we have previously reported, FM translator applicants whose applications are still alive and kicking are subject to a variety of filing deadlines looming in the very near future. Different deadlines apply, based on whether the application has been identified by the Media Bureau as (a) one of 713 “singleton” applications or (b) one of a separate batch of 639 applications not satisfying the “singleton” criteria.

Some, but not necessarily all, of those 1,352 applicants must file “preclusion showings” as part of their required submissions. Apparently, from the filings that have already rolled in the door, the Bureau’s staff has concluded that at least some of the affected applicants haven’t fully grasped what’s expected of them. Accordingly, the Bureau has tried, tried again, this time by issuing yet another public notice providing further “guidance” or “clarification” of the filing requirements.

The notice, which reads like “Preclusion Showings for Dummies”, is relatively short and to the point. Where preclusion showings are required, the notice thoughtfully bold faces the word “required” as an additional helpful visual cue. The concepts don’t appear to be particularly complicated (but then we didn’t think they were particularly complicated when they appeared in the Fourth Report and Order or in the previous public notices). In any event, anybody with a translator application still in the hunt should be sure to review the public notice carefully and to follow its directions thoroughly.

Continue Reading...

FM Translator Application Update: Bureau Announces Window for Filing of Preclusion Showings

639 surviving applicants face the next hurdle in the now decade-long contest.

In the long-running reality show “Survivor – 2003 FM Translators”, if you happen to be a player whose FM translator applications haven’t yet been kicked off the island, heads up: the Media Bureau has just announced the next challenge. This time affected applicants have been given a 19-day window (from April 1-19, 2013) within which to submit their Preclusion Showings.

Which applications are subject to the challenge? Any of the 639 still-pending FM translator application originally filed in the 2003 window (for Auction 83) which specifies a transmitter site that is (1) inside a Spectrum Limited market and/or (2) within 39 km of any Spectrum Limited Market Grid. For those of you who may be unclear about whether you’re still in the game (and, thus, facing this next chore), the Commission has provided a list of all 639 lucky applications. You can find a PDF version of the list at this link, but we suspect that you may find this MS-Excel version a bit more useful in terms of slicing and dicing the data on the list, which spans ten single-spaced pages. Here’s the Bureau’s explanatory description of the list:

Attachment A lists each Auction 83 Filing Window tech box proposal for which a Preclusion Showing amendment must be electronically submitted by the April 19 deadline. The list is sorted by the state in which the specified community of license is located. The “Market” column lists, if applicable, the Fall 2011 Arbitron Market number as set forth in Appendix A in the Fourth Report and Order. Each market designation was based on the location of the proposal’s specified transmitter site. The “In SL Buffer” column identifies with a “Yes” each proposal that specifies a transmitter site that is within 39 km of at least one Spectrum Limited Market Grid.

And what the heck is a “Preclusion Showing” anyway?

Continue Reading...

Audio Division to Permittees: Get License Applications Filed Within 30 Days of Permit Expiration . . . Or Else!

Facilities covered by a permit must in any event be completely constructed by the expiration date.

Attention, everybody who is currently sitting on, or may someday be sitting on, a construction permit for a new radio station. The FCC’s Audio Division has announced, in no uncertain terms, that when the rules say that a covering license application must be filed before the expiration of the underlying construction permit, they really mean it . . . sort of.

The problem here arises from Section 73.3598(e) of the Commission’s rules, a section admirable for its concision and directness:

Any construction permit for which construction has not been completed and for which an application for license has not been filed, shall be automatically forfeited upon expiration without any further affirmative cancellation by the Commission.

Your ordinary person reading that would likely understand it to say that any permittee who doesn’t get the covering license application on file by the permit’s expiration date is out of luck. Period. End of story. That is, after all, precisely what the rule says.

But thanks to the Audio Division’s latest reading of the rule, permittees will have an extra 30 days within which to file their license applications, provided, of course, that they did in fact complete construction before the permit’s expiration.

The underlying story starts back in 2004, when an FM station in West Virginia obtained a CP to construct new facilities after its then-authorized tower had been destroyed. The permit specified the conventional three-year construction period, with an expiration date in 2007. 

Wouldn’t you know it, 2007 came and went, but no license application got filed.

Continue Reading...

Auction 94 - The Applications Are In

Auction 94, featuring 112 FM construction permits, is on track. The FCC has issued a notice  announcing that 109 potential bidders submitted applications to participate in the upcoming auction of 112 FM construction permits.  The auction is still scheduled to begin on April 23, 2013.

A total of 109 prospective bidders tossed in applications. Of those, 88 made the initial cut: the Commission has concluded that their applications were complete and acceptable, so they are assured of a bidding paddle and a seat in the bidders’ section (assuming, of course, that they get the necessary upfront payment filed in time). The other 21 applicants? Their submissions were lacking in one or another respect, so for the time being they’re on the outside looking in.  But we don't need to exile them to Loserville yet.  All 21 of the not-yet-in-the-door applicants should be receiving an overnight letter from the Commission laying out “the information that is required to make its application complete.” They’ll have until March 18, 2013 to resubmit corrected applications.

Any bidder – whether one of the 88 or one of the 21 – who wants to participate in the bidding  is required to wire the upfront payment to the FCC within the next week by 6:00 p.m. Eastern time on Monday, March 18, 2013.  Readers who plan to participate in the auction are advised to send your money to the FCC well before the deadline to avoid any unexpected delays.  The FCC is not sympathetic to bidders that wait until the last day; historically, the FCC has disqualified some late-paying bidders who claimed that their lateness was the fault of their banks.

Continue Reading...

Update: Deadline Set for Oppositions to Petitions for Reconsideration of Latest LPFM Decision

Last December the Commission released its Fifth Order on Reconsideration and Sixth Report and Order in the long-running LPFM proceeding. Five parties weren’t 100% happy with the results so – surprise, surprise! – they have filed for reconsideration of various aspects of the FCC’s decision. The petitioners (with links to their respective petitions) are:

Prometheus Radio Project

Michael Couzens and Alan Korn

REC Networks

LET THE CITIES IN!!

LifeTalk Radio, Inc.

According to a notice in the Federal Register, if you want to oppose any (or all) of these petitions, you have until March 21, 2013Replies to any oppositions will be due by April 1.

While the opening of a new pleading cycle – with the consequent opportunity for a pleading war – is often a harbinger of delay, our guess is that that’s not the most likely scenario here. As we have reported, the Media Bureau is doing its darnedest to tee the next LPFM application window up as quickly as possible (maybe even by next October, if the Chairman gets his wish). It’s unlikely that a handful of recons will distract the Bureau from that mission, but you never know. In the meantime, look for continued progress in the Bureau’s efforts to clear the FM translator application dead wood, a necessary antecedent to the LPFM window.

Fourth "White Space" Database Coordinator Tees Up Tests

Next up is Key Bridge Global LLC.

Add Key Bridge Global LLC to the list of TV “white space” database coordinators ready for testing. White space systems, we all know, operate in locally vacant TV spectrum; most must consult a database of other users to avoid causing interference. Of the ten FCC-approved coordinators eligible to provide access to the database, Spectrum Bridge, Inc. and Telcordia Technologies, Inc. have successfully completed their tests and are authorized to support white space devices nationwide, while Google and now Key Bridge Global are in the test preparation phase.

We will keep on keeping track.

[Blogmeister’s Note: As much as we here at CommLawBlog enjoy keeping everybody up-to-date on doings at the FCC, there are limits. Since the FCC started implementing its white space database coordination process, we’ve reported on the appointments of nine -- and then a tenth -- database administrators, three test launches, two requests for public comment on test results, and two final approvals. This post marks the fourth test launch. They are all starting to look the same.

We’re happy to keep reporting as we have done but, frankly, the repetition gets a bit tedious. So we offer here an alternative approach: limericks! 

Here are some examples. We encourage our readers to try their hand, too – submit them as comments. (Nothing X-rated, please.) We’ll post them without criticism. Honest.

Key Bridge Global Authorized to Test

Said the FCC Chief Engineer
To Key Bridge: "Do your test, do you hear?
Just prove you comply --
No, there’s no second try.
Get it right, or you’re out on your rear."

Summary of the White Space Coordination Program To Date

The FCC said to the nation:
We’ve settled on this delegation –
Just ten firms – no more –
That will take on the chore
Of inputting white space co’rdination.

Spectrum Bridge, Inc. became number one.
Telcordia’s next in the sun,
And then Google was blessed
With permission to test . . .
But the FCC still wasn’t done.

Next in line: Key Bridge LLC Global
Coordinates fixed and, yes, mobile
Devices that choose
Just what spectrum to use
And with no interference – that’s no bull.

The Commission has clearly mandated
That each of the firms designated
Will assure straightaway
That white spaces will stay
Non-color co-ordinated.]

Revised Form 323 Out for Comment at OMB

Proposed change in the form would allow individuals to identify themselves as members of as many as five separate racial categories, simultaneously. But the results may not help the Commission get to where it seems to want to go.

The Federal Register on March 1 has informed us that the FCC’s Broadcast Ownership Report (FCC Form 323) is back at the Office of Management and Budget (OMB) for review. According to the notice, the Commission is proposing a change in the question seeking the racial identification of attributable interest holders. You can get to the OMB’s files on the matter at this link.

The form currently in effect lists five racial categories and then a catch-all “Two or more races”; respondents are required to select only one of those six options. Apparently, though, OMB changed its policies governing collection of data relative to race and ethnicity last September. (According to the FCC, that change is reflected in an OMB action dated September 13, 2012, cited by the FCC as “Notice of Office of Management and Budget Action (NOA), dated 09/13/2012”. We were unable to track down a copy of that action, but we’re willing to take the Commission’s word that it exists somewhere. If any reader can point us to a site where we might find the OMB action in question, we’d be much obliged.) As a result, the Commission is proposing to eliminate the “Two or more races” option and to allow respondents to select as many of the other racial options as may apply to the individual who is the subject of the response.

While the elimination of the generally uninformative “Two or more races” might be thought to provide a greater degree of useful data concerning the racial composition of commercial broadcast ownership, we’re not confident of that.

Continue Reading...

TV "White Space" Devices Go Nationwide

New action follows December roll-out to eastern states.

TV “white space” devices, which operate on an unlicensed basis in locally vacant TV spectrum, are now authorized nationwide. This is pretty fast, by Government standards; just last December the FCC okayed the first large-scale roll-out to seven eastern states plus Washington, D.C. The class of approved coordinators for the database these devices rely on to find open channels is growing much more slowly. Also growing slowly is the number of FCC-approved devices that can use the service; we count just five so far.

EEO Audits Announced; FCC Eases Burdens, But For Whom?

Some filing requirements have been reduced, but underlying recordkeeping remains unchanged.

It's that time again. The FCC has announced its first round of random 2013 EEO audits to radio and television stations. And this year the Commission tells us that it’s trying to make life easier for the licensees who made the list. You might want to take that claim with a grain of salt, though.

Each year, the FCC audits approximately five percent of all radio and television stations, with the lucky stations selected randomly. (Here’s a list of this year’s selectees.) The goal of this spot-check ritual is presumably to keep everybody on their toes and ever-mindful of their ongoing EEO obligations. Those obligations require broadcast employment units with five or more full-time employees to recruit broadly for minority and female applicants for all job openings. “Recruiting broadly” entails (among other things) distributing notices of openings to multiple potential sources of referrals. The FCC also expects licensees to maintain detailed records of those recruitment efforts.

Historically, audited stations have been required to respond to the audit letter by submitting a lot of paperwork.  What’s a lot? Think dated copies of every notice (including advertisements, bulletins, letters, faxes, emails . . . you get the drift) sent to every one of the station's employment sources for every job opening that occurred during the period covered by the last two annual EEO public file reports. And for on-air ads, don’t forget dated log sheets for each time the ad ran. (Stations with fewer than five full-time employees in the relevant employment unit were spared the burden of sending all this paperwork in.)

But things are different this year.

Continue Reading...

Third "White Space" Database Coordinator to Begin Tests

Google is up next; seven more to come.

Unlicensed “white space” devices, which operate in locally vacant TV spectrum, rely on a database of other users to avoid causing interference. The FCC has approved ten coordinators to provide access to the database, and has completed tests on two: Spectrum Bridge, Inc. and Telcordia Technologies, Inc. The FCC subsequently authorized white space operation over much of the eastern United States.

Now the FCC has announced tests of a third provider, a relative unknown called Google Inc. The 45-day public trial will begin on March 4. Details are here. We will let you know the results.

Seven more to go.

Update: Comments Sought on Alien Ownership Proposal

Last September we reported on a request advanced by the Coalition for Broadcast Investment seeking "clarification" of the FCC's broadcast ownership limitations on alien ownership. You can find a copy of the Coalition’s letter request here. As summarized by the Commission, the proposal asks the Commission to “clarify that it will conduct a substantive, facts and circumstances evaluation of proposals for foreign investment in excess of 25 percent in the parent company of a broadcast licensee, consistent with and in furtherance of its authority under 47 U.S.C. § 310(b)(4)

The Commission has now solicited comments on the proposal. If you have any thoughts about the Coalition’s suggestion that you’d care to share with the Commission, you’ve got until April 15, 2013 to submit them; reply comments may be filed by April 30. You can file on paper, or electronically through ECFS (referencing MB Docket No. 13-50).

FM Translator Application Update: Singleton List Released, Long-form Deadline Set

The FM translator application juggernaut rolls on. 

Having processed the Selections Lists and Caps Showings filed in January and having, as a result, tossed several thousand applications earlier this month, the Media Bureau has sifted through the remaining rubble and identified 713 singleton applications that may be grantable in relatively short order. The lucky 713 applications: (a) are apparently not mutually exclusive with any other applications filed back in the 2003 filing window and (b) don’t run afoul of the technical limitations imposed in last year’s Fourth Report and Order. (Helpful reminder: To satisfy those limitations, an application must be: (1) outside all Spectrum Limited markets and (2) not within 39 km of any Spectrum Limited market grid.)

Heads up, though. If you’re on the singleton list, you’ve only got until March 28, 2013 to prepare and file your long-form application (Form 349), along with any required filing fee and Form 159, in order to stay in the game.

The public notice announcing the singleton list also includes some guidelines relative to what you can and can’t do in the long-form application. Attention should be paid to those details, because a failure to comply could result in dismissal. It would be a shame to have come this far in the application process only to crater on a technicality at the ultimate (or maybe penultimate) stage of that process.

Continue Reading...

The Five-Year Enforcement Shot Clock: Has the FCC Finally Begun to Acknowledge It?

Forfeiture cancellations suggest possible path to clearing backlogged complaints (and enforcement holds).

It appears that the Commission may have taken the first steps – baby steps carefully cloaked from public view, perhaps, but steps nonetheless – toward addressing its hopeless backlog of broadcast complaints. In a series of super-low-key actions in recent weeks, the Media Bureau has quietly cancelled a number of previously assessed forfeitures. The actions have been reflected in terse (and we do mean terse – check out this example) letters that provide no explanation for the cancellations. But based on the answers we got to some informal inquiries, we figure that these cancellations could be the harbinger of considerably more dramatic developments on the complaints front.

It appears that the recent forfeiture cancellations have all involved the same general fact pattern. The Bureau issued a notice of apparent liability (NAL) and/or forfeiture order for violations which occurred significantly more than five years ago. The target licensee responded by arguing that, thanks to 28 U.S.C. §2462, the FCC is statutorily prevented from collecting the fines, so they should be cancelled. That argument has been initially rejected by the Bureau in some cases (here’s an example), but the licensees have pressed their argument before the Commission in applications for review. 

And now, we understand that the Bureau has been directed by higher-ups in the agency to cancel the forfeitures in light of that Section 2462 argument. The Bureau’s cancellation letters are, we are told, the result of that direction.

Continue Reading...

Once More, With Filing: The Return of the Annual Employment Report?

Federal Register notice reports that the rule requiring the filing of Form 395-B is now effective.  Really?

According to this morning’s Federal Register, Section 73.3612 – the rule requiring broadcasters to file annual employment reports on Form 395-B – is now in effect.  We’d like to be able to tell you what that means, but we don’t know.

Section 73.3612 was last amended back in 2004.  It requires each AM, FM, TV, Class A TV and International Broadcast station with five or more full-time employees to file Form 395-B by September 30 every year.  (Form 395-B calls for disclosure of the racial, ethnic and gender breakdown of the reporting station’s full-time and part-time staff, according to job category.)  Even though that rule has technically been on the books for nearly nine years already, apparently, it has not previously gone into effect.  According to an “effective date note” that has been appended to the rule since 2004, “[t]his section contains information collection and recordkeeping requirements and will not become effective until approval has been given by the Office of Management and Budget.”  OMB approval of Form 395-B was granted in due course back in 2004, and it has been renewed periodically since then, though a condition was later attached.  In any event, before the 2004 form’s due date, the FCC suspended the filing requirement until further notice.

That explains why you probably haven’t given much thought to annual employment reports lately.

Why has the rule been on ice for nearly nine years?  It’s complicated.

Continue Reading...

Mission Abstract Data: Once More Unto the Breach!

If at first you don’t succeed, try, try again. Faced with what appeared to our non-expert eyes to have been a pretty negative ruling from the U.S. Patent and Trademark Office (USPTO) last December, our friends at Mission Abstract Data (MAD) have responded to that ruling with the submission of more materials to the USPTO. Their lawyer apparently also had a chat with the patent examiner on February 12.

Again, we won’t try to divine the precise meaning of MAD’s latest materials – we’re not patent lawyers, after all. But in the interest of putting those materials out there for everyone to take a gander at, here they are, fresh from the USPTO’s website: the documents filed by MAD in connection with its “246” and “867” patents. (Note that the “Electronic Acknowledgement Receipt” listing the submissions about the “867” patent indicates a number of materials that aren’t included in the linked document. Our link is to a compilation of all the documents that were showing up on the USPTO website relative to the “867” patent as of noon on February 20. We’ll try to circle back around to that site every now and then and may update this post if the other listed documents surface there.)

We won’t begin to speculate on the interrelationships of (a) this filing and the February 14 lawsuits initiated by MAD (through DigiMedia) or (b) those lawsuits and the February 12 conversation between MAD’s lawyer and the patent examiner or (c) any of this and the upcoming hearing in the federal District Court in Delaware relative to the possible lifting of the stay in that litigation. Obviously, there appear to be a number of moving parts at work here. We’ll try to keep track of as many as possible and report on developments that might be of interest. Check back here for updates.

Mission Abstract Data: Shut Up and Deal!

Texas Hold ‘Em or Texas Hold Up? MAD goes all in in East Texas.

Like that gambler who just doesn’t know when to quit, always looking for the big score, our friends at Mission Abstract Data (MAD) – through their latter-day identity, DigiMedia – are back at the table.  On February 14, DigiMedia filed lawsuits against four radio companies with stations in Texas, arguing that the companies have engaged in patent infringement. (You can find links to the complaints, sans attachments, here, here, here and here.) The allegations are essentially identical to those advanced by MAD in federal court in Delaware against seven large radio companies back in March 2011.  The fact that the new lawsuits aren’t markedly different from those earlier, still pending, suits actually raises some questions.

We’ve been dutifully following and reporting on the Mission Abstract Data (now “DigiMedia”) patent saga for nearly two years.  (Standard disclaimer: we are NOT patent attorneys, and make no claim to special familiarity with patent law in general or as it might apply to MAD’s arguments.) As of late December it looked like the saga was nearing its end. That’s when the United States Patent and Trademark Office (USPTO) – for the second time – reexamined the patents underlying MAD’s claim and appeared to narrow the scope of those patents dramatically. 

Despite that apparent setback, MAD has now come roaring back, suing four separate licensees with FM stations in Tyler, Greenville, Denison and Palestine, all in Texas.

Continue Reading...

Ain't No Sunshine: Introducing "The Federal Communications Commission Collaboration Act of 2013"

[Blogmeister’s prologue: Kevin Goldberg has a second-to-none track record when it comes to defending the First Amendment and Open Government. Named the outstanding constitutional law student in his graduating class at the George Washington University Law School, he has served as a member of the Board of Directors of the District of Columbia Open Government Coalition, a member of the Executive Committee of the Board of Directors of the National Press Foundation, a member of the Board of Directors of the Public Participation Project and the Chair of the Legislative Affairs Committee of the Media Law Resource Center. In 2006, Kevin was inducted into the National Freedom of Information Hall of Fame for his continued and superlative service in pursuit of open government. He is the youngest of the current 56 members in the Hall. When he has something to say about the public’s right to know, we listen. Kevin has something to say about the proposed “Federal Communications Commission Collaboration Act of 2013”.

We expect some of our readers may disagree with Kevin’s views, and we expressly invite those who do disagree to share their views with us in comments, or possibly even in a guest post.]

Nearly 50 years ago, Congress passed the federal Freedom of Information Act (FOIA), giving all of us citizens access to the records of every executive branch agency (subject to nine very narrowly-construed exceptions). The FOIA embodies the fundamental premise that the public has a right to know how the government does the public’s business.

A decade later, in the wake of the Watergate scandal, Congress passed the Government in the Sunshine Act (a/k/a the Sunshine Act), again seeking to ensure the public’s right to know. (In Congress’s words, “Government is and should be the servant of the people, and it should be fully accountable to them for the actions which it supposedly takes on their behalf.”) The Sunshine Act gives us all access to the meetings of certain executive branch agencies, much as the FOIA give us access to those agencies’ written records.

Maybe not for long, though, at least as far as the FCC is concerned.

Bills proposing the “Federal Communications Commission Collaboration Act of 2013” have been introduced in Congress – as S. 245 by Senators Amy Klobuchar, D-MN, and Dean Heller (R-NV) and H.R. 539 by Representatives  Anna Eshoo (D-CA), John Shimkus (R-IL), and Mike Doyle (D-PA). Under the bills’ provisions, FCC Commissioners would be allowed to engage in a significant amount of regulatory activity outside of the public’s view.

Continue Reading...

More FM Translator Applications Down the Tubes

Media Bureau gives Dave Doherty a break, provides itemized list of latest victims

In what may be the last peristaltic spasm of the FM translator review process, the Media Bureau has announced that it has dismissed “several dozen” (by our count it’s a total of 40) remaining FM translator applications that were filed back in 2003. According to its public notice, the Bureau “has now completed” its review of the Selection Lists and Cap Showings filed last month by translator applicants and “has identified those applications which do not satisfy filing requirements”. So if your application (a) wasn’t already tossed out in last week’s mass dismissal and (b) isn’t listed in this most recent batch, then presumably you’ve survived the cut and your application can now be processed. 

No official word yet on when the next processing steps are likely to happen, but we’re guessing they’ll be happening sooner rather than later – possibly in a matter of a few weeks. As we have previously reported, the Commission has made clear its hope that the next LPFM window can be opened promptly (as early as next October, if the Chairman has his way), and the Bureau has thus far been doing its darnedest to turn that hope into reality.

One additional note: Unlike last week – when the Bureau tossed more than 3,000 applications without issuing any itemized public notice specifically identifying those applications – this time around it has provided a listing of the 40 latest victims in PDF and Excel formats, convenient for easy slicing and dicing. That should take our friend Dave Doherty off the hook this time around.

Now Available Online: Our Review-2012/Preview-2013 Webinar

Earlier this week we reported on our plans to present a webinar covering a variety of hot button issues. The show went off without a hitch, and we’re pleased to report that, even if you missed it live, you can still catch the recording of the program by clicking on this link. Thanks to operator error (we’re lawyers, for cryin’ out loud, not audio techs), the recording misses the title and introductory slides (one of which featured photos of the presenters, Kevin Goldberg and Dan Kirkpatrick) as well as Frank Jazzo’s eloquent intro. It looks like Frank’s deathless prose has now been lost to the ages, but if you want to see all the PowerPoint slides, here’s a link to a PDF version

We want to again thank our friends at the 13 state broadcast associations who helped promote the webinar among their memberships. (Those would be Alabama, Alaska, Arkansas, Hawaii, Louisiana, Maryland/DC/Delaware, Mississippi, Nebraska, New Mexico, Puerto Rico, South Carolina, Tennessee and West Virginia.) We expect to be presenting more webinars in coming months, and we encourage you, our readers, to let us know what subjects you might want to hear about.

FCC Urges Broadcasters to Secure EAS Equipment

FCC moves to close down backdoor weakness in EAS system that may have led to “zombie attack” alert.

As many of our readers have probably heard, a number of broadcast stations in various parts of the country found their EAS systems hacked yesterday. The result: the stations issued EAS alerts about zombie attacks. Since the alerts appear to have utilized (probably through the miracle of Internet accessibility) the stations’ own systems, those alerts sounded for all the world – and could, and should, have been accepted by the public – as the Real Deal (except for the part about the zombies).

While this may have amused some, the fact of the matter is that any compromise of the EAS system creates serious risks to the public. It’s not hard to imagine faux alerts with a much more sinister effect.

With that in mind, the FCC has (according to our friends at the NAB) issued the following “Urgent Advisory” outlining “immediate actions to be taken regarding CAP EAS device security”:

All EAS Participants are required to take immediate action to secure their CAP EAS equipment, including resetting passwords, and ensuring CAP EAS equipment is secured behind properly configured firewalls and other defensive measures. 

All CAP EAS equipment manufacturer models are included in this advisory.

All Broadcast and Cable EAS Participants are urged to take the following actions immediately.

  1. EAS Participants must change all passwords on their CAP EAS equipment from default factory settings, including administrator and user accounts. 
  2. EAS Participants are also urged to ensure that their firewalls and other solutions are properly configured and up-to-date.
  3. EAS Participants are further advised to examine their CAP EAS equipment to ensure that no unauthorized alerts or messages have been set (queued) for future transmission.
  4. If you are unable to reset the default passwords on your equipment, you may consider disconnecting your device’s Ethernet connection until those settings have been updated.
  5. EAS Participants that have questions about securing their equipment should consult their equipment manufacturer.

When the Commission refers to “immediate” action, it presumably means “immediate”, like right now, this instant, as soon as possible (if not sooner). Bear in mind that many, if not most, broadcasters will likely be providing coverage of the President’s State of the Union speech this evening. We’re guessing that the FCC is looking to have all the steps outlined above wrapped up before those festivities crank up.

This has been a public service announcement from CommLawBlog.

With Raft of Threshold Questions, FCC Starts Take-Back Process for 470-512 MHz

Statute requires the band to be cleared of public safety users by 2021 and auctioned by 2023.

In most parts of the country, the frequency band 470-512 MHz, also called the “T-band,” is better known as TV channels 14-20. But 11 major metropolitan areas use parts of the band for public safety communications, like the two-way radios in police cars, ambulances, and fire vehicles. These users include some of the nation’s biggest first responders, such as the Los Angeles County Sheriff’s Department and the New York City Police Department.  Other licensees also use the band for two-way communications.

Last year, as part of the Middle Class Tax Relief Act (most of which has little to do with middle class tax relief), Congress gave public safety entities access to additional spectrum in the 700 MHz band for a nationwide first responder broadband network. But it also required that public safety licensees give back spectrum they use in the T-band, which would then be auctioned for commercial services. Public safety users would have to vacate the T-band by 2021 for a spectrum auction by 2023. The auction revenue is supposed to be made available to current public safety licensees to help offset the cost of relocating their systems to other frequencies.  Oddly, the statute is silent as to the non-public safety users of T-band.

There has been talk among public safety licensees of asking Congress to repeal the T-band “give back” provisions. Unless and until such a repeal occurs, though, the FCC has its marching orders. In keeping with those orders, the FCC has released a public notice to investigate the implications of the law for public safety and other land mobile radio licensees. The public notice seeks detailed information on the extent and nature of public safety radio systems in the T-band, whether some of the current users can migrate to the new first responder broadband network or other public safety frequency bands, and the potential costs of such a relocation.

Comments in response to the public notice are due on May 13, 2013, with reply comments due on
June 11.

Review-2012/Preview-2013 Webinar - Sign Up Now!

Attention, all you CommLawBlog readers!

We’re presenting a webinar this Thursday, February 14 at 3:00 p.m. EST in cooperation with a number of our state broadcast association friends. It turns out that we have a limited number of open spaces – so if you would like to listen in, for free, here’s your chance.

The webinar will feature Kevin “The Swami” Goldberg addressing a number of hot button issues on the intellectual property front and Dan Kirkpatrick updating us all on the FCC regulatory front. Serving in the color commentary/peanut gallery role will be Frank Jazzo, Scott Johnson and Harry Cole.

The 90-minute agenda will include discussions of:

  • ASCAP/BMI/SESAC issues
  • The Mission Abstract Data litigation
  • The Aereo/Aerokiller cases
  • Webcasting/streaming royalty calculations
  • Royalties for performance of sound recordings
  • The FCC Ownership Proceeding
          Newspaper/Broadcast
          TV JSA attribution
  • The incentive spectrum auctions/repacking
  • TV online public file
  • Ownership reporting

If you’d like to sign up, click on the button below to get to the registration page. Remember, space is limited.

TVStudy: Changes in TV Coverage Calculations Devised For Incentive Auctions

OET seeks comments on alternative to traditional OET-69 methodology.

The FCC’s Office of Engineering and Technology (OET) wants to sharpen its pencil when it comes to predicting TV station coverage. The National Association of Broadcasters (NAB) doesn’t think that that’s a good idea – not just now, at least.

Who cares? You should, if you’re a full-service or Class A TV licensee about to be forced into deciding whether (and if so, how) you will participate in the incentive auction process currently being devised by the Commission.

OET has announced, pretty much out of the blue, that it has developed new software – dubbed TVStudy – which the Commission “plans to use in connection with” the incentive auctions. At issue is the way the FCC plans to utilize OET-69 in the implementation of the auction process.

Continue Reading...

Lists of Surviving FM Translator Applications Now Available

Apparently undaunted by the approaching blizzard, Dave Doherty at Skywaves Consulting up in Millbury, Massachusetts, has been hard at work culling potentially useful information from CDBS about the FM translator application situation. Now, in addition to the lists of dismissed applications he passed along to us a few days ago, he has provided a couple of lists reflecting all the vintage 2003 FM translator applications that survived the first round of dismissals. Here you go: a list of surviving applications arranged alphabetically by applicant, and a list of the same applications arranged by state and city. This, ideally, will help address the concerns expressed by a commenter to an earlier post,

Dave cautions that the Media Bureau has indicated that more applications may be headed for the Dismissalville in the near term – thanks, apparently, to the fact that some applicants’ tech showings were either messed up or MIA, thus requiring additional staff analysis. The smart money figures that such additional analysis will identify more applications destined for the dumpster. Presumably the Bureau will let us all know if and when that happens, but you never know.

And while caution is being dispensed, we’ll add here that we have not test-driven Dave’s latest set of lists, so you rely on them at your own risk. But, as we noted the last time around, the lists provide a more useful approach than the Bureau’s public notice. Thanks again, Dave – and don’t hurt yourself shoveling snow!

As the Blizzard of 2013 Makes Its Move, FCC Provides Emergency Response Information

With a nasty nor’easter threatening to dump its load all the way from the Great Lakes to New York and New England, the FCC has started its anticipatory disaster response. A public notice released this afternoon alerts the public that Commission personnel will be available through the weekend, 24/7, to assist communications providers as they deal with the effects of the storm.  Emergency communications providers – a universe that includes broadcasters, cable operators, wireless and wireless providers, and, of course, first responders – should contact that Operations Center if they need help in initiating, resuming, or maintaining communications operations during the weekend. The phone number for the FCC Operations Center is 202-418-1122, and its email address is FCCOPCenter@fcc.gov.

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

Historically, the Commission has also activated its Disaster Information Reporting System (DIRS) in advance of approaching major storms. Such activation has not yet been announced by the FCC (as of 4:30 p.m. on Friday, February 8), but we won’t be surprised if word comes down before too long that the DIRS is open for business. Check back here for updates.

GAO Report: In Wake of Successful Hack of FCC Computer Systems, $10 Million Fix Ineffective

Gee, do we really want to entrust our social security numbers to the FCC?

Did you know that, in September, 2011, the FCC was the victim of “a security breach on its agency network”? 

Neither did we. 

The precise nature and extent of the breach hasn’t been made public (as far as we can tell), but it must have been impressive. Did you also know that, in reaction to that breach, within a couple of months the FCC had wangled out of the Office of Management and Budget a cool $10 million to undertake an immediate “Enhanced Secured Network” (ESN) Project to improve its computer security against such cyber attacks? 

Neither did we.

And did you also know that the General Accountability Office (GAO), called in to assess the manner in which the FCC implemented its ESN Project, concluded that the FCC messed up? In particular, according to the GAO, the Commission “did not effectively implement or securely configure key security tools and devices to protect these users and its information against cyber attacks.” And did you know that, as a result, again according to the GAO, the Commission continues to face “an unnecessary risk that individuals could gain unauthorized access to its sensitive systems and information”? 

Neither did we.

This is all spelled out – circumspectly, to be sure, presumably so as not to reveal too much about the FCC’s vulnerabilities – in a GAO report sent to Congress on January 25, 2013. The report was not publicly announced until last week.

Continue Reading...

FM Translator Dismissal Aftermath - The Private Sector to the Rescue!

Searchable lists of the 3,000+ dismissed applications now available

Let’s have a big CommLawBlog cheer for the private sector! As we reported yesterday, the Media Bureau unceremoniously dumped about 3,000 FM translator applications into the trash. In doing so, the Bureau chose not to issue the type of public notice that usually accompanies such actions. Instead, the staff issued a public notice announcing, in general terms, that it had tossed the apps, and advising that anyone who wanted to know which applications had been tossed could knock themselves out performing wildcard searches in CDBS. As we observed, this approach was not especially helpful to folks in the private sector who might have an interest in figuring out which applications were gone and which are still alive and kicking.

Fortunately, Dave Doherty from Skywaves Consulting LLC in Millbury, Massachusetts has come to the rescue. Dave has prepared two lists of all the dismissed applications. One list is organized alphabetically by applicant, the other alphabetically by state. They both contain the same data – Facility ID Number, Channel, Frequency, State, City, Applicant Name and File Number.  Both lists are searchable. We haven't doublechecked Dave's handiwork, so if you're inclined to rely on it, you do so at your own risk.  But at least it attempts to provide a more useful approach to the dismissed translators than the FCC did.  We asked Dave if we could post links to his two lists for our readers, and he graciously agreed. Thanks, Dave! (Dave’s contact information is available on his lists, if you want to thank him personally.)

Bureau Disposes of FM Translator Applications

As drive toward an LPFM auction moves forward, applications get tossed for real while Selection Lists/Caps Showings get released, sort of.

That loud flushing noise you may just have heard was the sound of about 3,000 FM translator applications heading down the tubes. Having analyzed the various Selection Lists and Caps Showings submitted by translator applicants late last month, the Media Bureau has announced that it has now tossed “approximately 3,000” vintage 2003 translator applications. In the same public notice, the Bureau has also announced the “release” – and we use that term loosely – of all of the underlying Selection Lists and Caps Showings submitted during the recently closed Selection Filing Window.

Which applications got thrown out and which didn’t? Good question. The Bureau’s one and only (apparently) public notice on the subject doesn’t include a list of the dismissed applicants, or applications, or file numbers, or any of the other conventional data you might expect. If you want to know any specifics, the staff apparently expects you to head online to CDBS, where you can probably figure out precisely which applications got dismissed and which continue to live on if you’ve got boatloads of (a) time and (b) motivation and (c) luck.

Continue Reading...

Some TV Broadcasters Relieved of Obligation to Upload Some (But Not All) Issues/Programs Lists to Online Public Inspection File

But paper copies of those lists must still be maintained for public inspection at the station, and the waiver is subject to some limiting conditions

Full-service and Class A TV licensees take heart! The Media Bureau may have let many of you off the hook with respect to one component of the online public inspection file requirement.  In particular, the Bureau has announced that stations whose licenses were not renewed during the previous renewal cycle may opt not to post to the FCC’s online public file system their quarterly issues/programs lists relating to the earlier license terms covered by those filed-but-not-yet-granted renewal applications.

Before you start doing the Snoopy dance, be aware that there are at least three gotchas here.

Some background first. 

As we all know, full-service and Class A TV folks are required to upload their public inspection files to the FCC-maintained online system by February 4. The public file rules (for both commercial and noncommercial licensees) require that those files include quarterly issues/programs lists dating back to the date on which the grant of their last renewal application became final. 

The problem is that the last renewal grant, for many TV licensees, dates back into the 1990s.  That’s because many TV renewal applications from the last renewal cycle still haven’t been granted, in many (if not most) cases thanks presumably to the dreaded “enforcement holds” arising from pending complaints lodged against the station. As a result, in order to comply precisely with the public file rule, a TV licensee whose last renewal is still in deferred status would have to upload an extra eight years’ or so worth of issues/programs lists.

Continue Reading...

Update: Effective Date Set for Registration Requirement for TV Pickup Licenses

Mandatory registration is one element of FCC's expansion of wireless backhaul opportunities.

If you’ve got a TV pickup license in the 6875-7125 MHz or 12700-13200 MHz bands, you’ll be needing to register your stationary receive-only sites in the Commission’s Universal Licensing System (ULS) in the near future (if you haven’t done so already). Section 74.605, the Commission’s rule requiring such registration will finally become effective April 1, 2013, according to a notice in the Federal Register.

Long in the works, the “new” requirement was actually adopted nearly 18 months ago – back in August, 2011 – as part of the Commission’s overhaul of the wireless backhaul process. That overhaul is intended to make more spectrum available for fixed wireless operations serving as the “middle mile” links that move end-user traffic between cell towers and the core network. The increased spectrum availability is to be accomplished by allowing such services to share spectrum already used by TV pickup licenses in the 6875-7125 MHz or 12700-13200 MHz bands. But effective sharing will require coordination of use of the frequencies, and mandatory registration of receive-only sites will obviously facilitate such coordination.

Of course, it’s been a good idea to register such sites for some time, as we (and our friend and reader, Dane Ericksen) were recommending nearly two years ago. The Commission has permitted ULS registration of TV pickups since 2008 as an optional aid to coordination in the band. But come April, “optional” registration will become “mandatory” registration.

The delay in making Section 74.605 effective is a bit puzzling. Since the rule constitutes an “information collection”, it had to be run through the Paperwork Reduction Act process at the Office of Management and Budget. But according to the FCC’s Federal Register notice, OMB had signed off on the rule back on March 27, 2012. Whatever the reason for the one-year hold-up in making the rule effective, though, the fact of the matter is that we now know that it will be effective on April Fool’s Day. If you’ve got a TV pickup license in the 6875-7125 MHz or 12700-13200 MHz bands and you’ve been dragging your feet as far as registration goes, now would be a good time to get that job done.

Radio Multiple Ownership: Market Manipulation Minus the Wait?

Depending on who’s doing the including, inclusion of a radio station in an Arbitron market may not be subject to a two-year waiting period for purposes of multiple ownership calculation.

While the heyday of radio consolidation is fading in the rearview, some opportunities still exist. As Cumulus Licensing LLC recently demonstrated, with a quick change in a station’s city of license, an otherwise impermissible ownership situation can become permissible – thanks to a helpful Audio Division interpretation of the contour overlap standard that has governed radio multiple ownership for nearly a decade.

Concentration of control in the radio world hasn’t been on many people’s radar for a while, so some background may be in order. 

Since back in the 1990s, radio ownership in any particular market has been subject to caps depending on the number of other stations present in the particular market. In the ‘90s, the relevant “market” for any proposed acquisition depended on the particular contours of the particular stations owned and proposed to be owned by the buyer. That gave rise to considerable flexibility for buyers, who were able to some degree to manipulate the scope of the relevant market to their advantage.

That signal contour approach to market definition was largely tossed out in 2003, when the Commission adopted an Arbitron/geography-based approach. Under the “new” approach, radio ownership caps are determined by the number of stations located in (or “home to”) Arbitron-defined markets. By relying on the independent determination of Arbitron as to which (and, thus, how many) stations were in each market, the FCC theoretically reduced the flexibility the signal contour approach had afforded to inventive applicants.

But, as the Commission acknowledged, even the Arbitron approach was subject to manipulation.

Continue Reading...

Explosive Proposal: C4 for FM's?

Just as the Commission appears to be on the verge of resolving the long-running feud between FM translator proponents and LPFM proponents, in walks a petition for rulemaking proposing a new class of full-power FM channel in Zone II. The proposed class – ominous suggested name: C4 – would feature maximum ERP of 12 kW and maximum antenna height of 100 meters.

The idea is to shoe-horn the new class in between Class A and Class C3. The petitioner, SSR Communications, Incorporated observes, quite correctly, that the incremental power differences between Classes C and C0, C0 and C1, C1 and C2, and C2 and C3 are all three decibels, while the difference between Class A and Class C3 (the next class up from Class A) is more than twice that (6.2 dB). Like nature, SSR seems to abhor a vacuum – hence, the proposal to fill the space with the new C4.

Under SSR’s proposal, Class C4 would get its own class contour distance (33 km) and separate mileage spacings vis-à-vis other classes. Moreover, stations seeking to reclassify themselves as C4’s would be able to trigger orders to show cause directed to certain underfacilitied co-channel and adjacent channel stations, not subject to Section 73.215, that would otherwise preclude the reclassification. Such underfacilitied target stations would be forced either to upgrade themselves (in which case the C4 application would be dead meat) or immediately accept Section 73.215 status.  (SSR copped that approach from the FCC’s Class C0 upgrade process that’s been in effect for the last dozen or so years. Anyone familiar with that process should grasp the concept quickly.)

Continue Reading...

Annual Webcaster Wake-Up Call! Some Things DO Change on New Year's Day

Webcasters have until JANUARY 31 to file Statement of Account forms, pay annual fees to SoundExchange

According to famed lyrical poet Paul Hewson (“Bono” to his millions of friends), “nothing changes on New Year’s Day”. He reportedly started writing the song as a love paean to his wife, although it eventually morphed into a political statement inspired by the Polish Solidarity Movement. Regardless of the song’s broader political statement (or anybody’s personal notions about the significance of New Year’s Day), the plain statement isn’t true: things do change on New Year’s Day. 

Compliance with the statutory license applicable to webcasting is one of those things. 

When the ball drops in Times Square, webcasters are faced with updated forms to fill in and submit, a new cycle for reporting, and a clock ticking down the 31 days until the annual minimum fees of $500 per channel must be sent to SoundExchange. 

Thankfully, much like last year, the changes from 2012-2013 are pretty minor. The rates have increased slightly. The forms have changed a little (with a new look and feel), although that shouldn’t be anything to worry about if you’ve done this before. And, in perhaps the most noteworthy change, there are actually fewer forms for some webcasters to file. Here’s an overview of what will be expected of webcasters in 2013.

Continue Reading...

Online TV Public Inspection Files: Tick, Tick, Tick . . .

The deadline for completion of the upload process is nearly here – are you ready?

TV licensees (that is, full-power and Class A licensees) – this is your final warning from us here at CommLawBlog. You’ve got until February 4 to get your public inspection file uploaded to the FCC’s online system. That’s only two weeks from now, so if you haven’t gotten started on this yet, now would be a good time.

We have previously provided a number of tips on this topic: how to access the system; once you’re in, how to upload the required materials; what documents have to be uploaded. If you missed those posts, click here and here to get started.

We’re not going to re-visit the myriad details of the new rules, their genesis, their implementation, etc., etc. Been there, done that.

We do, though, want to offer a cautionary reminder.

We haven’t canvassed the status of everybody’s public files. It’s possible – maybe not likely, but possible – that everyone has already done everything that they need to do, and our warning here is a churlish and unnecessary bit of hectoring. If you, dear reader, have uploaded your public file already, congratulations, and please accept our apologies for suggesting otherwise. But for everybody else, we do want to underscore one consideration that should motivate any folks who have been dragging their feet. 

The FCC’s online public file system is, ahem, an ONLINE public file system. Because of that, anybody anywhere anytime is in a position, unbeknownst to you, to check the status of your file. Once the deadline for completing the upload process arrives – that would be on February 4 – any shortcomings will be rule violations for which the Commission could issue fines. And anybody, anywhere, anytime will be in a position to identify such violations and bring them to the FCC’s attention.  Even if the Commission opts not to start handing out fines immediately (and while the Commission may indeed restrain itself, particularly in the initial phase, such self-restraint is not mandatory), it’s hard to imagine a greater incentive to get your file in order by February 4.

Harbowl, Super Bowl® and Mr. Roy Fox - A Lesson to be Learned, Again

Yet again, the NFL provides evidence of its aggressive efforts to protect both trademarks it owns and trademarks it doesn’t own.

With four minutes to go in the AFC Championship game and the Ravens looking good for a trip to Super Bowl XLVII®, I noticed that the hashtag #Harbowl was already blowing up on my Twitter feed.  That’s because a Ravens victory would mean that, for the first time in NFL history, two brothers – those would be John and Jim Harbaugh, of the Ravens and Forty-Niners, respectively – would be facing each other as head coaches in the Super Bowl®.  Look for “Harbowl” to become the unofficial moniker for the game.

Being a trademark lawyer geek, I immediately flashed on two thoughts: (1) how quickly could  I get an application on file with the U.S. Patent and Trademark Office (USPTO) to register “Harbowl” as a trademark (for hats, shirts, bumper stickers, temporary tattoos and all the other impulse items that NFL fans will be craving for the next two weeks); and (2) what are the chances that I could get that application granted?

Answer to Question One: I might be able to have an “intent to use” application on file before the game is done – it’s just that easy to file for trademark protection.  (Tip to readers: The ease of filing for such protection is a reason all of you should consider protecting your call signs, program names, slogans and other important brands by filing applications for federal trademark registrations.)

Answer to Question Two: “slim” and “none”, since – thanks to federal trademark law – I’d probably need the permission of the Harbaugh brothers to trademark something referencing their names. 

And that’s before the NFL has its say.

Continue Reading...

Form 323 - Kissing the SUFRN Good-bye?

FCC proposal would abandon “special use FRNs” in Ownership Reports, require social security number-based FRNs instead . . . for noncommercial licensees, too!

If you’ve got an “attributable interest” in a broadcast licensee, you might want to make sure that you’ve got your social security number (SSN) handy. The FCC is trying – again – to insist that all attributable interest holders provide SSN-based FCC registration numbers (FRNs) when the time comes to file biennial Ownership Reports on FCC Forms 323 (for commercial licensees) and 323-E (for noncommercial licensees). 

In a Sixth Further Notice of Proposed Rulemaking (6th FNPRM) the Commission has proposed deep-sixing the “special use FRN” (SUFRN, as in “SUFRN succotash”) alternative that has been available since the July, 2010 filing of the biennial Form 323. The Commission has also proposed expanding the SSN-based FRN requirement to Form 323-E for noncoms, which would meant that folks on the controlling boards of NCE stations would have to get SSN-based FRNs. And the Commission has also renewed a proposal first bandied about in the Fifth Further Notice of Proposed Rulemaking (5th FNPRM) back in 2009. (In the nearly four years since the 5th FNPRM, that proposal – which would expand the FRN reporting requirement even more – apparently never made it to the Federal Register . . . until now!)

Continue Reading...

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

Feds revise triggers for automatic merger and acquisition review.

With the 2012 book now closed on several acquisitions and mergers in the communications field, the federal government has performed its annual ritual of announcing the thresholds it will use for automatic federal review of mergers and acquisitions.  The FCC worked on several 2012 “Big Ticket” transactions including the Verizon spectrum shuffle with assets from Verizon Wireless, T-Mobile, Leap, several cable companies and others.  Still under review by the FCC is the Liberty Media acquisition of Sirius/XM. 

The FCC can review any transaction in detail before issuing an approval.  On the other hand, Congress long ago deemed that the Department of Justice and the Federal Trade Commission must review transactions that cross certain dollar amount thresholds.  The dollar amounts of those thresholds were announced in today’s Federal Register.  They are set to take effect as of February 11, 2013.  Readers considering a merger or acquisition should bear in mind that the administration automatically will be sending at least two agencies to take a closer look at transactions where either:

  • the total value of the transaction exceeds $283,600,000; or
  • the total value of the transaction exceeds $70.9 million and one party to the deal has total assets of at least $14.2 million (or, if a manufacturer, has $14.2 million in annual net sales) and the other party has net sales or total assets of at least $141.8 million

The new thresholds also affect the filing fees that parties to a deal have to pay the government for the pleasure of going through the review process. (Fees are split between the FTC and the Department of Justice.) For most of 2013, any deal subject to review and valued at less than $141.8 million will pay a $45,000 fee. (Used to be that deals coming in at a mere $100 million got to pay that.) For deals valued at more than $141.8 million but less than $709.1 million, the review fee will be $125,000. And if you’re proposing a deal valued at more than $709.1 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.

Update: Effective Date Set for New LPFM/FM Translator Rules

As we reported last month, in December the Commission released its “Fifth Order on Reconsideration and Sixth Report and Order” (we refer to it as the 6th R&O) in which it (a) tied up some loose ends relative to LPFM and FM translator matters and (b) adopted new rules and policies governing LPFM applicants. The 6th R&O has now been published in the Federal Register, which means that most (but not all) of the new rules are set to become effective on February 8, 2013.

The changes to Sections 73.807, 73.810, 73.827, 73.850, 73.853, 73.855, 73.860 and 73.872 will not take effect on that date, though. All those sections involve what we call “information collections”. As a result, they are subject our old friend, the Paperwork Reduction Act, which means that they will have to run past the Office of Management and Budget first before they can be implemented.

Note that the establishment of effective dates for the new rules should not affect the fast-approaching deadline by which FM translator applicants must file their “Selection Lists” and “Caps Showings”. As we have previously reported, the window for filing those lists and showings opens on January 10 and closes on January 25.

FM Translator Application "Selection Lists"/"Caps Showings" Requirements Clarified

With January 25 deadline fast approaching, the Media Bureau has provided some (non-binding) guidance to FM translator applicants.

If you’re one of the folks with a bunch of FM translator applications still pending from the 2003 filing window, you’re probably hard at work trying to figure out what, if anything, you should be filing in response to the Commission’s public notice announcing the deadline for “Selection Lists” and related “Caps Showings”.  (You might have missed that notice, since it was released the afternoon of December 21 – that is, the Friday of the long Christmas weekend.)

As we pointed out, in the wake of that notice a considerable amount of work must be done, and there’s not a lot of time to do it in. The window for filing Selection Lists and Caps Showings opens in two days (on January 10), and closes on January 25

But the Media Bureau feels your pain, and in an effort to assist translator applicants, the Bureau has released a set of 12 clarifying examples (actually, it’s 17, if you count the five sub-examples tacked onto Example 12). They provide reasonably specific directions for what is and is not expected of applicants in a variety of possible scenarios. (They’re especially helpful if you happen to have five applications pending in the Atlanta area, three of which are Inside the Atlanta Market.) So translator applicants currently struggling with making selections and assembling showings would be well-advised to take a few minutes (and a couple of deep breaths) and check out the Bureau’s examples. That may save some time and aggravation.

But heads up. While the examples are “intended to provide general guidance reflecting the staff’s initial interpretation of the application selections and cap showings procedures”, they may not be the last word.   The Bureau’s notice specifically disclaims that the examples “are not intended to establish binding precedent”. Further, “[t]he staff will make specific rulings in response to actual selections and submissions on a case-by-case basis.” In other words, applicants should feel free to rely on the examples, but such reliance will not necessarily safeguard an applicant’s selections or showings from adverse determinations by the staff down the line.

Good luck.

113th Congress: Cooperation and Convergence?

(Blogmeister’s Note: FHH Telecom Law welcomes back guest commentator Catherine McCullough. This month she provides her perspective on trends that will impact communications clients in the 113th Congress. Catherine is a Vice President at DCI Group where she counsels clients in federal policy matters.

The Worst Congress Ever has just wrapped up its business. Where do we go from here?

As I write this, the gavel on the 112th Congress’ last votes fell just days ago. The ignominious 112th Congress is doing its walk of shame back home from Washington and all around town its performance is being summed up: “Worst. Congress. Ever.” 

Writing about the specific telecom issues facing Congress at the beginning of the last session, I speculated that the 112th would be heavily influenced by love and money. In other words, Congress needed to confer incentive auction authority on the FCC and pass a few pro-consumer measures (involving, e.g., protection of online privacy). And sure enough, Congress did take care of the auction issue – bringing money into the Treasury seemed to be a priority.   Some progress was made on the privacy front, but not all of it through the legislative process.

But at the beginning of the new 113th Congress, rather than talk about specific issues I want to focus more on how two other trends will shape communications policy: cooperation and convergence.

Continue Reading...

Judge Puts the Cuffs on AereoKiller

Disagreeing with the Second Circuit, a district judge in the Ninth Circuit has enjoined Aereokiller from transmitting its opponents’ over-the-air programming.

Remember Aereo, the Barry Diller-backed startup seeking to revolutionize the way we watch television? (Hint: It’s the video delivery service that uses rooms full of dime-sized antennas, each assigned to a different subscriber, enabling said subscriber to watch broadcast television via any mobile, Internet-based device.) As we reported last summer, Aereo won a key legal battle in New York in July, when a federal judge OK’d the continued provision of Aereo’s service at least temporarily. (Technically, the judge refused to issue a preliminary injunction requiring Aereo to shutter its service while it’s being sued by a number of broadcasters claiming that the Aereo service infringes their copyrights.) 

You may also recall Alki David, the owner of several services providing online distribution of over-the-air television (and other) programming. The most relevant for our purposes are FilmOn.com and Aereokiller

David’s Aereokiller service seems to have drawn inspiration (not to mention its name) from Aereo’s service. While not absolutely identical to Aereo, Aereokiller rests on the same general technology and the same basic legal principles as Aereo. (In its court filings, Aereokiller argues that it is not only technologically analogous to Aereo but, in fact, “better and more legally defensible”). And further highlighting the influence of Diller’s Aereo service on David’s Aereokiller service, the latter was originally launched via a website found at www.barrydriller.com (though it has now migrated to David’s FilmOn.com site and is available via an Aereokiller app); it appears to be operated by the David-owned “Barry Driller Content Systems, PLC”. At least I think I’ve got that corporate structure right (there’s clearly a lot going on here). 

In any event, it’s easy to suppose that David may have Aereo and Barry Diller in his sights, at least competitively. But a recent decision by a federal judge in Los Angeles could deep-six both Aereokiller and Aereo: Judge George Wu from the United States District Court for the Central District of California has issued a preliminary injunction against at least some aspects of Aereokiller’s operation.

Continue Reading...

FM Translator Application Dismissal Lists - A Clarification

“Selection Lists” may be filed by email.

Last month we reported on the Media Bureau’s announcement of the deadline and procedures for filing lists of FM translator applications to be dismissed pursuant to the provisions of the “Fifth Order on Reconsideration and Sixth Report and Order” (which we’ve previously referred to as the 6th R&O). In our post, we said that “[a]ll showings will be submitted on paper – there will be no electronic filing.”

Oops. As a helpful member of the Audio Division has pointed out to us, the Bureau’s public notice DOES provide for submission of the Selection Lists (and related “Caps Showings”) by email, which is technically “electronic filing” (even if it doesn’t involve CDBS). 

The address to use: FXshowings@fcc.gov. While that address may or may not be operational as of today (January 3, 2013), we have been advised that it’ll for sure be up and running by January 10, the day the window for filing Selection Lists and Cap Showings opens.

But heads up. The FCC’s email system will not accept attachments larger than 10 MB. The Bureau’s notice instructs that “files beyond that size [i.e., 10 MB] should [be] divided into multiple sub-10 MB documents and sent via separate e-mails.”

Our apologies for any confusion that we may have caused.  And many thanks to our sharp-eyed reader who brought this to our attention.

Online TV Public Inspection File Deadline Looms

With February 4 deadline fast approaching, some more helpful tips for the upload process

As we roll into the New Year, it’s important that full-power TV and Class A TV licensees (we’ll refer to them collectively as “TV licensees” here) keep their eye on February 4. That’s the date by which all TV licensees must have uploaded their public inspection files to the FCC-maintained online site. If you haven’t already done so, now’s the time to inventory your public file, determine what documents have to be uploaded, and start the upload process inmediatamente

As we have been explaining in a series of posts that started last spring (or even earlier) when the new online public inspection file requirements were first adopted, TV licensees must move most (but not all) of the materials in their existing public files to the online system. Earlier this month the Commission officially announced that the deadline for completing that project is February 4, 2013.

What has to be uploaded?

Continue Reading...

Update: Deadline for FM Translator Dismissal Lists Announced

Public notice spells out showings that must accompany applicants’ choices of which 2003-era FM translator applications will stay and which will go

If you’re one of the lucky folks who happens to have translator applications still pending at the Commission from the famous 2003 filing window, heads up – depending on how many applications you have and what markets they propose to serve, you could have a lot of homework to do between now and January 25. That’s because the Media Bureau has announced that the window period for submitting “translator application selection” lists (“Selection Lists”) and related “Caps Showings” will run from January 10-25, 2013

So much for taking any time off during the Christmas/New Year’s/MLK extended holiday season.

The Bureau’s public notice is not unanticipated. As we noted just ten days ago, the Commission is highly motivated to wrap up the long-running face-off between FM translator applicants and would-be LPFM applicants. The culling of the herd of translator applications that have been sitting around for nearly ten years is an essential step in achieving that goal.

As those of you who have been following the LPFM/FM translator imbroglio through our blog already know, the Commission has devised a highly complex set of technical guidelines to govern which translator applications will be processed and which will be dismissed. The applicants themselves will have the first say, but their ability to pick and choose among their pending applications is subject to the Commission’s complex guidelines.

Continue Reading...

A Large Lump of Coal in Mission Abstract Data's Stocking

USPTO rejects validity of most of MAD’s patentability claims, undermining MAD’s assertions that many radio broadcasters may be liable for patent infringement.

Holiday cheer came a little early for many radio broadcasters this year: Santa Claus (disguised as patent examiners at the U.S. Patent and Trademark Office (USPTO)) issued two “Detailed Actions” with respect to challenges that had been directed to the two patents held – and vigorously brandished – by Mission Abstract Data (MAD). Both of those “Detailed Actions” (one related to Patent No. 5,629,867, the other to Patent No. 5,809,246) rejected multiple claims to the patentability of MAD’s technology.

As a result, the likelihood that MAD (or its successor, Digimedia, or its licensing agent, IPMG AG) might receive a significant damage award in any patent infringement litigation which it has broadly hinted at has been reduced substantially.

Regular CommLawBlog readers should be familiar with the MADness that has afflicted the radio industry since 2011. (New to the subject? Get a refresher course by checking out our archives on the subject here.)

Continue Reading...

Incognito Incentive Auction Input Encouraged

Media Bureau offers tips on keeping commenters’ ID’s on the QT.

In an effort to coax otherwise reticent TV broadcasters to join in the public discussion about the Commission’s plans for incentive auctions, the Media Bureau has issued an unusual public notice providing “additional guidance” relative to the fine art of filing comments anonymously. (Exactly when the Bureau had previously provided any such guidance isn’t clear – we certainly don’t remember any – but they’re claiming that this new guidance is “additional” to something, and who are we to say them nay?)

The notice reflects the Bureau’s recognition that some, perhaps many, broadcasters might be reluctant to chime in on the auction proposals because public disclosure of auction-related sensitivities now might be disadvantageous come auction time. It’s always wise to keep your cards close to your vest, so individual TV folks might logically prefer not to reveal questions or concerns that might signal their ultimate auction strategy if and when the auction actually happens. (Even Congress, in mandating the incentive auction process in the first place, provided for confidentiality relative to some information submitted by reverse auction participants.)

Logical though that close-to-the-vest approach may be, it’s contrary to the Commission’s effort to assemble the most comprehensive record possible. As the Commission sees it, the more information it can gather relative to the interests of broadcasters now, the more likely the Commission will eventually be able to design incentive auctions that will attract maximum broadcaster participation. And the more broadcasters that participate in the auction, the greater the likelihood that the auction process will free up maximum spectrum for the Great God Mobile Broadband.

So the Bureau is making clear not only that you can file anonymously, but also how to file anonymously.

Continue Reading...

D.C. Circuit Orders TV Channel Reallocations

Wyoming, Nevada VHF’s movin’ on up to the East Side

Back in June, 2009, we wrote about PMCM TV, LLC, a company which owns two VHF TV stations, one in Ely, Nevada, the other in Jackson, Wyoming. The first business day after the DTV transition took effect, PMCM notified the Commission that PMCM was willing to move its stations to New Jersey and Delaware, and asked that those moves be approved.

A number of folks thought PMCM (which happens to be represented by us here at FHH) was crazy.

Even when it was explained that PMCM was relying on very clear language in the Communications Act (Section 331(a), to be exact), the proposed relocation of the stations was met with, um, considerable, occasionally polite, skepticism.

The nay-sayers presumably felt particularly vindicated when first the Media Bureau and then the full Commission rejected PMCM’s arguments.

But PMCM forged ahead to the U.S. Court of Appeals for the D.C. Circuit, where it found its own vindication.  In a unanimous decision, the Court has reversed the Commission’s decision and ordered the Commission to approve PMCM’s proposed reallocations.

CALM Act Waiver Door Re-Opened, But Just A Bit

"Small" TV stations and MVPD operators now have until December 13, 2012 to file streamlined financial hardship waiver requests.

If you’re a “small” TV station or MVPD operator who missed the October deadline for filing for waiver of your obligations under the CALM Act, but you’re still not going to be in compliance with the Act when it takes effect on December 13, 2012  (that's right, the day after tomorrow), DON'T PANIC. Christmas/Hanukkah/Kwanzaa has come early this year.

The Commission has announced that it will accept “streamlined financial hardship waiver requests” through December 13, 2012, even though the original deadline was back in October. So if you qualify, you've got two more days to get your request in to the Commission.

Not clear on whether you’re eligible to file such a request, or what you might need to file if you are eligible, or how to file it? You could check out our post from last October, or we can save you the trouble by shamelessly repurposing the relevant portions of that post here, as follows:

Continue Reading...

Effective Date of New LPFM Rules Set

Updated “water files” also released as FCC works to advance LPFM/FM translator plan

Having settled on a framework for clearing the FM translator logjam and getting the LPFM application process up and running (at least in theory), the Commission is losing no time in its efforts to implement that framework. The “Fifth Order on Reconsideration and Sixth Report and Order” in the ongoing LPFM/FM translator saga has now been published in the Federal Register. (We wrote about that order last week.) Barring a stay of the effectiveness of the order – and such a stay is unlikely in the extreme – the new rules will become effective on January 10, 2013. (That will also be the deadline for petitions for reconsideration, should anybody be inclined to seek reconsideration.  Parties interested in seeking judicial review will have until February 9 to get their petitions for review filed with an appropriate court.)

The Federal Register publication (and consequent effective date) probably won’t have any immediate impact on things, though. What will have an immediate impact will be the FCC’s public notice concerning the deadline by which applicants with more than the permitted number of translator applications must elect which of their applications they plan to dismiss. That public notice could show up any time now. Since (1) the Commission appears keen on getting the LPFM show on the road, and (2) the LPFM window process won’t be able to proceed until the translator backlog is cleared, and (3) the translator backlog won’t be cleared until dismissal elections have been made, and (4) dismissal elections won’t be made until the FCC sets a deadline for them, our guess is that that deadline is likely to be announced sooner rather than later. Check back here for updates.

And also on the LPFM front, the Commission has released some updated “water files” for certain markets. These files clarify or correct certain “minor discrepancies” with respect to the possible exclusion of grid points at locations over water or not within the United States. (For more on the significance of “grid points” and related matters, see our post from last April.) The communities affected by the updated water files: Chicago; Detroit; Los Angeles; and Jacksonville (the one in Florida). The code, updated water files and other relevant materials may be accessed in a zip file at http://www.fcc.gov/Bureaus/MB/Databases/source_code/lpfm/lpfm6.20121206.zip.

FCC Bars Non-Emergency Robocalls to PSAP Numbers

New rules impose new obligations, hefty potential penalties, on politicians and non-profits (including NCE broadcasters) who use automatic phone dialing gear for public outreach.

Unwanted marketing telephone calls are merely annoying for most of us, but in some cases they’re actually dangerous. A marketing call that goes to a number in a 911 service center can block capacity needed for an emergency call – basically, it ties up a line that could and should otherwise be open for real emergency calls, not commercial come-ons or requests for contributions – and the results can be disastrous. 

Simply blocking “911” from automatic dialing equipment won’t do the trick. That’s because the well-known “911” is just an expedient device making it easy for the public to reach help in case of an emergency. In fact, when you dial “911,” your call is directed to a conventional 10-digit phone number at a Public Safety Answering Point, or “PSAP”. The full 10-digit numbers associated with PSAP’s aren’t generally publicized, but that makes no difference to automatic equipment that initiates marketing calls. That equipment simply dials random or sequential numbers; the odds are that such calls will hit some PSAP numbers sooner or later.

The FCC has now adopted rules establishing a new and separate “do-not-call” registry designed specifically to protect PSAP numbers from non-emergency calls. Why? Because Congress told them to do it in the Middle Class Tax Relief and Job Creation Act of 2012 – the same sweeping law that brought us, among other things, the reverse and forward auctions aimed at TV spectrum repacking. The new rules apply to both voice and text messaging calls to PSAP numbers. Congress wasn’t fooling around, and neither is the FCC. The statute mandates fines of at least $100,000 and up to $1 million per call for automatically dialed calls (“robocalls”) directed to PSAP numbers. Telemarketers must check the FCC’s database at least once every 31 days.

We hope that most, if not all, of you are familiar with the “Do Not Call” list created several years ago by the FCC and Federal Trade Commission (FTC). You can put your home number on the list at www.donotcall.gov (some 209 million numbers have been registered). Telemarketers (at least those who observe the law) are not allowed to call numbers on that list.

But the FTC’s “Do Not Call” list doesn’t stop all uninvited – and possibly unwanted – calls.

Continue Reading...

FCC Approves "White Space" Devices in Eastern U.S.

New systems must protect many other services from interference.

Fully four years after adopting rules for unlicensed TV Band Devices (TVBDs), also called “white space” systems, the FCC has authorized roll-out beyond the two small test areas previously approved. Touted by advocates as “Wi-Fi on steroids,” TVBDs can now boot up in New York, New Jersey, Pennsylvania, Delaware, Maryland, Washington DC, Virginia, and North Carolina.

The FCC expects to extend authorization nationwide by mid-January.

TVBDs are required to avoid causing interference to multiple services: broadcast TV; fixed broadcast auxiliary service links; receive sites for TV translators, low power TVs, Class A TVs, and multichannel video programming distributors; public safety and private land mobile; offshore radio telephone; radio astronomy; and “low power auxiliary service,” which includes licensed (and some unlicensed) wireless microphones. 

The complexity of the TVBD rules results from the need to ensure that all of these services can operate unharmed. In many metropolitan areas having multiple TV channels and heavy use of wireless microphones, vacant spectrum for TVBDs is already scarce. The FCC’s ongoing plans to consolidate TV broadcasters onto fewer channels, so as to free up more spectrum for wireless use, will only make things worse.

Simultaneously with the spread of TVBDs into the Middle Atlantic states, the FCC expanded its registration program for wireless microphones from those same states out to the rest of the country, keeping the wireless mic registrations a step ahead of the TVBD roll-out.

FCC Launches Nationwide Registration of Wireless Microphones

Registration is needed to protect qualifying events from interference caused by TV Band Devices

The FCC has expanded its registration program for wireless microphones from the Middle Atlantic states to the rest of the country.   Registration helps to protect qualifying wireless microphones that operate in vacant TV channels from interference caused by TV Band Devices (TVBDs), also called “white space” systems, that likewise use vacant TV slots.

When the FCC established rules for TVBDs, it required those devices to avoid interfering not only with TV stations, but also with several other categories of equipment operating on TV frequencies. The most populous of those, by far, are the wireless microphones that are ubiquitous in TV, stage, and film production.

Most wireless microphones used in TV and films are licensed by the FCC.  Most others – including those used in stage shows, churches, and the FCC meeting room – operated illegally until January 2010, when the FCC authorized low-power models on an unlicensed basis by waiver. (As it considers whether to make those rules permanent, the FCC recently sought to update the record on wireless microphone issues generally.)

Two TV channels in every market are closed to TVBDs, so as to leave room for wireless microphones. Licensed wireless microphones needing additional channels are entitled to interference protection from TVBDs. So are unlicensed microphones on other channels, but only if used for major sporting events, live theatrical productions and shows, and similar occasions that require more microphones than the set-aside channels can accommodate.

To implement protection, qualified events must register in the database that controls which frequencies TVBDs can use at each location. The FCC has authorized the operation of TVBDs in New York, New Jersey, Pennsylvania, Delaware, Maryland, Washington DC, Virginia, and North Carolina, and expects nationwide authorization by mid-January. Those who distribute or use wireless microphones should make sure any needed registrations are in place before TVBDs are deployed in their vicinity.

The details of the registration process are available here. The conditions and procedures are complex; and the FCC cautions that most uses of unlicensed wireless microphone do not qualify for registration. We recommend planning ahead.

Update: Reply Comment Deadline Extended in Latest CVAA Rulemaking

The Commission has extended the deadline for reply comments in its rulemaking proceeding concerning possible expansion of the obligations of video providers with respect to emergency information. (The proposal arises from the Twenty-First Century Communications and Video Accessibility Act of 2010, or CVAA.)  We wrote about the NPRM in that proceeding here, noting that the original comment deadlines were pretty darned abbreviated, particularly in view of the complex proposals under consideration. While the comment deadline remains December 18, the reply comment deadline has now been extended to January 7, 2013.

Final NCE Royalty Rates Set For 2013-2017

The Copyright Royalty Board (CRB) has announced its final determination of the rates and terms for use of copyrighted works by noncommercial educational (NCE, a/k/a “public”) broadcasters for 2013-2017.  This wraps up the proceeding I’ve kept readers up to speed on through a couple of posts over the eight months.  (You can check them out here and here.)  The new rates and terms will be in effect from January 1, 2013 through December 31, 2017.

So now all NCE broadcasters – small community stations, educational institutions and large scale public radio and television stations) – know exactly how much they’ll be paying to ASCAP, BMI and SESAC for the right to use the underlying music and lyrics in all songs included in their over-the-air broadcast programming for the next five years.  (As I have previously mentioned, the new rates/terms technically also cover the use of pictorial, graphic and sculptural works, but the reality is that it’s all about the music.)  

Important note: the CRB’s determination does not relate to the use of sound recordings for webcasting purposes.  The current webcasting royalties, for both commercial and noncommercial webcasters, were set back in 2010, as I described in my post back then.  (As to webcasting royalties, NCE stations should not forget that their annual reports, payments and (in some cases) elections will be due in January, 2013.  Check back here for additional reminders on that score -- although I'll be sending out reminders to many of our clients starting next week.)

The proceedings leading up to the adoption of the 2013-2017 royalties could not have gone more smoothly (even though it did take almost two years to reach this point).

Continue Reading...

FCC Looks to Bring More Emergency Information to the Visually Impaired

NPRM to implement additional mandates of the Twenty-First Century Communications and Video Accessibility Act is on the fast track

As our readers know, in the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA), Congress aimed to ensure that folks with disabilities have “better access to video programming”.  In the two years since the CVAA was enacted, the Commission has taken multiple steps to comply with that statutory direction.

But one important component of “video programming” remains to be addressed: emergency information during non-news programs.  Existing rules already provide that all pertinent emergency information broadcast during regular or special newscasts must include an aural component for visually impaired persons.  But what about announcements broadcast outside of newscasts? 

We all know that emergencies don’t occur strictly at 6:00 p.m. or 11:00 p.m. (or even at the new trendy 4:00 or 5:00 a.m. hour), conveniently timed for scheduled newscasts.  It’s not unusual for broadcasters to interrupt non-news programming to air emergency information short of devastating disaster coverage – such as weather warnings or alerts about dangerous circumstances (flooding, chemical spills, wildfires, etc.).  Such information is often displayed on a visual crawl or some similar visual method, without accompanying audio.  In such situations, the FCC requires only that the broadcaster include an aural tone that alerts visually impaired viewers so that they can turn on a radio or ask someone else to read the screen for them. 

But that might place the visually impaired at a disadvantage by making the emergency information available too late for proper responsive action.  In keeping with its CVAA mandate, the FCC has issued a Notice of Proposed Rulemaking (NPRM) looking to expand the existing rules to require that emergency information be provided aurally using the same secondary audio stream that is now used for various purposes.  (Those purposes include video description and, sometimes, Spanish or other foreign language soundtracks.)  And in a related proposal, the Commission is also inviting comments on how it should implement the statutory requirement to prescribe regulations requiring receiving apparatus to have the capability to decode and make emergency information available.

Continue Reading...

Translate This (Again)! Final Framework for LPFM/FM Translator Resolution Adopted

Commission adjusts FM translator application caps as process to clear FM translator backlog looms; LPFM window tentatively set to open in October, 2013

It looks like the long-running tug-of-war for spectrum between low-power FM (LPFM) advocates, on the one hand, and FM translator advocates, on the other, may be close to wrapping up, at least as far as the FCC is concerned. With a “Fifth Order on Reconsideration and Sixth Report and Order” (we’ll just refer to it as the 6th R&O), the Commission has tied up some loose ends remaining from last March’s “Fourth Report and Order and Third Order on Reconsideration” (4th R&O) and adopted new rules and policies governing LPFM applicants.

With these changes, the Commission is positioned to move forward on two related fronts. First, it should be able to clear the logjam of 6,000 or so translator applications remaining from the 2003 FM translator window. And second, it can establish a timeline for the first LPFM window filing opportunity in more than a decade.

Anyone new to the LPFM/FM translator imbroglio – or anyone who may not recall the monumental effort the Commission made earlier this year to solve that seemingly insoluble conundrum – may want to take a quick look at our coverage of that effort. You can find some relevant posts from last April, here, here and here. Having dealt with all that heavy regulatory lifting, the Commission was able to make the 6th R&O relatively straightforward and limited in scope (although it still weighs in at a hefty 83 pages, not counting appendices and Commissioners’ statements). In it, the Commission fine-tunes its approach to the translator backlog and sets the stage for a window for new LPFM applications tentatively set to open on October 15, 2013.

Here are the highlights:

Continue Reading...

Update: Forms 314, 315 Revised To Reflect "Tribal Priority" Policies

New certifications for radio assignment/transfer applicants

Over the last couple of years, the Commission has, in its “Rural Radio” proceeding, taken steps to facilitate the acquisition, by Native American Tribes, of radio broadcast stations designed to serve primarily Tribal Lands. (You can read about some of those steps here, here and here.) The most recent of those steps were taken late last year but, as we reported last January, they did not all become effective then because of the Paperwork Reduction Act. Now, at long last, the Commission has announced that the Office of Management and Budget has approved some relatively modest changes to FCC Forms 314 and 315. Those changes should assist in the implementation of the service-to-Tribal-Lands initiative by requiring certifications concerning whether the station to be assigned (through FCC Form 314) or transferred (through FCC Form 315) is subject to “Tribal Priority” restrictions. The revised forms are in effect as of December 4, 2012.

Update: Incentive Auction Comment Deadlines Extended

Overwhelmed by the enormity and complexity of the Incentive Auction NPRM (which it took us six – count ‘em, six) separate posts to summarize)? No problem. Thanks to the NAB and CTIA-The Wireless Association®, who jointly requested more time, the FCC has extended the deadlines for comments on the NPRM. Mark your calendars: comments are now due by January 25, 2013, and reply comments are due by March 12.

Reminder: ALL DTV Broadcasters Must File Form 317 by December 3

If you’re broadcasting video in digital, we’re talking to you.

Attention, all DTV broadcasters! Your Form 317 is due at the FCC by
December 3
. You get an extra couple of days this year (since the normal December 1 due date falls on a Saturday), but those two days should give you plenty of time to complete and file the form. 

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, 2011 – September 30, 2012, 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 by the public are not considered to be ancillary or supplementary services.

The filing requirement applies to all digital broadcasters of television programming, including 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 3.

In a public notice reminding one and all of the requirement, the Commission 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.

If you would like any help in navigating the electronic filing or have any questions about the form and what needs to be included, please let us know. While we won’t help with any payments that may be due, we can assist you in the filing process.

Inside the Incentive Auction NPRM (Part 6): Reconfiguration for Wireless - The Final Step

[Blogmeister’s Note: This is the last in a series of posts describing the FCC’s Incentive Auction Notice of Proposed Rulemaking. You can find all installments in this series by clicking here. Contributors to this series include Dan Kirkpatrick, Rob Schill, Don Evans and Harry Cole.]

Once the “reverse” and “forward” auctions have both been completed and TV licenses have all been tucked away in their newly-compacted space, the fun will really begin for the Commission.

Once the “reverse” and “forward” auctions have been completed and the broadcast TV industry has been repacked, the FCC will finally be able to reconfigure the vacated UHF spectrum for mobile. But determining, now, precisely how that reconfiguration will ultimately look, then, poses a unique challenge in view of the number of unknowns currently in play.

Until the “reverse” auction is completed, questions will remain regarding the amount of spectrum that will be available for reconfiguration, the particular frequencies comprising that available spectrum, and the geographic locations covered by that spectrum. Therefore, the band plan described in the Incentive Auction Notice of Proposed Rulemaking (NPRM) is more of a “framework” based on the expectation of cleared frequencies. In admirable bureaucratese, the NPRM describes its goal as “a band plan that balances flexibility with certainty.” 

The certainty includes proposing a fixed amount of downlink spectrum nationwide with uplink spectrum possibly varying in different geographic areas. The idea is to best utilize what are expected to be varying amounts of cleared spectrum in different geographic areas. By providing uniform downlink spectrum throughout all geographical areas, the Commission hopes to assure a more interoperable universe at the device level, where each mobile device can use the same receive filters while the carriers’ base stations can be modified to allow for multiple uplink spectrum signals. A level of interoperability at the device level is expected to lead to lower device costs while allowing for greater economies of scale. 

Consistent with the uncertainties surrounding the final reconfiguration process, the Commission advises that its general “focus” is on five “key policy goals”, to wit: utility, certainty, interchangeability, quantity, and interoperability.

Continue Reading...

Inside the Incentive Auction NPRM (Part 5): The "Forward" Auction

[Blogmeister’s Note: This is another in a series of posts describing the FCC’s Incentive Auction Notice of Proposed Rulemaking. You can find all installments in this series by clicking here.Contributors to this series include Dan Kirkpatrick, Rob Schill, Don Evans and Harry Cole.]

The “forward” auction to be used to dole out reconfigured spectrum to wireless operators may seem traditional, but watch out. 

If the “reverse” auction designed to clear TV broadcasters out of large chunks of their current spectrum isn’t complicated enough, consider the “forward” auction. That’s the component of the Incentive Auctions in which hopeful wireless licensees will bid on the to-be-vacated spectrum sight unseen at the same time that the spectrum is being cleared. Because the availability of wireless licenses is dependent upon the results of the reverse auction in different geographic areas, wireless bidders won’t know exactly which spectrum band they’re bidding on or even whether any band will actually be available when the reverse auction is over. 

This double helix of descending bids on spectrum simultaneously coupled in sequential stages with parallel ascending bids on that same spectrum is audacious. But it is theoretically an efficient and quick way of re-assigning a precious resource.

Complexity in the computer age is not necessarily a deal breaker, but human (and computer) fallibility gives us some pause about this plan. Through the Incentive Auction Notice of Proposed Rulemaking (NPRM), the Commission is still looking for input on its plan, so we can expect experts from the world of Academia to chime in knowledgeably on the concept. 

In the meantime, we lay out here the Commission’s preliminary thoughts. The three basic auction design elements are: bid collection procedures, assignment procedures, and pricing.

Continue Reading...

Inside the Incentive Auction NPRM (Part 4): TV Repacking - The Practical Side

[Blogmeister’s Note: This is another in a series of posts describing the FCC’s Incentive Auction Notice of Proposed Rulemaking. You can find all installments in this series by clicking here. Contributors to this series include Dan Kirkpatrick, Rob Schill, Don Evans and Harry Cole.]

Once the final participants in the repacking of the TV band have been identified through the "reverse" auction process, the shuffling of stations necessary to accomplish the repacking will raise a number of practical considerations and conundrums. 

Once the auctions have been completed, the Commission and the TV industry will have to grapple with the practical implementation of repacking: who gets what channels, how will stations moving from one channel to another effectuate that transition, what (if any) reimbursement of transition costs will be available, and to whom. This phase of the process will affect all TV broadcasters, whether or not they opted to participate in the “reverse” auction.

 Initially, the post-transition channels to which full power and Class A station will be assigned will be determined by the FCC, without input from licensees. The Commission will use a software program to figure out the optimal way to squeeze the TV industry into the portion of the current TV band that will remain, post-auction, available for TV operations.   Although stations are not to be involuntarily moved from UHF to VHF, almost any other move will be fair game as long as it’s consistent with the auction results.  Licensees unhappy with whatever “new” channel they are assigned to will have very limited recourse: the Spectrum Act denies stations the right to protest modifications of their licenses (i.e, channel changes)imposed by the Commission to accomplish the repacking.

Re-licensing ProceduresOnce the Commission announces its repacked TV band, a number of procedural steps will have to be taken: as we all learned from the transition to DTV several years ago, it’s one thing for the FCC to specify where stations are supposed to operate on the spectrum; it’s an entirely different thing to get those stations up and running on the appointed channels.

Continue Reading...

Inside the Incentive Auction NPRM (Part 3): Doing More with Less - Repacking the TV Band

[Blogmeister’s Note: This is another in a series of posts describing the FCC’s Incentive Auction Notice of Proposed Rulemaking. You can find all installments in this series by clicking here. Contributors to this series include Dan Kirkpatrick, Rob Schill, Don Evans and Harry Cole.]

Whether or not you plan to participate in the “reverse” auction, if you’re a TV licensee, you should be aware of what the FCC has in mind for the spectrum around you.

It’s important to understand that the Incentive Auction program is merely a device designed to facilitate the “repacking” of the spectrum. That is, the FCC is dead-set on freeing up space for mobile broadband use in spectrum currently occupied by TV broadcast stations. In other words, many TV licensees can be expected to be moved off their current channels, whether voluntarily (through the “reverse” auction process) or by forced relocation. So while TV licensees not planning on participating in the “reverse” auction” may not be terribly concerned with the mechanics of submitting bids, all TV broadcasters need to pay attention to the FCC’s proposed approach to repacking the spectrum. 

Under the Spectrum Act, when the Commission relocates TV stations in its repacking efforts, it must take “all reasonable efforts” to preserve the “coverage area” and “population served” of every surviving full power or Class A station. For these purposes, “coverage area” and “population served” are to be determined using the methods set out by the Office of Engineering and Technology’s Bulletin No. 69 (OET-69). LPTV and translators station will receive no protection during the repacking process and will be subject to displacement by any relocated full power or Class A station, although the NPRM does request comment on some measures designed to help LPTV and translator stations survive in a post-auction world. 

As for full power and Class A stations, the Commission in the Incentive Auction Notice of Proposed Rulemaking (NPRM) is looking to determine just what “coverage area” and “population” must be protected. Under OET-69, the term “coverage area” is not defined, but it is used synonymously with “service area” as that latter term is defined in Section 73.622(e) of the rules. While “coverage area” (or “service area”) does not account for interference from other stations, OET-69’s measurement of “population served” does, counting only population that is both within the “coverage area” and where the signal is not masked by interference.

Continue Reading...

Inside the Incentive Auction NPRM (Part 2): Who's Eligible for the "Reverse" Broadcast Auction?

[Blogmeister’s Note: This is another in a series of posts describing the FCC’s Incentive Auction Notice of Proposed Rulemaking. You can find all installments in this series by clicking here. Contributors to this series include Dan Kirkpatrick, Rob Schill, Don Evans and Harry Cole.]

Hint: Maybe fewer folks than you might have thought.

Who will be eligible to participate in the “reverse” spectrum auction? Not, it would appear, everybody who might want to.

As required by Congress in the Middle Class Tax Relief and Job Creation Act of 2012 (which the FCC prefers to refer to as the “Spectrum Act”), in its Incentive Auction Notice of Proposed Rulemaking (NPRM), the Commission proposes significant eligibility limitations as far as the “reverse” auction goes.

First and probably most important, the only folks who could participate in the “reverse” auction would be licensees of full power and Class A television stations, both commercial and noncommercial. That automatically eliminates LPTV licensees and TV translator licensees.

But Class A licensees should not necessarily be breathing easily, particularly in light of the Commission’s recent attempts to downgrade a number of Class A stations to LPTV status.   The NPRM proposes that any station whose Class A status has been revoked by the Commission would not be eligible to participate in the auction, even if the order downgrading the station has not become final by the time of the auction. (Licensees who get downgraded can seek reconsideration or review of the decision to downgrade, thus avoiding finality and keeping alive – or so they hope – the possibility that the decision might be reversed during the appeals process. Under the FCC’s proposed eligibility criteria for the reverse auction, however, any effort to reverse a downgrade might be pointless if the auction, and consequent repacking, occurs before the downgraded station could be restored to Class A status.) 

There are some potential limiting considerations for full power licensees, too.

Continue Reading...

Brrrrr - FM Minor Mod Freeze Announced

 With the deadlines for FM Auction 94 now on the books, the Commission has also announced that it will not accept ANY commercial or noncommercial minor mod applications between January 28 and February 6, 2013. That’s the filing window for short form (Form 175) applications for Auction 94.

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 January 28 or be prepared to cool your heels for ten days until the freeze thaws on February 7.

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

Auction 94 - The Dates Are Set

 The FCC has released a notice setting the procedures for Auction 94, the FM bid-fest set for next Spring.  Get out your checkbooks . . . and your calendars – since, as we predicted a couple of months ago, the schedule of events initially announced back then has been changed.

The auction will look much the same as previous sales conducted by the FCC, at least in terms of the procedures. But be prepared for disappointment if, based on the Commission’s initial listing of channels up for bids, you had your heart set on getting a station in: Newark, Maryland (not New Jersey, or even Delaware); or Arlington, Oregon (not Texas or even Virginia); or Rocksprings, Texas, Chincoteague, Virginia, or Baggs, Wyoming. All five of those channels have been pulled from this year’s auction because they had been inadvertently omitted from a 2006 version of the Table of FM Allotments. Oops. No problem, though – they’ll all presumably be available in a future auction. And anyway, you’ve still got 112 channels to bid on this time around.

Anybody looking to set up shop in the Great Northwest should be pleased, because the minimum opening bids on three Washington State channels have been slashed dramatically. Class A channels at Oak Harbor, Sequim and Sedro-Wooley (presumably not to be confused with Sheb Wooley of “Purple People Eater” fame) initially commanded minimum bids of $25,000, $20,000 and $45,000, respectively. Forget all that. Bidding for Oak Harbor will now be starting at a paltry $15,000 – that’s a 40% reduction! But wait, there’s more. Sequim and Sedro-Wooley have both been slashed by nearly 90%. The opening -- and potentially only -- bid for Sequim is a mere $1,500, and Sedro-Wooley, originally listed at $45,000, is now down to $5,000.  

All of the remaining 109 permits will start with the same prices proposed by the FCC back in September

Potential bidders should mark their calendars with the following important dates – and note that there has been a change in one of those important dates since our last report:

Continue Reading...

Inside the Incentive Auction NPRM (Part 1): The Overall Auction Design

[Blogmeister’s Note: This is the first in a series of posts describing the FCC’s Incentive Auction Notice of Proposed Rulemaking. You can find all installments in this series as they are posted by clicking here. Contributors to this series include Dan Kirkpatrick, Rob Schill, Don Evans and Harry Cole.]

An overview of the FCC’s proposed approach to spectrum-clearing/spectrum-repopulating incentive auctions and some of the myriad factors at play in that process.

The Incentive Auctions are coming. No doubt about it. TV and Class A licensees will be given the opportunity to cash in in return for making some or all of their spectrum available for repurposing (the beneficiaries of the repurposing being wireless broadband operators). The innovative concept floated out two years ago in the National Broadband Plan is now targeted for implementation in 2014 . . . if about a million different moving parts all happen to align just right. 

Recently, Commission officials (including Commissioner Rosenworcel and Incentive Auction Task Force co-leader Gary Epstein) have emphasized the importance of making the auction process understandable and easy to participate in. As Rosenworcel put it, “[s]implicity is key . . . [A]t every structural juncture [of the auction design], a bias toward simplicity is crucial”. 

Perhaps. But that brings us to the Commission’s Notice of Proposed Rulemaking (NPRM) in which it lays out – over 140 pages of single-spaced text plus 26 pages of proposed rules plus 22 pages of additional appendices plus 15 pages of separate statements by the Commissioners plus a 20-page “Incentive Auction Rules Option and Discussion” – the agency’s thoughts on the Incentive Auctions’ design.

“Ease” and “simplicity” do not spring to mind as the reader slogs through the dense, highly technical NPRM.

Continue Reading...

Update: FCC Seeks Input on Proposed Change in Contest Rule

 Ten-month-old proposal takes first step toward possible rulemaking.

Last January, we wrote about a proposal by Entercom Communications Corp. to change the FCC’s on-air contest rule. As we all know, that rule requires that, when a station promotes a station-conducted contest on the air, the station must disclose – on the airall the material terms of the contest.  Such disclosures can be a real drag programming-wise, even when they’re jammed into the kind of compressed super-fast babble normally reserved for extended disclaimers about sketchy products. 

Entercom has sensibly suggested that broadcasters be permitted to post contest rules on their stations’ websites, rather than subject listeners to the fine-print recitations the Commission currently requires.  (Note that the Enforcement Bureau has expressly held that, under the current on-air contest regulation, licensees may not rely exclusively on website posting of contest rules to satisfy Section 73.1216.)

Ten months after Entercom’s petition rolled in the FCC’s door, the FCC has finally gotten around to asking how anybody else feels about the proposal. If you would like to chip in your two cents’ worth, you’ve got until December 20, 2012 to let the Commission know. This invitation for comments does not mean that the Commission will for sure change the rule, or even issue a notice of proposed rulemaking (which would be a necessary step before the rule could in fact be changed). But the invitation does give interested parties the opportunity to let the Commission how they really feel about this issue. A solid show of support at this stage could improve the prospects for the eventual adoption of Entercom’s proposal.

NCE On-Air Fund-Raising For Superstorm Sandy Relief Efforts

FCC announces procedures for waiver requests by noncommercial broadcasters

Broadcasters have historically responded to catastrophes with incredible humanity, offering help wherever and whenever possible.  And the devastation that Superstorm Sandy wreaked on the eastern seaboard – and particularly the Jersey Shore and NYC – has provided yet another unfortunate opportunity for that humanity to manifest itself again. As the horrific stories and images roll in, noncommercial educational (NCE) broadcast stations may want to undertake fund-raising efforts to support relief efforts. The FCC clearly does not want to do anything to discourage such laudable humanitarian impulses. 

However, rules are rules – and the Commission’s rules (Sections 73.503(d) for radio and 73.621(e) for TV) generally prohibit NCE broadcasters from engaging in on-air fund-raising activities on behalf of anybody but the station itself.

Not to worry. The Commission has historically waived that prohibition following “disasters of particular uniqueness or magnitude” – Hurricane Katrina, the 2004 Southeast Asia earthquake/tsunami, the 2010 Haiti earthquake and the 2011 Japanese earthquake/tsunami come to mind as ready examples. And just to be sure that we all know that the FCC views Sandy to be in the same league, the Commission has issued a public notice laying out the procedures by which NCE licensees may request waivers so that they can engage in fund-raising for relief efforts.

Stations seeking such waivers should prepare an informal request providing the following basic details of their fund-raising activity:

  • the nature of the fundraising effort;
  • the proposed duration of the fundraising effort;
  • the organization(s) to which funds will be donated; and
  • whether the fundraiser will be part of the licensee’s regularly scheduled pledge drive or fundraising effort.

Of course, the public notice does not guarantee that such requests will automatically be granted, but it’s a very good bet that the Media Bureau will be strongly inclined to bless Sandy-related fund-raising efforts.

These informal requests should be emailed to the FCC.  NCE television licensees should address their requests to Barbara Kreisman (barbara.kreisman@fcc.gov). NCE radio licensees should address their requests to Peter Doyle (peter.doyle@fcc.gov) and Michael Wagner (michael.wagner@fcc.gov). Those points of contact are also available for any particular questions you might have about such things.

For "Reasonable Access" Purposes, Predicted NLSC Determines a TV Station's Service Area

Bureau rejects station’s reliance on Longley-Rice study to show that its service area does not reach the state where pro-life presidential candidate Randall Terry is on the ballot.

With less than a week to go before Election Day, the Media Bureau has ordered Station WUSA(TV), the CBS affiliate here in Washington, to sell time to pro-life presidential candidate Randall Terry. But Terry’s not on the ballot in Washington. Nor is he on the ballot in adjacent Maryland or Virginia.  No problem, said the Bureau, because he is on the ballot in West Virginia. And despite WUSA’s claims to the contrary, the Bureau concluded that WUSA’s predicted signal contour covers enough of West Virginia to subject the station to the statutory requirement to provide “reasonable access” to any qualified candidate for federal office.

This decision is of particular importance to stations whose predicted signals may extend into multiple states, because it could result in “reasonable access” burdens beyond what such stations might otherwise expect. Just ask WUSA.

Continue Reading...

DIRS Activated as Hurricane Sandy Makes Landfall

Sweeping alert affects communications providers in 150+ counties across 10 states and DC.

As we anticipated, the FCC has activated its Disaster Information Reporting System (DIRS), to enable it to monitor damage to broadcast and telecommunications facilities during Hurricane Sandy.  (Note that the activation has occurred even though the FCC itself is shut down because of the storm -- major props to the folks in the FCC's Public Safety and Homeland Security Bureau for stepping up to shoulder this important responsibility.)

The DIRS is a voluntary, web-based system that communications providers – a universe that includes wireless, wireline, broadcast, cable and Voice over Internet Protocol providers – can use to report “communications infrastructure status and situational awareness information during times of crisis.” The FCC is asking that providers submit their reports starting 10:00 a.m. on Tuesday, October 30, 2012, and every day after that by 10:00 a.m. until DIRS is deactivated.

In particular, the Commission wants to know, among other things, the status of communications equipment, restoration efforts, power (i.e., whether providers are using commercial power, generator or battery), and access to fuel, if they provide service to certain affected areas.

What are those areas? Given the enormous size of Sandy, there are a lot of them. Take a deep breath. Here are the areas the FCC has identified:

Continue Reading...

As Sandy Nears, FCC Provides Emergency Response Information

 With Frankenstorm Sandy muscling its way up the East Coast and preparing to turn inland in a couple of days (if virtually all the current weather reports are to be believed), the FCC has started its anticipatory disaster response. A public notice released late Friday, October 26, alerts the public to an “advisory tip sheet” on communicating during emergency conditions. The tips, developed by the Commission in partnership with the Federal Emergency Management Agency (FEMA), aren’t what you’d call radical or cutting-edge by any means, but they serve as an excellent reminder that, in emergencies, caution, cool heads and common sense are among the most useful tools available.

And in a separate public notice, the FCC has confirmed that its Operations Center will be open all this weekend, 24-hours-a-day, to address emergency communications needs as they arise. (Presumably the Center will stay open during the coming week as the storm makes landfall, but the notice released Friday addresses only this weekend.) Emergency communications providers – a universe that includes broadcasters, cable operators, wireless and wireless providers, and, of course, first responders – should contact that Operations Center if they need help in initiating, resuming, or maintaining communications operations during the weekend. The phone number for the FCC Operations Center is 202-418-1122, and its email address is FCCOPCenter@fcc.gov. 

Other emergency contacts listed on the FCC’s website include:

Eric Panketh
Acting Division Chief
phone: 202-418-0063
email: Eric.Panketh@fcc.gov

Tim Perrier
Associate Division Chief, Operations and Security
phone: 202-418-1190
mobile: 202-907-4424
email: Timothy.Perrier@fcc.gov

Steve Maguire
Associate Division Chief, Plans and Programs
phone: 202-418-0614
mobile: 202-365-1539
email: Steve.Maguire@fcc.gov

Louis Sigalos
Regional Communications Liasion
phone: 281-492-6288
email: Louis.Sigalos@fcc.gov

Historically, the Commission has also activated its Disaster Information Reporting System (DIRS) in the face of approaching hurricanes. Such activation has not yet been announced by the FCC (as of 9:00 a.m. on Saturday, October 27), but we won’t be surprised if word comes down before the weekend is out that the DIRS is open for business. Check back here for updates.

Rural Radio Rules Revisited (Again)

FCC tweaks with the fine-tuning knob, but whether the picture is any clearer remains to be seen.

In early 2011, the Commission shook up the radio world by adopting dramatic changes to policies governing the extent to which radio stations might be able to locate themselves in or near larger urban areas. In a recently-released document we’ll refer to here as Recon II (official title: “Second Order on Reconsideration”), those revised policies have now been tweaked (a) to exempt a limited number of applications, and (b) for those still subject to the policies, to change the way certain things are handled. Depending on any proponent’s particular circumstances, those changes might or might not make it harder for the proponent to get FCC clearance to change its community of license.

The revised “rural radio” policies (which appeared in a document we have referred to in previous posts as the Second R&O) are described in detail in our post from March, 2011. If you haven’t read that lately, take the time to read it now. We’ll wait.

In a nutshell, the 2011 changes imposed a new presumption (“the Presumption”) that makes it considerably more difficult to modify an AM or FM station in any way that would move it into, or nearer to, an Urbanized Area. This, of course, was a disappointment to many entrepreneurs who had spent considerable time and effort designing – and often effectuating – precisely such “move-ins”. 

The latest tweaks aren’t likely to allay that disappointment, except for a relatively small universe of applicants who, thanks to Recon II, are now not subject to the Presumption. You’re in that universe if you are:

Continue Reading...

SESAC in RMLC's Litigation Sights

Antitrust lawsuit looks to bring SESAC under federal court supervision, like ASCAP and BMI.

The Radio Music License Committee (RMLC) has sued SESAC in an effort to bring SESAC within the same general judicial constraints as the other two major performance rights organizations (PROs), ASCAP and BMI. According to the RMLC, SESAC (initially founded as the “Society of European Stage Authors and Composers”, but since officially shortened to just “SESAC”) is violating a number of antitrust laws.

The case pits two somewhat misunderstood organizations against each other. 

SESAC, of course, is a PRO, i.e., an organization which represents song composers and to which broadcasters must pay royalties for the right to perform the musical works of SESAC-affiliated composers over the air and online.  (In fact, unlike ASCAP and BMI, which are not-for-profit entities, SESAC is a for-profit PRO).  Comments I’ve received about SESAC from a number of broadcasters have tended to be negative, if not flat-out vitriolic. That may be because of significant royalty rate hikes in recent years, or possibly SESAC’s perceived reluctance to negotiate or otherwise deal with broadcasters when problems arise. Or maybe it’s the fact that SESAC requires radio broadcasters to get a separate license when engaged in webcasting (ASCAP and BMI incorporate webcasting into the existing radio license).

Continue Reading...

Update: Comment Dates Set in Wireless Mic Inquiry

 We recently reported on the FCC’s inquiry about how best to accommodate wireless microphones in the face of the dwindling amount of vacant television spectrum space on which those mics have historically been allowed to operate. The Commission’s request for comments has now made it into the Federal Register, which as we all know by now establishes the relevant filing deadlines. Comments in response to the FCC’s request are due by November 21, 2012, and reply comments are due by December 12, 2012.

In Memoriam: Jeff Brock

We  note with great sorrow the untimely passing of Jefferson G. Brock -- you probably knew him simply as "Jeff" -- our good friend and long-time distinguished engineering colleague, on October 14, 2012.  Jeff was a warm, humble and sincere gentleman, with a wry sense of humor and a passionate love for the Atlanta Braves. 

A brilliant engineer, Jeff had a deft writing touch and an amazingly active, creative and encyclopedic mind. We never knew him to refuse help to his many friends on all matters large or small, reimbursable or not, and regardless of his own workload.  A very practical man with excellent business sense, Jeff was also a broadcaster at heart and for real – he and Stu Graham, his long-time partner, operated a successful LPFM station out of their offices. Jeff’s client base was large and nationwide, reflecting his skill, conscientiousness, and charm.  Jeff and Stu hosted the annual barbeque outing at the NAB in Las Vegas that members of this firm proudly, and happily, attended.

Jeff was a class act and the people in his firm reflect that class.  We will miss Jeff a great deal, but as Stu tells us, there will be a lot of terrific stations in heaven once Jeff arrives and performs his magic.

There will be a memorial service for Jeff in Alpharetta, Georgia on Saturday, October 20, 2012. The family will receive visitors from 1:00 - 2:00 PM with a service to follow at 2:00 PM at

Southcare Cremation and Funeral Society
2260 Old Milton Parkway
Alpharetta, Georgia  30009
678-735-5500.

There will also be a service on St. Simons Island, Georgia on November 3, 2012.  The location and date for this service will be announced later. In lieu of flowers, the family has requested that remembrances be sent to either:

The American Cancer Society (www.cancer.org/involved/donate/donateonlinenow)

or

The Humane Society of South Coastal Georgia, Inc.
4627 US Highway 17
North Brunswick, Georgia  31525
www.adoptpetsnow.com

CALM Act Jitters? Deadline for Waiver Requests Is Fast Approaching!

Unless you’re confident that you will be in compliance with the CALM Act requirements by December 13, you should NOT neglect the October 15 deadline for waiver requests.

Not quite a year ago, the CALM Act was front and center in the minds of full-power TV broadcasters and multichannel video programming distributors (MVPDs). The CALM Act, of course, is the legislation (together with the follow-up agency rules) that’s supposed to make loud commercials a thing of the past. The rules are set to take effect on December 13, 2012 – by which date all affected entities are required to be in compliance with the rules. (For readers who need to brush up on the rules, check out our post from last January.)

When it enacted the CALM Act, Congress thoughtfully authorized the Commission to waive the requirements for a year (with an additional year also possibly available) for entities who could demonstrate that obtaining the necessary equipment would “result in financial hardship”. And pursuant to that authority, the Commission announced two separate “financial hardship” waiver policies: a streamlined approach applicable to “small stations and MVPDs”, and a somewhat more cumbersome approach applicable to all others.

The deadline for filing those waiver requests (whether or not you’re “small” – and read on for more information on that score) is 60 days prior to the December 13, 2012 effective date of the rules. By our calculation, that means the waiver deadline is October 15, 2012. (Technically, the sixtieth day prior to December 13 is October 14, but that’s a Sunday and, under the Commission’s rules, deadlines that fall on a weekend or holiday automatically roll over to the next business day.)

So what’s the drill for these financial hardship waivers? Here’s the scoop on both “small” station waivers and others.

Continue Reading...

Wireless Mic Users - Listen Up!

The FCC wants help in squeezing more wireless microphones into ever-shrinking spectrum.

Traditional wireless microphones – the kind you see on TV, big stage shows, and in lecture halls and churches – operate on locally vacant TV channels. But those channels are becoming scarce. The FCC has asked for comment on how to accommodate these microphones in the future.

In the old days of analog TV, there were a lot of TV channels, and the shortcomings of analog receivers meant a lot of those channels in each market could not be used for TV. That left plenty of room for wireless microphones. The picture began to change in 2009, when the last full-power analog stations went off the air. Because digital TV stations can be packed more tightly than analog stations, the FCC was able to free up 18 channels for other uses, which left fewer empty channels for wireless microphones. Then, a year ago, the FCC approved the first operation of “white space” devices that provide Wi-Fi-like service in some of the remaining vacant TV channels. The FCC reserved two channels in every market for wireless microphones, and provided for additional channels where needed in a complicated set of regulations; but there is no getting around the fact that a lot more devices will be trying to operate in a lot less spectrum. Then, last month, the FCC proposed “incentive auctions” designed to encourage broadcasters to give up still more channels.

Continue Reading...

No-Pix Six Nixed

Commission puts the kibosh on hybrid digital/analog transmission system that would have allowed Channel 6 licensees to provide additional audio-only service.

Video-less TV, an idea embraced by a number of Channel 6 LPTV stations, has suffered a set-back. In August the FCC rejected a proposal by two Channel 6 LPTV licensees to use a digital transmission system that would have permitted them to transmit – in addition to their digital TV service – a separate audio signal receivable by analog FM radio receivers.

Spectrum-wise, TV Channel 6 sits immediately below the FM radio band. In pre-DTV NTSC analog technology, the video and audio components of the TV signal were separately generated (sometimes even through separate transmitters), with the audio located near the top of the band and using FM modulation. That meant that the audio of an analog Channel 6 station could be heard easily on most FM radios (which can normally tune down to 87.7 MHz). 

Analog Channel 6 TV stations, both full and low power, reportedly enjoyed a boost in their audience size thanks to drivers tuning in on their car radios and joggers listening on their arm band radios. In fact, some Channel 6 LPTV operators found the FM radio audience so attractive that they programmed primarily to that audience, paying little attention to video. How little? We suspect that some didn’t even have working video transmitters. (Cautionary note: It’s not at all clear that audio-only transmission –  or even audio with only a dribble of a video signal – complied with FCC requirements.) The Channel 6 audio business prospered in a few major markets, with a few stations reaching reportable Arbitron ratings levels.

The audio-only TV business has foundered in recent times, presumably because it was based on analog technology and could not co-exist with digital video. (That’s because: (a) under the ATSC digital standard, the analog signal is no longer separate from the video; and (b) digital TV audio can’t be received on FM radios – not even digital “HD” FM radios.) With virtually all full-power TV stations converted to DTV operation since 2009, and with a fast-approaching end-date for analog LPTV broadcasting, future prospects for video-less Channel 6 operations are not good.   LPTV licensees recognize that it’s difficult, if not impossible, to make a viable business plan when you ‘re likely to hit a brick wall in only three years.

But where there’s a will, there’s often a way.

Continue Reading...

Congressional Resolution to Copyright Disparities Sometime Soon?

Dueling bills to modify calculation method for some royalties could level the playing field among music media . . . or not.

Most people don’t think about how copyright royalties are calculated – they just think that whatever they’re paying (or receiving) is too high (or too low). That’s true regardless of who you are or what you pay.

The recording industry thinks that recording artists don’t get enough compensation for their copyrighted works – especially from broadcasters who have always enjoyed a full exemption from paying royalties for over-the-air performance of sound recordings (i.e., the version of a song you’re actually hearing at that particular moment). 

Each of the various services that provide recorded music to the public – broadcasters , stand-alone Internet radio operators and even Sirius XM – seems to believe that they’re getting a raw deal compared to the way the other such services are treated. For instance, Sirius XM doesn’t like that they have to pay for all their transmissions – both via satellite and the Internet – while broadcasters get that over-the-air exemption. Broadcasters think the per-performance rate for online streaming is too high, especially given online advertising hasn’t increased at a similar rate, which means that increased listenership increases costs but not revenues. And Pandora feels as though it’s at a disadvantage to both, because it, too, pays a rate higher than Sirius XM and doesn’t enjoy any exemption like broadcasters do.  

The disparity in the royalties each of the services get tapped for is the fault of Congress, which has established distinct approaches to royalty calculation for each.

Continue Reading...

More Online TV Public Inspection File How-To's: The Issues/Programs List

COMING SOON TO SCREENS ALL ACROSS THE COUNTRY!!! 
YOUR
OCTOBER, 2012 ISSUES/PROGRAMS LIST!!!

If you’re a full-power or Class A TV licensee (for convenience, we’ll refer to that universe as “TV licensees” here), you’d better get used to it: your quarterly issues/programs lists, once consigned to the comfortable privacy of your on-site local public inspection file, will soon be available for review anywhere, anytime, by anyone with an Internet connection. If you’re absolutely, positively 100% confident that your lists would pass muster if subjected to rigorous scrutiny, congratulations. You may not need to read further.

But if you haven’t really thought too much about your lists for a couple of years and are concerned that they could use some spiffing up before their online debut, read on. Our goal here is to provide some guidance about (a) the Commission’s specific requirements relative to issues/programs lists and (b) how to get your next list uploaded to the FCC’s online TV public file system.

Important reminder: for TV licensees, the next issues/programs list is required to be uploaded to the FCC’s online public file system no later than OCTOBER 10, 2012. 

What goes into an issues/programs list?

Continue Reading...

Political Advertising 2012 - A Refresher Course for the Final Month

With Campaign 2012 heading for the finish line, here’s a quick recap of some of the rules with which broadcasters should be familiar as last-minute political buys start to flood in.

 As what promises to be one of the busiest and most contentious general election seasons in some time takes the turn and heads into the final 30-day lap, now is a good time for broadcasters to check their policies and procedures on political advertising to ensure that their stations remain in compliance down the stretch. The broadcast of political messages is covered by a complex set of laws and regulations and all station personnel involved with programming, sales and traffic should be aware that decisions about what ads to run, when to run them and how much to charge for them may have serious consequences for the station. 

A complete review of the federal political broadcasting rules is far beyond our scope here. Nevertheless, what follows is a crash refresher course highlighting a few issues that broadcasters should be thinking about, including a few new issues that are arising for the first time this year.

Continue Reading...

Online TV Public Inspection File - Some How-To's

Lesson One – How to get into your station’s file to begin with

[Blogger’s Note: Our crack paralegal, Denise Branson, contributed to the preparation of this post.]

As readers should know by now, the FCC’s online public inspection file system for television (including Class A) licensees went live last month. (If you didn’t know that, check this thread of posts to get up to speed.) For the majority of affected licensees, the new system has thus far been largely a non-event. That’s because the primary impact of the new system, at least initially, has fallen on a relatively small universe of stations – i.e., affiliates of the Top Four commercial networks in the Top 50 markets – who have to upload all new political file materials. The rest of the TV world won’t have to worry about uploading political files until 2014, at the earliest.

Of course, all TV licensees (for convenience sake, we’ll include Class A licensees within the meaning of that term in this post) can still go ahead and start uploading material from their paper files to the new online system. But the deadline to get that particular chore done isn’t until early February, 2013, so it’s entirely possible – the temptation to procrastinate being what it is – that many, if not most, TV folks haven’t yet even taken a quick glimpse at the system, much less test-driven it to any significant degree.

Heads up, though: the public-file-uploading chores for ALL TV licensees will for sure kick in no later than October 10. That’s the next deadline for the preparation of quarterly issues/programs lists, which have to be placed in the public file by October 10.

That being the case, we figured it would be a good idea to provide a series of posts introducing the Great Unwashed to the FCC’s online TV public inspection file system. This first installment of that series is designed to get you into your station’s public file for uploading purposes. We intend to follow this up with additional primers on how to upload materials and how to manage your file.

The first order of business: Getting into your file.

Continue Reading...

Brrr - The Auction 94 FM Freeze is On

With Auction 94 now in the works, the Commission has frozen, effective immediately (i.e., as of September 11, 2012):

  • ŸAll applications proposing to modify any of the 117 vacant non-reserved band FM allotments scheduled for Auction 94 (currently slated to kick on next March 26);
  • ŸAll petitions and counterproposals that propose a change in channel, class, community, or reference coordinates for any of the Auction 94 allotments; and
  • ŸAll applications, petitions and counterproposals that fail to fully protect any Auction 94 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 94? Click here for the current list.) This freeze will remain in effect until the day after the deadline for Auction 94 long form applications – which will likely be sometime in early Summer, 2013, at the earliest.

The freeze notice does not announce 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 94.  (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 four 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 94 itself, see our related post here.

Auction 94: 117 FM Allotments on the Block

117 FM construction permits now available for inspection on the showroom floor . . . but the bidding action won’t start until next March.

If it’s September, it’s time to gear up for the next FM auction. In keeping with that recent tradition, the FCC has announced that, come March 26, 2013, 117 new FM construction permits will be up for grabs through the usual auction process.  Heads up, though: March 26, 2013 also happens to be the first day of Passover, and the Tuesday of Holy Week, and maybe even the probable day before regular season Major League baseball begins.  So there's at least a chance that the date might move some (and if you'd support some such movement, you can file comments letting the FCC know).  But one way or another, the gears have begun turning for the next FM construction permit auction.

You can find a list of the available allotments here. While the Commission refers to 117 “new” permits, that’s not an entirely accurate description.  Of the 117 permits, 26 are re-treads from earlier auctions: 22 are back again from Auction 93 (conducted last spring), two are from 2011’s Auction 91, one hearkens back to Auction 70 (vintage 2007), and one goes all the way back to Auction 62 in 2006. The last two were sold back when, but the buyers defaulted. The other 24 didn’t move off the lot when they were first put up for grabs.

If you’ve followed the Commission’s auction process, you know that there’s plenty of paperwork to get out of the way before the bid paddles start going up on March 26 and the gavel starts coming down some time later. The first step? A request for comments on proposed procedures, upfront payments and minimum opening bids. Comments are due by October 10, 2012, replies by October 24, 2012.

It appears that the procedures the Commission has put out for comment don’t contain anything different from past FCC broadcast spectrum auctions. Still, true auction aficionados should take a close look at the fine print to make sure that they’re on top of the details. Also, if one or another permit on the list catches your eye but you think the minimum opening bid for that permit is too pricey, you can let the FCC know in your comments. (Be prepared to support your thoughts with “valuation analyses” and don’t forget to include in your comments suggested amounts or formulas for reserve prices or minimum opening bids.)  The FCC has created a special e-mail address  -- auction94@fcc.gov -- to which comments or reply comments should be sent in addition to the standard FCC filing procedures.

Continue Reading...

.RADIO - A Look at the Four Contenders for Control of the TLD

As ICANN processes applications for new top level domains, four applicants are in the running for the .RADIO TLD.

We recently reported that the Internet Corporation for Assigned Names and Numbers (ICANN) received 1,930 applications for new top level domains (TLDs) – including dozens of applications for broadcast- and media-related applications including .MEDIA, .MUSIC and .VIDEO.

But the four applicants for .RADIO caught our eye. They seek to offer services to radio broadcasters around the world, and may well change the way radio broadcasters operate, both on the Internet and offline. Their applications merited a closer look.  

Before diving in, we need to define a number of terms that are central to the TLD system.

First, “Registry”. In ICANN parlance, a registry is an entity which, under contract to ICANN, provides the authoritative master database of a single TLD and manages all “second-level” domain names registered within that TLD. Example: “.COM” is a TLD, and “FHHLAW.COM” is a second-level domain name registered with the “.COM” TLD.  Verisign is the Registry for .COM. Registries may not generally sell directly to the public. Each of the four .RADIO applicants is seeking to be the registry of .RADIO.

Next, “Registrar”. A registrar is an entity accredited by ICANN and under contract to a Registry.  The registrar adds, deletes, updates and transfers second-level domain names. Registrars are the “salesmen” of domain names. GoDaddy is the largest registrar in the world.

When it comes to new TLD applications, there are two types:

Continue Reading...

War of the Words: Coalition Urges Greater Alien Welcome

Broadcasters launch effort to promote greater alien ownership in broadcasting (while H.G. Wells rolls over in his grave).

Hot on the heels of the FCC’s recent liberalization of the restrictions on alien ownership of common carrier licensees, a group dubbed the Coalition for Broadcast Investment (the Coalition) has filed a petition seeking similar leeway for broadcast licensees.  The Coalition is an ad hoc group comprised of minority-oriented station owners as well as some of the largest multi-station group owners in the country.   The Coalition’s petition is styled as a “Request for Clarification” of the Commission’s policy with respect to alien ownership of broadcast stations, but it’s effectively a petition for a declaratory ruling on the issue presented.

Our regular readers will remember that in August the FCC released an order designed to clarify the power of the Commission to authorize significant indirect, non-controlling foreign interests in common carrier licensees. The August order addressed the fact that, as interpreted by the FCC, Section 310(b)(3) of the Communications Act bars aliens from indirectly owning 20% to 50% of a radio licensee but Section (b)(4) permits indirect alien ownership – with prior FCC approval – of controlling interests in radio licensees.   The FCC dealt with this odd anomaly by “forbearing” from enforcing the Section 310(b)(3) restriction on non-controlling alien interests. 

There were two catches to this solution.

Continue Reading...

In Memoriam: Ann Arnold

The U.S.broadcast industry has lost a champion, inspiration and friend. We report, with sadness, that Ann Arnold, President of the Texas Association of Broadcasters, passed away on September 1. After an initial career in journalism (which included a stint as Press Secretary to the Governor of Texas), she took over the reins of the TAB in 1987 and the rest is history. (The TAB has provided a detailed review of Ann’s career at its website.) For a quarter of a century as TAB President, Ann was an indefatigable advocate for broadcasters (and journalists) at the state and national levels. Her tireless efforts are all the more impressive in light of the fact that, throughout her tenure with the TAB, she was battling leukemia which had been diagnosed shortly before she signed on with the TAB.

She brought a daunting combination of intellect, experience, energy and commitment to everything she did.  Informed, incisive, insistent – and, yes, inspirational – Ann was a force to be reckoned with. And her considerable powers of persuasion were invariably applied with genuine grace, charm and good humor. It was always a treat to deal with Ann.

We at FHH happily counted Ann as a friend. We will miss her.  We extend our deepest condolences to her family.

Reminder: Video Emergency Info MUST be Accessible to Hearing- and Vision-Impaired Viewers

Obligation to provide viewers with disabilities ALL crisis-related announcements can affect video providers well outside immediate geographic area of the crisis.

Another sign of the season – the hurricane and wildfire season, that is. The Commission has issued its by-now-annual public notice reminding video distributors everywherenot just in areas prone to particular types of disasters – of their obligation to make all emergency information accessible to people with vision and hearing disabilities. As broadcasters, cable/fiber system operators and satellite television services have learned from past experience, there are no exceptions to this requirement, and no excuses will be accepted for less than full compliance – even in areas well away from the zones directly affected by the emergency conditions. And let’s be clear: this requirement is over and above routine closed captioning or video description obligations. Existing, everyday procedures to meet those routine obligations may not be enough during an emergency.

Section 79.2 of the FCC’s rules requires that all video distributors make “emergency information” “accessible” to those with vision or hearing disabilities (the latter by closed captioning or other visual means). “Emergency information” is defined by the Commission as information

about a current emergency, that is intended to further the protection of life, health, safety, and property, i.e. , critical details regarding the emergency and how to respond to the emergency.

Emergencies covered by the rule include such natural disasters as tornadoes, earthquakes, hurricanes, floods and wildfires. The rule also covers man-made disasters such as discharges of toxic gases and industrial explosions.

Continue Reading...

Update: USPTO Orders Re-exam of Second Mission Abstract Patent . . .

. . . and the broadcasters have notified the Delaware judge of the USPTO orders

When last we visited the Mission Abstract Data (MAD) fracas, the U.S. Patent and Trademark Office had ordered that one of MAD’s patents be re-examined.  (That would be  Patent No. 5,629,867.)  Two days later, a similar order was issued with respect to the other patent (i.e., Patent No, 5,809,246) that MAD is relying on in its efforts to convince radio licensees to sign up with MAD for the right to utilize technology that MAD claims is covered by those patents. (If you’re new to L’Affaire Mission Abstract, you might want to check out our previous posts on the subject, which may be found at this link.)

We’ll leave the process of dissecting the USPTO’s orders to the patent mavens although, as we previously observed, those orders are probably not welcome news chez MAD.

By contrast, the USPTO orders were probably greeted with open arms by the broadcasters who MAD sued in U.S. District Court in Delaware. They have wasted no time in bringing the orders to the court’s attention in a supplement to their opposition to MAD’s motion to lift the stay which is currently in place, effectively freezing the litigation. (Note that copies of the two USPTO orders are included as attachments to that supplement.) As we suggested in our previous post, the fact that the patents underlying MAD’s lawsuit are being re-examined could convince the judge in the lawsuit to keep the case on ice a little while longer (i.e., probably at least until the USPTO review is resolved). Why, after all, would the court insist on forcing the parties through extensive litigation about alleged patent infringement if the patents in question are still being re-examined?

If we were betting bloggers, we’d guess that the next thing we’ll see will be a response from MAD to the court, probably trying to explain why the USPTO re-examinations shouldn’t make any difference. Check back here for updates.

Court Approves RMLC/BMI Deal

It’s official! Royalty agreement now fully in place through 2016.

We notified you last June that BMI and the RMLC had reached an agreement in principle regarding the rates to be paid by broadcasters for the right to publicly perform musical works. At that time, we were able to lay out the basic agreement but cautioned that it was subject to approval by the United States District Court for the Southern District of New York.

The RMLC has now announced that, on August 28, Judge Louis Stanton of that District Court approved the agreement, making the rates and terms specified in the deal effective through 2016. The highlight from our perspective is not just a presumed lowering of the rates for most stations (due in no small part to an industry-wide $70.5 million credit against 2010-2011 payment), but a simplified calculation method based on gross revenue. That puts an end to the old calculation method that was tied to a base fee, a method that many in recent years considered to be way out of date and extremely cumbersome. As indicated in the RMLC announcement, radio stations should already have reaped the benefit of the 2010-2011 credit, as it was being applied to their BMI accounts starting in June 2012.

Kudos once again to Bill Velez and his crew for great work in representing radio broadcasters.

DIRS Activated as Isaac Approaches

The FCC has activated its Disaster Information Reporting System (DIRS) to enable it to monitor damage to broadcast and telecommunications facilities during Hurricane Isaac.  DIRS is a voluntary web-based system that communications providers can use to report communications infrastructure status and situational awareness information during times of crisis. (“Communications providers” include the full range of wireless, wireline, broadcast, and cable providers.)

The Commission is requesting communications providers in the following counties and parishes to log into https://www.fcc.gov/nors/disaster/ to report and update information through DIRS regarding, inter alia, the status of their communications equipment, restoration efforts, power (i.e., whether they are using commercial power, generator or battery), and access to fuel:

Alabama counties: Baldwin and Mobile;

Florida counties: Escambia and Santa Rosa;

Louisiana parishes: Ascension, Assumption, Avoyelles, Catahoula, Concordia, East Baton Rouge, East Feliciana, Iberia, Iberville, Jefferson, Lafayette, Lafourche, Livingston, Orleans, Plaquemines, Pointe Coupee, Saint Bernard, Saint Charles, Saint Helena, Saint James, St John the Baptist, Saint Landry, Saint Martin, Saint Mary, Saint Tammany, Tangipahoa, Terrebonne, Washington, West Baton Rouge and West Feliciana; and

Mississippi counties: Adams, Amite, Franklin, Hancock, Harrison, Jackson, Jefferson, Lincoln, Pearl River, Pike, Walthall and Wilkinson.

(The FCC’s public notice also suggests that reports/updates can be submitted through the e-filing function on either the Commission’s main webpage or the Public Safety and Homeland Security Bureau’s webpage. From a quick glance at both those pages, however, it’s not clear that the “e-filing function” is immediately obvious – so you will probably find it quicker to log directly into the DIRS site.)

If you lose Internet access, several FCC staff members involved in disaster preparedness have published their office and cellphone numbers:

Jeffery Goldthorp (202) 418-1096 (office), (202) 253-1595 (cell), jeffery.goldthorp@fcc.gov

Julia Tu (202) 321-4399 (cell), julia.tu@fcc.gov

John Healy (215) 847-8094 (cell), john.healy@fcc.gov

Michael Caiafa (202) 418-1311 (office), (202) 277-5690 (cell), michael.caiafa@fcc.gov

David Ahn (202) 418-0853 (office), (571) 232-8487 (cell), david.ahn@fcc.gov

Jane Kelly (202) 418-2832 (office), (202) 503-0398 (cell), jane.kelly@fcc.gov

If you’re in the path of the hurricane but are not in any of the counties/parishes listed above, check the FCC’s home page for further additions to the list of reporting areas. 

Satellite earth station operators needing to operate emergency facilities may apply electronically at http://licensing.fcc.gov/myibfs; or if they cannot access that system, they may apply by letter, e-mail, and even by telephone.  All requests should provide the technical parameters of the proposed operation and a contact point.  Requests not made through myibfs should be re-filed through that system as soon as circumstances permit.

ivi TV Loses Round Two

Second Circuit affirms injunction preventing would-be online “cable system” from carrying over-the-air content.

ivi TV, the company that burst onto the video delivery scene two years ago with a business plan based on an innovative reading of Section 111 of the Copyright Act, has suffered a major setback at the hands of the U.S. Court of Appeals for the Second Circuit. The court has upheld a lower court’s order enjoining ivi TV from infringing the copyrights of the broadcast networks that sued ivi TV back in 2010. 

The lower court’s injunction effectively put ivi TV’s operation on life support. The Second Circuit’s decision may have pulled the plug entirely.

ivi TV’s idea was relatively simple, if outside the box. ivi TV wanted to stream broadcast stations online in real time. It wasn’t a cable company in the traditional sense: no headend, no wires, no set top box. But according to ivi TV, it was entitled to retransmit over-the-air broadcast signals, without the broadcasters’ permission, because ivi TV’s operation was essentially a “cable system” as that term is used in Section 111. Section 111 gives “cable systems” the statutory right to such retransmission, provided they pay governmentally-established royalties (which ivi TV said it was willing to pay).

The district court disagreed with ivi TV’s reading of Section 111 back in 2011. And now the Second Circuit has piled on, concurring with the district court that Congress “did not intend for § 111 licenses to extend to Internet retransmissions”. That conclusion largely guts ivi TV’s claims.

Continue Reading...

Reg Fee Tips II: Tax-Exempts May Need to Re-File Supporting Documentation

Despite the fact that your tax exempt – and, therefore, reg fee exempt – status may have previously been demonstrated to and accepted by the FCC, the Commission’s records may still not reflect that.

As previously (and repeatedly) noted here on CommLawBlog, it’s time again to reach into your wallets and pony up this year’s annual regulatory fees.  (The fees are due by 11:59 p.m. ET on September 13.)  A lucky few are exempt from having to make this annual contribution – specifically licensee entities that are tax-exempt under federal or state law.  To be FCC reg fee free, you’ve got to send the FCC documentation proving that you’re tax exempt. 

Since tax exemption tends to be a perpetual status, you might think that, once you have submitted your documentation, you’d be reg fee free forever (unless, of course, the FCC were to be notified at some later point that you had lost your exempt status).

Not so fast.

Continue Reading...

Reg Fee Calculation Method Under the Microscope

NPRM seeks input on overarching goals and nitty-gritty methodology of reg fee process.

We all know that regulatory fees are imposed annually. The precise fees to be paid each year are proposed in the spring and then, after a notice-and-comment period, finally announced in summer, usually to be paid in September. It happens with mundane regularity. 

But did you ever wonder how the Commission comes up with the actual numbers?

In a Notice of Proposed Rulemaking (NPRM), the FCC has pulled back the curtain on that process, inviting us all into the sausage factory so that we can take a look around and maybe provide our own input into possible changes in the system. The deadline for comments is September 17, 2012; reply comments are due by October 16. If you think you might want to toss in your two cents’ worth, you should probably get started now – the NPRM is pretty dense and requires considerable patience (and some NoDoz®) to wade through.

To get you oriented, here’s a thumbnail sketch of what’s going on. (Caution: this is only a thumbnail sketch. If you want to get fully immersed in the NPRM, you’re on your own.)

Continue Reading...

Update: USPTO to Take Another Look at Mission Abstract Patent

Reexamination of Patent No. 5,629,867 ordered as further questions of “patentability” surface.

Our friends at Mission Abstract Data (and, in turn, their friends at Digimedia and IPMG AG – as is our custom, we’re refer to them all collectively as MAD) got some disappointing news from the U.S. Patent and Trademark Office (USPTO) on August 21. A USPTO Patent Reexamination Specialist has issued an order granting a request for reexamination of one (i.e., Patent No. 5,629,867) of the two patents on which MAD has been relying in its efforts to convince radio broadcasters to enter into licensing arrangements with MAD in order to avoid patent infringement liability.

[We expect to have a link to the USPTO order available soon. It’s already available through the USPTO website, but getting to it through the USPTO’s, um, unusual system takes a lot of effort and some guesswork. Check back here over the next couple of days. UPDATE: Here is the promised link to the USPTO's order.]

We won’t revisit the history of MAD’s efforts. You can get a reasonably good idea from our past posts collected here. And in keeping with our repeated disclaimer about our acknowledged lack of patent law expertise, we also won’t delve deeply into the nitty-gritty of the order.

But we have read the order, and were struck by the fact that the USPTO specialist concluded that “substantial new question[s] of patentability” have been raised as to all ten claims comprising the ‘867 patent.

Continue Reading...

FCC Complicates, Simplifies Foreign Ownership Rules

The Communications Act imposes complex limits on alien ownership. The FCC’s historical interpretation of those limits has made them even more complex. The Commission has now revisited that interpretation – with mixed results.

We reported last year that the FCC initiated a rulemaking proceeding to consider how it might facilitate foreign ownership of licensed common carriers.   And we reported last spring that, in the initial rounds of that proceeding, the FCC received some industry feedback that its foreign ownership rules were limiting or hindering foreign investment unduly. As FCC veterans know, the Communications Act imposes certain restrictions on the ownership of broadcast and common carrier licenses by aliens. Specifically, Section 310(b)(3) of the Act forbids aliens from directly owning more than 20% in such licenses. Section 310(b)(4) precludes aliens from controlling a company that directly or indirectly owns more than 25% of such a license unless the FCC approves the ownership. 

Three score and 18 years after the Act came into being, the FCC has now taken a fresh look at those provisions.   It had previously decided that Section (b)(3) actually applies to indirect ownership interests even though, unlike Section (b)(4), Section (b)(3) doesn’t say that. The FCC has interpreted Section (b)(3) to apply when the alien entity does not control the licensee, while (b)(4) applies only when the alien does control. Non-controlling alien ownership interests between 20% and 50% were out of luck since an alien with an indirect 30% ownership interest would exceed the permissible level for non-controlling entities banned by (b)(3) but would not have the control necessary to permit the ownership to be approved. 

This interpretation presented a strange anomaly: an alien could indirectly own a controlling interest in a company so long as the FCC approved it, but an alien couldn’t own a non-controlling interest between 20 and 50% under any circumstances.  And indirect non-controlling  interests between 20% and 25% fell even deeper into the Twilight Zone – they seem to be fully permissible under (b)(4) without any FCC approval at all, but completely and irremediably banned under (b)(3). Commissioner Pai recognized this problem in his statement accompanying the Order – the Commission’s interpretation of the statute leads to “absurd” results.

Continue Reading...

Fifth Circuit Short Circuit: Court of Appeals Limits Rights of FCC Forfeiture Defendants

The Fifth Circuit has separated when and where a forfeiture defendant can raise defenses based on fact or on law.

Suppose you receive a Forfeiture Order from the FCC demanding a large check for allegedly violating FCC rules, as happened to Jerry and Deborah Stevens back in 2010. And suppose you want to raise a challenge. When and where do you do that?

The U.S. Court of Appeals for the Fifth Circuit has chimed in with a ruling that stirs up these already turbulent waters.

After the usual preliminaries, here and here, the Enforcement Bureau issued a Forfeiture Order that dinged the Stevenses $10,000 for operating a pirate FM station out of their home without a license. Although at very low power, the transmitter nonetheless exceeded the permitted power levels for an unlicensed device. The Stevenses did not pay. Eleven months later, the FCC sued them in a Texas federal district court to collect the money. The Stevenses objected that their FM station reached only one state, and claimed the FCC had jurisdiction only over “interstate” radio communications. Accordingly, they argued, the Forfeiture Order was invalid, and the FCC’s lawsuit should be dismissed. The district court declined to dismiss; the Stevenses appealed to the Fifth Circuit.

The Fifth Circuit’s problem was to reconcile two statutes.

Continue Reading...

FilmOn.com Is Dead (or so it appears). Long Live BarryDriller.com!

Out of the ashes of one MVPD wannabe rises another.

To paraphrase T.S. Eliot, this is the way the MVPD wannabe ends, not with a bang but a whimper. . . and a $1.6 million settlement payment.

You remember FilmOn.com. They’re the folks who were going to revolutionize the video biz by legally delivering broadcast signals via the Internet . . . until they got immediately sued for copyright infringement by the major broadcast networks. 

“Oh, you mean Aereo, right?”, you reply. 

That would be the Barry Diller-financed entity that captures broadcast signals via a series of individual antennas, stores them on individually assigned remote DVRs and allows subscribers to watch programming in (almost) real time or via delay over the Internet. But, no, they’re not who we’re talking about here. Aereo still exists and has even won the first round in its legal battle against the broadcasters, surviving a motion for preliminary injunction.

“Oh, right . . . you’re talking about ivi TV?”, you protest, referring to the wannabe “first online cable system”. No, not them either (but you’re close).

Continue Reading...

Reg Fee Payment Tips

Some hopefully helpful hints for fee filers

Now that the excitement surrounding the announcement of the deadline for 2012 regulatory fees has died down, we all face the grim process of actually paying those fees. Here are some tips that might help the beleaguered broadcast reg fee filer.

How much are you on the hook for?  If you’re looking for a quick way to determine the reg fee applicable to any particular AM, FM, TV, FM translator or TV translator/LPTV/Class A station, you can run a quick search at http://www.fccfees.com/request_all.htm. Provide either the station’s call sign or FCC Facility ID number, hit the “submit” button and voilà – you should see the station in question listed, with its licensee and facilities all spelled out along with the fee due for that particular station. The fee listed there does NOT include any auxiliary licensees – STL’s, remote pickups, that sort of thing – used in association with the listed station. You’re on your own to track those down and make sure any necessary fee(s) is/are paid.

 Exempt or Non-exempt? Some licensees are exempt from reg fees. Most of you exempt folks know who you are, but if you have any doubt about what the FCC’s records show on that score, running a fee search at the link in the preceding paragraph will clue you in. Exemptions are available to licensee entities that are tax-exempt under federal or state law. To be FCC reg fee free, you’ve got to send the FCC documentation proving that you’re tax exempt. Such documentation could include the 501(c)(3) letter you got from the IRS or certifications from your state government confirming your tax exempt status. You can submit your documentation by email to ARINQUIRIES@fcc.gov, by fax to 202-418-7869, or by mail to

FCC, Office of the Managing Director
445 12th Street, S.W., Room 1-A625
Washington, DC, 20554

It should go without saying that, in addition to the documentation itself, you should also include enough information to permit the FCC to know precisely which stations would be subject to the exemption.

Continue Reading...

Update: 2012 Reg Fee Payment Deadline Set

It’s official! This year’s regulatory fees must be paid by 11:59 p.m. (ET) on September 13, 2012. The online “Fee Filer” system is now up and running; you can get to it at this link. That’s the first stop you’ll have to make in paying your fees. Once you log into the Fee Filer system (using your FCC Registration Number (FRN) and password), you’ll be able to generate a Form 159-E, which you’ll need to tender with your payment. 

While Fee Filer will ordinarily list fees associated with the FRN used to access the system, WATCH OUT: the list of fees shown in Fee Filer may not be complete. The FCC makes clear that it’s the payer’s responsibility to confirm the “fullest extent of [the payer’s] regulatory fee obligation.” Double- and triple-checking other FCC databases, as well as your own records, is prudent, since failure to file any required reg fee, even if inadvertent and even if only for a very small amount – like, say, a $10 auxiliary license fee – can result in very unpleasant complications (thanks to the Debt Collection Improvement Act).

As outlined in the public notice announcing the September 13 deadline, there are a number of ways in which the fee can be paid, once you have your Form 159-E. Helpful tip: the online approach, using a credit card, is extremely efficient. Wire transfer and ACH payments are also good, although they may involve some additional steps. For our money, the least desirable approach is the old-fashioned way, i.e., sending a paper check to the FCC’s bank in St. Louis. Lots of things could go wrong between the times (a) you stick the envelope in the mail box and (b) the payment is ultimately credited by the Commission. 

Remember, the FCC will not be sending you a hard-copy reminder of your reg fee bill. And remember, too, the FCC imposes a 25% late filing fee, starting immediately after the deadline. You’ve got just about a month to get your payment in – there is no reason to run afoul of that deadline. Good luck.

OMB OK on FM Translator Application Culling

Meanwhile, back at the FM translator application backlog . . .

In March, the Commission announced the process by which the pile of several thousand FM translator applications, still pending since the infamous 2003 filing window, would be trimmed down. (You can read the Commission’s full 35-page – not including appendices – decision here, or our punchy, far more abbreviated recap of it here.) As we reported in May, the process by which the Commission intends to thin the herd involves “information collections” (as they are known in Paperwork Reduction Act parlance). Such collections must be approved by the Office of Management and Budget (OMB) before they can be implemented.

According to a notice published in the Federal Register, OMB has given its thumbs up to the Commission’s process.  (The imprimatur was technically handed down on July 24.) This clears the way for the FCC to get the culling started. Look for a public notice in the near future setting deadlines and the like. The Commission has been under considerable pressure to move things along on the LPFM front, and clearing the FM translator backlog is an essential first step. Because of that, we won’t be surprised if things start to happen pretty fast at this point. Folks with FM translator applications pending from the 2003 window should familiarize themselves with the FCC’s process as outlined back in March (if they haven’t done so already), determine how that process affects their applications, and be prepared to act in short order. Check back here for updates.

Another Day, Another Online Public File Demonstration

 After fits and starts – and an 80-minute delay – FCC’s second online demonstration of its new electronic public file system for TV stations finally got off the ground late yesterday afternoon. And for those of you who gave up when the Commission couldn’t get the audio to work for more than an hour, take heart – they’ve scheduled yet another demo for today – AUGUST 1 – at 12 Noon (ET).  (The link is to the FCC's "events" webpage.  As of 9:00 a.m. today that page had not yet been updated to include a sign-in option for today's meeting.)

If you haven’t yet taken a look at the system the FCC has come up with, these demonstrations give you a very useful glimpse. Additionally, as of yesterday (July 31), the upload site is live for preview/test purposes – although the usefulness of visiting it today (i.e., the day before the online public file rule takes effect) may be limited if you haven’t had at least the basic introduction the demos provide.

The good news is that the system isn’t CDBS. To the contrary, the interface that the uploading station sees appears to be cleanly and logically laid out, with conventional buttons and options that – if they work – should make uploading reasonably simple. CommLawBlog gives a big thumbs up to the design.  Kudos to Greg Elin, who reportedly headed up the design team and who was the principal presenter during the demonstration. (I did, however, have occasion to observe that the depiction of the station’s service area on the sample screen the FCC showed us looked disturbingly like a drawing of a breast. Good thing that image isn’t going to be broadcast . . .)

As to the way the system will function in the real world, we here at CommLawBlog are cautiously optimistic. It looks like it should work.

But without having had the opportunity to test drive it at all, we’re not yet prepared to take a position. And there’s reason to suspect that the FCC may not have been completely thorough and thoughtful in all respects.

Continue Reading...

Online TV Public File Demonstration Yields New Information; Not-Yet-Effective Rule Already Waived

With the August 2 effective date of the online TV public file rule just a couple of days away, more information about the FCC’s system is bubbling to the surface.

As we reported on Friday, this morning (Monday, July 30) the FCC presented another demonstration of its online TV public file system.  Peter Tannenwald, who attended the July 17 demonstration at the Commission, sat in on this one, too.  Good thing he did, since today’s show provided more details about the operation of the public file system than had previously been made generally available.  Below you’ll find a list of some of the more salient take-home points Peter took home.

Also, even though the revised public file rule still hasn’t technically taken effect, the FCC has already waived the political posting requirement (probably the most time-consuming part) for one station. Read on for details about that development.

Helpful stuff to know (from the FCC’s 7/30/12 online presentation, as gleaned by Dr. Tannenwald):

To access the system, you’ll need to start with the FCC Registration Number (FRN) for the licensee of the station whose file is being uploaded.  (That point was made in the July 17 session, too.)  Each licensee may use only one FRN to access the upload system, although a company with different licensee subsidiaries may have a separate FRN for each sub. To permit multi-station owners to control access to their various stations’ separate account for uploading purposes, such owners will be able to assign different passwords to their different stations’ accounts. (That way personnel at Station WAAA can be prevented from inadvertently uploading information to commonly-owned-but-separately-operated Station WZZZ’s public file.) The FCC will assign the initial password, but anyone with the master FRN password for that licensee may then go online and change public file passwords for upload access.  [Blogmeister’s Update: Since this item was originally posted, we have been informally advised that the FCC’s system will automatically assign a separate upload access password for each station. If the licensee wishes to change that password, it can do so – but the system itself will create the new password. Ideally, the Commission will formalize all of this at some point.]

Continue Reading...

$68K for Unlicensed STLs - Could That Be You?

Hefty fine serves warning: be sure your auxiliaries are properly licensed or be prepared to pay.

It’s important not to lose sight of the Little Things. Your primary operating license? That’s a Big Thing. You know where that stands, and you make sure that everything about it is in good order. But how about your auxiliary licenses – studio-transmitter links (STLs), remote pickups, that sort of thing? Those Little Things may seem like unimportant incidentals in the greater scheme of your operation, but heads up: the FCC doesn’t share that perception.

One broadcaster found that out the hard way: it got spanked to the tune of $68,000 in fines arising from four STLs whose licenses turned out not to be in proper order. You can find the four separate orders here, here, here and here.

This might be a good time to check up on your STLs, just to be sure.

For the uninitiated, STLs are RF devices that take a station’s signal from the studio to the transmitter. All broadcast auxiliary authorizations (STL, remote pickup, intercity relay, etc.) tend to be inexpensive and low maintenance. They renew automatically with the main station license, so you don’t need to file a separate renewal application for them. In the hierarchy of FCC authorizations, they rank low on a couple of scales: the filing fee for a new or modified STL is a scant $150, and the annual regulatory fee for each STL has been a paltry $10 for several years now. While the process of obtaining a new STL may entail some additional fees (for frequency coordination, engineering services, legal services, etc.), STLs are obviously not a high end investment.

But that doesn’t mean you can simply forget about them.

Continue Reading...

Update: More Demonstrations of Online TV Public File System Announced

Late Friday afternoon notice announces early Monday morning demo (and another demo the following day)

Yesterday afternoon we reported that the U.S. Court of Appeals for the D.C. Circuit had denied the NAB’s request to stay the effective date of the revised online TV public file rule. That action clears the way for the rule to kick in on August 2, 2012. We predicted that the FCC would in short order be issuing a public notice alerting affected licensees of exactly how they’re supposed to comply once the effective date rolls around.

And sure enough, at about 3:30 p.m. on Friday, July 27, we received a notice from the Commission.  Yay! But wait – it’s not the notice we expected. Darn.

The Friday afternoon notice simply advises that the Commission is going to be conducting two online “screensharing” demonstrations of the public file system that it has developed. The demonstrations will “cover the material presented during the July 17, 2012 demonstration”, according to the notice. (The July 17 demonstration was conducted at the FCC’s headquarters; while it was supposedly also available to online viewers, several published reports indicated that online viewers encountered considerable difficulties when they tried to watch.)

In other words, this notice does not announce the official kick-off of the new rule, nor does it purport to give us all the precise chapter and verse for assuring compliance with the new rule. It’s a pretty good bet that such a notice is indeed in the works. We’ll keep our eye out for it and get word posted here as soon as it’s available.

Meanwhile, as to the upcoming demonstrations.

Continue Reading...

Student-Run College Radio: A Species Endangered by FCC Fines?

By beating up on college stations, the FCC creates a threat to the viability of college radio that could have unfortunate long-term effects.

The FCC has been slapping forfeitures left and right on college-owned, student-run radio stations. Three recent examples: $6,500 to a station operated by students at Bethany College in Bethany, West Virginia, $10,000 to a Rollins College station, and another $10K to a Toccoa Falls College station.

The misconduct underlying those fines was not especially earth-shattering: a late-filed renewal, some missing issues/programs lists, occasional failures to notify the FCC when the station is off the air for more than 10 days, that sort of thing. Nothing really to write home about.

We at Commlawblog.com can understand the FCC’s position. Rules are rules, and when rules get broken, there are (or should be) consequences. 

But there’s a bigger picture here that the FCC may be missing. By imposing such fines on student-run stations that are probably already money-losers for their parent educational institutions, the Commission may be hastening the demise of such stations.

And that would be a serious loss to the broadcast industry and the listening public.

Continue Reading...

Update: Court Denies NAB Request for Stay of Online TV Public File Rule

It looks like, barring some unanticipated last-minute development, the FCC’s online public file rule for TV stations will take effect on August 2, 2012The U.S. Court of Appeals for the D.C. Circuit has denied the NAB’s effort to get that effective date stayed.

The court’s order – totaling two sentences (not including a citation to a couple of case precedents) – is short and to the point. The NAB’s petition was denied because the NAB had not, in the court’s view, “satisfied the stringent requirements for a stay pending court review.”

With the court’s action, we can probably look forward to a public notice from the FCC very soon, describing the process for uploading materials to the online public file system the Commission has developed. Check back here for updates.

TV Public File Update: The NAB Replies

 Those of you who have been following the NAB’s efforts to get the U.S. Court of Appeals for the D.C. Circuit to stay the effectiveness of the TV online public file rule should be interested in the NAB’s reply. Our favorite NAB line, in response to the FCC’s claim that the revised public file rule increases competition: “Allowing some poker players to peek at their opponents’ hands does not make the poker game more competitive; it makes it unfair.”

This closes out the pleading cycle with respect to the NAB’s stay request and tees up the matter for resolution by the court. Since the effective date at issue (that would be August 2, 2012) is only about a week away, look for a quick decision by the court.

TV Public File Update: FCC Opposes NAB Stay Request, Gets Support from Six Intervenors

 Just in time to slip into the tote along with your sunscreen, towel and iPod, so you’ll have something to read at the beach over the weekend – here’s the FCC’s opposition to the NAB’s motion for stay of the online TV public file rule. We doubt you’ll find any unexpected plot twists here (particularly since the Media Bureau already told the NAB how the Bureau feels about the NAB’s arguments), but you never know. The NAB has until July 24 to reply to the Commission’s opposition, and then we all sit around waiting for the court to act.

And if you’re keeping a scorecard in the NAB’s appeal of the online TV public file rule, be sure to add the following names to the line-up on the FCC’s side: Benton Foundation, Campaign Legal Center, Common Cause, Free Press, New America Foundation and Office of Communication of the United Church of Christ, Inc. All six have been granted “intervenor” status by the D.C. Circuit. This means that they are now official parties to the case, and will be permitted to brief the issues, but only in a single, joint brief (unless they can convince the court that multiple intervenor briefs are warranted). Apparently eager to wield their brief-filing powers, the Intervenors have already warmed up by filing their own opposition to the NAB’s stay motion. Intervenors are also theoretically able to offer oral argument, although the likelihood that any intervenor will in fact get to present oral argument when the appeal finally gets to that point -- probably sometime early next year -- is probably very, very small.

The court’s order granting the intervention motions reminds anyone who might want to intervene on the NAB’s side that they have until August 2, 2012 to get their motions in. Failure to seek intervenor status by that deadline could leave you on the outside looking in when it comes time to file briefs.

2012 Reg Fees Set

From May proposals, big market VHF’s enjoy surprising reduction in final fees, all UHF’s go up a bit, and all radio fees stay the same; Look for payment window in September

It’s official – or, rather, they’re official. The final 2012 regulatory fees have been announced by the Commission. For those of you anxious to cut to the chase, here’s a link to a convenient table setting out the new fees (and comparing (a) the fees the FCC has now adopted against (b) the fees which it proposed last May). There are only a couple of surprises here.

First, it’s good to be a VHF TV licensee in Markets 26-50, since their reg fees have dropped nearly $2,000 between the May proposals and now. And it’s really good to be a VHF licensee in one of the top ten markets, since their fees plummeted a whopping $7,350 – about 8.4% – from the May proposals. On the other hand, it stinks to be UHF licensees in the top 20 markets. They’re looking at increases over the May proposals in the range of 2%. That amounts to increases of less than $1,000, if that’s any consolation. The linked table shows the changes between proposed fees and adopted fees, with increases shown in red and decreases in green. (Interestingly, none of the radio-related fees changed from the May proposals.)

The Commission has not yet announced the dates of the window period during which reg fees can be filed this year, but it does indicate (in Paragraph 1 of its order) that it intends to “collect these regulatory fees during a September 2012 filing window”. So it looks like your beach plans for August are still intact.

Continue Reading...

FCC Still Clenching Improperly Collected Application Fees

Mum’s still the word at the FCC, more than a year after word surfaced about its questionable collection, and retention, of certain fees.

Gee, has it already been more than a year? 

In June, 2011, we posted an item about how the FCC had, for seven years or so, been pocketing certain application filing fees which weren’t really owed by the applicants.  The Commission did quietly issue a refund in response to one request in March, 2011 (notation on the refund check’s memorandum line: “not required to pay fees”).  But it didn’t publicly announce that refund; instead, it quietly tried to change the rule that forbade collection of the fees.

During the summer of 2011, we filed a number of such requests on behalf of various clients, citing the refund that was issued.  We understand that other law firms did as well.  In the intervening year or so, however, no further refunds have been issued.

Last March, Jack Mullaney, the consulting engineer who (through our friends at Radio World) first called our attention to the FCC’s, um, sticky fingers, emailed the folks in the Office of the Managing Director (OMD) – which normally handles fee-related matters – inquiring about where things stand.  Opting not to respond in writing, OMD offered to speak with Jack by phone.  Jack agreed, and asked us if we’d like to sit in.  You betcha, we said.

Continue Reading...

Update: Online TV Public File System Unveiled!

Initial reviews are cautiously positive following FCC demonstration.

Astute readers will recall that today was the day that the FCC was to debut its new online public file system for TV stations. You know, the system that the TV industry, en masse, will be expected to be tapping into as of August 2.

We dropped by the FCC this morning to take a first-hand look at what the Feds have cooked up. 

We were favorably impressed. 

As cumbersome as some of the FCC’s online systems have been and still are, this one seems reasonably approachable and usable by people who don’t live and breathe FCC air every day.  The interfaces are pretty intuitive, both for stations that upload and for people who want to look up any item on the laundry list of materials required to kept in the public file. If you can master the system for filing Children’s Television Reports, the public file upload should be a breeze.

The Commission told us that the system is just about ready to go live, and that it should be available for stations to start uploading by the August 2 target date.  There is, however, at least one issue remaining to be ironed out.

Continue Reading...

Update: Aereo Allowed to Continue Operation During Copyright Challenge

 Judge denies broadcasters’ request for injunction.

In the Aereo v. the Broadcasters smackdown, Round One has gone to Aereo. In a thorough 52-page opinion, Judge Alison Nathan, U.S. District Judge in the Southern District of New York, has rejected efforts by the broadcaster plaintiffs (i.e., the major broadcast networks) to get the court to enjoin Aereo’s operation. That means that Aereo can continue to serve its subscribers while the broadcasters’ various substantive claims against Aereo (consisting of claims of various flavors of copyright infringement) are litigated.

That’s bad news for the broadcasters. But what’s worse is how Judge Nathan got to that result. 

(If you’re fuzzy on just what the Aereo litigation is all about, take a look at our initial post about the case.)

Judge Nathan concluded that Aereo’s system is, for purposes of copyright law analysis, essentially the same as the Remote Storage DVR (RS-DVR) system that, according to the U.S. Court of Appeals for the Second Circuit, does not infringe copyrights. While her opinion grants a number of points to the broadcasters, her conclusion about the similarities between Aereo and the RS-DVR system deals the death blow to the broadcasters’ injunction request – and, looking down the line, very likely also to its overall claims of infringement.

We’ll delve into Judge Nathan’s decision a bit more below. But first, a brief primer on litigation procedure may give readers not versed in the Litigation Arts an understanding of what has happened thus far and what it means going forward.

Continue Reading...

Update: Media Bureau Denies NAB Request to Stay Effective Date of Online Public File Requirement

In a move that should surprise nobody, the Media Bureau has denied the NAB’s request that the effective date of the online public file rule (currently August 2, 2012) be stayed. This is not a particularly significant development, though, since the NAB, apparently expecting precisely this result, had already asked the U.S. Court of Appeals for the D.C. Circuit (where the NAB is appealing the new online public file requirements) to step in and stay the effective date. The Bureau’s denial of the stay request addressed to the Bureau does not affect the separate effort at the court to secure a stay.

The Bureau’s order does provide a preview of what the Commission is likely to be telling the court in response to the NAB’s stay request there. And on that subject, the D.C. Circuit has ordered the FCC to file its response by 4:00 p.m. on July 20; the NAB will have until July 24 to reply. As a result, the court will have slightly more than a week to review the pleadings and decide whether a stay is in order.

Check back with CommLawBlog.com for updates.

Update: NAB Asks Court to Stay Effective Date of Revised TV Public File Rule

With August 2 effective date looming, NAB looks to court for relief.

Things continue to percolate on the TV public file front. Remember last week, when we predicted that the NAB would eventually be asking the U.S. Court of Appeals for the D.C. Circuit to stay the FCC’s seemingly irresistible juggernaut toward implementing the new public file rule as of August 2? Boo-yah!! That’s just what the NAB has done.

The FCC has not yet acted on the NAB’s stay request that the NAB filed with the FCC last week. But time’s a-wastin’, and last week’s filing with the Commission wasn’t going anywhere anyway. In fact, it was likely filed primarily so that the NAB could tell the court that the agency had been given its own opportunity to stay the case. That’s because the courts tend to be reluctant to weigh in on such things if the agency in question hasn’t been given first shot at addressing the issues.

Last week’s stay request, addressed to the Commission, served precisely that purpose. Having waited a decent interval and received no response from the FCC, the NAB was in a position to represent to the court (as it does on Page One of its stay motion) that the Commission had its chance.

Next up – the FCC’s opposition. As required by the court’s rules, before filing its stay request with the court, the NAB advised the FCC that that request was about to be filed and asked whether the FCC planned to oppose it. Answer (and here’s a surprise): The FCC will be filing an opposition.

Stays are notoriously difficult to obtain, either from the FCC or from the courts. A party seeking a stay must normally demonstrate, among other things, that it will suffer irreparable harm if the stay is not granted. That’s a rough showing to make. We suspect that that issue will be a focal point of back-and-forth arguments in the coming weeks.

Check back here for updates.

Media Bureau Invites E-Filed Pleadings

CDBS has been tweaked to accept pleadings relating to applications.

Dr. Seuss fans know that the Lorax speaks for the trees. And in that capacity, the Lorax is likely saying “thanks” to the Media Bureau. That’s because the Bureau has announced that it is now accepting application-related pleadings electronically, through the Commission’s Consolidated DataBase System (CDBS). So instead of filing mountains of paper (in multiple copies), petitioners can now save some trees by preparing a PDF of their pleading and, with a few relatively simple keystrokes, filing it with paperless online convenience.

The new filing option is available for pleadings directed to particular applications. Think informal objections, petitions to deny, petitions for reconsideration, applications for review . . . that sort of thing. Also, of course, pleadings that respond to any of those. (The new option does not apply to pleadings in docketed proceedings – those can be filed electronically, but through the Electronic Comment Filing System (ECFS).)

The Bureau’s public notice lays out the basic process:

Continue Reading...

TV Stations' Cable and Satellite Copyright Royalty Claims Due July 31

As July slips into August, it’s time again to remind television broadcasters that Copyright Royalty Claim forms – for cable retransmission copyright royalties and/or satellite copyright royalties earned during 2011 – are due at the Copyright Royalty Board by 5:00 p.m. on Tuesday, July 31, 2012.  (The CRB's site doesn't specify that that's 5:00 p.m. Eastern Time, but it's probably best to assume that that's what they mean.)  This is your opportunity to lay claim to a share of the annual fund from which television broadcast stations get paid for their programming that is retransmitted by cable and satellite service providers outside of their respective service areas.

In general, TV stations that are carried on cable systems as a distant signal, and those stations that provide programming to other stations that are carried as a distant signal, are entitled to royalty payments.  A cable system is “distant” vis-à-vis a station if the system is: (1) outside the station’s DMA; and (2) at least 35 miles from the station’s city of license; and (3) outside the station’s predicted Grade B contour.  Stations whose programming is carried on satellites to subscribers outside the station’s DMA are also entitled to royalty payments.

The Copyright Office encourages stations to file their Claim Forms online.  The forms can be found at:  http://www.loc.gov/crb/claims/.

If you would like assistance in the preparation and filing of royalty claims, please contact Davina Sashkin at sashkin@fhhlaw.com or (703) 812-0458.

Update: Mission Abstract Replies

Arguing again for lifting of stay, MAD claims it’s the victim of a “sophisticated”, “multi-pronged”, “coordinat[ed]” effort to “attack” and “derail” MAD. 

In keeping with our commitment to try to keep our readers on top of ongoing developments in the Mission Abstract Data (MAD) patent litigation in Delaware, here’s the latest: a link to MAD’s most recent pleading in its effort to get the stay of that litigation lifted. Attentive readers will recall that the U.S. District Court in Delaware put a hold on the litigation last year at the request of the defendants, a number of Big Broadcasters. Last month MAD petitioned the court to get things moving. Not surprisingly, the Big Broadcasters opposed that petition, and now MAD has replied to that opposition.

Since (as we have repeatedly acknowledged) we here at CommLawBlog are not patent experts, we won’t opine about MAD’s various arguments. They look pretty much like what you might expect. MAD generally belittles the litigation claims of the Big Broadcasters (and BEI, which has challenged MAD’s patents in the U.S. Patent and Trademark Office) and bemoans the fact that its case hasn’t progressed. Folks familiar with litigation probably won’t be surprised by anything in MAD’s reply.

Perhaps most interesting is MAD’s repeated insistence that continued delay has been and continues to be prejudicial to its “licensing program”. That “licensing program”, of course, is the repeated, insistent effort by MAD (and its cohort, including DigiMedia and IPMG AG) to browbeat radio broadcasters into agreeing to pay for the right to use MAD’s patented technology, whatever that may be. (MAD reads its patents very broadly; others disagree with MAD’s interpretation. That’s where the USPTO and the Delaware court come into the picture.)

MAD’s business – which it describes as “non-litigation intellectual property licensing” (points for making this argument in the context of litigation with a straight face) – will be prejudiced by continued delay, according to MAD, because:

Continue Reading...

Update: FCC to Take the Wraps Off Online TV Public File System Real Soon

 Mark your calendars! July 17 is the date,10:00 a.m. ET is the time! That’s when All Will Be Revealed about the cloud-based online system by which the FCC plans to maintain the public files of several thousand TV stations. Well, maybe it won’t be revealing everything – but the Commission will be conducting a “public demonstration” of that system.

According to a public notice released by the Commission late on July 6 (a Friday afternoon in the middle of summer, for what that’s worth), “[t]he demonstration will inform broadcasters and others of the design and content of the online file, how stations will upload information to the file, how file sharing tools like Dropbox and Box can be used for uploading, and other ways in which the FCC is working to facilitate access to its public databases.”

Also according to the FCC's notice, “[t]he demonstration is part of the commitment made by the Commission to test the online public file . . .” Hold on there. “Test the online public file”? It’s not clear how a one-time dog-and-pony show constitutes a “test” in any meaningful sense. That’s especially so where, as here, the FCC’s filing system will have to be ready to handle a very substantial level of data upload as soon as it opens for business, i.e., barely more than two weeks after the “test”. (As we have previously reported, August 2, 2012 is currently the magic date.)

But, apparently, the FCC views this as a test of the system – and, given the scant time between July 17 and the currently anticipated start date, it may be the only test.  So we’ll just have to wait and see how it goes.

You can attend the show live and in person, at the FCC’s Headquarters, or you can watch it on the Internet at http://www.fcc.gov/live.

The CRB Dodges an Appointments Clause Bullet

From unconstitutional to constitutional in a couple of pages, the Copyright Royalty Board has dodged a bullet, thanks to the D.C. Circuit.

The U.S. Court of Appeals for the D.C. Circuit has concluded that the structure of the Copyright Royalty Board (CRB) violates the Appointments Clause of the Constitution. As a result, a CRB rate determination under appeal has been vacated and the matter remanded to the CRB for further consideration. 

But wait, you say – why remand it to the CRB if the CRB is unconstitutional? In a deft demonstration of judicial legerdemain, the court also concluded that CRB’s unconstitutionality could be remedied if the court were simply to write some inconvenient language out of the governing CRB statute – and that’s just what the court did. So while the CRB may not have been constitutional before the court’s decision, it will be constitutional as of that decision, as will CRB determinations made after the court’s decision.

The case involves a challenge to the CRB’s 2011 decision setting copyright royalty rates for certain noncommercial webcasters. Intercollegiate Broadcasting System, Inc. (Intercollegiate), an association of noncom webcasters unhappy about the decision, appealed.

Continue Reading...

Update: Video Description Now In Effect

[Blogmeister Note: As we reported last September, the FCC has re-imposed the “video description” requirement at Congress’s direction (see the behemoth 21st Century Communications and Video Accessibility Act of 2010). Nearly two years after the passage of that Act, the video description rules have taken effect as of July 1, 2012. If you’re a bit hazy on the details of the new rules and want an in-depth review of who’s got to do what when, check out our earlier post, which lays things out in detail. For those of you who need only a quick refresher course, what better (or, at least, quicker or more refreshing) way of getting that to you than with . . . (wait for it) . . . haikus! A CommLawBlog exclusive: Video Description in 51 syllables! ]

Top four stations in
Twenty-five largest markets
Must have 50 hours

Big MVPDs
Also provide 50 hours
On top five channels

All others pass through
Video-described programs
To their blind viewers

Update: Developments on the TV Public File Rule Front

FCC alludes to online filing system in the works; NAB asks for stay

As we reported, an announcement in the Federal Register on July 3 advised that the FCC’s revised public file rule for TV stations is set to take effect on August 2. After we had posted that news, the Commission issued a public notice which (a) re-confirmed the date, and (b) didn’t say diddly about any possible flexibility in the date arising from any need to comply with the Privacy Act. So the FCC, at least for the time being, is sticking to the August 2 effective date.

What about the fact (which we mentioned) that the Commission hadn’t announced that it had developed an online filing system to accommodate TV public files. No problem. According to the public notice, “[t]he Commission will soon schedule user testing and educational webinars for the online public file to ensure that the uploading of materials by broadcasters can be conducted smoothly and efficiently.” Without actually saying so, that suggests that the FCC’s got some kind of system in the works. OK then. The fact that that system hasn’t been publicly revealed – much less test-driven by any of the several thousand licensees who will be expected to be using it routinely in less than 30 days – seems not to be of concern to the Commission. Its optimism is impressive.

And in our earlier post, we suggested that the NAB, which already has an appeal of the revised public rule pending, might be inclined to seek a stay of the August 2 date. Sure enough, before the end of the day on July 3 the NAB had done just that.

Continue Reading...

Effective Date of Revised TV Public File Rule Announced

TV broadcasters, start your scanners. The era of online public files is set to take effect on August 2, 2012 . . . maybe. 

According to a notice in the July 3 Federal Register, the Office of Management and Budget has approved the Commission’s revised public file rule. Thanks to that notice, the rule – which now requires full service TV and Class A TV stations to post their public files on a Commission-maintained, cloud-based, online system – will become effective 30 days hence.

That means that, at least theoretically, as of August 2, 2012 all full-power and Class A TV licensees will have to start uploading to the FCC’s online file system all newly-created documents required to be placed in the public file except for letters/emails from the public and, in some-but-not-all cases, political file materials. Those licensees will have six months in which to upload all pre-existing public file documents to the online system (again, with the exception of communications from the public and, in all cases, political materials). (A quick look ahead on the calendar indicates that six months from August 2 would ordinarily be February 2, 2013, a Saturday.)

Who has to upload political materials and when? Nobody has to upload existing political file materials – they’ve been exempted from the online file requirement. The first folks to feel the brunt of the online rule as far as political materials go are the stations (a) affiliated with one of the top four commercial networks and (b) located in a Top 50 market. If you’re one of them, you have to start uploading your newly-created political documents as of the effective date of the rules, just in time for the crush of a national election.. (Previously-created political documents need not be uploaded to the online file.) Everybody else – i.e., Top 50 stations not affiliated with ABC, CBS, Fox or NBC and all non-Top 50 stations – can relax until July 1, 2014 on the political file front.

We say that the initial upload date may still be theoretical for a couple of reasons.

Continue Reading...

Update: Newspaper-Broadcast Cross-Ownership Prohibition Still Alive

Supreme Court declines to review 2011 Third Circuit decision that effectively reinstated 1975 ban.

The U.S. Court of Appeals for the Third Circuit closed out the 2011 Supreme Court term on a winning streak, at least in terms of the Third Circuit’s FCC-related decisions. First, the Supremes declined to review the Third Circuit’s handiwork in the Janet Jackson case. And second, in the mundane list of review denials released on the last day of the Supreme Court term, the Supremes also declined to review the Circuit’s decision overturning the FCC’s 2008 revisions to the newspaper/broadcast cross-ownership rule.

As we have previously reported, last year the Third Circuit affirmed – for the most part – the Commission’s 2008 Ownership Order. That order had largely reset most media ownership rules back to the way they had been in 2003 (before the same Court in 2004 overturned an attempted 2003 revision). (Confused? Check out our earlier post on the Order for additional explanation.)

But the 2008 Order did not affirm the FCC’s revised newspaper/broadcast cross-ownership rule. The Commission, under then-Chairman Martin, had attempted to rewrite that rule to allow limited cross-ownership in major markets. The Third Circuit rejected that revision, finding that the Commission, in adopting the modified rule, hadn’t jumped through all the necessary procedural hoops. 

By overturning the Commission, the Third Circuit effectively reinstated the ban on newspaper/broadcast cross-ownership that had been in place since 1975. A number of media parties – but not the FCC – asked the Supreme Court to review that aspect of the Third Circuit’s decision. They argued that the ban is unconstitutional and should be struck down entirely. 

But the Supreme Court declined the invitation, leaving in place the Third Circuit’s decision and, with it, the 1975 newspaper-broadcast cross-ownership prohibition.

The Supreme Court’s refusal to hear the case will likely have very little immediate effect. It does, however, remove one hurdle that stood in the way of the Commission’s continuing – if not never-ending – review of its media ownership rules (about which we last wrote last January). While there may still be many other causes for delay in resolving the proceeding, at least now the threat of imminent Supreme Court intervention is not one of them.

Update: Supremes Shut Down FCC Appeal in Janet Jackson Case

Eight years after the half-second exposure, the Janet Jackson case is over – but the indecency debate lives on.

The Janet Jackson case is, for all intents and purposes, finished. 

With a one-sentence order stuck toward the end (at page 13, to be precise) of a routine 15-page listing of mundane orders, the Supreme Court has stuck a fork in the long-running indecency case. Specifically, the Supremes have declined the FCC’s invitation to review the most recent decision from the U.S. Court of Appeals for the Third Circuit, which had twice found fatal flaws in the FCC’s treatment of the Jackson case.

But, as has been customary with just about everything surrounding L’Affaire Jackson, even the Supreme Court’s final order included some unexpected flair.

Continue Reading...

Update: Mission Abstract Opponents Make Their Case for Keeping Stay in Place

Broadcast defendants shed useful alternative light on current status and future prospects for MAD claims. 

It’s Mission Abstract Update Time! In the lawsuit brought by Mission Abstract Data (MAD) against a bunch of Big Broadcasters, those Big Broadcasters have recently filed a pleading that radio broadcasters should take a look at. You can check out a copy here.

Alert readers will recall that, in its suit, MAD claims that the defendant radio broadcasters have infringed patents that MAD bought up a year or two ago. And with that suit making headlines, MAD (along with its pals DigiMedia and IPMG AG) has been putting the hard sell on other radio broadcasters, trying to get them to sign onto “license” agreements authorizing them to use MAD’s patents. 

That hard sell campaign (which features hefty FedEx packages full of impressive-looking documents, followed up by insistent sales calls from slick salesmen) had died down somewhat after the Delaware court put the lawsuit on hold last fall. But the campaign flared back to life recently, rattling the nerves of the targeted radio stations. (Who was targeted? Based on a conversation I had with a MAD rep, I gather that they’re going after radio stations that play music and have a website. Those two factors, apparently, are evidence that the station has a computer, which leads MAD to figure that the station is using technology which violates the patented technologies.)

We’ve tried hard to keep our readers updated on the lawsuit and related matters.

Continue Reading...

The Swami . . . Online!!!

 He’s ready for his close-up.  Are you?

You’ve read his stuff, and you’ve probably wondered – who is this Man of Mystery they call the Swami? Now you can hear him and see him as he expounds, with customary eloquence, about the Supreme Court decision in FCC v. Fox Television Stations. The Swami, Kevin Goldberg, is now available to you on the small screen (probably the one you’re reading this on). He quotes Cher. He quotes Bono. He quotes Nicole Richie. He does it all. Is this a great country or what?

Kevin’s online appearance comes to you thanks to our good friends at LexBlog, the legal-focused blogging platform that hosts CommLawBlog.  He sat down for a short Skype-based interview with LexBlog’s Colin O’Keefe, answering a few questions regarding the history of the case and the issue, the Court’s decision (and why it was unanimous), and the likely impact on broadcasters.   This is part of LexBlogs “LXBN TV”, a cool service that brings blog posts to life.

You can see all 12 minutes and 48 seconds of the interview here.

PBS/NPR Proposed 2013-2017 Copyright Royalty Rates Out for Comment

 CRB seeks input on last piece of NCE royalty rate puzzle for next five-year period.

A couple of months ago, we reported that the Copyright Royalty Board (CRB) had invited comments on a number of proposals to govern copyright royalties owed by noncommercial (NCE) broadcasters to ASCAP, BMI and SESAC from 2013 through 2017. The various proposals covered a substantial portion of the NCE universe, with one important exception. As we noted, the CRB’s notice did not mention proposed rates for NPR or PBS stations.

Now we know why.

It appears that NPR and PBS were still working on their proposed rates. But that work has now been concluded. In joint comments filed in May with the CRB, NPR and PBS have outlined their proposed approach, which would require payment based on the use of the musical work (or piece of art), the type of station performing it, and the manner in which it is performed. And now the CRB wants to know what everybody else thinks of the NPR/PBS proposal.

As in our earlier post, we’ll forego a detailed listing of all fees in favor of a general overview:

The overall structure would be unchanged from the 2008-2012 period. Unlike non-NPR, non-PBS stations – which will pay a blanket fee to ASCAP, BMI and SESAC (with a reduced fee option available to stations that favor news/talk/sports over music) – NPR and PBS stations would pay for the use of each individual piece of music.

Continue Reading...

FCC Eyes Easier NCE Fundraising for Third Parties

Interruption of regular programming might be permitted without prior waiver; reporting, certification requirements also in play

The Commission is asking whether noncommercial educational (NCE) radio and TV stations should be routinely permitted to interrupt their regular programming for fundraising activities for the benefit of any non-profit entity other than the station itself. The proposal is in response to a study published last June by the FCC’s Working Group on Information Needs of Communities.

Historically, because of their noncommercial nature, NCE stations have been prohibited from breaking into their regular programming for extended third-party fundraising even when the entity to be benefited was itself non-profit. (PSA’s and brief paid-for underwriting announcements are OK.) While sometimes an extraordinary need for such fundraising might arise – relief efforts in the wake of Hurricane Katrina, for example, or the Japanese earthquake/tsunami, or the Haitian earthquake – in such circumstances the Commission has been willing to waive the rule (which, technically, appears in Section 73.503(d) (for radio stations) and 73.621(e) (for TV stations). But such waivers have been limited to “a specific fundraising program or programs, or for sustained station appeals for periods which generally do not exceed several days.”  And waivers are not invariably granted.  (Case in point: Back in the 1970s a proposal to run an on-air auction to benefit a financially-distressed local symphony orchestra was nixed by the Commission.)

Lurking in the background of the latest proposal is the FCC’s apparent discomfort with the amount of air time already being devoted by NCE stations to begging for bucks. That factor is a primary reason for the existing limitation on third-party fundraising efforts. (One question the Commission poses in its Notice of Proposed Rulemaking (NPRM): Just how much airtime do NCE stations actually spend on fundraising?)

Any relaxation of constraints on third party fundraising would likely be limited.

Continue Reading...

FCC v. Fox (Supreme Court - Round Two): The Swami Explains

[Blogmeister’s Note:  As we reported, after months of deliberation, the Supreme Court resolved the Fox/NYPD Blue indecency case by, um, not really resolving it. We were hoping that the Court would provide a clear and conclusive resolution of the longstanding tension between the First Amendment, on the one hand, and the FCC’s efforts to regulate “indecency”, on the other. Instead, the Court snuck out the side door, choosing to ignore the First Amendment and rely instead on a very narrow application of the Fifth Amendment. So the First Amendment question lives on, to be decided some other day years from now.

The Court (in a unanimous decision authored by Justice Kennedy) held that the FCC could not penalize Fox or ABC for the particular broadcasts at issue (those would be a couple of awards shows in which presenters let slip with one or two “fucks” or “shits” and an episode of NYPD Blue featuring a very brief glimpse of Charlotte Ross’s tush). While that bottom line ruling is no doubt a relief to Fox and ABC, it does little for the rest of us. Or does it? 

For insight into what the Court’s decision means going forward, we called on the Swami, Kevin Goldberg. In response, the Swami sent us a gazillion-page opus whose central motif was based on a classic – and entirely on point – catchphrase from one of the pinnacles of 1980s cinema.  That’s not what we had in mind, so we have pared his response down here. Devout Swami followers who would like a complete copy of Kevin’s disquisition in its (more or less) original form may request copies through the “comments” option, below.]

Blogmeister: So Swami, when you reported on the oral argument in the Fox case, you counted the votes as 5-3, maybe 4-4. The actual vote turned out to be 8-0. In the words of Mike LaFontaine, “Hey! Wha happened?

Swami:  I may have missed on the vote count, but I nailed the result – both in terms of the victor and, more importantly, the narrowness of the holding. 

Why was I so sure that the Supremes would keep it tight?

Continue Reading...

From the FCC Police Blotter: No Blood from the Stone? Demand More Blood!

Broke licensee who can’t pay $8K fine gets extra $25K fine for not paying first fine.

The FCC has demanded $25,000 from a licensee who failed to make a “voluntary contribution” which it had committed to pay as part of a consent decree (i.e., a settlement agreement in an enforcement proceeding). That earlier payment wasn’t made because the licensee said it didn’t have the $8,000 which it had promised to pay. Tough, says the FCC – mere financial distress will not justify relief if you break your promise.

An AM licensee in Puerto Rico was fined $15K in 2005 for various violations. After several years of back and forth, the licensee and the FCC entered into a Consent Decree, which included an $8K “voluntary contribution” to the U.S. Treasury (we love the way the government uses the term “voluntary” – it reminds us of the things we “volunteered” to do for Uncle Sam in basic training).

Things weren’t going so well business-wise for the licensee (more on that below), and it never paid the eight grand. Wow, the FCC said – short changing the government is no-go in spades. So last year the FCC proposed an additional $25,000 forfeiture for failure to pay the $8,000. 

“Can’t pay,” the licensee responded. How come? According to the licensee, all but two of its owner’s companies are in bankruptcy, and it’s facing “overwhelming debt and almost nonexistent cash”. But the FCC didn’t have to take the licensee’s word for all this – the licensee gave the Commission a number of financial documents. The Commission grudgingly acknowledged that those documents “may arguably support [the licensee’s] asserted inability to pay”.

But so what?

Continue Reading...

From the FCC Police Blotter: Misrep Lite - When Thinking You're Being Honest Just Isn't Enough

Texas AM whacked $25K for statement that might have been inaccurate.

One of the most fundamental axioms of communications law: correctness is essential, whether you’re filling out an application, filing a pleading, responding to an FCC inquiry, or whatever. When you tell the Commission something, you had better be right. We’re not talking about affirmatively lying to the Commission. That, of course, is even higher up on the list of mortal sins in the FCC’s catechism. But nowadays, any inaccuracy in what you tell the agency – even if it’s not an intentional inaccuracy – can land you in hot water, unless you can show that you had a “reasonable basis” for your statement. The FCC enforcement folks, whose contributions to the government's coffers have increased dramatically in recent years, have recently driven this point home with considerable vigor.

As we have previously observed, Section 1.17(b) of the Commission’s rules prohibits what we have referred to as “misrepresentation lite”. As my colleague Mitchell Lazarus described it, the misconduct prohibited by the rule

does not involve “misrepresentation” – what many of us know as “lying” – because that requires some element of deceit. No showing of deceit is necessary to trigger Section 1.17. All it takes is the filing of “incorrect” information “without a reasonable basis for believing” that the information is, in fact, correct. This seems to say that any mistake in an application could subject the applicant to a very substantial penalty, even if the mistake is purely unintentional.

An AM licensee in Texas found out about this the hard way.

Continue Reading...

"Viewability" Rule to Ride Off Into the Sunset in December; Small System HD Carriage Exemption Survives Another Three Years

The video industry continues to experience aftershocks from the seismic 2009 DTV transition.

Several years ago, with the DTV transition looming on the near horizon, the Commission adopted two rules aimed at easing the anticipated effects of the transition on some cable viewers and cable systems. Since those effects were expected to be relatively short-lived, the rules were set to expire, or “sunset”, three years after the DTV transition. 

Amazingly enough, we have just passed the third anniversary of the transition. In view of that occasion, the Commission has taken another look at the two rules to determine whether the sunset provision should be allowed to take effect or whether, instead, a continuing need exists for either or both.

The result: one of the two – the “viewability” rule – is gone, or will be gone in six months; the other – which exempts some small cable systems from having to carry HD broadcast signals in HD – will remain in effect for another three years.

The Viewability Rule

The viewability rule applies only to cable operators with hybrid analog/digital systems. Hybrid systems are those that opted, after the 2009 DTV transition, to provide an analog tier of programming (consisting of local TV signals and, in some cases some cable channels) so that subscribers with analog receivers would not require additional equipment. 

Continue Reading...

Revised Tower Registration Process Now In Effect

 It’s official!!! The Commission’s revised antenna structure registration process is now in effect. We know that because the FCC has said so, in the Federal Register – and you can’t get more official than that. The notice announces that the Office of Management and Budget has approved the “information collection” aspects of the new system, so the FCC is cleared to crank it up – which it has now done, effective June 18, 2012

This is important news for anyone who is:

planning to build any new tower that would have to registered through the FCC’s Antenna Structure Registration (ASR) system. The only exceptions are for (a) towers to be built on sites for which some other federal agency has responsibility for environmental review or (b) cases in which an emergency waiver has been granted; or

modifying an existing registered tower by (a) increasing its overall height by more than 10% or 20 feet, or (b) adding lighting to a previously unlit structure, or (c) modifying existing lighting from a more preferred configuration to a less preferred configuration. (Helpful tip: the “most preferred” configuration is no lights at all; the least preferred is red steady lights. Anything else falls in the middle.); or

amending a pending application involving either of the foregoing situations and the amendment would (a) change the type of structure, or (b) change the structure’s coordinates, or (c) increase the overall height of the structure or (d) change from a more preferred to a less preferred lighting configuration or (e) an Environmental Assessment is required.

If you’re looking for background on what the changes may mean for you, check out our earlier post on the subject. Or you could watch the FCC’s introductory presentation and demonstration of the new system, which is available at the Commission’s website. (Time Management Tip: Before committing to watch the whole show, be prepared to invest 75 minutes of your valuable time.)

Update: Comment Deadlines Set in DACA Inquiry

Last month we reported on an Inquiry initiated by the FCC with respect to implementation of Deployable Aerial Communications Architecture (DACA) techniques. Those techniques include use of small unmanned aerial vehicles, weather balloons or high altitude long distance unmanned vehicles to restore communications capabilities in disaster situations. The Notice of Inquiry has now been published in the Federal Register, as a result of which the comment deadlines have been set. Comments are due by July 25, 2012, and replies are due by August 14.

RMLC and BMI Announce Royalty Deal

Similar to ASCAP deal inked earlier this year, new arrangement sets rates through 2016

Earlier this year, the Radio Music License Committee (RMLC) and ASCAP reached a deal setting the royalty rates to be paid, through 2016, by broadcasters to perform musical works by composers repped by ASCAP.   The major components of the deal were (a) a simplified payment process and (b) a basic licensing fee equal to 1.7% of gross revenues.

We had since heard through the grapevine that RMLC and BMI had reached a deal, also running through 2016, for use of BMI-represented musical works. Good news – on June 11 RMLC and BMI issued a joint press release confirming the deal, and providing a summary of the details. Though the agreement must still be formally approved by the United States District Court for the Southern District of New York (because of some antitrust litigation involving ASCAP and BMI that goes back several decades), the prospects for approval are generally good. And that’s welcome news for broadcasters, because the BMI deal is very similar to the ASCAP deal.

Here are the high points:

Most importantly, the old “benchmark fee” based computation system is gone. It’s being replaced by a much simplified percentage of revenue payment rate, with broadcasters paying the same 1.7% of gross revenues to BMI that they are paying to ASCAP. 

Broadcasters can also take a standard deduction of 12% for revenue derived from terrestrial/analog and HD multicasting broadcasts and 25% for revenue attributable directly to new media.

The “per program” option reducing a news/talk station’s royalties by at least 50% from its blanket license is being retained. There is a base fee of 0.2958% of gross revenue with the same deductions as above.

There is also expanded rights coverage to accommodate new media uses.

This translates into a $70.5 million credit across the industry which will be reflected in broadcasters’ June, 2012 statements.   So what we have here are lower rates and a simplified computation mechanism that will apply to both ASCAP and BMI. 

That’s what is known in legal circles as a “win-win”.  Kudos to Bill Velez and his team over at RMLC for their great work.

NCE LMAs: Profit-generating Monetization Not Allowed

Bureau concludes that KUSF(FM) programming arrangement monetized too much; $50K “voluntary contribution” extracted from buyer and seller

Local marketing agreements – a/k/a LMAs or Time Brokerage Agreements or TBAs (among other catchy titles) – have been a common feature of the broadcast landscape for a couple of decades now. The regulatory boundaries relative to LMAs have become reasonably well established, at least as far as commercial stations are concerned.

For noncommercial (NCE) stations, not so much.

But NCE stations are now officially on notice that, when they broker airtime to a third-party programmer, the collection of any fees in excess of “reimbursement of operating expenses” is verboten.   That news comes to us through a Consent Decree (CD) between (a) the University of San Francisco and Classical Public Radio Network, LLC, on the one hand and (b) the Media Bureau, on the other. The CD provides that the Media Bureau will grant the license assignment of NCE Station KUSF(FM), San Francisco, from USF to CPRN – provided that USF and CPRN make a joint “voluntary contribution” to Uncle Sam to the tune of $50,000. 

Why the hefty price tag (which, by way of comparison, is exactly twice the fine issued to Google for thumbing its nose at the Commission)? Because, under the CPRN/USF deal as initially implemented, CPRN was making it worth USF’s while to hand programming time over to CPRN while the assignment application was pending. Oh yeah, and CPRN and USF guessed wrong about how the FCC would feel about that.

Continue Reading...

FCC Floats a Novel Way of Allocating Spectrum

Going beyond ordinary auctions, an FCC working paper proposes a new approach based on mathematical game theory.

The FCC is looking at a new way of allocating radio frequencies.

One of the FCC’s most difficult jobs is squeezing an ever-growing number of users into a fixed amount of spectrum. The variety of radio-based applications keeps growing, but the amount of spectrum suitable for each application is more or less fixed. True, engineering advances keep opening ever-higher frequencies, but the physics of radio waves limits those very high frequencies to a relatively narrow set of applications. Most new spectrum users must fit in and around the incumbents.

The parts of the spectrum best suited to most applications, very roughly from 30 MHz to 30 GHz, are complexly occupied. A band in this region may have primary and secondary allocations, under which secondary users are obliged to protect the primary users from interference, and must accept interference from the primary users. There may be multiple co-primary and/or co-secondary services, with those at the same level required to protect one another. The band may also have one or more types of unlicensed users, who must protect everybody else except each other, and must accept whatever interference comes their way. Much of the FCC-regulated spectrum is also shared with the U.S. government, which adds further layers of complexity.

Continue Reading...

Update: Mission Abstract Tries to Get Its Case Moving

MAD files motion to lift the court-imposed stay of its patent infringement suit

As expected, on June 6, Mission Abstract Data (again, we’ll refer here to the company and its cohorts as “MAD”) filed a motion with the United States District Court in Delaware requesting that the stay in its lawsuit against a number of Big Broadcasters be lifted. (Note: our link here is to the Memorandum in support of the motion. As is customary, the motion itself is bare-bones in nature; the gist of MAD’s argument, such as it is, is set out in the memorandum.) Secondarily, the motion also asks that the court substitute DigiMedia Media Holdings Group, LLC (DigiMedia) as the plaintiff/counterclaim defendant in that suit.  

We’ve been waiting for this, hoping that MAD’s request (and the broadcasters’ response, which will probably be filed in a couple of weeks) would shed useful light on what the recent actions at the USPTO might mean.

Continue Reading...

Mission Abstract Data Resurfaces

 Claiming recent victory at the USPTO, patent troll again seeks to get radio broadcasters to license automated programming system – but questions still remain

They’re baaaaaack!

Mission Abstract Data – or, more accurately, its successor (Digimedia), its licensing agent (IPMG AG), and a bunch of very aggressive reps (for simplicity’s sake, we’ll just refer to them all collectively as MAD) – are back, trying to convince radio broadcasters that they should be signing licensing agreements covering certain technology for which MAD claims to be the patent holder. While MAD’s materials do not expressly threaten that non-signing broadcasters will be sued, recipients might still feel the cold chill of potential litigation as they consider MAD’s pitch.

The technology in question involves automated programming systems. MAD itself didn’t create the systems or get them patented. (That honor goes to a gentleman named Robert J. Goldman, who obtained the two patents in 1997.) But MAD acquired the patents and has, for more than a year, been seeking to extract licensing deals from the radio broadcast industry. In March, 2011, MAD sued a passel of very large broadcast groups for patent infringement; soon thereafter it began peppering radio operators large and small with mailings and phone calls.   You can read our previous posts about MAD’s activities here.

As we reported last fall, the MAD lawsuit (pending in the U.S. District Court for the District of Delaware) was stayed pending further review of the underlying patents at the United States Patent and Trademark Office (USPTO). The stay made sense, particularly in view of the apparently impermanent nature of the USPTO’s determinations relative to the validity of the patents in question. Those patents were originally approved back in 1997. But then approval of major elements of them was withdrawn in October, 2011.

Continue Reading...

Update: Remaining EAS Rules Get OMB Approval, Take Effect

If you’ve been worrying about whether the “information collection” aspects of the FCC’s revised Emergency Alert System (EAS) rules would be in effect soon enough to give everybody time to meet the upcoming June 30, 2012 deadline for CAP compliance, you can breathe easy. According to a notice in the Federal Register, the Office of Management and Budget (OMB) has approved those aspects for six months, effective June 7, 2012. So everything should be good to go for CAP compliance purposes. 

While OMB approval normally lasts three years, the Commission had sought “emergency” OMB review, meaning that the FCC had cut some procedural corners in the usual Paperwork Reduction Act clearance process. The abbreviated six-month approval from OMB will give the Commission the opportunity to fill in the gaps.

Interestingly, OMB appears to have approved, as “information collections”, Sections 11.41(b), 11.42 and 11.54(b)(13). That’s interesting because all three sections have been deleted from the rules, so it’s hard to see how they might be deemed “information collections” that might require OMB approval. To be sure, Section 11.54(b)(13) has been re-codified as Section 11.54(a)(3), so the underlying requirements of that particular subsection are still in the books . . . but Section 11.54(a)(3) itself isn’t expressly included in OMB’s list of “information collections” covered by its approval. That’s probably not a fatal flaw, though, since OMB’s list does include a blanket reference to all of 47 C.F.R. Part 11, which comprises the entirety of the revised EAS rules.

NTIA to LPTVs: "Last Call for Digital Grant Applications"

 On July 2, NTIA set to close the door on applications for grants to reimburse costs of digital conversion

Last call at the LPTV Free Money Bar.  That would be the grant program opened by the National Telecommunications and Information Administration (NTIA) three years ago to help Low Power TV, Class A TV, TV translator and TV booster stations (for simplicity’s sake, we’ll refer to them all as “LPTV folks”) through the digital transition.  If you’re an LPTV operator hoping to tap into the cash flowing from the NTIA program, you’ve got until 5:00 p.m. ET on July 2, 2012 to get your application into NTIA’s hands.

We described NTIA’s two-part program when it opened up back in 2009.

To refresh your recollection, the first part of the program helped pay for analog-to-digital converters necessary to allow LPTVs and translators to pick up digital input signals and convert them to allow rebroadcast through an analog transmitter.  That ended in June, 2009. 

The second part of the program – which is now coming to a close – is designed to help LPTV folks upgrade to digital transmission capability.  Two grant classes are available: one with a $6,000 per-station cap (for converting existing analog transmitters to digital) and the other with a $20,000 cap (for replacing a transmitter that can’t be converted). 

Priority is given to non-profit organizations and rural broadcasters.  Yes, that means that stations that serve primarily urban areas are completely disqualified.  NTIA uses a point system in conjunction with recommendations of its program staff and geographic distributions to rank all eligible applicants.  While a good point score does not necessarily guarantee a grant, it looks likely that enough funds remain in NTIA’s coffers to fund any qualified applicant.

Continue Reading...

Are You Using 20th Century Contracts for 21st Century Transactions?

[Blogmeister’s Note: Recently, the CommLawBlog Contracts Guy, Steve Lovelady, conferred with Kathy Kleiman, Fletcher Heald’s Internet Maven, in the preparation of transaction documents involving the sale of a broadcast station, a sale which involved a number of important Internet-related assets. The two concluded that 20th Century asset sale/purchase agreements – even agreements that contracting parties still use, often out of force of habit – don’t include adequate provisions for 21st Century intellectual property issues. They prepared the following post based on that experience. The Contracts Guy is especially grateful for the Internet Maven’s extensive familiarity with the Internet, which came in handy in identifying and capturing the substance, and value, of a station’s online intellectual property assets.]

 Contracts for the purchase/sale of broadcast stations are a bit like recipes. Particular broadcasters and their lawyers tend to have their favorite versions which include provisions that they happen to like. Maybe they drafted those provisions themselves. Maybe the other party to some deal they did a long time ago drafted them and our particular broadcasters (and their lawyers) liked the way the provisions worked. Who knows?

Whatever may be the case, when a new deal pops up, those broadcasters (and their lawyers) normally don’t waste time creating a brand new asset purchase agreement from scratch. No. More often than not they rummage through their file of previous deals. When they find a contract that comes close to the outlines of the new deal, they tweak the old contract as necessary to make it work for the new deal – just as a chef, in assembling a new meal, starts off with tried-and-true recipes that can be tweaked here and there to accommodate the guest’s tastes and the ingredients available.

That approach tends to work well. It’s efficient and economical. And it affords contracting parties the psychological comfort of using documents they’re familiar with.

But reliance on the old can cause problems. Contracts handed down from year-to-year and deal-to-deal may need to be freshened up, just like old recipes. And that’s particularly true with respect to broadcast deals in the 21st Century.

Continue Reading...

Update: Effective Date Set For Refinements in Tribal Priority Process

Commercial FM channel preference policy established in Rural Radio proceeding kicks in July 2.

In January we reported on the release of the Third Report and Order (3rd R&O) in the long-running Rural Radio proceeding. That’s the decision that created a short-cut available to Native American Tribes seeking new commercial FM stations primarily serving Tribal Lands. (As used by the Commission, “Tribes” is a collective term referring to federally-recognized Native American Tribes and Alaska Native Villages.) We're pleased to report that the revised versions of Section 73.3573 and Form 301 adopted in the 3rd R&O have received OMB’s seal of Paperwork Reduction Act approval. It says so right here in the Federal Register. And according to that notice, the revised rule and related form will become effective on July 2, 2012.

Update: FCC Invites PRA Comments on FM Translator Dismissal/Amendment Process

The Great FM Translator Application Purge has moved one step closer: the FCC has formally initiated the Paperwork Reduction Act (PRA) process which must be completed before the “information collection” aspects of the herd thinning measures can be implemented. With respect to the several thousand new FM translator applications still pending since 2003, the new rules adopted last March in the Fourth Report and Order (4th R&O) impose application caps of (a) 50 nationwide and (b) one in each of the 156 markets identified in Appendix A of the 4th R&O. Any applicant with more than 50 apps nationwide and/or more than one app in any of the listed markets must dismiss enough applications to bring themselves under the limits. The letters necessary to seek those dismissals constitute “information collections” subject to the PRA.

Additionally, the 4th R&O affords pending FM translator applicants some limited opportunities to amend their applications. Those amendments, too, are “information collections”.

With its notice in the Federal Register, the Commission has invited the usual PRA comments on both aspects.  We'd like to be able to tell you exactly what the "information collections" actually look like, but the notice doesn't contain any examples.  Instead, it provides instructions for how to find copies on the OMB website -- but when we tried to follow those instructions, we came up empty.  Ideally this problem will be corrected before comments are due.

Continue Reading...

Up, Up and Away: In NOI, FCC Is High on DACA

Commission seeks input on Deployable Aerial Communications Architecture techniques.

When communications fail in the midst of a disaster, who can you call? Trick question: most often, you can’t call anyone because, as the question assumes, communications have failed.

But the Commission has now taken a preliminary step toward addressing the problem that gives rise to that assumption: as we predicted last year, the FCC has released a Notice of Inquiry (NOI) looking toward implementation of Deployable Aerial Communications Architecture (DACA) techniques. 

DACA techniques are designed to assist, in emergency situations, with the restoration of communications not just to first responders, but also to consumers.  Think small unmanned aerial vehicles (SUAV), weather balloons, high altitude long distance unmanned vehicles (HALE), and deployable suitcase systems.  The idea is to come up with gear that can be deployed during the first 72 hours after a disaster to help ensure communications capabilities without requiring deployment of special user devices. 

The Commission has already sought public comment on DACA, from which the Public Safety and Homeland Security Bureau prepared a White Paper on the subject.  The NOI is the next procedural step through which the FCC is looking to develop a record on which to base a set of DACA regulations.

Continue Reading...

Audio Division Re-Affirms Ruling: Studio Site Moves Based on Longley-Rice Must Be Approved in Advance

Studio relocation without prior FCC OK leads to $7K fine (minus $1,400 for good behavior)

When it comes to main studio site compliance and Longley-Rice, the Media Bureau’s Audio Division is sticking to its guns. As we reported back in October, 2010, the Division had issued a Notice of Apparent Liability (NAL) to an FM licensee even though its main studio was within the station’s city-grade contour, as required by the rules. Now the Division has followed up with a Forfeiture Order re-affirming that NAL. If you’ve got a main studio whose legality hinges on Longley-Rice signal coverage calculations and if you weren’t paying attention when the NAL came out in 2010, now would be a good time to focus on this. 

What’s the problem with relying on Longley-Rice, you ask? Nothing, as long as you jump through the right hoops in the right order, according to the Division. It seems that this particular licensee’s studio location was not within the city-grade contour according to the FCC’s predicted method, even though it was within that contour as determined by a Longley-Rice analysis. According to the licensee, it performed the Longley-Rice analysis to confirm that the site in question was within the contour as required by the main studio rule; comfortable with that knowledge, the licensee went ahead with the move, simultaneously notifying the Commission of the move. In the notification the licensee asserted that the new location complied with the rules. (It later moved a block or two down the street, to a site that also complied with the rules, according to Longley-Rice.)

More than a year after the first move, the Commission started an investigation when somebody (we’re guessing it was a competitor, but you never know) complained. The licensee explained what it had done. In response, the Division whacked the licensee with a $7,000 fine, even though everybody agreed that, per Longley-Rice, the studio was street legal.

Continue Reading...

Update: Effective Date for TV Channel-Sharing Ground Rules Set

The Commission’s initial, bare-bones TV channel-sharing rules, adopted late last month, are set to take effect on June 22, according to a notice published in the Federal Register. As we reported a couple of weeks ago, those rules don’t seem to change much -- indeed, Media Bureau Chief Bill Lake managed to cram a presentation on the new rules into a PowerPoint consisting of three pages (not including a title page and a second page consisting exclusively of a photo and the title "What Is Channel Sharing?") -- but they do get the ball rolling for the anticipated incentive auctions and TV channel re-packing process that appear to be high on the FCC’s to-do list.

Note that the Federal Register publication not only establishes the effective date of the new rules, but it also sets the deadlines for seeking reconsideration or judicial review of the Commission’s channel-sharing Report and Order (R&O). Anyone who finds fault with the R&O but is inclined to give the FCC a chance to fix the problem(s) itself can file a petition for reconsideration by June 22. Fault-finders inclined to ask a court of appeals to review the R&O have until July 23

If you’re in the latter category, don’t forget that about the judicial lottery factor. That is, if you’re hoping to have a particular circuit review the R&O, Section 1.13 of the rules requires that a petitioner file with the FCC’s General Counsel within 10 days of the Federal Register publication a copy of its petition for review with the court of appeals of its choosing; that copy must bear a date/time stamp from that court proving that it was in fact filed. If more than one petitioner specifying more than one circuit jumps through all those hoops, the Commission will ship all the candidates over to the Judicial Panel on Multidistrict Litigation, which will pick a lucky circuit at random.

Don't Touch That REC button . . .

UNLESS and UNTIL you’ve got consent – Section 73.1206 leaves very little wiggle room.

The telephone rule strikes again! Back in February of last year, we thought we made it pretty darn clear that, with very few exceptions, you’re not supposed to record any part of a telephone conversation for future broadcast unless you have first obtained consent from the other party to the conversation. You can look it up – it’s Section 73.1206. And yet, barely three months later, another licensee did just what it wasn’t supposed to do. If only it had paid attention to CommLawBlog.com, it could have avoided a $2,000 fine. Oh well, maybe next time.

Truth be told, this violation was not as bad as some others we’ve seen – including, particularly, the one we wrote about last year. In this case, a station’s morning team called some guy at about 6:00 a.m., possibly to discuss some dispute the guy was involved in. With the recorder running (but not on the air), the announcers ID’d themselves. The guy immediately asked whether he was on the air. No, responded the jocks, but they acknowledged that “[t]echnically you’re being recorded right now.” [Note: Why they qualified that admission with “technically” is not clear, since they were, in fact, recording him. But it was 6:00 in the morning, after all.] The guy astutely advised them in no uncertain terms that he did not consent to the broadcast of his voice.

To which the announcers replied: “Oh bummer”.

Continue Reading...

Update: Revised "White Space" Rules To Take Effect June 18

Last month we reported on an FCC action that may mark the end of the decade-long “white space” proceeding authorizing the operation of some unlicensed devices in the broadcast television bands. The Commission’s Third Memorandum Opinion and Order (3rd MO&O), released in early April, disposed of a handful of petitions for reconsideration of the agency’s 2010 decision which had in turn tweaked technical “white space” specs adopted back in 2008. The 3rd MO&O has now been published in the Federal Register, which means that, barring any extraordinary intervening event (like the issuance of a stay – the approximate likelihood of which is pretty much zero), the rules as modified last month will take effect on June 18, 2012

Media Access Project Exits Stage Left

Public interest communications “law firm and advocacy organization” closes up shop

Media Access Project (MAP), a long-time player in the soap opera that is communications law, has left the show. As of May 1, MAP suspended operations “after evaluating the difficult funding environment facing MAP and other progressive public interest groups.”

Founded in 1973, MAP assumed a variety of roles over the course of its 39-year history. To some it was a tough litigator, a thoughtful advocate, and a mouthpiece for a wide range of interests that might not otherwise have had a mouthpiece. To others, it was a self-promoting buttinsky given to advancing positions of questionable (if any) validity. A seemingly constant presence in the mainstream press, it could be a total pain in the tail to those with whom it disagreed. Many – maybe even most – “industry” representatives may have disagreed with many – maybe even most – of MAP’s positions and tactics. But MAP, apparently indefatigable and unquestionably resourceful, made its voice heard, for better or for worse.

MAP prevailed in a number of important cases before the Commission and the courts and succeeded in swaying legislative policy. But MAP’s more lasting impact will likely be the fact that it spawned, directly and indirectly, a new generation of like-minded organizations that will carry on MAP’s work into the 21st Century. The ongoing work of those organizations will be MAP’s true legacy.

The demise of MAP has a particular, personal, effect on this blogger.

Continue Reading...

Online TV Public File Update: Deadlines Set for Seeking Reconsideration, Judicial Review

Meanwhile, FCC cranks up the Paperwork Reduction Act process

If you’re thinking about asking the FCC to reconsider its recent decision to move TV public files to an FCC-maintained cloud-based online system – or maybe if you’re more inclined to ask the courts to take a look at that decision – your deadlines for doing so have now been set. The Commission’s Second Report and Order, which we reported on last month, has now been published in the Federal Register. That means that (as dictated by Section 1.429 of the rules) petitions for reconsideration are due to be filed with the Commission no later than June 11, 2012.

On the other hand, thanks to 28 U.S.C. §2344, petitions for judicial review may be filed by July 10. Those can technically be filed with any of the federal courts of appeals, but heads up. If you’re hoping to have a particular circuit review the FCC’s order, you need to be mindful of the judicial lottery process and Section 1.13 of the rules. As implemented by the Commission, that process requires that, to be part of the judicial lottery, a petitioner has to file with the FCC’s General Counsel within 10 days of the Federal Register publication (in the case of the Second Report and Order in the public file proceeding, that would be May 21) a copy of its petition for review with the court of appeals of its choosing; that copy must bear a date/time stamp from that court proving that it was in fact filed. In other words, if you’re going to be picky about what circuit should hear the appeal, you’ve got to act much faster than the rules would otherwise allow.

This flurry of procedural dates does not, however, mean that the new public file rules are going to become effective in the immediate future. Before that can happen, the FCC has to run the new rules through the Paperwork Reduction Act (PRA) process, a process which the Commission has also just cranked up with a Federal Register notice. If you have any PRA-related thoughts to offer, you’ve got until June 11, 2012 to lob them in to the Commission. After that, the Commission will bundle up all the comments it receives and ship them over to the Office of Management and Budget, along with a supporting statement explaining why it think the new rules are consistent with the PRA. (The rules will then go into effect 30 days after the FCC announces in the Federal Register that OMB has approved the rules.  Check back here for updates on that score.)

By the way, according to the notice, PRA-related comments are supposed to address:

  • whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility;
  • the accuracy of the Commission's burden estimate;
  • ways to enhance the quality, utility, and clarity of the information collected;
  • ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and
  • ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.

Wireless Bureau Sheds Light on Upcoming Tower Registration Regimen

Announcement of OMB approval expected soon

If you’re planning on building a new tower, or significantly modifying an existing tower, in the foreseeable future, listen up. The Commission’s Wireless Telecommunications Bureau has issued a public notice laying out the new registration procedures that have been adopted (but not yet implemented) to provide pre-registration notice-and-comment opportunities relative to environmental considerations. We have previously reported on the new procedures