Aereo Update: Alito Back On The Case

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

JSAs On the FCC's Hit List

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

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

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

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

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

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

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

There are multiple problems here.

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

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TV Channel-Sharing Study: A Report on the Report

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

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

But those types of cooperation are different.

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

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

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Reminder: Aereo Webinar Set for April 16

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

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

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

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

CommLawBlog - On the Air!

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

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

Free Webinar on Aereo - April 16

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

The Retrans R&O adds one more indicium.

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Incentive Auction Plan B: Government-Subsidized Cable?

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

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

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

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

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

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

Is this a great country or what?

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

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

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

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

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

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

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

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

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Pursestrings 2014: New Application Fees Announced

Effective date TBD

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The Future of Music Licensing?

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

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

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

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

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

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

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JSAs and SSAs: DOA?

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

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

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

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

Aereo’s losing streak continues.

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

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

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

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

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

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

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

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

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

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

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

Update: Appeal Clock Starts for Class A and LPTV Digital Construction Deadlines

FCC’s September, 2013 denial of reconsideration finally makes it to the Federal Register

While the transition of full-power TV stations from analog to digital occurred nearly five years ago, the DTV transition for Class A and LPTV stations is still far from complete. In 2011 the FCC set deadlines for the construction of Class A and LPTV stations and the termination of all LPTV operation on Channels 52 and above. (Read out post about that decision here.) And as we reported last September, the Commission denied reconsideration of that decision.

For unexplained reasons, the order denying reconsideration was not published in the Federal Register . . . until now. Its publication there on March 6 starts the 60-day clock for seeking judicial review of the deadline rules. In other words, May 5, 2014 is the last day for getting to the court house.

For anyone who might (understandably) have lost track of this proceeding in the five months or so since the FCC formally addressed it, here’s what’s on the table.

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Aereo Update: Supreme Developments

With more than six weeks to go before the April 22 oral argument, the Aereo case in the Supreme Court is in what litigators refer to as the “briefing phase” – the various parties are busy preparing and submitting their written arguments to the Court. The broadcaster-petitioners have already filed their brief; Aereo’s is due shortly.

But newsworthy things are still happening. Indeed, despite the snow storm that shut down Washington, D.C. yesterday, there were two noteworthy developments in the Aereo case.

First and perhaps most important, the U.S. Department of Justice – through its principal appellate mouthpiece, the Solicitor General – weighed in with an amicus brief in support of the broadcaster-petitioners. This is Big News because the DOJ’s opinion tends to be taken very seriously by the Court. And the DOJ’s brief reads like a broadcaster’s dream. (You can read a copy of the brief, posted by Deadline.com, here – props to Deadline.com for tracking this down and getting it up on line so quickly.)

Check out DOJ’s summary of its own argument:

The proper resolution of this dispute is straightforward. Unlike a purveyor of home antennas, or the lessor of hilltop space on which individual consumers may erect their own antennas . . ., [Aereo] does not simply provide access to equipment or other property that facilitates customers’ reception of broadcast signals. Rather, [Aereo] operates an integrated systemi.e., a “device or process”—whose functioning depends on its customers’ shared use of common facilities. The fact that as part of that system [Aereo] uses unique copies and many individual transmissions does not alter the conclusion that it is retransmitting broadcast content “to the public.” Like its competitors, [Aereo] therefore must obtain licenses to perform the copyrighted content on which its business relies.

Additionally, anticipating Aereo’s argument that a decision in favor of the broadcasters here would seriously hamper the development of innovative new technologies (including, e.g., cloud computing services), the DOJ assures the Court that that is not the case:

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R.I.P.: Critical Information Needs Study

We note the passing of an FCC effort to probe the editorial standards and processes of broadcasters.

The FCC’s Multi-Market Study of Critical Information Needs, known to many simply as the Critical Information Needs, or CIN, Study, is dead. On February 28, a Commission spokesperson announced tersely that the agency “will not move forward” with the CIN Study. No official cause of death was given, but it appeared that the study was unable to survive the firestorm of negative reaction it had attracted in recent weeks. A previously announced test-run of the study set for Columbia, South Carolina has presumably been canceled.

The CIN Study’s Origins

The CIN Study had been in development, largely unnoticed, for two years. To a number of regular Commission observers its origins are something of a mystery.

The study first emerged publicly in early February, 2012, when the FCC’s Office of Communications Business Opportunities (OCBO) issued a Request for Quotation (RFQ) for a “Barrier Study” (also described as a “Review of the Literature Regarding Critical Information Needs of the American Public”). How long the concept of such a study had been percolating within the Commission up to that point is not clear.

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This Should Get Your Attention II: Nearly $2 Million in Fines to Three Cable Companies for Fake EAS Attention Signals

NBCUniversal, Viacom and ESPN whacked for “Olympus Has Fallen” spot.

Last November we reported on a Commission crack-down on the broadcast of EAS (or EAS-like) tones in non-emergency situations. Heads up: the Commission is still cracking down – not only on broadcasters, but also on cable networks.

If you don’t believe us, just ask your friends at NBCUniversal, or Viacom, or ESPN. They are all looking down the wrong end of a Notice of Apparent Liability doling out a total of nearly $2 million dollars in fines for the transmission of EAS attention signals in non-emergency situations. Q.E.D.

The circumstances here track last November’s: a spot produced by an advertiser happened to contain EAS-like sounds. It didn’t help that the spot also included images of terrorists and violence and visual text reading “THIS IS NOT A TEST” and “THIS IS NOT A DRILL”. Sure, in the context of this particular ad – for the action-adventure flick “Olympus Has Fallen” – that kind of excitement might seem normal and to-be-expected, but everyone agreed that (a) the tones included in the spot either were EAS tones or sounded a lot like them and (b) there was no emergency. And that’s all that matters.

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Update: AM Tower Tool Time

As we reported just yesterday, the new protections for AM signals from nearby construction have taken effect. We also noted that those protections are somewhat complex.

Here comes the Commission to the rescue! As it turns out, the Wireless Telecommunications Bureau, in coordination with the Media Bureau, has developed a cool tool to facilitate compliance. If you’re planning to construct or modify a tower – and remember, the working definition of "tower" in this context is extremely broad – all you do is go to http://fcc.gov/am-tower-tool, enter the location of your proposed construction and hit the button. Voilà, the tool tells you of all AM facilities – both operating and authorized-but-not-yet-operating – within the coordination area specified in Section 1.30002. That should make the new notification procedure considerably easier on all concerned.

Thanks, and kudos, to the helpful folks in the Wireless and Media Bureaus for recognizing the likely utility of such a tool and then making it happen.

Update: New Protections for AM Signals Now In Effect

OMB thumbs up clears path for rules adopted last August to kick in

Last August we reported on a decision by the Commission requiring ALL FCC-regulated services – broadcast and non-broadcast alike – to protect AM stations from signal distortion arising from construction or modification of nearby towers. (Reminder: The term “towers” in this context is broad and includes buildings or other structures on which a new or modified antenna or antenna-supporting structures are being installed.)

Because the new rules include “information collections”, their effectiveness had been deferred pending review by the Office of Management Budget (OMB) pursuant to the hilariously-named Paperwork Reduction Act.

The wait is now over. According to a notice in the Federal Register, OMB approved the rules on February 10, and as of February 20, 2014, they have become effective.

As we outlined in our post last August, the phase-in of the rules is somewhat complex, with some potential effects stretching over a year or two. AM stations and anyone building a structure near an AM station should take a close look at the rules to determine their potential impact on any particular situation.

Utah Judge to Aereo: Not in this Circuit!

As Supreme Court decision approaches, a U.S. District Judge in Utah has enjoined Aereo from rolling out its service in the Tenth Circuit.

Ten days ago we suggested that Aereo aficionados who can’t wait for the Big Show in the Supreme Court (oral argument April 22, decision likely before the end of June) might want to take a look at the U.S. District Court in Utah. That’s where the latest of the broadcasters’ copyright infringement suits brought against Aereo has been poking along.

And looky here. U.S. District Judge Dale Kimball has granted the broadcasters’ motion for a preliminary injunction! This marks the first time that Aereo has been on the wrong end of an injunction ruling; it should send a clear signal to one and all that Aereo may be in for some rough sledding ahead.

Judge Kimball’s decision reads like it was written by the broadcasters. Some sample bits and pieces: 

“The plain language of the 1976 Copyright Act support[s] Plaintiffs’ position.”

“Aereo’s retransmission of Plaintiffs’ copyrighted programs is indistinguishable from a cable company and falls squarely within the language of the Transmit Clause.”

There is “no basis in the language of the Transmit Clause or the relevant legislative history suggesting that technical details take precedence over functionality. In fact, such a focus runs contrary to the clear legislative history.”

And the bottom line?

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Out for Comment: Globalstar Proposal to Expand ATC Operation

Shared use of adjacent 2473-2483.5 MHz unlicensed band could raise objections.

Last November, at the urging of Globalstar, Inc., the FCC proposed to modify the Ancillary Terrestrial Component (ATC) of the rules governing the Mobile-Satellite Service (MSS) system operating in the Big Low-Earth Orbit (LEO) S band. Now, after an inexplicable three-month delay, that proposal has made it into the Federal Register, so comment and reply comment deadlines have been set.

Globalstar is the licensee of a Big LEO S band MSS system. It proposes ATC use of its licensed 2483.5-2495 MHz spectrum for a low power broadband network. That is not especially controversial because use of satellite spectrum for ATC service has been approved by the FCC for more than a decade as a way of expanding the use of satellite spectrum for terrestrial communications while maintaining the primary usage for satellite service.

The quirk in Globalstar’s proposal is that it would incorporate the adjacent 2473-2483.5 MHz segment of the 2.4 GHz unlicensed band into its operation. While the 2.4 GHz unlicensed band as a whole is widely used for Wi-Fi and Bluetooth, this particular segment at the upper end is unused by standard Wi-Fi operations in the U.S. because of the need to protect Globalstar’s adjacent satellite operations. Globalstar figured it could appropriate, in a practical sense, that 11.5 MHz in order to give it an effective full 22 MHz of bandwidth for its terrestrial operations.

But there are some complications.

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White Space Database Update: Comsearch System Ready for Testing

 After a three-month period of inactivity, there’s a sign of life on the white space database administrator front. Finally breaking out of the starting blocks, Comsearch’s TV Band Database System is now ready for public testing. According to a public notice from the Office of Engineering and Technology, that system will get a 45-day test run beginning on February 24, 2014, followed by the well-established drill: Comsearch will have to file a report on the test, public comment on the report will be invited and, if everything works out Comsearch’s way, the FCC will eventually approve it as a coordinator. If and when that happens, Comsearch will join the four others already approved. (For those of you may have lost track, those would be Google, Inc., Key Bridge Global LLC, Spectrum Bridge Inc. and Telcordia Technologies.)

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

In keeping with our white space database SOP, we have updated our handy-dandy table charting the progress of each of the would-be administrators: 

Coordinator

Test Started

Test Finished; Comments Sought

Coordinator Approved

Comsearch

 Feb. 24, 2014    

Frequency Finder Inc.

     

Google Inc.

Feb. 27, 2013

May 29, 2013

June 28, 2013

LS telecom AG

June 18, 2013

     Nov. 14, 2013

 

Key Bridge Global LLC

March 4, 2013

May 29, 2013

   Nov. 19, 2013

Microsoft Corp.

     

Neustar Inc.

     

Spectrum Bridge Inc.

Sept. 14, 2011

Nov. 10, 2011

Dec. 22, 2011

Telcordia Technologies

Dec. 2, 2011

Feb. 1, 2012

March 26, 2012

WSdb LLC

     

Grass Getting Greener for Marijuana Advertising?

Reflecting possible relaxation of federal enforcement policy, a memo from Department of Treasury office to financial institutions spells out “due diligence” steps to take in dealing with pot-related businesses; possible road map for marijuana advertising?

As legalized marijuana sale and use spreads across the country, there may be some good news for broadcasters. Two recent announcements by federal agencies suggest possible relaxation of the federal government’s previously stern attitude toward pot. That could encourage some broadcasters who have thus far sat on the sidelines, declining weed-related advertising, to reconsider.

But heads up – the recent announcements do not directly address the issue of marijuana advertising, and they stop short of giving it the green light.

The legal status of marijuana in American society is actively evolving. While the Feds continue to treat it as a Schedule I drug under the Controlled Substances Act – and, therefore, among the worst of the worst drugs – nearly half the states have permitted the sale of marijuana for medical uses.  And more recently, Colorado and Washington have legalized it for recreational use. 

The potential dollar value of the burgeoning marijuana industry is huge. Colorado is reportedly projecting more than $578 million in combined wholesale and retail grass sales just this year, and some have projected nationwide sales of pot to reach $2.3 billion in the same time period (with combined recreational and medical sales). With those kinds of numbers, the advertising dollars likely to be thrown off should be equally impressive.

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OSHA to Tower Industry: Protect Your Workers

With 17 preventable deaths in the last 14 months, regulators send a message to everybody involved with tower work.

A great many communications operations  – broadcasters, telecom, cable, public safety – utilize towers in some capacities. So it caught our attention when our friends at Radio World reported on an open letter released recently by David Michaels, Ph.D., MHP, addressed to “Dear Communication Tower Industry Employer”. The letter highlights an important area of regulation for anybody responsible for a tower. (You may know Dr. Michaels better as the Head Honcho -- technically correct title: Deputy Secretary for Occupational Safety and Health in the Department of Labor -- at the Occupational Safety and Health Administration (OSHA).)

The gist of the letter: There has been a rash of fatal accidents involving tower workers. Thirteen deaths in 2013, four more reported already in 2014.

And, according to Michaels, all of those deaths were preventable.

Aggravating that already tragic report is OSHA’s conclusion that a “high proportion” of the deaths occurred because of a “lack of fall protection” – either inadequate protection or failure to ensure that tower workers are using the available protection properly – for which the workers’ employers are responsible.

So Michaels is using his open letter to remind employers, in no uncertain terms, of their “responsibility to prevent workers from being injured or killed while working on communication towers”. Who is the target audience? Not only the company that hires the workers, but also tower owners and “other responsible parties in the contracting chain”.

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In the Supreme Court: Aereo Argument Date Set

It’s official. The big day is April 22, 2014. That’s when the Supreme Court will hear oral argument in the Aereo case. From the calendar released by the Court, it looks like the argument will be the second of two on the card – but that’s subject to change. If you’re planning on attending the argument, expect to get to the Court early in the morning, stand in line for a long time, and probably sit through a case you know nothing about

Or you could just make a point of checking in with us for our post-argument take on things.

While predicting the final result in a case based on oral argument is an unreliable (at best) exercise, the exchanges between the Justices and counsel for the various parties invariably lend themselves to beaucoup speculation. And we here at CommLawBlog plan to be speculating with the rest of the crowd. The difference? We’ll have Swami Kevin Goldberg – no stranger to this kind of this – and his pal the Blogmeister (Harry Cole) doing the heavy lifting for us. Kevin and Harry are planning to attend the argument and to share their observations with our readers promptly thereafter. Stay tuned.

FCC Heavies Up on Fine for Multiple Sponsorship ID Violations

Calculation method increases total fine well beyond the base forfeiture; licensee’s seeming contradictory claims don’t appear to have helped matters

Seven years ago the Enforcement Bureau sent out a flurry of inquiries suggesting that scores of TV stations might have violated the sponsorship identification rule by relying on “video news releases”. The Commission followed up on this in 2008 with a combo Notice of Inquiry and Notice of Proposed Rulemaking suggesting that the sponsorship ID rule might warrant extensive (some might call it nonsensical) sponsor IDs to flag “embedded” advertisements.

And now, after half a decade of relative inactivity on the sponsorship ID front, the Commission has imposed a $44,000 fine on a Chicago AM station for sponsorship ID violations.

There are several lessons to be learned here, even if the violations themselves were pretty obvious and equally avoidable.

The problem arose when the station aired a series of paid announcements – running from 90 seconds to two hours in length – on behalf of Workers Independent News (WIN), which bills itself as “the Nationwide Voice Of Working People And Their Unions”. The spots were bought and paid for by WIN and were produced to sound like a newscast (or at least a routine news report inserted into a news program). Eleven of the 90-second spots, however, were not ID’d to reflect that they were paid announcements.

A complaint was filed, the Enforcement Bureau asked the station about the spots, and the station initially responded that ALL the spots were properly ID’d. The Bureau wasn’t convinced, and issued a Notice of Apparent Liability (NAL) imposing a $44,000 fine for the 11 non-ID'd spots.

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Aereo Update: Side Action in Utah

The Swami weighs in.

[Blogmeister’s Note: If you’ve got the Heartbreak of ALA (that would be Aereo Litigation Addiction) and you’re jonesin’ for some action while you’re waiting for the Big Showdown at the Supreme Court later the spring, you’re in luck. On February 11, the U.S. District Court in Utah is going to be holding a hearing on (a) the broadcasters’ motions for preliminary injunction (here and here) and (b) Aereo’s motion to move the case out of Utah and back to the more Aereo-friendly Southern District of New York. Aereo has also filed a separate motion asking the trial judge to put the Utah case on hold until the Supreme Court acts on the Second Circuit case. The Utah court took that last motion under advisement on February 7.

There are obviously a number of moving parts here, so we called in the Swami for his thoughts on how this might shake out. Here’s his take on the various items on the table – the Aereo transfer motion, the Aereo motion to stay proceedings and the broadcasters’ motions for a preliminary injunction.]

This is pretty hard to put odds on. 

Out of the three pending requests, the easiest to handicap is Aereo’s motion to move the case back the Southern District of New York, which I believe will be denied.  Aereo tried the same thing in its Massachusetts case, where Judge Nathaniel Gorton denied the motion. I think the same will happen here. Depending on what eventually shakes out in the Supreme Court, moving all Aereo-related cases to a single court might make sense someday, but certainly not just now. Look for this case to stay in Utah for the foreseeable future.

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AM Revitalization Update: Reply Comment Deadline Extended

If you were planning to file reply comments in the AM Revitalization proceeding and were getting worried about how you were going to work those into your schedule – what with Valentine’s Day and Presidents’ Day and all – you can breathe a bit easier. The deadline for replies has been extended a month, to March 20, 2014. That’s good news because a quick check on ECFS indicates that by February 7 there were already more than 150 items in the docket to which a replier might want to reply. Better get reading!

Reply comments may be filed electronically through ECFS beginning at this link; reference Proceeding Number 13-249.

TV Channel Sharing: FCC Takes a First Data-Gathering Step

With the FCC’s blessing and help from the wireless industry, two L.A.-area TV stations set to temporarily cohabit a channel

An essential component of the FCC’s long-discussed, still-in-development plan to free up TV spectrum for mobile broadband use is the concept of channel sharing by television stations. The idea, which the Commission has been officially studying for more than three years already, seems relatively straightforward. Thanks to the efficiency of digital operation, the standard 6 MHz channel allotted to each TV licensee can accommodate at least two separate stations. That being the case, in theory the Commission could re-take half of the spectrum currently occupied by TV operations simply by encouraging each station to move in with one other station on a shared channel.

Nearly two years ago the FCC took a preliminary step by announcing some initial minimal guidelines to govern such channel sharing. In the Incentive Auction Notice of Proposed Rulemaking, channel sharing was expressly identified as one option available to TV licensees in the spectrum re-packing effort. So the concept of channel sharing is more than just a glimmer in the FCC’s eye.

Despite its obvious commitment to the channel-sharing notion, though, the Commission has little idea of the feasibility or practicality of sharing. That’s mainly because no such arrangements have been authorized . . . until now.

Heeding the FCC’s invitation for volunteers, two L.A.-area stations have stepped up to the plate with a proposal that will allow for testing of at least some of the assumptions underlying the Commission’s Grand Plan. And knowing a good thing when it sees it, the FCC has approved the proposal.

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Gold Medal Post - Category: Olympic Trademarks

The Swami shoots and scores!

Oh, I nailed that one. A 6.0 (well, 5.9 from the East German Judge, if there were still an East Germany). 

I’m referring, of course, to my post last month about the use of the trademarked term “Super Bowl®” in ads about events or promotions around that Big Game.

No, I'm not crowing about my Super Bowl® prediction (Broncos 37, Seahawks 24), which I’m man enough to admit I completely missed. And don’t worry, I’ve heard about it from family, friends, acquaintances and random “well-wishers” from the Pacific Northwest. But I gave readers fair warning that I’m no NFL expert. (The World Cup®, on the other hand . . .)

I am, however, pleased that my track record on trademark issues far exceeds my (American) football prediction skills. And you can take this to the bank: I was right on the mark in noting that, when it comes to trademark-related issues (which abound in connection with the Super Bowl®), you need to be aware of similar issues surrounding other similar terms, like “March Madness®”, “World Cup®” and “Olympics®”.

It’s the last of those that triggers my reminder to you today, when the 2014 Winter Olympic Games officially kick off in Sochi.  And if you don’t believe me that a reminder is in order, would you believe the U.S. government if it told you the same thing? (You, over there, wearing the tinfoil hat, you don’t have to respond.) 

Sure enough, earlier this week the United States Patent and Trademark Office tweeted this friendly message:

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Not-Quite-Operating Station Gets Not-Quite-Renewed

Audio Division announces use-it-or-lose-some-of-it renewal policy.

If you’ve got a license to operate a radio station, you’d better have that station up and running and you’d better keep it that way. That’s the none-too-subtle message in an Audio Division decision imposing a “short-term” renewali.e., a two-year license term instead of the customary eight-year term – on a Texas FM licensee whose station was silent for much of its abbreviated four-year existence. The decision is a clear warning to licensees who fail to operate their stations for extended periods.

The station in question was initially licensed in mid-August, 2009. By March 1, 2011 it was off the air because (according to the licensee) of interference problems. It returned to operation 364 days later, but for only four weeks. Then it was off the air again – still more interference problems of some sort, plus something about tower availability. It came back on 358 days later, less than two weeks before its license renewal application was due. So of the 32 or so months during which the station had been licensed up to that point, it had been off-the-air for more than 19.

Of course, the station’s failure to operate even for that much time was not illegal. To the contrary, the licensee had expressly requested – and been granted – authority to stay silent. And the Communications Act does not prohibit periods of non-operation of 11+ months. (The magic number under the Act? According to Section 312(g), the license of a station which fails to operate for a consecutive 12-month period automatically expires at the end of that period.)

So what’s the Division’s problem anyway?

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Complete Waiver of Tower Inspection Requirement Sought

Section 17.47 of the FCC’s tower lighting and marking rules has two straight-forward requirements. One of those two provides that tower owners must inspect their tower(s) once every three months.

That’s a lot of work, especially if you own a whole bunch of towers. Because of that, back in 2007, two big-time tower owners – American Tower and Global Signal – asked for, and got, a break. As we reported back then, the Commission agreed to waive the inspection-every-three-months requirements. The FCC was particularly swayed by the fact that both companies had state-of-the-art remote tower monitoring systems: American Tower was using the Eagle Monitoring System, Global Signal the HARK Tower System. As a result, the FCC agreed to waive the quarterly inspection requirement to a once-a-year event for tower owners using the Eagle, HARK or similar systems. (The Commission eventually adopted an expedited process for waiver requests based on the use of such systems.)

Reducing the inspection chore by 75% provided considerable relief. But over the six-plus years since its waiver was first granted, American Tower still rang up nearly $10 million in costs conducting some 39,000 annual inspections. So now it has come back to the FCC for a further waiver: it wants to be relieved of any inspection requirement; the computer-based monitoring system can handle everything that needs to be handled.

Obviously, the cost of complying with the inspection requirement is a boatload more for American Tower, which owns a gazillion towers, than for most folks. And the cost of installing and maintaining an adequate monitoring system is not inconsiderable. But all tower owners should give some thought to whether the requested waiver might make sense for them. If it would, then it might be a good idea to throw in some comments in support of American Tower’s request.

Comments on the American Tower proposal are due by Valentine’s Day; reply comments are due by February 21.

Zombie Alert Redux

Congressional staff report resurrects zombie event, with embellishments

One of the endearing qualities about zombies is their resilience: knock them down and they’ll get back up again, and again, and again. They’re also quite the attention-grabbers.

It’s not surprising, then, that government concern about zombies surfaces and re-surfaces from time to time to jar the sleepy citizenry out of its complacency. Example: A recent staff report out of a Congressional committee (about the “Federal Government’s Track Record on Cybersecurity and Critical Infrastructure) which revisits a zombie incident from last February to make a point.

As with most zombie tales, however, the report is not entirely accurate.

The report is critical of the government’s performance overall. It tells of “significant breaches in cybersecurity”, “confidential cybersecurity plans . . . left unprotected”, sensitive data “stolen by a malicious intruder”. It’s enough to send one screaming to one’s fall-out shelter for the duration.

One paragraph in the 19-page report stood out to some of us here in the CommLawBlog bunker (to which, of course, we had immediately repaired).

According to the report, the numerous security failures it describes “aren’t due to poor practices by the private sector”. Rather, they were “real lapses by the federal government”, including this one, which we quote verbatim from the report:

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LPFM Update: Sticking to the Road Map

Impressive processing progress seen, more supposedly on tap

Last month, shortly after the long-awaited LPFM window had closed, we reported on the Audio Division’s road map for addressing the 2,800 (or so) applications that came in during the window. The goal was to identify the non-MX singletons ASAP, get them out on public notice, and be ready to promptly wield the “grant” stamp for those that made it through the petition to deny period unscathed. Turns out the Division is sticking to its game plan. We hear that about 500 LPFM applications have already been granted. And word is that nearly 900 more singletons have been identified and are awaiting processing. At the Division's target rate of 500 grants per month – ambitious, to be sure, but not out of the question, given the Division’s success so far – those could all be granted by early spring. Meanwhile, the settlement process continues apace, which is likely to lead to the resolution of bunches of MX groups resulting in even more grants.  (However, the inside scoop is that settlement activity of late has been somewhat, um, tepid, but it may pick up as time passes.) Kudos to the Audio Division for their incredibly efficient handling of a boatload of applications.

Update: AM Auction Moves Ahead

FCC still on track for May, 2014 start-date.

The FCC has announced the final rules for its upcoming auction of 22 AM radio construction permits.                                               

As we reported last November, the auction – which is set for May, 2014 start date – involves applications filed a decade or so ago. In November, the FCC announced the eligible applications, the markets involved, and the proposed minimum bids for each market.  It also solicited comments on those minimum bids and the auction procedures to be used. 

In response, two applicants asked the Commission to remove their respective MX groups from the auction. Another applicant asked that the deadline for successful bidders to pony up their initial payments be delayed until the bidders can be reasonably sure that their proposed facilities will in fact be grantable – not an unreasonable concern. You can check out all the comments here. (Disclosure: a couple of our FHH colleagues, acting on behalf of one applicant, opposed the notion of removing its particular MX group from the auction.)

Tossing the various comments aside, the FCC declined to engage in any market carve-outs or payment postponements; instead, it’s full speed ahead toward the May auction. 

The suggestion that the down payment deadline be postponed serves as a reminder to potential bidders of the FCC’s rigid “Buyer Beware” policy. If you bid on a license that turns out to be useless, the FCC does not let you off the hook. As is customary in broadcast auction notices, seven paragraphs of the FCC’s most recent notice caution bidders – twice in bold type – that bidders are expected to do their own due diligence. Bidders are warned that they are “solely responsible” and that “the FCC makes no representations or warranties” about the permits on the block. If you’re a bidder, consider yourself warned.

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Aereo Update: And the Question is . . .

The Supremes opt to use the broadcasters’ formulation of the question to be resolved by the Court.

OK, all you Supreme Court tea leaf readers, you’ve got another leaf to read in the Aereo case. According to the Supreme Court’s website, the “question presented” that the Court has decided to use as the focus for briefing in that case is this:

A copyright holder possesses the exclusive right “to perform the copyrighted work publicly.” 17 U.S.C. §106(4). In the Copyright Act of 1976, Congress defined the phrase “[t]o perform ... ‘publicly’” to include, among other things, “to transmit or otherwise communicate a performance or display of the work ... to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.” Id. §101.

Congress enacted that provision with the express intent to bring within the scope of the public-performance right services that retransmit over-the-air television broadcasts to the public. Respondent Aereo offers just such a service. Aereo captures over-the-air television broadcasts and, without obtaining authorization from or compensating anyone, retransmits that programming to tens of thousands of members of the public over the Internet for a profit. According to the Second Circuit, because Aereo sends each of its subscribers an individualized transmission of a performance from a unique copy of each copyrighted program, it is not transmitting performances "to the public," but rather is engaged in tens of thousands of “private” performances to paying strangers.

The question presented is:

Whether a company "publicly performs" a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet.

That’s possibly good news for broadcasters, because that’s the way that they perceived the question that the Court should be addressing. 

By contrast, when it advised the Court that it wouldn’t mind if the Court agreed to review the Second Circuit’s Aereo decisions, Aereo said that the appropriate question should be:

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Update: Comment Deadlines Set in Sports Blackout Proceeding

Late last year we reported on a Notice of Proposed Rulemaking (NPRM) casting considerable doubt on the future prospects of the sports blackout rule. The NPRM has made it into the Federal Register, so we now know the deadlines for comments and replies. If you want to toss your two cents’ worth in on the issues raised in the NPRM, you’ve got until February 24, 2014 to file comments and March 25 to file replies. You can do so by surfing over to the FCC’s ECFS electronic filing site and submitting them in Proceeding Number 12-3.

The Bong Bowl, the Super Bowl® and Mr. Joel Rodgers

Our annual reminder about NFL trademark enforcement

This year’s Roy Fox “I Coulda Been Somebody” Award goes to (drum roll, please) – Joel Douglas Rodgers of Tampa, Florida.  Our readers will recall that, last year about this time, I reported that one Roy Fox had applied for a trademark registration covering the mark “Harbowl”, a mark which – had he obtained it – could have been a gold mine for him once the teams for last year’s Super Bowl® were set.  (I’m still waiting for ESPN to call to apologize for not giving me and CommLawBlog our due credit for breaking the story.) Both of last year’s teams – the Niners and the Ravens, for those of you with short-term memory about such things – were coached by gentlemen named Harbaugh, so the desirability and commercial potential of “Harbowl” was obvious.

Also as I reported, though, the NFL made a bunch of threatening noise about Mr. Fox’s application and thereby convinced him to abandon it.  My point was to remind one and all that the NFL is super-aggressive when it comes to asserting control over anything that could conceivably be related to the Super Bowl®.  (Don’t forget that R-in-a-circle!)  Because of the NFL’s strong-arm approach, we annually warn folks to avoid using the term “Super Bowl®” in any way that might likely create an impression that their product or event is authorized or endorsed by the NFL.  (Check out a collection of our Big Game-related posts here.)

So who is Joel Douglas Rodgers?

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Size Still Matters to M&A Regulators

As usual, triggers for automatic merger and acquisition review have been revised.

As the recovery from the economic turmoil of the late oughts gathers steam, the federal government has performed its annual ritual of gazing into its crystal ball, furrowing its regulatory brow, and announcing the thresholds it will use for automatic federal review of mergers and acquisitions for the coming year. 

The FCC, of course, can choose to review, or not to review many, if not most, communications-related transactions 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 for the rest of 2014 have now been announced.  They are set to take effect as of February 24, 2014.  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 $303,400,000; or
  • the total value of the transaction exceeds $75.9 million and one party to the deal has total assets of at least $15.2 million (or, if a manufacturer, has $15.2 million in annual net sales) and the other party has net sales or total assets of at least $151.7 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 2014, any deal subject to review and valued at less than $151.7 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 $151.7 million but less than $758.6 million, the review fee will be $125,000. And if you’re proposing a deal valued at more than $758.6 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.

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

If you’re a webcaster, you’ve got until January 31 to wrap up your annual SoundExchange homework.

Webcasters take note: like last year, and the year before that – in fact, like every year starting back in 2009 – the annual January 31 SoundExchange deadline is once again looming.

This should not be news to anybody. We’ve provided an annual reminder about the deadline and all that it entails since 2009. And yet, every year, some webcasters don’t pay attention and miss the filing date. As a result, they may lose the ability to claim the “small broadcaster” or “noncommercial microcaster” status that reduces their obligations for the rest of the year. Worse, they could open themselves up to a very sharply worded letter from SoundExchange advising of potentially significant monetary penalties. Sure, those penalties may not reach the worst-case scenario ($150K per copyrighted work), but they will almost certainly exceed by a long shot what it would cost simply to comply with filing requirements on time.

So this year, let’s try not to be the guy who sleeps through the deadline.

The chores should be old hat to anyone who’s been webcasting for more than a year.

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Mexico Announces Auctions for TV, Satellite Authorizations

Foreign investors eligible to participate in upcoming auctions.

[Blogmeister’s Introduction: We welcome a new guest contributor, Mario Piana, an attorney with the Mexican firm of López Velarde, Heftye y Soria, S.C. Mario is familiar with Mexico’s regulatory activities vis-à-vis its telecommunications industries. He has provided us with the following recap of recent announcements from Ifetel, Mexico’s new telecommunications regulatory body. As outlined below, those announcements signal upcoming opportunities – for both Mexican citizens and foreign investors – to participate in Mexico’s telecom industries

Two opportunities for acquiring communications interests in Mexico have recently been announced, one involving nationwide digital broadcast television networks, the other involving commercial satellite services.

Digital TV Networks

On December 20, 2013, the Instituto Federal de Telecomunicaciones (also known as Ifetel) – created by a law enacted last year – formally announced the bidding process to be used for the awarding of licenses for the operation of two national digital broadcasting television networks through auctions. [Blogmeister’s note: Licenses are referred to as “concession titles” in Mexico.] The process is set out in a Program of Bidding Processes to Grant Licenses of Frequencies for Digital Broadcasting Television (the “TV Bidding Process Program”) published in the Diario Oficial de la Federación [i.e., the Mexican equivalent of the Federal Register].

This begins the implementation of a new regulatory framework arising from recent fundamental reforms to the regulation of Mexico’s telecommunications industries. According to the Federal Constitution, the bidding processes for the two national digital broadcasting networks shall be called no later than March 10, 2014.

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Comm Act Overhaul Underway . . . Sort of

Commerce, Communications Committee chairmen seek public input on fundamental questions about federal regulation of communications

It’s generally acknowledged that the Communications Act – first enacted four score years ago and not substantially updated in nearly 20 years – is ill-suited for regulation of the 21st Century communications landscape. And now two well-placed members of Congress have announced the start of an effort to update the Act and perhaps restructure the FCC itself.

Given the prominence of the folks making that announcement, anyone subject to the FCC’s regulatory reach should pay attention. But before you get overcome with visions of sweeping change just around the corner, it’s important to temper your expectations with a healthy splash of reality: any significant change to the Act that may occur isn’t likely to happen in the immediate future, if at all.

The two gentlemen responsible for the latest initiative are Fred Upton (R-MI) and Greg Walden (R-OR), the Chairs of, respectively, the House Energy and Commerce Committee and that Committee’s Communications and Technology Subcommittee. You can see them explain their plans in a 13-minute video posted on the Committee’s website. To summarize: Noting that (a) the FCC first opened its doors in the Great Depression and (b) the last time the Act was amended, 56 kb/s by dial-up modem was the state of the art, Upton and Walden sensibly feel that it’s time to talk about an update.

The emphasis, though, is more on the “talk” part than the “update” part.

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Aereo: Supreme Court Bound!

Broadcasters' cert petition is granted; Alito recuses himself, Kagan doesn't

The Supreme Court has decided that now would be a good time to consider the arguments arising from the Second Circuit’s Aereo decisions to date – so the Supremes have granted the petition for certiorari filed by the broadcaster parties to the Second Circuit case. While this could ordinarily bode well for the broadcasters – after all, if the Supreme Court thought the Second Circuit got it right, they could just deny cert and let the Second Circuit’s action stand – you can probably expect Aereo to claim something of a victory here because, as we have previously reported, Aereo itself urged the Court to take the case.

As of this writing the briefing and argument schedules haven’t been posted on the Supreme Court’s website. Since the Court will be hearing arguments until the end of April, it seems reasonably likely that the Aereo case will be briefed and argued this term, which would mean that a decision from the Court by the end of June would be a near certainty. 

From the scant information that is currently available, it’s impossible to say how the Court is likely to rule. There are, however, two interesting tidbits that may or may not come into play down the line.

First, Justice Alito recused himself from consideration of the cert petition. As is customary, no reason for his recusal was given, nor did the Court’s order disclose whether he would be recused from the merits end of the case – although recusal there would seem more than likely. If he’s out, that would reduce the number of justices hearing the case to eight, giving rise to the possibility of a 4-4 split. In that case the decision of the lower court – i.e., the Second Circuit’s order upholding the denial of a preliminary injunction against Aereo – would remain in place.

Second, Justice Kagan did not recuse herself.

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Dan Kirkpatrick . . . Online and Shedding More Light on the Blackout

Who knew that the sports blackout question – a relatively esoteric and seldom-visited area of communications law – would catch the public’s attention? That’s probably what happens when three of four NFL playoff games are threatened with local blackouts. (Of course, the reason Lambeau Field wasn’t going to sell out 72 hours before a Pack post-season appearance could have something to do with the fact that, by the time the ref’s lips freeze to his whistle when he blows the two-minute warning in this Sunday's wild card game, the temperature at Lambeau is projected to feel like -25°). While large last-minute corporate ticket purchases and an NFL extension of the deadline appear to have prevented any blackouts for this weekend, the threat certainly drew a lot of attention to some frequently overlooked NFL and FCC rules.

But you already knew about the sports blackout rule because you saw Dan Kirkpatrick’s post about it here. And now’s your chance to see Dan expound further on the subject, including some discussion of pending legislation intended to address the blackout problem more directly than the FCC’s rulemaking processing. In a follow-up to his post, Dan was interviewed by Colin O’Keefe for LXBN TV, a cool service from our friends at LexBlog, the blogging platform that hosts CommLawBlog. Just click on the video below.

CRB Opens the Door on Web IV: The Future of Webcasting Royalty Rates for 2016-2020 Starts Now

CRB notice suggests possible shift in royalty rate calculation method, replacing per-performance mechanism with percentage-of-revenue approach.

The Copyright Royalty Board (CRB) has started on its quinquennial chore of establishing copyright royalty rates applicable to various non-interactive webcasters.  While the to-be-determined rates won’t kick in for another two years – they will apply to the period January 1, 2016-December 31, 2020 – the CRB is required by Congress to get the ball rolling by January 5, 2014, and the CRB has gotten itself in under the wire with a notice in the January 3 Federal Register inviting public participation in a new proceeding (dubbed “Web IV” by the CRB).

Web IV will set the rates for eligible nonsubscription and new subscription services (most of our readers, including just about all broadcasters engaged in webcasting, fall into the former).  And while the rate structure currently in place for the 2011-2015 term has been relatively complaint- and controversy-free, the CRB’s notice suggests that the CRB may be looking to take rate calculations in a different direction.  Rather than simply hit “repeat” and stick with the per-performance basis for rates all players have lived with for more than five years already, the CRB appears to have a percentage-of-revenue model in mind. At least that’s one possible reading of the questions laid out for comment by the CRB.

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RMLC v. SESAC 2014: Nothing Changes on (This) New Year's Day

SESAC dodges injunction, can raise rates for 2014 – but Magistrate Judge’s decision bodes well for RMLC’s odds on the merits of its antitrust case

The New Year.

A time for reflection and looking forward. When some give thanks for the blessings they have been given and others look to make a clean start. 

In the world of contracts, it’s an important time, as many annual agreements renew, often with previously-specified modifications automatically kicking in.

Which brings us to the Radio Music License Committee (RMLC) and its effort to stop SESAC from jacking up its 2014 royalty rates for radio licensees. While, as we shall see, that effort was unsuccessful (at least for the time being), there is some cause for optimism with respect to RMLC’s long-term chances of bringing SESAC under the same type of judicial control as ASCAP and BMI are subject to.

SESAC, ASCAP and BMI, of course, are the three major performing rights organizations (PROs), i.e., organizations which represent 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 late 2012 the RMLC sued SESAC, alleging violations of federal antitrust laws. I wrote about the lawsuit when it was filed. The RMLC asking the court to rein in SESAC under a consent decree – similar to decrees to which ASCAP and BMI are already subject – which would require SESAC’s activities to be reviewed and approved by a federal court.

As litigation often does, RMLC’s lawsuit has ground on at a seeming snail’s pace. But as 2014 approached and an anticipated increase in SESAC’s rates loomed, RMLC sought a preliminary injunction barring such an increase until the suit was resolved. In a December 23 report and recommendation, U.S. Magistrate Judge Lynne Sitarski rebuffed RMLC, but in so doing also gave it hope that, even though RMLC may have lost this battle, it stands a reasonable chance of winning the war.

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Aereo Cert Day - January 13, 2014?

Supreme Court docket listing suggests decision on whether or not to take the Aereo case is imminent.

OK, it’s obviously way too early for your office’s Final Four pool or even the Super Bowl® pool, but no problem: the time is just right for organizing an Aereo Cert pool!

Will the Supreme Court agree to hear the broadcasters’ appeal of the Second Circuit’s denial of their efforts to put a temporary kibosh on Aereo’s operations in the Big Apple or not?  According to the Supremes’ docket listings, that question is currently scheduled to be considered by the Justices in their closed-door conference on January 10, 2014 – which means that it’s très très likely that we’ll find out the answer mid-morning on January 13 (the next day on which the Court will be sitting).  So get that pool started because time is short!

Regular readers will recall that, when last we left the Second Circuit phase of the Aereo saga, broadcasters had tried three separate times – first before the presiding U.S. District Judge, then before a three-judge panel of the Second Circuit, and finally before the Second Circuit en banc – to get Aereo shut down at least until their copyright infringement lawsuit against it can be completed.  The broadcasters got nowhere in any of those three fora.

You might think that, having whiffed three times, the broadcasters would be out – but they had one more chance: the Supreme Court.

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Sports Blackout Rules on the Ropes?

FCC proposes to eliminate rules designed primarily to enforce NFL blackout decisions.

Looks like the clock is running out for the sports blackout rules.

In a Notice of Proposed Rulemaking (NPRM) the FCC has proposed their elimination, although the NFL, MLB, NAB and a number of network TV affiliates appear poised to mount a late-game defensive surge to try to save them. The outlook for the rules, however, isn’t brilliant.

The sports blackout rules as they currently stand generally prohibit certain multichannel video program distributors (MVPDs – think cable systems, broadcast satellite services, open video systems) from carrying, within a protected geographical area, a live sporting event not available live on a local over-the-air (OTA) TV station in that area. You can find the rules themselves in Sections 76.111 (cable operators), 76.127 (satellite providers), 76.128 (application of sports blackout rules), 76.1506(m) (open video systems) of the FCC’s rules. Importantly, the rules themselves are not the source of sports blackouts; rather, the respective professional leagues determine the availability of OTA game broadcasts. The FCC’s rules effectively impose league-initiated blackouts across the various MVPD services.

The blackout rules developed in a piecemeal fashion over the course of more than 50 years. Initially applicable to broadcast stations only (since the other video services didn’t exist in the early 1960s), they were gradually expanded and tweaked as necessary to apply to the various MVPD services as those services came online and were embraced by the viewing public.

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D.C. Circuit Rejects Challenge to Sunsetting of Viewability Rule

Concurring opinion raises questions about constitutionality of must-carry rules

The D.C. Circuit has given the FCC and the cable industry a belated Christmas present. It has rejected a challenge mounted by a number of broadcasters (including the NAB) to the FCC’s 2012 revision of its “viewability” rule. And one member of the three-judge panel went considerably further, suggesting that the entire cable must-carry regime is on extremely shaky constitutional footing.

The viewability rule, adopted in 2007, applied to “hybrid” cable companies. (“Hybrid” cable operators 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.) The rule provided that such operators could either (1) provide the digital signal of all must-carry stations in analog format (in addition to any digital version carried) to all analog cable subscribers, or (2) transition to an all-digital system and carry the signal in digital format only, provided that all subscribers have the necessary equipment to view the broadcast content. 

The rule was scheduled to sunset in June, 2012 and, after a rulemaking proceeding, the Commission decided to let that happen (although the Commission did tack on an additional six months). While hybrid cable operators remain subject to a general “viewability” requirement, since December, 2012 they have had significantly greater flexibility in meeting that requirement.

Concerned that the sunsetting of the original viewability rule could threaten their ability to reach a significant number of viewers, several broadcasters challenged the FCC’s decision.

To no avail.

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FCC Looking to Expand Closed Captioning Requirement for IP-Delivered Programming

Commission considers mandating captioning of video “clips”.

For the last year or so, the law has required a sizable chunk of U.S. video programming displayed on the Internet to be closed captioned. One type of programming has, however, been exempt from that requirement: video “clips” don’t need to be captioned, as opposed to “full-length” programming which, for the most part, does.

But now the FCC is considering closing that loophole, and the Media Bureau is looking for input to help in making the decision. If you have any information or thoughts to share, you’ve got until January 27, 2014 to let the Bureau know; reply comments can be filed until February 26.

Before delving into the specifics of the Bureau’s inquiry, let’s take a quick look at the Internet captioning requirements as they now stand.

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Aereo Armageddon Ahead?

Warring parties agree on one thing: the Supreme Court should intervene ASAP – but will the Supremes agree to take the case now?

The Aereo War rages on, fought (like most wars) on several fronts, but always with an eye toward that epic battle destined to change the face of the conflict entirely. Yorktown. Waterloo. Gettysburg. Normandy.

Possibly soon to be added to that list: Washington, likely site of the Aereo Armageddon. More specifically, One First Street, N.E. – where the U.S. Supreme Court sits.

And it could happen sooner than many expected. That’s because the major broadcast networks, having lost their bids to shut Aereo down in New York and Boston, have sought Supreme Court review of the New York decision. And, in an interesting gambit, Aereo has taken the unusual step of agreeing with its adversaries. Aereo says that the Supreme Court should take the case. While that is no guarantee that the Court will agree that the issues are now ripe for resolution at the highest level, such unanimity among the parties certainly doesn’t hurt.

Before we get ahead of ourselves, a bit of history.

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Upcoming Webinar: Goldberg on Aereo

Aereo on the agenda: Where it’s been, where it’s going, where it’s taking the rest of us

If you’re interested in the ongoing Aereo saga – and the impact that it’s likely to have on communications law, copyright law and the video delivery business in general – check this out. FHH guru Kevin Goldberg (regular CommLawBlog readers may know him as “the Swami”) will be sharing his Aereo expertise in a webinar on January 16, 2014. Titled “Will Aereo Case Force a Rewrite of Communications and Copyright Laws?”, the gig is billed as a webinar for folks who advise communications and broadcasting companies, professionals involved in media ownership and regulation and intellectual property practitioners. It may even qualify for continuing legal education in some jurisdictions. Such a deal! The 90-minute affair, which is scheduled to start at 1:00 p.m., is sponsored by Bloomberg BNA.  Consult the registration page for information about admission fees (there are a couple of options), CLE details, other webinar panelists and the like.

LPFM Update: MX List Released, Window Opened for Minor Amendments

Keeping up with the breakneck schedule it projected a couple of weeks ago, the Audio Division has released a list of the 406 LPFM mutually exclusive (MX) groups, along with a public notice summarizing applicants’ options at this point. The Division’s public notice accompanying the list does not alter its earlier public notice laying out the road map for the next phase of the LPFM application process, although the release of the MX list does mark the opening of the LPFM minor amendment/settlement/time-share opportunity.

Note that inclusion of an application on the MX list does not mean that that application has yet been deemed grantable, or even acceptable, by the staff. It’s at least possible that, upon further review, some applications may get tossed for any of a number of reasons.

For now, though, conflicts among the MX applicants on the list can be resolved one of three ways: by technical amendments eliminating mutual exclusivity, by settlement, or by time-share agreement. And there's an upside for applicants who are ready, willing and able to move sooner rather than later in any of those directions: Any proposal filed in the next 60 days that invokes any of those three approaches (MX-resolving amendment, settlement or time-share) will get moved up to the head of the processing line for expedited consideration as long as the proposal would “eliminate all technical conflicts between at least one application and all other applications in the MX group.”

A reminder: Only minor amendments will be permitted for now – “minor” amendments in this context include: (1) site relocations of 5.6 kilometers or less; (2) channel changes of no more than +/- three channels or to an intermediate frequency (+/- 53 or 54) channel; (3) partial and universal voluntary time-sharing agreements; (4) changes in general or legal information; and (5) changes in ownership where the original parties retain more than 50 percent ownership in the application as originally filed.  (Site relocation amendments of more than 5.6 kilometers will be permitted for the limited purposes of (1) curing potential third-adjacent channel interference and (2) allowing time-share proponents to relocate to a common transmitter site.)

Incentive Auction Update: Add PEA to the Alphabet Soup Options for the 600 MHz Band

EA or CMA or MSA/RSA or CMA or . . . how about PEA? 

One of the crucial questions that the FCC must answer before it can get its Incentive Spectrum Auction off the ground is how it plans to sell 600 MHz licenses in the “forward” part of the auction.  In the Incentive Auction Notice of Proposed Rulemaking, the Commission indicated that it was initially leaning toward selling them based on Economic Areas (EAs), rather than larger pieces of real estate (e.g., nationwide licenses) or smaller alternatives (e.g., CEAs or MSA/RSAs).  (Fuzzy on the distinctions?  Check out the Blogmeister’s Sidebar at the end of this post for further information.)

But now the Wireless Telecommunications Bureau, at the prodding of the Competitive Carriers Association (CCA), is thinking that Partial Economic Areas (PEAs) might be the way to go, and it’s asking for input on the question.

This is a big deal.  Here’s why.

As most readers presumably know, the Incentive Auction will consist of two independent but interrelated elements: (1) the reverse auction, through which the FCC will “free up” spectrum by giving TV licensees cash to vacate their current channels; and (2) the forward auction, in which the FCC will sell off the spectrum freed up in the reverse auction.  (The cash generated by the latter will be used in part to pay broadcasters in the former.) The ultimate success or failure of the Incentive Auction will be measured in part by how much money the forward auction brings in.

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Powerless Portals Pare Ownership Report Filing Period

Deadline trimmed by five hours.

Hey, all you procrastinating commercial broadcasters. You know who you are. Listen up. Even though the FCC gave you (and everybody else) an extra 18 days – to December 20 – to file your biennial Ownership Reports (FCC Form 323), that deadline has now been modified slightly. While ordinarily your reports could have been filed up to 11:59 p.m., we’re losing five hours this time around. The Commission has announced that Ownership Reports must be filed BEFORE 7:00 p.m. ET on December 20. It seems that power to the FCC’s headquarters is going to be turned off at that time, as required by the District of Columbia Fire Code. That’s going to take CDBS off-line. So in order to get your Ownership Report on file by the deadline, you’ve got to get it in before 7:00 p.m.

A number of us believe that CDBS has been running noticeably slower than usual over the last couple of weeks, which we suspect is the result of increased traffic from Form 323-related activity. Given that, and the recent experience with the LPFM filing window (during which some unspecified “technical issues” slowed CDBS to a crawl, necessitating a one-day extension of the window), we strongly recommend that folks who have not yet filed their Ownership Reports take steps to get them prepared and filed well in advance of the newly-tweaked deadline.

Incentive Auction Update: Projected Auction Date Moved into 2015

FCC Chairman moves the target date from 2014 to the “middle of 2015”, assures that all auctions systems will be “thoroughly tested”

Despite the FCC’s repeated insistence that it’s been on track to complete all the necessary prep work to conduct the Incentive Auction sometime in 2014, Chairman Wheeler has now taken the opportunity – in a blog posted on the FCC’s website – to throttle back that ambitious schedule. While Wheeler is less than specific about the likely timing of the auction, he is now expressing the belief that it can be held “in the middle of 2015”. 

Of course, in order to do that, the Commission will have to hit a number of milestones in terms of nitty-gritty preparation details along the way, as the Chairman acknowledges. We should get a better idea of precisely what those milestones are and when they might be met at the January, 2014 Commission meeting. That’s when the Incentive Auction Task Force is slated to make a presentation on its anticipated timeline for rolling out the auction.

The very rough roadmap sketched out by Wheeler in his blog post mentions an initial Report and Order establishing “policies” that should be ready for a Commission vote “in the spring” of next year.  That would be followed “in the second half” of 2014 by release of two public notices – an “Auction Comment Public Notice” and a “Procedures Public Notice” – designed to “provide additional details and seek comment on how the specific parts of the auction will actually function.” No other specifics (if you can call those vague references “specifics”) are laid out.

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Ghost in the Machine?

Shades of HAL!  CDBS may be developing a mind of its own.

We all remember HAL, the creepy monotone computer from 2001: A Space Odyssey that developed an unpleasant independent streak.  (Click here for a clip of HAL’s big scene.)  Science fiction, right?  Maybe not.  It seems that, like HAL, the FCC’s Consolidated Database System (CDBS) may be developing a mind of its own.

CDBS, of course, is one of the Commission’s crucial electronic interfaces with the Real World.  Broadcasters file applications and reports of all sorts through CDBS, which in turn regularly spits out public notices reflecting (among other things) application filings.  Those public notices are issued daily and can run anywhere from a few pages to a few hundred pages, depending on the level of filing activity.  Since inclusion of an application listing in such a Broadcast Applications public notice usually establishes deadlines for related filings, the notices are an important, if prosaic, component of the FCC’s regulatory system.

So it struck a number of observers as odd when, in recent weeks, public notices about renewal applications for a couple of FM translators and an LPTV station included the following comment:

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Noncommercial Stations Out West Back to Being Noncommercial . . . For Now

Ninth Circuit en banc reverses 2012 panel decision, restores prohibition against “issue advertising” on NCE stations.

We all know that noncommercial (NCE) broadcasting stations are just that – NONcommercial.  Section 399b of the Communications Act forbids them from accepting advertising on behalf of for-profit operations; it also forbids advertising both for political candidates and for expressing the advertiser’s views on any matter of public importance. (The difference between the latter two? Think “Vote for John Smith” vs. “America’s farmers are its backbone”.)

As we reported back in 2012, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit tossed that last two prohibition (i.e., the ones against political and issue advertising).

That wasn’t the end of the matter. As we thought it might, the FCC asked the Ninth Circuit en banc to take another look at the case. And now the 11-judge court sitting en banc has restored (by an 8-3 vote) the prohibitions against political and issue advertising

But there’s reason to believe that the case may not be over yet.

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LPFM Update: Audio Division Issues Progress Report, Road Map

Public notice suggests grants of singleton LPFM applications as early as January, 2014; Upcoming settlement, amendment opportunities also described

The LPFM juggernaut that has been moving forward with impressive speed all year seems, incredibly enough, to be gaining momentum.  Less than three weeks after the filing window slammed shut on new LPFM applications, the Audio Division has released a public notice providing a progress report and a road map for handling the 2,800 or so applications that were filed.  And that map seems to point to potential resolution of most applications in reasonably short order, some even as soon as next month.

All LPFM applicants, as well as anyone who might be affected by any of the applications, would do well to review the Division’s public notice carefully.

The good news for many: nearly one-third of the LPFM applications – approximately 900 – appear to be singletons.  The Division has made identification of all singletons its highest priority, and has already started to mark the ones it has so identified as “accepted for filing”, a status that starts the 30-day petition to deny period.  That means that, at least for some (if not most) of the singletons, the petition to deny period will expire in January, leaving applications that don’t attract any petitions potentially eligible for grant next month.

Meanwhile, the Division also expects to have bunched all non-singleton applications into their respective MX (for “mutually exclusive”) groups shortly.  Look for a public notice listing all MX groups by the end of this month.

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Update: Deadlines Set for Comments on Proposed CALM Act Rule Revisions

Earlier this month we reported on an Order and Further Notice of Proposed Rulemaking ( in which the FCC is looking to revise the rules the it adopted in 2011 – and that took effect in 2012 – pursuant to the CALM Act. That’s the 2010 law by which Congress hopes to eliminate LOUD COMMERCIALS from the TV airwaves. The Further Notice of Proposed Rulemaking portion of the Commission’s most recent action has now made it into the Federal Register, which establishes the comment and reply comment deadlines. If you plan to file comments in response to the Further Notice, you have until December 27, 2013. Reply comments are due by January 13, 2014.

Apps on Maps: LPFM Application Information Now Available on Google Earth Maps

As we reported last week, the list of LPFM applications filed during the 2013 window is now available. For those of you who might prefer a more visual means of determining where those applications happen to be geographically, our friends at Cavell Mertz have advised us of a nifty feature that they provide – free of charge, thank you very much – through their website at FCCInfo.com. They have layered the LPFM application data onto Google Earth. So if you’ve got Google Earth already loaded on your computer, just click here to access the feature.

(If you don’t have Google Earth loaded yet, you might want to get on that – but be sure to allow several days which you’ll probably diddle away using the program to find images of your house, or your school, or all the major league baseball parks you’ve ever been to, or that place you went fishing a couple of years ago, or . . . you get the idea.)

Once you click on the link above, you will likely get a message asking what program you want to use to get things started. Pick “Google Earth”.

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Low Numbers for Low Power

LPFM applications are now available in CDBS; far fewer were filed than had been expected.

2,799 is the magic number – at least according to our friend, Dave Doherty at Skywaves Consulting. That would be Dave’s calculation of the number of LPFM applications filed during the just-closed window period. So if you had 2,799 in your office pool, you should be a happy camper – if, that is, Dave’s calculation holds up. (We had heard a slightly different unofficial figure of 2,819 from another usually reliable source, although a wild card search of CDBS does seem to confirm Dave’s number. Whoever’s holding the stakes in your pool might want to hold off on the pay-out until that slight discrepancy gets cleared up.)

In any event, the LPFM applications are now apparently available in CDBS, so Dave has worked his spreadsheet magic again (like he did earlier this year, on the FM translator front). If you would like to see Dave’s list of 2,799 sorted by state, city and frequency, click here; if you’d like to see the list sorted by frequency, state and city, click here. His lists are unofficial, of course, but they should provide anyone who’s interested a reasonably complete look at the lay of the LPFM land post-window. At a minimum, they should help interested folks get at least a sense of who filed, where, and for what channels.

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Indecency with a Spanish Accent?

Consent decree with Liberman Broadcasting allows FCC to avoid having to spell out how indecency policies apply to Spanish-language programming.

Something – it’s hard to say exactly what – recently occurred on the indecency front.  I learned about it first at the Impact Awards ceremony presented by the National Hispanic Media Coalition (NHMC).  NHMC President/CEO Alex Nogales announced excitedly that Commissioner Jessica Rosenworcel (who was being honored that night) had brought “good news” about a matter in which NHMC was involved.  The news: the FCC had entered into a consent decree with Liberman Broadcasting to resolve a complaint, filed by NHMC (along with the Gay & Lesbian Alliance Against Defamation (GLAAD)), targeting the Spanish-language TV talk show “José Luis Sin Censura” (translation: “José Luis Uncensored”).  Liberman’s Los Angeles-area TV station had broadcast the Luis show, complete with images and language that NHMC and GLAAD thought were indecent.  (It stopping airing the show in 2012.)

I wrote about the complaint when it was filed back in 2011.  NHMC and GLAAD alleged the repeated use of sexually-oriented terms such as “pinche” and “culero”, along with anti-gay epithets (“maricón”, “joto”, “puñal”) and anti-Latino slurs (e.g., “mojado”).  They also suggested that the FCC might be applying different indecency standards – or at least different enforcement policies – against Spanish-language programming as opposed to the English-language equivalent.  (That last point is one that I had been asked to address by Billboard in a 2006 article – demonstrating that the NHMC/GLAAD concerns were neither new nor unique to them.)

So what did the FCC do to Liberman?

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Auction Action, AM Style

FCC schedules Auction No. 84 for May, 2014, with 22 AM permits up for grabs.

Do you remember what you were doing in January, 2004? That’s not quite ten years ago. George W. Bush was still in his first term in office. The Janet Jackson Super Bowl flap still hadn’t happened. “Friends” and “Frasier” were still on the air; “House” and “Desperate Housewives” hadn’t even debuted.  Facebook was still just a glimmer in Mark Zuckerberg’s eye.

And some of you were apparently filing applications for AM radio construction permits.

We know that because 53 AM applicants, vintage January, 2004 (and four more from 2007), have just been identified as possible participants in a “closed” auction announced by the FCC. The auction, featuring 22 AM construction permits, is set to begin on May 6, 2014.

The permits are for service areas from Oregon down to Florida. Opening bids range from as little as $1,000 (for, e.g., beautiful Lovelock, Nevada) up to $25,000 (for Culver City, California).  You can see a list of the lucky few eligible to bid, the markets they’ll be able to bid on, and the minimum opening bids here.

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AM Revitalization Update: Comment Deadlines Set

A couple of weeks ago we reported on the FCC’s adoption of a sweeping Notice of Proposed Rulemaking (NPRM) aimed at revitalizing the AM radio service. The NPRM has now been published in the Federal Register, which means that the deadlines for comments on the various proposals have now been set. If you want to file comments in response to the NPRM, you’ve got until January 21, 2014. Reply comments can be filed by February 18, 2014. Additionally, if for some bizarre reason you might instead feel motivated to comment strictly on whether the “information collection” aspects of the NPRM comport with the Paperwork Reduction Act, you can file those comments separately by January 21, 2014.

Key Bridge Global LLC Becomes Fourth "White Space" Coordinator to Win Approval

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

Our handy-dandy table for tracking the progress of would-be white space database administrators is getting a work-out. Just last week we noted the completion of
L S Telcom’s testing
, and now it’s Key Bridge Global LLC’s turn. The Commission has announced the Key Bridge has made it to the finish line – it has been approved to provide service to certified unlicensed devices operating in the TV white spaces. This latest notice has been included in the appropriate box below.

Four down, six to go. Check back here for further updates. 

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

Coordinator

Test Started

Test Finished; Comments Sought

Coordinator Approved

Comsearch

     

Frequency Finder Inc.

     

Google Inc.

Feb. 27, 2013

May 29, 2013

June 28, 2013

LS telecom AG

June 18, 2013

     Nov. 14, 2013

 

Key Bridge Global LLC

March 4, 2013

May 29, 2013

   Nov. 19, 2013

Microsoft Corp.

     

Neustar Inc.

     

Spectrum Bridge Inc.

Sept. 14, 2011

Nov. 10, 2011

Dec. 22, 2011

Telcordia Technologies

Dec. 2, 2011

Feb. 1, 2012

March 26, 2012

WSdb LLC

     

 

Movin' On Up To The East Side (Reprise)

PMCM completes first of two cross-country TV moves.

In June, 2009, we reported on an ambitious – some thought hare-brained (or worse) – effort by PMCM TV, LLC to relocate two television stations from Ely, Nevada and Jackson, Wyoming to Middletown Township, New Jersey and Wilmington, Delaware, respectively.

We are pleased to announce that Phase One of that project has been completed. As you can see by clicking on the video below, Station KJWP, Channel 2, Wilmington, Delaware, has now signed on the air:

Delaware now has its first operational commercial VHF TV station since the 1950s. In fact, the last time Delawarians saw a commercial VHF station licensed to their state, some of the programs now showing on MeTV were first run features. (The station is an affiliate of the popular Me-TV network -- “Me-TV” stands for Memorable Television -- featuring classic shows from the ’50s through the ’80s.) PMCM is in the process of developing locally-produced nonentertainment programming to provide Wilmington and the rest of the station's service area with the benefits of a local station.

Consistent with the unusual nature of this project from the get-go, KJWP has retained its distinctive “K”-prefix call sign even though it's now east of the Mississippi.

Construction of KJWP was completed in just five months: the construction permit authorizing the long-distance move was granted on June 19, 2013, and the switch turning on program test operation in Wilmington was thrown on November 18. Credit for that impressive accomplishment goes to PMCM principal Robert McAllan (seen in the video, appropriately enough, flipping the switch), who was in charge of all phases of the move. While some additional work still needs to be completed here and there, Bob, a long-time broadcaster, has managed to pull off a near-miracle. (His work isn’t over, though – next stop, Middletown Township!)

Fletcher Heald is proud to have played a role in PMCM’s effort from Day One. Past performance is, of course, not a guarantee of future results – particularly here, where the unique circumstances of PMCM’s feat are not likely to occur again. But we like to think that we are entitled to some props on the lawyering side for helping PMCM recognize and take advantage of an extraordinary opportunity.

Foreign Control of Broadcast Licensees: The Regulatory Door Is Gradually Opening

FCC announces case-by-case approach to possible increases in indirect foreign control of broadcast licensees.

Indirect alien control of U.S. broadcast stations, long thought a taboo, may be on the way to acceptance at the FCC. In a Declaratory Ruling, the Commission has announced that it will consider easing up on such indirect foreign ownership of U.S. stations.  But exactly when any easing up will occur, and how much alien control  the FCC will eventually permit, remains to be seen.

Section 310(b)(3) of the Communications Act requires that entities holding certain FCC-issued licenses (for broadcast and common carrier services and radios serving aircraft while en route) must be organized under U.S. law AND may have no more than 20% foreign ownership. By contrast, Section 310(b)(4) of the Act permits such licensees to be indirectly controlled by separate entities up to 25% of which is owned by alien interests.  In other words, while the license holder itself cannot be more than 20% foreign-owned, up to 25% of its parent company may be owned by foreign individuals or companies (even if the parent, which must be a domestic U.S. entity, is a 100% owner of the licensee).

The convoluted structure of Section 310(b)(4) suggests that the Commission might be able to allow entities with more than 25% alien ownership to control such FCC licensees – as long as an appropriate public interest determination is made. Historically, though, the Commission has strictly adhered to the 25% benchmark: it has never made such a public interest determination and, consequently, it has effectively established 25% as a hard and fast maximum not to be exceeded.

But now the Commission says that, going forward, it will be more open-minded to – and is, indeed, effectively inviting proposals for – greater indirect foreign ownership and control of broadcast licensees.

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Update: Form 323 Deadline Extended

It’s official! The deadline for filing biennial Ownership Reports for commercial broadcast stations has been extended 18 days, to December 20, 2013. The Media Bureau took this action in response to a number of requests which observed that the usual 60-day period for preparing and filing such reports – which would ordinarily have run from October 1–December 2 – was interrupted by the 16-day shutdown of the federal government in October. Since preparation of the reports requires access to CDBS, which was off-line during the shutdown, would-be filers were deprived of that access.

LPFM Filing Window Extended, Again

CDBS problems lead to 21-hour extension of filing opportunity.

Hey, all you procrastinating LPFM applicants – you’ve got 21 more hours than you thought you had! The long-scheduled LPFM application window was set to close at 6:00 p.m. ET today, November 14. But lo and behold, CDBS encountered some “technical issues” this afternoon, “issues” that apparently prevented or delayed folks from uploading their applications. (We here at FHH can attest that CDBS appeared to be having major league problems.) As a result, at the very last minute (i.e., approximately 5:00 p.m. ET, an hour before the window was going to slam shut), the Media Bureau issued a public notice announcing that the window would stay open until November 15, 2013 at 3:00 p.m. ET.

This is the second time the LPFM window has been extended.  We strongly suspect that it will be the last.

Fifth White Space Coordinator Completes Tests

The FCC requests comment on white space database tests recently conducted by LS telcom AG.

The FCC has asked for comment on white space database tests recently conducted by LS telcom AG.  The test report can be found here. Mark your scorecards: LS telcom is the fifth would-be administrator to complete its testing. Five down, five to go.

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

Comments on the test report are due by November 29, 2013 and reply comments by December 6.

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

Coordinator

Test Started

Test Finished; Comments Sought

Coordinator Approved

Comsearch

     

Frequency Finder Inc.

     

Google Inc.

Feb. 27, 2013

May 29, 2013

June 28, 2013

LS telcom AG

June 18, 2013

      Nov. 14, 2013

 

Key Bridge Global LLC

March 4, 2013

May 29, 2013

 

Microsoft Corp.

     

Neustar Inc.

     

Spectrum Bridge Inc.

Sept. 14, 2011

Nov. 10, 2011

Dec. 22, 2011

Telcordia Technologies

Dec. 2, 2011

Feb. 1, 2012

March 26, 2012

WSdb LLC

     

 

 

 

 

Update: NASBA Weighs in on Advertising Deductibility Proposal

Looks like we weren't just crying wolf when we alerted our readers, both last month and then again a couple of days ago, to the possibility that Congress might be gearing up to dilute the deductibility of advertising expenses. Yesterday NASBA -- representing broadcast associations from all 50 states -- sent a letter to Congress. Citing the undeniable stimulant effect of advertising, both locally and globally, and observing that the creation of disincentives to advertising can have "real consequences on the ability of [broadcast] stations to serve their communities with local programming", NASBA strongly urged Congress "to preserve the full, same year, deductibility of all advertising costs under the federal tax code." Check back here for updates.

Discount Daze Update: Comment Deadlines Announced in UHF Discount Proceeding

 Back in September we reported on a Commission proposal to abandon the UHF discount aspect of the limitation on nationwide broadcast TV multiple ownership. (The Commission also suggested that it might be interested in establishing a VHF discount.) The Notice of Proposed Rulemaking has now made it into the Federal Register, which means that comments deadlines have now been established. If you have anything to say to the FCC about the proposal, you’ve got until December 16, 2013 to file comments and until January 13, 2014 to file reply comments.

Reminder: ALL DTV Broadcasters Must File Form 317 by December 2

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

Attention, all DTV broadcasters! It’s that time of year again.  Your Form 317 is due at the FCC by December 2.  You get an extra day this year (since the normal due date, December 1, falls on a Sunday), but that extra day should give you plenty of time to complete and file the form – assuming, that is, that CDBS hasn’t crashed under the weight of all the biennial Ownership Reports that are currently scheduled to be filed by the same deadline.

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, 2012 – September 30, 2013, your DTV station provided any ancillary or supplementary services for a fee and, if so, how much revenue the station received. If you did provide any such services, then you’ve got to fork over five percent of the gross revenues you got from them (the payment to be accompanied by a completed Form 159, thank you very much.)

“Ancillary or supplementary services” include any services that are provided using the portion of a facility’s spectrum that is not needed for its required one free broadcast signal.  Multiple video streams that are received free to the public are not considered to be ancillary or supplementary services.

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Update: Ad Expense Deductibility Proposal Reportedly Advances

LEGISLATIVE ALERT!!!  Last month we reported on indications that, according to AdWeek, some in Congress are thinking about revising the tax code to eliminate, or at least seriously reduce, the deductibility of advertising expenses. We have a follow up.

AdWeek is now reporting that the Chairman of the House Ways and Means Committee (that would be Rep. David Camp (R-Mich)) is indeed pushing a tax reform proposal that targets, among other things, ad expense deductibility.

The proposal appears not to envision the complete elimination of the deduction. But not by much. As described by AdWeek, Camp’s proposal calls for only 50% of ad expenses to be deductible during the first year, with the remainder of the expense to be amortized over the ensuing decade. (Exactly how this makes any economic sense is not at all clear.) Such a move would obviously have a harsh effect on advertisers and a trickle-down effect on others, including broadcasters, who might suffer if a change in tax policy discourages advertising.

It’s hard to say at this point how serious the threat is, but we suspect it ranks right up there.  And it is apparently stirring considerable concern among advertiser and media lobbyists, one of whom was quoted as referring to the situation as “DefCon 1”. Anytime anybody conjures “DefCon 1”, it’s worth passing along to our readers.

The smart money says that Camp is looking to insert his proposal into a more general tax reform package that would clear the Ways and Means Committee in the next couple of months. We will be following this.  Check back here for updates.

FCC Responds to AM Code Blue

With AM industry debilitated by numerous factors, the Commission is looking to treat some obvious symptoms.

Amplitude Modulation radio (AM to its friends) is old and by all accounts pretty sick . . . so the FCC’s wheeling in the crash cart, gelling up the defibrillator paddles and hoping to shock the patient back to vitality. Will it be enough? Will it be in time? 

Clear!    

Back in September, then-Acting FCC Chairwoman Mignon Clyburn announced that the Commission was considering a package of reforms to bolster the survival prospects of AM stations. And now, not quite two months later, the Notice of Proposed Rule Making in the new “Revitalization of the AM Radio Service” docket (we’ll call it the Revitalization NPRM) has been released. 

The FCC’s goal is to help AM licensees remain economically viable. Besides soliciting comments on these specific proposals, the FCC invites any other ideas for improving the quality of AM service.

Anyone paying the slightest attention to the radio industry already knows that AM has faced 30 or more years of struggle to hang on to a meaningful market share. Those of us who are a little long in the tooth (one metric: we were around when the Beatles’ White Album first came out . . . on something called “vinyl”) recall when FM was the poor stepsister of radio broadcasting. AM dominated the dial. 

But by the 1970s the erosion had begun. Listeners were looking for better sound. FM had it.  AM, not so much. By the mid-1980s, AM radio represented 30 percent of the nation’s radio listening hours. By 2010, it was down to 17 percent. Among younger demographics, the percentages were in the single digits.

Physics, construction techniques and electronic gadgetry have all added to AM’s woes.

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This Should Get Your Attention: Fake EAS Attention Signals Fetch Fines

Enforcement Bureau sends its own warning signal about improper use of EAS (or EAS-like) attention-getting tones.

The lesson of the day: it is illegal to broadcast EAS attention signal tones, or simulations of EAS tones, except in connection with a genuine alert or an authorized test of the EAS system. Write that down, share it with others, commit it to memory. If you want to see it in black and white, check out Section 11.45 of the Commission’s rules.

Many – probably the vast majority of – broadcasters learned this rule a long time ago and have had no problem complying with it. Indeed, just last June the FCC was confronted by broadcasters skittish about getting crosswise with that very rule. (In response the Commission went out of its way to assure the broadcasters that it really is OK to broadcast one particular FEMA-produced PSA that contains an alert tone that sounds like the EAS signal.)

But according to the Enforcement Bureau, recently it’s been receiving “numerous consumer complaints” about the use of EAS-like tones in ads and promotions. And sure enough, the Bureau has now brought the hammer down on two culprits who used simulations of EAS tones to promote, in one case, an upcoming program and, in the other, one of its advertisers (that would be the Fan Wear and More Store). The former got spanked to the tune of $25,000 in a notice of apparent liability (NAL); the latter copped a plea and entered into a Consent Decree that will cost it a “voluntary contribution” of $39,000.

The rationale for the rule is obvious.

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Less Than a Year After Initial CALM Act Effective Date, a New CALM Act Standard Has Been Proposed

Thanks to Congress, the new standard WILL be adopted eventually. Affected parties can implement the new standard now if they prefer, but FCC is looking for input on when compliance with the new standard should be required.

If you’re a TV licensee or MVPD provider and you thought that you had a firm handle on your CALM Act obligations, think again. The CALM Act standards are in the process of evolving, and you (along with the Commission) will be having to play catch-up ball. The most recent demonstration of this? An Order and Further Notice of Proposed Rulemaking (O/FNPRM) announcing a new “successor” “Recommended Practice” featuring an “improved loudness measurement algorithm” that must be incorporated into the gear necessary to assure CALM Act compliance.

If you’re a bit hazy on the CALM Act, check back on our previous posts for a refresher course (here and here would be good places to start). It’s the law intended to exorcise the Demon of Loud Commercials from the TV-watching experience. Congress enacted it in 2010, the FCC adopted rules for its implementation in 2011, and those rules kicked in in 2012.

An unusual aspect of the CALM Act is that it requires the Commission to incorporate into its rules standards adopted by the Advanced Television Systems Committee (ATSC) relative to loudness measurement. The statute leaves the FCC no discretion at all: it specifies with precision the particular ATSC standard to be used, and it requires the FCC to incorporate that standard not only as it existed in 2010 (when the Act was passed), but also as it might be revised by ATSC from time to time going forward.

And sure enough, in March, 2013 – a bare three months after the CALM Act rules first took effect – ATSC published a revised version of the standard.

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FCC Releases Details on Workshop about Unlicensed Spectrum Issues

Workshop to take place November 8 at FCC headquarters.

The FCC has announced the topics and panel participants for its November 8 workshop on unlicensed spectrum issues related to the spectrum incentive auction. Details are here.

Meet the New Boss(es) . . .

. . . same as the old bosses? Wheeler, O’Rielly finally confirmed.

OK, readers, how about a big “welcome aboard” to the two newest arrivals on the Eighth Floor?

The Senate has confirmed Tom Wheeler and Michael O’Rielly as Chairman and Commissioner, respectively, of the Federal Communications Commission. They are expected to be sworn in as soon as possible. The confirmations return the FCC to a full complement of five commissioners. 

For those keeping score, Wheeler will be the third Democrat commissioner (joining Commissioners Mignon Clyburn – previously the Acting Chairwoman – and Jessica Rosenworcel) while O’Rielly will be the second Republican (along with Commissioner Ajit Pai).

The confirmations were delayed briefly when Senator Ted Cruz placed a procedural hold on them because of concerns about possible changes in FCC policy to expand mandatory disclosures relative to television political advertisements. Wheeler and Cruz had a sit-down chat about the matter, during which Wheeler advised Cruz that imposing such disclosure requirements was “not a priority”. Cruz was apparently satisfied, and he lifted his hold.

With that, the normally creaky Congressional wheels suddenly began to spin with impressive ease. During the last two minutes of the Senate session immediately following Cruz’s announcement, Senate Majority Leader Harry Reid asked for unanimous consent that the nominees be confirmed. No objection was voiced, and that was that. 

The record will reflect that, also in those last two minutes, the Senate unanimously approved the designation of November 2, 2013, as National Bison Day. And, just in time (since the month was already pretty much gone), it approved the annual designation of October as National Work and Family Month.

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Yeah, Who DOES Need the FCC?

A counterpoint to Mitchell Lazarus’s similarly-titled, but philosophically different, post.

[Blogmeister’s Note: When we posted Mitchell Lazarus’s item concerning the need for the FCC, we anticipated push-back. And sure enough, our colleague Jon Markman has stepped up. The views expressed in the post below are Jon’s alone. As was the case with Mitchell’s post, others here at FHH may share some or all of Jon’s views; some may not. Ditto for our readers. We again encourage anyone who agrees or disagrees with Jon to let us know by sending along a comment.]

In a recent post here on CommLawBlog, my colleague Mitchell Lazarus addressed some core functions of the FCC that make it “not only valuable, but indispensable to how we live”. With all due respect to Mitchell – who has forgotten more about the FCC, spectrum, and telecom law in the last month than I could hope to learn in a decade – I would like to offer a different take.

The government shutdown prompts a conversation on just what are the “essential” tasks of the Federal government (keeping in mind that the Federal government is just one of the many levels of government we have in the U.S.).

In his post, Mitchell alluded to some of the extreme posturing inspired by the government shutdown, such as claims that the shutdown demonstrated the irrelevance of the Federal government and proved that smaller government is good and no government is even better. I tend to believe that this was mostly rhetoric used by one side to rally their base and/or strengthen their bargaining position in the budget negotiations; I suspect that the speakers in fact support much of what the Federal government does. But insofar as they were representative of honest beliefs, they are indicative of a far more extreme position than the norm.

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LPFM Update: Finding Translator Input Info in the CDBS Database

Following up on Commission clarification of protection requirements, Bureau offers tips on tracking down data on translator input signals.

As we reported a couple of days ago, as soon as it cranked back up after the government shutdown, the FCC issued an order that, among other things, provided LPFM applicants additional guidance with respect to their obligation to protect FM translators’ off-air input signals on third adjacent channels. To provide for such protection, of course, the LPFM applicant must first know what off-air input signals it’s supposed to be protecting. And now, as a follow-up to the Commission’s order, the Media Bureau has released a separate notice providing some tips on tracking down that information.

The good news here is that data on FM translator input signals are available. The bad news is that, to get to those data, you’ll have to wade into the deep waters of the CDBS database and then grope around a bit. This is not for the faint of heart. (The Bureau “encourages” applicants to review the “readme” file before trying to download any data – a sure sign that accessing and understanding the data may not be as easy as one might think.)

According to the notice, FM translator input information can be found in either of two data tables (the “facility” table and the “int_translator” table). But the data fields to look for differ from one table to the other and the data entries may not be intuitively obvious to some folks.

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Shutdown Follow-up: LPFM Window Extended, LPFM Application Rules Clarified

LPFM protection of FM translator input signals modified in several respects

In further fallout from the October shutdown of the federal government, the Commission has extended the LPFM filing window by 16 days. As a result, the window – which has been open since the FCC reopened its doors again on October 17 – will stay open until November 14, 2013 at 6:00 p.m. ESTPlease revise your calendars accordingly.

In other LPFM scheduling news, the Media Bureau has also rescheduled an LPFM webinar for October 24, 2013 from 1:00-2:30 p.m. Topics covered will include “LPFM Channel Finder, creating a CDBS account, completing Form 318, and any other issues related to the LPFM window and the filing process”. You can send in your own questions by email (lpfm@fcc.gov) or by Twitter (hashtag - #LPFMquestions).  

Before you formulate your list of questions, you should be sure to take a look at the first order the Commission released when it got back to work post-shutdown. In fairness to the Commission, it had adopted this order – the Sixth Order on Reconsideration (Sixth LPFM Recon Order) – on September 30, the day before the shutdown. But it wasn’t able to get the order out the door before Congress’s shenanigans slammed the door shut on October 1, so the order sat in limbo for the 16 days of the shutdown.

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FCC Sets New Filing Deadlines Following Reopening

Pay close attention; this stuff is complicated – and it matters.

When it reopened for business after the 16-day government shutdown, about the first thing the FCC did was to announce on its website that all “Commission filing deadlines” that occurred during the shutdown or that would occur up to and including October 22 (with a very limited exception) would be suspended until further notice.  

Approximately 12 hours later, that further notice has been provided in a public notice establishing new filing dates for documents whose deadlines were affected by the shutdown. Pay close attention.

Except as otherwise noted (and please check the exceptions):

  • Filings that would have been due October 1–6 are now due next Tuesday, October 22.
  • Filings that would have been due October 7–16 are now due 16 calendar days after the original filing date. (Example: A filing that originally would have been due on October 7 will now be due on October 23, 16 days later.) If the new date falls on a weekend or holiday, filings are due on the following business day.
  • Regulatory and enforcement filings that would have been due October 17–November 4 are due on November 4, 2013.

The deadlines for responsive pleadings to any of the above are extended by the same number of days.

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Who Needs the FCC?

The operation of our culture and commerce depends on at least three of the FCC’s functions.

[Blogmeister’s Note: Despite Blogger Mitchell Lazarus’s use of the editorial “we”, the views expressed in this post are his alone. Others here at FHH may share some or all of his views; some may not. Ditto for our readers. We encourage anyone who agrees or disagrees with Mitchell to let us know by sending along a comment.]

The recent government shutdown was applauded by some who believe that small government is better, and so, by extension, that no government at all must be better still.

That got us to thinking. Not about the whole government, just the piece we know best: the FCC. Suppose the FCC closed for good. Would anybody notice? (Other than us; we’d have to find another line of work.)

In other words: How essential is the FCC to a functioning society?

A lot of what the FCC does has social value, in the eyes of many. But set that aside. Are any of the FCC’s responsibilities not only valuable, but indispensable to how we live?

We wouldn’t ask the question unless we had an answer.

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Reminder: TV Issues/Programs Lists, Reports Must be Uploaded When Government Re-Opens

Federal shutdown prevented licensees from posting quarterly lists, compliance reports by October 10 deadline.

As just about everybody must know by now, the government has been shut down since October 1, but appears to be set to re-open in the next couple of days, possibly as early as Thursday, October 17.

Our colleague Mitchell Lazarus observed here last week that, when at long last the FCC flings its doors (and e-filing portals) wide open once again, it is likely to be inundated with applications, reports, pleadings, comments and all manner of other materials.

A couple of chores that should not be overlooked by TV licensees are the uploading of their issues/programs lists, commercial compliance certifications and website compliance reports for the third quarter of 2013.  All of these were due to be prepared by all full-service TV and Class A TV stations by October 10.

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Could this Mad Plan Harm the Mad Man?

[Blogmeister, Jr.’s Note: Rob Schill, of the firm's Government Relations group, contributed to this article.]

 Congress is thinking about eliminating the tax deduction for advertising expenditures – but is that a good idea?

For ages, federal policy has encouraged advertisers to advertise by making it cost-effective, tax-wise.  But now, some in Congress are reportedly thinking about reversing that longstanding tradition.

The ripple effects of such a reversal on all businesses associated, directly or indirectly, with “advertising” in its broadest terms could be seriously bad news.

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FCC Stays the Course on Digital Transition for LPTV/Class A Stations

Deadlines set in 2011 remain in place; Channel 6 LPTV's cautioned on potential for NCE FM interference.

The FCC has nixed requests submitted by a number of LPTV and Class A stations looking for relief from spectrum-clearing measures put in place two years ago.

In 2011, the FCC announced the end of the transition to digital broadcasting for Class A and Low Power Television stations (to make life simple, we’ll call them both “LPTV” for now). In so doing, it set a number of deadlines.  In response to a handful of petitions of reconsideration, the FCC has now reaffirmed those deadlines. It has also addressed complaints from noncommercial (NCE) FM broadcasters that increased power levels for LPTV stations operating on Channel 6 could cause interference to NCE FM stations.

Under the deadlines set in 2011, all TV operation of any kind, analog or digital, on Channels 52 and above had to end by December 31, 2011, and all analog LPTV broadcasting on any channel must end by September 1, 2015. 

The December, 2011 deadline put a particular squeeze on out-of-core LPTV licensees. Some had a hard time finding an in-core channel by the deadline. Others who did find such a channel still had to go dark on December 31, 2011 if they had not received a permit for, or completed construction of, their in-core facilities. Going dark, of course, poses its own major problem: Section 312(g) of the Communications Act says that a broadcast station that fails to operate for 12 consecutive months automatically loses its license.

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Buddy, Gonna Shut You Down (Reprise)

Tach it up! Tach it up! For the second time in two and a half years, FCC moves to DefCon1 in anticipation of government shutdown.

We posted a heads-up alert last week about the possible shutdown of the federal government and the effect that that could have on licensees. Now the FCC itself is getting into the act. It has just posted on its website a “Plan for Orderly Shutdown Due to Lapse of Congressional Appropriations”. The Commission’s plan allots a total of four hours to complete “orderly” shutdown procedures.  They’re figuring that, of a total of about 1,750 agency employees, only 38 will be manning the battle stations during the shutdown; everybody else will have to go home and shelter in place . . . but only after they have completed their orderly shutdown procedures. (Comforting factoid: All three Commissioners will stay on board through the shutdown.)

Unfortunately, the Plan doesn’t shed any light on practical questions of importance to us out here in the Real World. For instance, will the Commission’s various e-filing portals remain open and operational? We don’t expect that anything that might get filed during the shutdown (assuming that any of those portals do stay up and running) would be given a file number or be processed in any way during the shutdown, but it would still be a relief to be able to file applications, etc., even if they remain untouched by any bureaucratic hand for the duration.

[UPDATE: Since we first posted the above item we have been informally advised by a member of the Media Bureau’s staff that no FCC systems will be available for any purpose during the shutdown. From this it’s probably reasonable to conclude that CDBS, ULS and the Commission’s other online filing systems are going to be shut down for the shutdown. It’s not entirely clear why that should be the case, since the Commission routinely closes up shop – every weekend, for instance, and all federal holidays – without feeling the need to seal off its e-filing portals. But we don’t make the news here, we just report it – and the word we’re getting is that uploading of materials through the Commission’s online systems will not be a happening thing during the shutdown.]

FCC Seeks Comment on EAS National Test Issues

Two years after the first nationwide test, the FCC identifies, seeks answers to, problems that cropped up.

Cast your minds back to November 9, 2011. That’s when, with much hullaballoo, the Commission and FEMA conducted the first ever nationwide test of the Emergency Alert System (EAS), the point of which was to determine whether the system would operate as designed if it were activated in a real emergency. While the test went off reasonably smoothly, some glitches apparently did surface and now, two years down the road, the FCC is looking to fix them.

In a Public Notice the Public Safety and Homeland Security Bureau has asked for comments on a variety of technical issues that cropped up during the 2011 test.

A number of the issues relate to the header codes inserted in EAS transmission. (We told you they were technical issues.) The contents of EAS messages are specified in Section 11.31 of the Commission’s rules. But not all the codes worked as planned.

For example, the message transmitted by the FCC and FEMA to start the nationwide test apparently included a “Time of Release” code specifying a 2:03 p.m. start time, even though the Commission had gone to great lengths to publicize the start time as 2:00 p.m. Further complicating matters is the fact that the rules require that EAS messages be transmitted “immediately” upon receipt. Many folks receiving the message ran the test at the publicized 2:00 p.m. time, while others ran it at the 2:03 p.m. time in the header code. Obviously, this needs to get worked out. The Commission is looking for comments on how best to address the problem. Indeed, is it practical – given the daisy-chain nature of the nationwide EAS operation – to expect that a nationwide emergency message can be transmitted simultaneously everywhere?

Another problem: the location code.

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Biennial Form 323's: The filing window opens October 1

The FCC has announced that, as of October 1, commercial broadcasters will be able to file their 2013 biennial Ownership Reports (FCC Form 323). These reports are technically not due until December 2. Still, we should all bear in mind that
(a) ALL attributable interest holders in ALL commercial licensees must file biennial reports, which means that the load on CDBS will increase substantially (yes, you have to use CDBS; no paper filings will be accepted); (b) December 2 happens to fall shortly after the Thanksgiving holiday and shortly before the big and often distracting year end holidays (Christmas, Hanukkah, Kwanzaa, New Year’s); and (c) a number of licensees will also be having to file renewal applications on or before December 2. All of those are pretty good reasons to get ahead of the curve and file your 323’s sooner rather than later

The information to be reported must reflect things as of October 1, 2013. In other words, even if a station changes hands or new officers, directors, shareholders or other attributable interest holders are brought into the mix between October 1 and when you end up filing the Ownership Report, your biennial report must show the station’s ownership as it was as of October 1.

This year reporting parties will still be able to use Special Use FRNs (SUFRN).  (If you’re fuzzy on the whole SUFRN thing, check out this earlier post on the topic.) While the instructions on current version of Form 323 are surprisingly silent about that option – in fact, the instructions say nothing at all about SUFRNs – the Commission has updated its online Form 323 FAQs to provide information on SUFRN use.

One quirk of the Form 323 which is not mentioned on the FAQ page does happen to pop up on a different FCC webpage titled “Most Common Form 323 Filing Errors”.

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Discount Daze! FCC Proposes Tossing UHF Discount, Creating VHF Discount

Digital transition spurs rethinking of TV ownership cap discounts.

In one of the least surprising developments in recent memory, the FCC has proposed elimination of the “UHF discount” – but, in one of the more surprising developments, it has proposed adoption of a “VHF discount”. What a difference a DTV transition makes!

Before we can understand exactly what’s going on here, we need to understand the relevant regulatory context, and that context happens to be the multiple ownership rule governing broadcast television. The national TV ownership cap (contained in Section 73.3555(e), to be precise) currently prohibits any entity from owning or controlling a group of TV stations with “an aggregate national audience reach exceeding thirty-nine (39) percent.” The 39% level is thus the starting point from which the “UHF discount” is calculated.

The discount was first adopted back in the mid-1980s (simultaneously with the adoption of the national ownership cap), in recognition of the fact that UHF stations provided less coverage than their VHF counterparts. That disparity arose mainly from the characteristics of UHF frequencies transmitting analog signals. VHF frequencies tend to go a long way in the analog mode; UHF not so much. Because of the “coverage limitations of the UHF band”, the Commission decided that it would be appropriate, for national cap purposes, to attribute UHF stations with only 50% of the households in their respective markets. Theoretically, then, any particular licensee has been able to own more UHF stations than VHF stations.

Fast-forward to June, 2009, when the full-service TV industry converted from analog operation to digital.

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FTC Seeks Comments on Proposed Terms of Nielsen/Arbitron Consent Agreement

Transaction has been approved, but with strings attached; agency is now looking to define those strings

As many readers probably realize, in a move that would shrink the competitive field of media measurement companies, the nice folks at Nielsen are planning to acquire the nice folks at Arbitron. As often happens when one competitor proposes to absorb another, the Federal Trade Commission (FTC) has involved itself in the proposed take-over. While the FTC has green-lighted the deal, it is insisting that the parties enter into a consent agreement.

And now the FTC has requested public comments about the terms of that proposed consent agreement.

The FTC’s concern arises from the proposed acquisition’s potential for the complete elimination of competition in the cross-platform media measurement service market. (A cross-platform media measurement service can measure the audience of a “television” program regardless of whether or not it was watched on a traditional television set, or through online or mobile devices.)  In order to offer cross-platform audience measurements on a national scale, a firm must have access to television audience data along with individual demographic data. Establishing the infrastructure to recruit and maintain a representative sample of the population and developing technology capable of collecting the underlying data would be extremely expensive.

Nielsen and Arbitron are currently the only two companies with the potential to provide these services, and their combination could lead to a lack of innovation and higher prices for customers.  Additionally, advertisers have come to trust Nielsen and Arbitron as the only reputable and reliable services. Any competitor would likely face pushback from the buyers of advertising time.

The FTC has concluded that the acquisition is likely to cause significant competitive harms in the market for national cross-platform audience measurement services.

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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.

The Commission has issued its annual public notice reminding video distributors everywhere not just in areas prone to particular types of disasters – of their obligation to make all emergency information accessible to people with vision and hearing impairments. This reminder, usually timed to coincide with hurricane and forest fire seasons, underscores the need to be alert to the needs of all audience members when emergency information is being provided. (Since this year’s notice is substantially identical to last year’s, the following recap similarly tracks our post describing last year’s notice.)

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.

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Caution: With Possible Government Shut-Down On Horizon, Early Renewal Filing May Be A Good Idea

Sadly enough, the possibility of a governmental shut-down next week looms if Congress is unable to get its act together to keep the government funded. As matters currently stand, it looks like September 30 would be the last day routine business might get done before the budget impasse closes down the government. Such a shut-down would affect the FCC along with all other federal agencies. This could have a disastrous impact on non-broadcast licensees whose licenses are expiring after 11:59 p.m. on September 30.

The Administrative Procedure Act provides that licensees continue to have operating authority even after the expiration of their licenses as long as they have a renewal application on file. However, in order to take advantage of that automatic extension of your license, you must have actually filed a renewal application – and there’s the rub.  If the agency is closed for business, licensees would theoretically be unable to file their renewal applications. (It’s not clear whether on-line filing mechanisms – think ULS or CDBS – would remain up and running during a shut-down. And even if they were technically still functioning, it’s equally unclear whether a renewal application uploaded through those systems would trigger the automatic extension of operating authority.)

A shut-down would theoretically extend the time for you to file a renewal application until the government re-opens, but it would not automatically extend your operating authority beyond the expiration date. So a licensee whose license expires on, say, October 10, 2013 might not be able to file a renewal application until some later date when the government gets going again. In the meantime, the licensee would not have any authority to be operating.

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Deadline Fast Approaching for CALM Act Waiver Extension Requests

Attention, any TV licensee with a CALM Act waiver still in effect. You’ve got until October 14, 2013 to file for extension of that waiver. Failure to do so could mean that you will have to be in compliance with the CALM Act requirements when December 13 rolls around

The 2010 CALM Act, designed to stifle “loud commercials”, technically took effect in December 2012. But, in its infinite legislative wisdom, Congress provided the opportunity for an initial one-year waiver – possibly extendible for a second year.  In implementing the Act, the Commission allowed “small” stations and MVPDs to have the initial one-year waiver pretty much for the asking: all that was required was a self-certification that (a) the station/MVPD met the limited standards for “small” facilities and (b) it needed the extra year to “obtain specified equipment in order to avoid the financial hardship that would be imposed” if it had to get the equipment sooner.  (Check out our earlier post for more information on those requirements.)

As we reported back in July, the initial one-year waivers will expire as of the first anniversary of the effectiveness of the CALM Act rules, i.e., by December 13, 2013.  Requests for the extension of the waiver must be filed at least 60 days prior to the expiration of the currently outstanding waiver, which gets us to the upcoming October 14, 2013 deadline.  (Last year the Commission extended the deadline after the fact; we can’t say whether the Commission will do the same again, but we wouldn’t bet the farm on a similar extension this year.)

Back in 2011, when it first announced how it would deal with waivers, the Commission said that the “filing requirements to request a waiver for a second year are the same as those for the initial waiver request.” That seems pretty clear, but you never can tell. (Again, for a summary of the filing requirements as originally laid out by the FCC, see our earlier post.)   In any event, if you will be needing an additional one-year waiver, you’ve got just a couple of weeks to request it. 

We can assist in the preparation and filing of extension requests -- let us know if we can help.

Incentive Auction Update: Bureau Looks For Input on What Auction-Induced Reassignment Expenses Should be Reimbursable

Public notice suggests FCC is looking to cut as many corners as possible.

If you’re a full-power or Class A TV licensee and you haven’t started to do the math relative to what the much-heralded incentive auction could mean for you dollars-and-cents-wise, here’s a CommLawBlog tip – it’s time to get started . . . because the Media Bureau clearly has. Don’t believe us? Check out the Bureau’s request for comments on the “catalog of eligible expenses” that it has compiled. You’ve got until October 31, 2013 to let the Bureau know what you think about its catalog (and some related issues); you’ll also be able to file reply comments until November 14.

The Bureau’s (and the Commission’s) interest here arises particularly from the Middle Class Tax Relief and Job Creation Act of 2012 (what many of us refer to as the Spectrum Act). There Congress established a $1.75 billion “TV Broadcaster Relocation Fund” for reimbursement of certain expenses incurred by broadcasters in connection with the various channel shuffles necessary to make the incentive auction work. Congress left to the FCC the nitty-gritty chore of figuring out just what expenses would be subject to reimbursement.

The Commission has now started on that process, and it’s looking for industry input.

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LPFM Update: FCC Plans (Another) Instructional Webinar

With the opening of the LPFM filing window fast approaching, the Commission has announced another webinar on the LPFM filing process. Mark your calendars: the webinar will be held on October 3, 2013 from 1:00-2:30 p.m. ET. The Commission plans to run the webinar as a Q-and-A permitting would-be LPFM applicants to pepper Media Bureau gurus with specific questions about “the LPFM Channel Finder, creating a CDBS account, filling out the application (Form 318), and any other issues related to the LPFM window and Form 318.” Questions will be submitted during the webinar by email (lpfm@fcc.gov) or by Twitter (hashtag – #LPFMquestions).

This is a follow-up to an earlier LPFM webinar held last month. If you missed that one, no worries – you can still catch the replay on the FCC’s website. But hold on just a sec. The subjects supposedly covered in the August webinar were (and we quote): “an overview of the low power radio service; how to use the Commission’s LPFM Channel Finder; instructions on creating a CDBS account; and how to fill out the application (Form 318).” What is this, Groundhog Day? Or is the LPFM filing process so difficult to explain that the August session didn’t cover it all? 

Whatever may be the case, it’s probably good that the Commission is doing what it can to educate LPFM wannabes before the window opens. While that does not guarantee a smooth filing process with no glitches, it may at least help to reduce some of the frustration, disappointment and potential disruption that might otherwise occur if boatloads of LPFM applicants go the DIY route rather than lawyer up with real communications counsel.

What's in a Name? Would Not a Sale by Any Other Name . .

Applicants say an assignment is an assignment; Audio Division calls it something else.

In an unusual decision, the Audio Division has dismissed an assignment application because, according to the Division, it wasn’t really an assignment application.

For anyone who might not have believed that the FCC cares much about all those convoluted clauses in all those long and tedious asset purchase agreements that form the basis of assignment applications, there’s a lesson to be learned here.  The Division did indeed read the terms of the deal and didn’t like what it found there.

Truth be told, the deal in question was a bit odd.  Cumulus, the supposed “seller”, controls as many radio stations as it can in the Dallas market (that would be five FM’s and three AM’s).  In an apparent effort to “offload” one of its stations – that’s at least how the Division saw it – Cumulus proposed to “sell” one of its FMs in the market to a well-established media broker.  Nothing wrong with that.  But the purchase price gave the FCC some pause.

The parties’ agreement called for the buyer to pay Cumulus the princely sum of $100 – that’s for a Class C3 station in the fifth largest radio market in the country.  Such a deal.  But hold on.  If and when the buyer sells the station, Cumulus gets all the proceeds, minus whatever expenses Cumulus’s “buyer” may incur while he holds the license, and also minus $50,000 for his troubles along the way.  Which means that, unlike most deals, the “seller” here will end up having paid the “buyer” the net amount of $49,500 once the “buyer” re-sells the station.

From the Division’s perspective, this wasn’t a “sale” because Cumulus was effectively retaining all the economic risk of operating the station.  Rather, the deal terms amounted to a joint venture of sorts, a “brokerage agreement in which [Cumulus’s ‘buyer’] is tasked with finding a buyer for the Station and is to be compensated for doing so by the payment of a $50,000 flat fee when that transaction closes.”   Bottom line: the Division concluded that Cumulus “would remain the owner” of the station – so no assignment was being proposed and the purported assignment application could be summarily dismissed.

The Division may have had a point.

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Hey, CommLawBlog, You've Just Celebrated Your Fifth Anniversary! What Are You Gonna Do Now? We're Going to Disney World!

Well, not exactly Disney World, but for sure Orlando. That’s right, Fletcher Heald is sending a phalanx of attorneys down to the NAB Radio Show, which will be convening at the Rosen Shingle Creek Hotel from September 18-20. Look for CommLawBlog regulars Frank Jazzo, Steve (“the Contracts Guy”) Lovelady, Dan Kirkpatrick, Matt McCormick, Frank Montero, Davina Sashkin, Kathleen Victory and Howard Weiss, all of whom will be making the scene. (Jim Riley and Scott Johnson will be there, too; maybe we can get them – finally – to file a post or two from poolside.)

Davina will be appearing on a panel (“And the Answer is: What is Radio Regulation Jeopardy”) on September 18. Be sure to stop by and say hi. As we have promised, we’re sending down a bunch of CommLawBlog shades (both retros and wraparounds) with her. You can get yourself a pair for the asking if you (a) can convince her that you’re a Friend of the Blog (FoB) and (b) are willing to wear them proudly in public, and maybe even (c) join the throngs who have already sent us spec-centric selfies. (And no, you don’t need to worry that you’ll be depriving Young Liam of the pair we sent him when he first got his face on the blog. When we heard that Davina was trying to take Liam’s shades away so that she’d have enough to take to Orlando (see photo, below), we freed up a few extra pairs so our youngest FoB can keep his. Seriously, Davina, have you no shame?)

Update: OET Releases the Latest and Greatest* Version of TVStudy . . . Again

* (for maybe another couple of weeks, probably)

And the target continues to move as the Commission works to sharpen its analytical pencils. Less than a month after Version 1.2.7 of TVStudy was released, lookee here – there’s a new and improved version. The Office of Engineering and Technology has announced Version 1.2.8, hot off the presses and ready for test drives.  (At the risk of stating the obvious, TVStudy is the software that will be used in the modeling and analysis necessary to repack the TV spectrum.)

With the new version, we should all be able to “apply mechanical beam tilt only to stations having real antenna elevation patterns (either licensee-supplied elevation patterns in CDBS or user-entered patterns)”. According to OET, Version 1.2.8 also “adds logic to choose the higher of the radio horizon or maximum values for effective radiated power for low-power stations (including Class A)”. Plus, let’s not overlook the fact that the new version “improves compatibility with Oracle’s Java Runtime Environment (JRE) version 7” and “corrects an issue with scenario template exportation.” And those are just the highlights – check out the “Upgrade Guide and Change Log” for the full scoop.

Meanwhile, for those who are perhaps less technically inclined, the FCC has separately announced a workshop on September 30, 2013 on “issues surrounding the reassignment of television stations after the incentive auction.” This time around, those issues will include the types of reimbursable costs TV licensees can expect to run into in the repacking process, and also how broadcasters can “coordinate among themselves to mitigate costs and ensure the most efficient transition to new frequencies.” The show is scheduled to run from 10:00 a.m.-12:30 p.m. in the Commission Meeting Room. It’ll also be streamed at http://www.fcc.gov/live as part of the FCC’s “Learn Everything About Reverse Auctions Now” Program. (Yes, that would be the LEARN program, acronymically speaking.)

Media Bureau to 104 More FM Translator Singletons: Come On Down!

A second window for long-form translator applications is now open through October 9.

If you’ve got a singleton FM translator application still pending but you weren’t among the 1,200+ applicants who got invited to file long form Form 349 applications last July, take heart! The Media Bureau has issued another invitation, this time to 104 more translator applicants. You can see a PDF of the invite list here, or you can find a more sliceable and diceable Excel version here.  If you're on the list, get ready to act right away.

The same drill that applied to the July invitees applies this time around.

First and foremost, the deadline: this latest window will be open only until through Wednesday, October 9, 2013.  Mark your calendars.

And heads up – if you’re planning on amending your technical proposal, be aware that the long-form application (and amendments) will be entitled to protection from all subsequently-filed FM translator applications (and their amendments).  So the sooner you file, the better.

Applicants will need to include a filing fee and Form 159 with their long-forms, but since the long-forms must be filed electronically through CDBS, you’ll be reminded of that when you file. CDBS may not alert you, however, to the fact that your application will be subject to a number of limitations.

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Online TV Public Inspection File Update: A New Political Reporting Approach Proposed

Public interest groups suggest FEC-like reporting system for TV stations

A couple of months ago we reported that the FCC had asked for comments on whether or not to extend the political file component of the online public inspection file requirement to all TV stations. You will doubtless recall that, when the online public file system was first put into place in 2012, only Big Four network affiliates in the Top 50 markets were required to upload their political file materials. Everybody else simply has had to continue to maintain those materials in their respective local public files. The FCC originally targeted July 1, 2014, as the date by which the online requirement would be made universal; the recent request for comments is designed to help the Commission decide whether that target date is still a good idea.

The initial response to the FCC request for comments was less than overwhelming. As of September 6, ECFS was showing a total of three comments filed. Of those, two (filed by the NAB and Gray Television, Inc.) advocated that the FCC hold off beyond July 1, 2014 on imposing the online political file burden on smaller stations in smaller markets. No big surprise there: based on their obvious familiarity with the operation of such stations in such markets, both NAB and Gray argued that forcing all TV stations, regardless of their size, to move their political files online would result in serious, unnecessary burdens.

The third set of comments came from an entirely different angle.

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AereoKiller Cuffed Nationwide

U.S. District Judge in D.C. enjoins Aereo-like service everywhere but the Second Circuit.

Score a big one for the broadcasters! A federal district judge in the District of Columbia has enjoined FilmOn X (that would be the folks formerly known as “Aereokiller” who operated at “BarryDriller.com”) from operating its dime-sized wannabe-MVPD service, much like a judge did in Los Angeles late last year.

But get this – the D.C. judge went way further than the L.A. judge by extending the injunction NATIONWIDE (except for New York, Vermont and Connecticut).

To say that this complicates matters in the overall Aereo/Aereokiller universe would be an understatement.

First things first. The latest decision was issued by Judge Rosemary M. Collyer, of the U.S. District Court for the District of Columbia. FilmOn X had cranked up its service in the D.C. area last spring, which prompted D.C. broadcasters to ask the D.C. federal court to shut it down – essentially the same scenario that had already played out in New York (with Aereo’s similar service) and L.A. (where FilmOn X, but not Aereo, was the defendant). As our readers already know, the Second Circuit judges in NYC declined to enjoin Aereo’s operation, but a U.S District Judge in the Ninth Circuit in L.A. did enjoin FilmOn X. (We’re still awaiting a decision from the three-judge panel of the Ninth Circuit reviewing that latter decision.)

Both the NYC and L.A. decisions were based on the same facts and underlying precedent presented to Judge Collyer, so she had two flatly inconsistent model approaches (in her words, “a binary choice”) that she could use as guidance. She opted to go West Coast, but with a couple of twists.

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Aereokiller in the Ninth Circuit

May it please the court? Maybe, maybe not. YOU be the judge.

Even those practiced in the art of appellate advocacy have trouble correctly guessing, on the basis of oral arguments, how a court will ultimately rule. (Doubt that? Just ask the Swami.)

The post-argument guessing game is particularly hard for the Great Unwashed because appellate arguments tend to be somewhat intimate affairs, not widely publicized beforehand, seldom recorded for extensive public consumption. Any press accounts of arguments tend to shed only limited light on precisely what was said, making it hard for the reader to draw any conclusions.

But things are different in the U.S. Court of Appeals for the Ninth Circuit which, as it turns out, posts audio recordings of its arguments on its website within 24 hours of each argument. Who knew?

So if you’ve got about 45 minutes and want to try to figure out what’s going to happen next in the Aereokiller case, click on this link. (Note: Aereokiller has since re-named itself FilmOn X, even though it’ll always be Aereokiller to us.) Clicking on that link will allow you to download and open the recording of the August 27 oral argument before a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit (sitting in Pasadena).  See if you can figure which way the court’s going to go.

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Foreign Ownership Questions? Frank Montero, Don Evans May Have Some Answers

FHH foreign ownership gurus on the bill in upcoming webinar

If you’re interested in the FCC’s recent relaxation of its foreign ownership rules – and the impact that that relaxation might have on commerce nationally and globally – check this out. FHH mavens (and regular CommLawBlog contributors) Don Evans and Frank Montero will be sharing their expertise in a webinar on October 23, 2013. Titled “What the FCC’s Relaxed Foreign Ownership Regulations Mean for Global Commerce”, the gig is billed as a webinar for folks who advise communications and broadcasting companies, professionals involved in media ownership and regulation, and pretty much anybody dealing in international commerce. It may even qualify for continuing legal education in some jurisdictions. Such a deal! The 90-minute affair is sponsored by Bloomberg BNA.  Consult the registration page for information about admission fees (there are several options),CLE details, other webinar panelists and the like.

Update: 2013 Reg Fee Deadline Set

Mark your calendar, round up your credit cards and keep your FRN handy.  The FCC has finally announced that this year’s regulatory fees must be paid by September 20, 2013. (Yes, that deadline -- which appears in the "Dates" paragraph in the linked Federal Register announcement -- does seem a bit later than usual, as does the announcement itself, which is showing up less than 30 days before the deadline!)  [Blogmeister's Update: During the afternoon of August 23, the FCC has issued a separate public notice further confirming that the deadline for payment of 2013 reg fees is 11:59 p.m. (ET) on September 20, 2013.[

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 same is true for the broadcast reg fee “lookup” page provided by the Commission.) 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 20 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.

Update: OET Releases the Latest and Greatest* Version of TVStudy

* (for now, at least)

From our Moving Targets file, we are pleased to report more developments from the FCC’s Incentive Auction Task Force. Less than a month ago, the Office of Engineering and Technology released a bunch of materials relating to Version 1.2.6 of TVStudy, which was an upgrade from April’s Version 1.1.2.  (The original version – presumably Version 1.1.1 – was released last February.)  

And now OET has given us Version 1.2.7

TV Study, of course, is the software that will be used in the modeling and analysis necessary to repack the TV spectrum.

The new version allows studies of potential interference between U.S. stations and stations in Canada and Mexico (on proxy channels, of course). It also cleans up a couple of bugs that had apparently surfaced in the earlier version. (For ALL the gory details, hard-core techies may want to consult the “Upgrade Guide and Change Log” the FCC has posted.)

OET continues to solicit input on TVStudy from any interested parties, and from the turn-around time between Versions 1.2.6 and 1.2.7, they sure seem to be moving quickly to tweak the program.

If you’re still getting oriented with this whole repacking thing – or if you want to get even further into the details of the FCC’s repacking plans than you already are – you may want to sign up to participate in a Task Force-conducted webinar on “repacking data”. It’s scheduled for August 22, 2013 between 1:00-3:00 p.m. The full scoop on how to sign up can be found here.

FCC Simplifies Protection Process for AM Signals

Commission adopts new comprehensive standards for determining both the adverse effects of construction on nearby AM signals and who should be liable for correcting those effects.

If you’re an AM licensee looking to protect your signal from distortion caused by newly-built (or modified) structures nearby, the FCC has made your life a bit simpler.

The Commission has decided that ALL FCC-regulated services – broadcast and non-broadcast alike – will have to protect AM stations from signal distortion arising from construction or modification of nearby towers. (For purposes of the new rules, the term “tower” includes a building or any other structure on which a new or modified antenna or antenna-supporting structure is being installed.)

Why do AM’s get this special treatment?  

Unlike most other radio services – in which the signal is transmitted from an antenna which is mounted on a tower or other structure – AM towers are themselves the antenna. The entire AM tower structure radiates the signal. Other nearby metallic structures can unintentionally re-radiate the signals and distort the AM station’s pattern. The problem is aggravated when the AM is directional, because directional AM stations have more than one radiating tower/antenna, with signals phased so as reinforce and/or cancel one another to create the desired directional coverage pattern. Distortion caused to the signal coming off any one of the towers will affect the overall pattern; if the interfering feature(s) – buildings, water towers, etc. – distort(s) the signals coming off more than one of the towers, the effect is exacerbated.

Fixing such distortion usually involves a process called de-tuning, where insulators are installed on one or more structures to alter the electrical height and make the structure a poor re-radiator. De-tuning is often not a cheap or easy process.

The FCC has traditionally required newcomers – i.e., anybody constructing new or modified facilities – to take corrective action for the benefit of pre-existing stations. However, the specific requirements imposed by that “newcomer” policy have varied from one service to another; and as far as protecting AM broadcasting is concerned, there are no rules at all for some services, including those covered by Parts 24 and 90. 

The FCC’s new approach eliminates all that by establishing a uniform set of rules applicable to all services.

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Intern-al Affairs: Unhappy Interns Up In Arms About Unpaid Internships

Spate of litigation, with more to come, raises questions about possible realignment of traditional relationship with interns

The unpaid internship. It’s a rite of passage in the media industry. Every year, communications/journalism majors dust off their résumés and apply for the few highly coveted positions at newspapers, television stations, radio stations and movie studios.

So highly coveted are these positions that, more often than not, the intern doesn’t get paid. Oh sure, you might get some school credit, a chance to network, and an extra line on your résumé – but no cash. (In my book, the most valuable benefit is the opportunity to discover over a couple of months what you may never want to do again for the rest of your life.)

I was one of those interns. For two summers during college I worked two nights a week and Sundays at the Washington, D.C. Fox affiliate, doing mainly sports.

It was a sweet gig: watch some games, tag some highlights, write some copy, go to the occasional sporting event location shoot. My stuff got on the air. One summer I was the World Cup guy. My job was to watch all the Cup games. I’m a soccer fan (if you didn’t already know). This wasn’t work; it was a dream.

So I didn’t get paid. Big deal. I got school credit. That was enough justification (as if I needed any justification to do what I got to do). Back in my day, that’s how it was. Nobody complained. (Now get off my lawn, you kids – it’s my ball now!!!)

Not anymore.

Recently, interns have challenged the no-pay condition of their servitude in a number of cases percolating through the U.S. District Courts in New York. And while the legal issues have yet to be finally resolved, there’s reason to believe that the “credit in lieu of payment” system may be at risk.

So now’s a good time to take a look at the questions being raised about unpaid internships, how the courts have addressed those questions so far, and what might be on the horizon.

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Update: Effective Date, Comment Deadlines Set in Travelers' Information Station Proceeding

In late July we reported on the FCC’s adoption of new rules governing Travelers’ Information Stations. Those new rules (contained in the “Report and Order” portion of the “Report and Order and Further Notice of Proposed Rulemaking” (R&O/FNPRM)) have now been published in the Federal Register, which means that they are set to take effect on September 18, 2013. Meanwhile, in a separate item in the same issue of the Federal Register, the Commission has published the “Further Notice of Proposed Rulemaking” component of the R&O/FNPRM. According to that item, comments on in response to the FCC’s proposals are due to be filed by September 18, 2013, and reply comments by October 3.

Update: CDBS Still Clutching the Same Old NADs

Maybe the folks at the Commission know something we don’t.

A recent item in the Federal Register caught our eye. According to an “informational” notice published by the National Geodetic Survey (an office within the Commerce Department’s National Oceanic and Atmospheric Administration), new realizations of the North American Datum of 1983 (you may recognize that as “NAD83”) have now been finalized. These new realizations supersede all previous NAD83 realizations.

(Possibly helpful aside: the North American Datum defines the geodetic network in North America. Geographical coordinates are based on it. The two major Datums – or should that be “Data”? – currently available are NAD27, computed in 1927 using whatever hand-crank methods were available back then, and NAD83, computed in 1983 using whiz-bang satellite technology and refined periodically since then. The smart money figures that NAD83 is probably the more reliable of the two.)

In geodetic circles, the new realizations are probably a Very Big Deal, although it appears from at least one explanatory item we found on the Internet that any variations between the latest version and its most recent predecessor involve only a couple of centimeters one way or the other.

But talk of NAD83 got us to thinking about an item we posted here more than two years ago.

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2013 Reg Fees Set

Significant increases across-the-board for broadcasters; no announced deadline for fee payments yet, but indications are that they will be due sometime in “the middle of September”

The final 2013 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 new fees (and, for TV-related services, comparing (a) the fees the FCC has now adopted against (b) last year’s fees). But before you head on out to the table, you might want to brace yourself – this year’s fees are, with very limited exceptions, a lot steeper than last year’s.

How much steeper? About 7.5% across-the-board on the TV side – which, for a VHF TV station in one of the top ten markets translates to an impressive $6,000 bump up. For radio, the increases tend to be more in the 5% range – preferable to 7.5%, for sure, but still likely to sting a bit.

The relative uniformity in the fee increases over last year should not be a surprise. As we reported last May, when the FCC first proposed this year’s fees, the Commission is re-jiggering the cost allocation method underlying the annual calculation of fees. That re-jiggering means serious upticks for some services, including broadcasting. In fact, the anticipated increases were so serious that, to cushion the initial blow, last May the Commission was contemplating capping increases at 7.5%. And that’s just what it’s done. (For a somewhat more detailed discussion of the allocation method that has led to the increases, see our previous posts here and here.)

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FM Translator Update: ". . . What Condition My Condition Was In."

Condition on new translator CP's confirms they are vulnerable to not-yet-filed LPFM applications.

As we have previously reported, FM translator facilities proposed after June 16, 2013, are – at least in the current view of the Audio Division – subject to interference from any LPFM application(s) that are filed during the upcoming LPFM filing window.  The Division staff has been circumspect on this point, not providing any clear and definitive announcement of precisely how its protective stance toward still-unfiled LPFM applications will be implemented. 

But thanks to several translator applications that have been granted recently, we now know for sure that some FM translator facilities are definitely at risk.

How do we know?  Because a number of recently-issued translator construction permits include the following condition:

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Filing Deadline for 2013 Biennial Form 323 Extended Already!

Yikes, time is just screaming past us. Has it really been two years since the last biennial Ownership Report (FCC Form 323) was filed? Apparently so – and we know this because the FCC, apparently looking to get a jump on things, has already extended the deadline for the next biennial Form 323. In an order issued on its own motion (i.e., nobody even had to ask), the Media Bureau has announced that the 2013 biennial Ownership Reports will be due no later than December 2, 2013. (That’s a month later than the original deadline.)

The Commission provided a similar one-month extension the last time around, back in 2011.

These biennial reports must be filed by all commercial full-power AM, FM, TV, and LPTV stations (including Class A stations), as well as any entities that happen to have attributable interests in any such stations. While the deadline for filing has moved, the “as of” date – that is, the date as of which the information in the report must be accurate – has not moved. So this year’s Ownership Reports must reflect the reporting entity’s information as of October 1, 2013.

The Commission still has taken no action in the rulemaking proceeding it kicked off last New Year’s Eve. You may recall that, in that Sixth Notice of Proposed Rulemaking, the Commission proposed ditching the “special use FRN” (SUFRN) that has been a feature of the biennial Form 323 since late 2009. (The SUFRN has an interesting history, which you can read about here (and in the earlier links you’ll find there). It’s a device that permits some reporting individuals to avoid having to cough up their Social Security Numbers in order to get an official FCC Registration Number (FRN) to include in the Ownership Report.) The Bureau’s order doesn’t mention SUFRNs, which is par for the course. But since the Commission has not adopted that proposal, it seems at this point that it’s a reasonable bet that the SUFRN will still be available for 2013 Form 323 filers. You can never be too sure, though, so it would probably be prudent to check back here periodically between now and then.

Media Bureau to Singleton FM Translator Applicants: NOW you can file

The window will be open through August 30, but it may pay to act sooner than that.

The long-awaited white flag has been waved and the last lap has begun: the Media Bureau has opened the window for the 1,239 FM vintage 2003 translator applicants previously identified as “singletons”. They can now file their long-form applications (Form 349). Can’t remember whether you’re one of those lucky 1,239? Here’s a PDF of the list and, perhaps more helpfully, here’s a sliceable and diceable spreadsheet version of the same list.

The filing opportunity is not without its gotchas.

First and foremost, the deadline: the window will be open only until through Friday, August 30, 2013. The clock is ticking. [Blogmeister's Note: We originally indicated that August 30 would be a Tuesday; our bad.  That mistake has been corrected, thanks to a tip from one of our readers.]

And heads up – if you’re planning on amending your technical proposal, it does NOT pay to dilly-dally until the very last day of the window period. That’s because the long-form application (and amendments) will be entitled to protection from all subsequently-filed FM translator applications (and their amendments).

Applicants will need to include a filing fee and Form 159 with their long-forms, but since the long-forms must be filed electronically through CDBS, you’ll be reminded of that when you file. CDBS may not alert you, however, to the fact that your application will be subject to a number of limitations.

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Ninth Circuit Tosses Fox into the Hopper . . . For Now

At first blush, the Ninth Circuit decision allowing Dish to continue to offer its “Hopper” service may not look great for broadcasters, but don’t hop to any conclusions just yet.

The TV industry has suffered some setbacks on the copyright front in the Aereo litigation in the Second Circuit and, as we have reported, the industry is keeping its fingers crossed, hoping for support from the Ninth Circuit on the Left Coast (in the pending Aereokiller appeal).

Bad news. In an unrelated case the Ninth Circuit has issued a decision that doesn’t help broadcasters although, much like the Aereo decisions so far, the damage here is by no means catastrophic.

The decision involves the “Hopper” from Dish. 

You may be familiar with the Hopper from its truly annoying commercials. It’s the Dish satellite service’s home DVR system, which includes a feature called “PrimeTime Anytime” (PTA). PTA allows a subscriber to record any and all primetime programming on any of the four major broadcast networks every night of the week. The PTA service defaults to recording all the programming, which (again by default) it saves on the user’s DVR for eight days (although the subscriber can modify these defaults).

As with most (if not all) other DVR systems, the user can start watching PTA-recorded programming right away, but if they can wait until the next morning, they can take advantage of the Hopper’s main selling point: the ability to “AutoHop” over commercials, skipping them entirely, automatically. No need to fast forward through commercials – Dish has taken care of that for you.

The prospect of automatic ad-skipping technology is obviously not something that commercial broadcasters – whose existence depends on the ads being skipped – cotton to.

Enter Fox Broadcasting Company. 

The network that first introduced the world to 21 Jump Street filed suit in the U.S. District Court for the Central District of California, trying to ground the Hopper. Since that’s the same court that has preliminarily enjoined Aereokiller (now known as FilmOn.com), you might think that the chances would be good for Fox to Arrest the Development of the Hopper technology. 

Not so fast.

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TV Repacking: What the Latest TVStudy Materials Mean

An engineer takes a look at the latest information dump from the FCC on the TV repacking front.

[Blogmeister’s Note: The FCC’s Incentive Auction Task Force recently released a number of materials relating to TVStudy, the software that FCC engineers devised to assist them in the modeling and analysis necessary to repack the TV spectrum. Those materials included a public notice, a Technical Appendix, and a boatload of other goodies, all intended to give us a peek into the way the Commission is approaching the repacking process. Unfortunately, the materials are a bit, um, technical in nature, so unless you’re well-versed in a lot of sophisticated engineering stuff – stuff that, as it turns out, wasn’t offered in law school – you’re likely to have a hard time understanding what’s what. No problem. Our friend Mike Rhodes, P.E., of the highly-respected engineering firm of Cavell, Mertz and Associates, has come to our rescue. We asked Mike if he could break down the FCC’s releases into morsels that might be digestible by non-engineers. Happily, Mike agreed to take on that daunting challenge.  Thanks, Mike.]

The materials recently released by the Incentive Auction Task Force provide considerably more details than had previously been available about the Commission’s move to repack the TV spectrum.

Move? Let’s stick with that analogy for a moment. 

Think of the available spectrum as the empty moving van and all the TV Stations (as well as some other spectrum users) as the entire contents of your house that need to be moved. The first chore in moving is to get organized so that everything will fit in the moving van in one trip. In its recent releases, the FCC has put the entire contents of its TV spectrum house out on the driveway. They’re now looking, first, at the piles of boxes and furniture and, next, at the empty moving truck. They’re scratching their heads trying to figure out what pieces to start with. 

So, like any good engineer, they wrote some software to help solve the problem. 

The software determines how many combinations and permutations of all that stuff need to be analyzed before they can start loading the truck.  The list of furniture includes: 2,177 U.S. Stations (Full service and Class A); 2,557 Canadian Allotments; 603 Mexican Allotments; 25 Land Mobile Channel preclusions; and 424 other Land Mobile (“T-band”) users currently operating in the TV bands. Oh, and don’t forget to reserve Channel 37 for the radio astronomy listening channel (E.T.).  That’s a lot of stuff to pack!

The software is a new and apparently improved version of the Commission’s TVStudy software first released back in February, 2013. The FCC solicited comments about the program and, after evaluating the numerous comments and complaints filed in response, the Office of Engineering and Technology (OET) has apparently concluded that it is going to continue to use TVStudy for the repacking.

In releasing its preliminary conclusions about TVStudy along with a considerable amount of related information, OET is trying to make good on the FCC’s commitment to “transparency” as the agency works its way through the vastly complex problem of repacking (and the equally – if not more – complex problem of designing the forward and reverse auctions processes). Still, some additional explanation may help non-engineers to get a sense of just what’s going on here.

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Mission Abstract Data Update: Broadcasters Eager to Have Digimedia Bring It On

As we reported earlier this week, Digimedia (f/k/a Mission Abstract Data) had asked the judge presiding over its Delaware patent infringement case against a number of broadcasters to lift the longstanding stay on that case. The judge in turn asked the broadcasters to respond to that request. The broadcasters have now done so . . .  and we figured our readers would be interested in seeing what they had to say. Here it is.

Essentially, the broadcasters seem eager to get the case moving, too – because they apparently figure that the USPTO’s actions, and the passage of time, have largely gutted Digimedia’s case. The letter lays out a reasonably clear path forward – a path which takes the broadcast defendants directly to No-Liability-Ville. Of course, whether the case eventually follows that path remains to be seen but, as we ourselves (who aren’t patent lawyers, mind you) mentioned in our post last March, the mere fact that Digimedia may have obtained some kind of ruling from the USPTO does not necessarily mean that Digimedia can or will prevail in its lawsuit. There are still plenty of questions to be answered, and the broadcasters’ letter suggests that the answers aren’t likely to be helpful to Digimedia.

We’ll try to keep you updated as developments warrant. In the meantime, we remind any of our readers who may have been approached by Digimedia to be sure to run all this past knowledgeable patent counsel before deciding how to proceed.

FCC Tweaks "Travelers' Information Station" Rules

Minor expansion in content, “ribbon” networks are allowed.

“Tune to 1610 AM for parking information.” “When flashing tune to 530 AM.”

We all know these signs. The FCC calls the service behind them “Travelers’ Information Stations” (TIS). These are low-power AM stations permitted to broadcast only information on traffic and road conditions, travel advisories, and other information of interest to motorists. Each covers only a small geographic area, most commonly along major highways and near tourist destinations.

The FCC has made minor changes to the rules – the first since the TIS was created in 1977.

We blogged about the proposed rules in January 2011,  but the proposals go back farther, to 2008, when Highway Information Systems, Inc., proposed sweeping changes. Later that year, the American Association of Information Radio Operators (AAIRO) filed its own, more moderate, proposal. Other groups followed with a variety of ideas that included renaming the service, changing the site and power limitations, and greatly expanding the system’s use.

The FCC, in the end, stuck to the middle of the road. (Sorry!) It clarified that permissible content for TIS includes weather alerts regarding difficult or hazardous conditions, plus information on a host of other emergency and non-emergency traffic and travel-related events and locations, along with any communications related directly to the imminent safety of life or property. Also permissible are certain non-travel related emergency information, including Amber Alerts and Silver Alerts, and information on the availability of 511 service (travel conditions by telephone).

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Mission Abstract Data Update: Queen Sacrifice or Path to Broadcaster Checkmate?

Movement on the USPTO front, but will Digimedia actually benefit or is this a last gasp effort in the long-lasting patent chess match?

Today’s metaphor is chess – more specifically, the queen sacrifice, a strategy in which a player gives up a strong piece in the hope of gaining some compensating tactical advantage. What does this have to do with the long-running patent infringement lawsuit being pressed by Digimedia (formerly known as Mission Abstract Data) against a number of prominent radio broadcast groups, or with Digimedia’s related efforts to convince other broadcasters into signing licensing agreements? 

Digimedia may have made its own queen sacrifice . . . or it may just be bluffing to stall for time.

When last we checked in on the Digimedia situation last March, the United States Patent and Trademark Office (USPTO) had issued a Notice of Intent to Issue Reexamination Certificate (NIRC) effectively affirming the patentability of some, but not all, elements of Digimedia’s 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). Lately you may have read that the USPTO on July 8 issued a further NIRC affirming the patentability of some, but not all, elements of the 867 Patent, too. This latest action follows a second reexamination proceeding regarding the 867 Patent.

Sounds like the tide has turned in Digimedia’s favor, doesn’t it? Certainly a number of press accounts have suggested that the USPTO’s latest decision is a blow to broadcasters and a victory for Digimedia. 

We’re not so sure.

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Aereo Update: Second Circuit Nixes En Banc Review

Procedural rejection does not resolve merits of broadcasters’ case.

Put another one in the “W” column for Aereo. The Second Circuit has denied the petition for en banc review filed by the broadcast plaintiffs last April. 

It may be some comfort to the broadcasters that the Court’s decision technically did not address the merits of the case. That’s because of the nature of en banc procedures. As we previously summarized that process, when a petition for en banc review is filed, the petition is circulated to all the active judges on the Circuit. If any of them asks for a vote to be taken on whether or not to grant en banc review, then all the active judges are polled. Note that they’re not polled on the bottom line substantive issue(s) involved; rather, they’re just polled on the limited question of whether the Court should agree to let the parties slug it out before the full Court.

In this case, one active judge (we’re guessing that was probably Judge Chin) did ask for a vote, and the bottom line was 10-2 in favor of not reviewing the earlier panel decision. So there will be no en banc review.

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Foreign Ownership Rules Loosened For Common Carrier and Aeronautical Licensees

FCC relaxes alien ownership restrictions for some, but NOT all, services.

While Congress continues to debate fundamental issues of immigration policy, the FCC has taken steps to make it considerably easier for aliens to own controlling and non-controlling interests in common carrier and aeronautical stations. The odd result is that aliens can now own such licenses but may find it difficult to immigrate here to operate them.

As we reported when the FCC initially proposed changing its alien ownership rules, the impetus for the FCC’s Second Report and Order (Second R&O) was two-fold. First, the Commission recognized that its cumbersome alien-ownership approval process was impeding foreign investment in the United States at a time when capital investment is being strongly encouraged. Second, the process of trying to identify exactly who a company’s foreign owners are and where they are from can be difficult, if not impossible. The Commission and its regulatees found that they were spending inordinate amounts of time and money trying to ascertain where alien owners were from for purposes of the rules without any concomitant public benefit for the effort involved.  

While the new rules retain the basic structure of requiring prior FCC approval for aliens either to: (a) indirectly control a US common carrier licensee, or (b) own more than 20% of a licensee company, they greatly simplify the procedures and detailed ownership accounting that created so much wasted effort. We hasten to emphasize that the rules continue their very strong prohibition on alien ownership or control of broadcast licensees above the benchmark levels, even though those licenses are statutorily eligible for the same treatment as common carrier and aeronautical licenses. This disparate treatment is coming under increasing attack, most directly by Commissioner Pai. For the time being the disparity remains firmly in place, although the Commission has invited comment on a request for “clarification” of limitations on alien ownership of broadcast licensees.

Here are some of the highlights of the new rules:

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Will LPFM Applications Have to Protect Amended FM Translator Applications?

Apparently NOT, according to informal word from Audio Division staffers – even though that approach could undo much of the progress that has already been achieved on the FM translator/LPFM front.

If you’ve got an FM translator application in one of the mutually exclusive (MX) groups identified by the Commission back in May and you’re thinking about amending your technical proposal to resolve the mutual exclusivity prior to the July 22 deadline for such amendments, there’s something you should know.

It appears that the folks in the Audio Division believe that any such technical amendments to pending translator applications filed on or after June 17 will NOT (repeat, NOT) be entitled to protection from LPFM applications filed during the next window opportunity. As we have reported, that next LPFM window is set to open on October 15 and close on October 29.

This possible lack of protection may come as a surprise to many. After all, when the Commission invited such technical amendments back in May, it did not even hint (much less state outright) that amendments filed in response to that invitation might not be entitled to protection. And it certainly didn’t suggest that amendments filed by June 16 (i.e., within the first half of the amendment window, which stretches from May 22 to July 22) might be entitled to more protection than those filed after June 16. But from informal contacts with members of the Audio Division staff, we have heard that that’s how they’re planning to handle things, at least as of now.

The issue about protection for after-filed LPFM applications has arisen thanks to the Division’s June 17 public notice announcing the October LPFM window opportunity. As we reported back then, that notice provided that LPFM applicants would have to “protect pending applications” for full-power, FM translator and FM booster authorizations “that were filed prior to the date of the notice [i.e., June 17].” You might think from that language that any to-be-filed LPFM applications would have to protect FM translator applications filed ten years ago, even if those translator apps might have since been amended to facilitate a grant.

The Audio Division, apparently, doesn’t see it that way.

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The CALM Act - Six Months and Counting

Complaints soar, and deadline for seeking further one-year extensions of outstanding waivers is approaching. 

Back in December, 2010, with considerable fanfare Congress passed and the President signed the CALM Act.  As its full name – the Commercial Announcement Loudness Mitigation Act – indicated, it was designed to put the kibosh on “loud commercials”. 

The Act imposed a number of detailed technical requirements on TV licensees and MVPDs, but it also provided the opportunity for an initial one-year waiver – possibly extendible for a second year.  In implementing the Act, the Commission allowed “small” stations and MVPDs essentially to have the initial one-year waiver for the asking: all that was required was a self-certification that (a) the station/MVPD met the limited standards for “small” facilities and (b) you needed the extra year to “obtain specified equipment in order to avoid the financial hardship that would be imposed” if you had to get the equipment sooner.  (Check out our earlier post for more information on those requirements.)

The initial one-year waivers will expire as of the first anniversary of the effectiveness of the CALM Act rules, i.e., by December 13, 2013.  The Act and the rules provide that a “renewal” of the waiver for another one-year period may be obtained.  Requests for the extension of the waiver must be filed at least 60 days prior to the expiration of the currently outstanding waiver, i.e., by October 14, 2013.  (Last year the Commission extended the deadline after the fact; it’s impossible to say whether it will do the same this time around, but since this is the second time around for CALM Act compliance, we wouldn’t bet the farm on a similar extension this year.)

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Google Becomes Third "White Space" Coordinator to Win Approval

Google joins Spectrum Bridge and Telcordia in the ranks of “approved” database coordinators.

Providing us with the first test of our recently announced approach to further developments on the white space database administrator front, the FCC has approved Google’s system.  We have updated our table accordingly. 

Coordinator

Test Started

Test Finished; Comments Sought

Coordinator Approved

Comsearch

     

Frequency Finder Inc.

     

Google Inc.

Feb. 27, 2013

May 29, 2013

June 28, 2013

LS telecom AG

June 18, 2013

   

Key Bridge Global LLC

March 4, 2013

May 29, 2013

 

Microsoft Corp.

     

Neustar Inc.

     

Spectrum Bridge Inc.

Sept. 14, 2011

Nov. 10, 2011

Dec. 22, 2011

Telcordia Technologies

Dec. 2, 2011

Feb. 1, 2012

March 26, 2012

WSdb LLC

     

Update: Comments Invited on Political File Component of Online TV Public Inspection File Requirement

Has it really been almost a year since the online public inspection file took effect for TV licensees? Sure enough, August 2, 2012 was the Big Date last year; since the initial flurry of public file-related activities, things seemed to have settled into a routine. But now the Commission – keeping a commitment it made back in April, 2012 – has asked for comments on how the political file component of the online public file system has affected the 240 or so stations that have been subject to that particular requirement. The responses the Commission gets could determine whether any changes should be made to the requirement before it takes effect for other stations.

The history of the TV online public file is extensive. If you’re a bit fuzzy on it all, check out our archive of reports here.

For our immediate purposes, it suffices to remind readers that, while all full-power and Class A TV stations are required to maintain the majority of their public files online (using the FCC-maintained system), only affiliates of the top-four commercial networks in the top 50 DMAs have been required to keep their political public files online. (All other stations are still required to maintain their political files the old-fashioned in-house way at least until July 1, 2014, at which point the current plan is to have everybody go online.) 

The idea behind easing the online political file obligation in that way was: (a) to make sure that the FCC’s system (which was largely untested as the August 2, 2012 start-up date) could handle the load; and (b) to “limit any unforeseen start-up difficulties to those stations that are best able to address them”, whatever that might have meant. And to take advantage of that testing phase, the Commission committed to invite comments, by July 1, 2013, on how things are going on the online political file front.

That invitation has now been issued, in the form of a public notice soliciting comments on the functioning of the political file component of the online public file system.

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FCC Whacks TV Max

No consent for retransmission of TV signals? That’ll be $2.25 million, please.

If you’ve ever wondered what would happen if you retransmitted the programming of TV stations without their consent, and then dissembled about it to the FCC, listen up. If you go that route, you could be looking at a fine north of $2,000,000. That’s right – two MILLION dollars plus.

Do we have your attention?

We know about the likely penalty thanks to a Notice of Apparent Liability For Forfeiture and Order (Order) – directed to TV Max, Inc. and its affiliates and its individual controlling principals – for violating Section 325(b) of the Communications Act and Section 76.64 of the Commission’s rules. Those sections lay out the general retransmission consent rules governing multichannel video programming distributor (MVPD) carriage of over-the-air TV signals other than through the “must-carry” process.  According to the Order, TV Max retransmitted the signals of six broadcast stations without obtaining their consent.  For doing so, TV Max is looking at a proposed fine of $2,250,000.  Since the Commission has penalized MVPD’s for retransmission consent violations only a couple of times in the past – and then only in the low five-figure range of $15,000 (reduced from a maximum potential of $250,000 or so) – we can probably assume that TV Max really ticked off the FCC.

In fact, the Order provides a model for how to infuriate the Commission.  [Practice tip:  We strongly recommend that MVPDs avoid this model.]

First, some background.

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Harmonic Convergence? FM Interference to 700 MHz LTE Service

700 MHz licensees (with some apparent FCC support) complain of FM interference to hypersensitive LTE gear – but must FM licensees foot the bill to correct the problem?

The introduction of different species into an established ecosystem tends to be a dicey proposition.  Almost invariably, co-habitation requires the sharing of scarce resources.  And more often than not, the different species approach the whole sharing thing in different, not entirely compatible, ways.  The result: occasional dissatisfactions and frustrations – leading to occasional inter-species frictions and fisticuffs.

Take the RF spectrum ecosystem, for example.

Most inhabitants of the spectrum have historically figured out ways to coexist in relative peace (at least for the most part) – thanks largely to the fact that the potential impact of one service on another has been taken into account in the frequency allocation process. But as the demand for spectrum increases, and every little niche is filled up, it is becoming more difficult to avoid inter-service conflicts. And sure enough, the introduction of a recent new species – 700 MHz wireless systems using LTE equipment – seems to be causing some unexpected problems. 

Since January, 2012, spectrum that used to constitute TV channels 52 and up has been reallocated to 700 MHz wireless services. Television still occupies channels 51 and down (at least for the time being), and there has been much hand-wringing over how the relatively low power wireless services will be able to coexist in such close proximity to high-powered TV stations.

Now it turns out that another problem – less anticipated – has reared its ugly head. Wireless operators using high gain LTE antenna systems and high gain LTE receivers have experienced interference which, they claim, is caused not by TV but by nearby FM stations. 

FM stations? How can that be, since FM stations operate in the 88-108 MHz band, far away from 700 MHz?

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Website Operators: Be Aware, and Beware, of COPPA

If you’ve got a website, you could have a problem. Welcome to the COPPA Rule, a complicated FTC regulation with (a) potentially expensive ramification, and (b) some new provisions about to take effect.

If you operate a commercial website that collects personal information from visitors, you’d better be familiar with COPPA – the Children’s Online Privacy Protection Act – and the COPPA Rule adopted by the Federal Trade Commission pursuant to the Act. Even a single COPPA Rule violation can lead to a $16,000 penalty, and the FTC hasn’t been shy about doling out seven-figure fines for cumulative violations. (For the faint of heart unwilling to wade into the actual law or FTC rule, you can check out the FTC’s COPPA FAQs. But even that resource weighs in at the equivalent of 58 printed pages.)

The principal goal of COPPA is to ensure that personal information relating to children under the age of 13 is not collected or distributed by website operators without parental consent. Since many broadcast stations may be collecting information on their websites (even without realizing it), we figure it’s a good idea to remind all our readers about COPPA.

And now is an excellent time to do so because a number of important changes to the law are set to take effect on July 1, 2013.

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Fifth "White Space" Coordinator Begins Tests

LS telcom AG seeks to join the two coordinators operating and two others awaiting approval.

TV “white space” devices operate on TV channels that are vacant in a given area. (On a map of frequency usage, these areas show up in white; hence the name.)

These devices must avoid causing interference to active TV stations, certain wireless microphones, and certain TV reception sites. To accomplish this, most are required to consult a complex and changing database that shows where they can safely operate.

The FCC has identified ten administrators for the database, expected to operate competitively. Before receiving FCC approval, each candidate must run a live test of its operations, submit test reports to the FCC, and survive public comment.

We here in the CommLawBlog bunker have covered developments on the white space database coordination front for several years. Most recently, those developments have been somewhat repetitive and our posts were all starting to look the same. We tried to mix things up a bit with poetry (limericks! a haiku!) . . . but soon found the limit to our poetic abilities.

So here’s what we plan to do going forward.

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FCC to LPFM Applicants: Let the Uploading Begin!

Media Bureau announces LPFM filing window opening October 15 and closing October 29 (at 6:00 p.m. EDT); applications may be uploaded, but not filed, starting now

Attention all you LPFM wannabes. Mark your calendars, get your CDBS and FRN account information in order, stock up on NoDoz® and let the games begin – because the count-down has started. The Media Bureau has announced that, on October 15, 2013, the first LPFM filing window in more than a decade will be flung open, and will stay open until 6:00 p.m. (EDT) on October 29, 2013. The window will permit the filing of applications for new LPFM stations and major changes to existing stations. 

While applications can’t be filed until October 15, they may be uploaded to CDBS anytime between now and then – which gives would-be LPFM applicants plenty of time to undertake searches for channels and transmitter sites and prep their apps in anticipation of the opening of the window.

A few important threshold factors to keep in mind:

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Raisin' Defenses at the FCC

A Supreme Court case offers a possible route to appealing a forfeiture without having to pay it first.

A pair of California raisin farmers might have made it easier to challenge an FCC forfeiture.

A party dinged with a forfeiture that it thinks is unfair now has two options under the Communications Act. One is to challenge the forfeiture order directly in the Court of Appeals. The problem with that approach is that, as a condition to getting into the Court of Appeals, the challenger must first pay the forfeiture. Since forfeitures can reach up into six and seven figures and, let’s face it, not everyone has that much spare cash lying around, that condition poses a serious disincentive to direct appeals.

The other option is to not pay the forfeiture and wait for the FCC (assisted by their friends from the Department of Justice) to bring suit in your nearest federal District Court. In that case, the burden is on the government to prove that you are in fact really liable for the forfeiture, which gives you an arguable advantage going in. But at least one appellate court has held that a party choosing this option is not allowed to raise the full panoply of defenses that might normally be available in challenging the forfeiture.

What does this have to do with raisins?

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Update: Comment Periods in Receiver Standards Inquiry Extended

Last month we noted that the FCC (through its Office of Engineering and Technology) had requested comment on a white paper concerning technical standards for radio receivers, produced by its Technological Advisory Committee and entitled “Interference Limits Policy: The use of harm claim thresholds to improve the interference tolerance of wireless systems.” The basic idea is to add flexibility to the notion of “interference” from a nearby band.

The questions posed in the white paper are a matter of potentially major consequence. Probably because of that, three entities that have occasionally found themselves at odds on a number of substantive regulatory issues found common ground here, at least with respect to the need for more time to respond to the FCC’s invitation for comments: the National Association of Broadcasters, the Consumer Electronics Association, and the GPS Innovation Alliance filed a joint request for more time. 

That request has been granted. As a result, comments are now due by July 22, 2013 and reply comments by August 7.

Quad Erat Demonstrandum? FCC Seeks Comment on MMTC Study

Despite the FCC’s efforts in its 2002 and 2006 quadrennial review proceedings to relax (or maybe even eliminate) its newspaper-broadcast cross-ownership (NBCO) prohibition, that prohibition is still alive and kicking after nearly 40 years. In the 2010 quadrennial the NBCO is again in the Commission’s sights. And now the Minority Media and Telecommunications Council (MMTC) has provided arguable impetus for the Commission to try to pull the trigger, again.

MMTC has submitted a specially-commissioned study entitled “The Impact of Cross Media Ownership on Minority/Women Owned Broadcast Stations” (Study). Prepared by well-respected BIA/Kelsey Chief Economist Mark Fratrik, the Study presents evidence that “the impact of cross-media ownership on minority and women broadcast ownership is probably negligible”. In other words, the Commission could probably dump the NBCO without having to worry about adversely affecting minority- or female-owned stations. Since the FCC’s 2002 and 2006 quad efforts were criticized (by, among others, the U.S. Court of Appeals for the Third Circuit) because of the Commission’s supposed lack of attention to minority/female considerations, the Study helps fill in that arguable gap.

Based on questionnaire responses provided by only a relatively limited sample of broadcast stations, the Study is, by its own terms, “not dispositive”. Still, in light of its sponsor and its author, it may be viewed as a significant contribution to the record.

The FCC has invited public input on the Study. Comments are due by July 22, 2013; reply comments by August 6.

FEMA WEA PSA's 'R' OK!

In response to non-request for waiver, Public Safety and Homeland Security Bureau waives rules that may not need to be waived.

Broadcasters may be asked (many apparently already have been asked) by the Federal Emergency Management Agency (FEMA) to broadcast some PSA’s relating to the (relatively) new Wireless Emergency Alert (WEA) system. While some broadcasters have reacted to that request with understandable – and legitimate – reluctance, the FCC’s Public Safety and Homeland Security Bureau has now assured us that the PSA’s are OK for broadcast. . . as long as certain conditions are met.

The bottom line here is relatively simple; getting there, though, requires a surprising amount of explanation.

For years, FEMA and the FCC and others have been working to improve the overall ability of government officials to alert the citizenry to emergency situations.   Broadcasters have observed one aspect of that effort in the overhaul of the Emergency Alert System.  On the non-broadcast side, the FCC established the WEA system, through which the guv’mint can send geographically-targeted emergency messages direct to individuals’ mobile devices. The WEA has already been triggered in a wide range of situations – hurricanes, tornadoes, terrorist threats, missing persons, etc. – and has, according to the FCC, “proven to be a valuable tool”.

So what’s the problem?

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LoPo TV Warning: White Space Devices Are Coming - Have You Updated Your CDBS Information?

Special CDBS website unveiled as FCC tries to help rebroadcasting low power stations secure the protection to which they’re entitled.

If you’re the licensee of an LPTV or a TV Translator or a Class A TV station – collectively for our purposes here, “low power stations” – that rebroadcasts the over-the-air signal of another station, the FCC’s trying to help you out.   In the near future, TV white space devices will take to the air, creating a potential source of interference to your ability to receive the signals you rebroadcast. As the FCC proceeds with tests of databases to control those white space devices, it has simplified the steps necessary to ensure the protection to which you are entitled from those devices.

White space devices, as we hope you know by now, operate in locally vacant TV channels. They are required to protect not only household TV reception but also various other facilities, including some (but not all) low power stations that rebroadcast the signals of other TV stations. These stations receive two kinds of protection. White space devices (except for those at very low power) are not permitted to operate inside or close to the stations’ service contours – a matter not at issue here. Also protected, and the subject of this post, are the receivers these stations use to pick up the signal of the originating station for rebroadcast.

White space devices will have to consult a special database to identify available channels. That database in turn will draw on CDBS to identify low-power stations whose receivers are entitled to protection.

A public notice announces a special web page at which qualifying stations can register their receiver channels into the FCC’s CDBS system.

For protection purposes, low power stations fall into one of three distinct situations:

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White Space Database Update

The FCC requests comment on white space database tests recently conducted by Google, Inc. and Key Bridge Global LLC.

In separate public notices, the FCC has asked for comment on white space database tests recently conducted by Google, Inc. and Key Bridge Global LLC. (The FCC paperwork misidentifies the second company as "Keybridge Global Inc.") Their respective test reports are here and here. Mark your scorecards: once approved, these will be database managers numbers 3 and 4.

Prior CommLawBlog entries on these tests are here and here.

Comments on both tests are due on June 13, 2013 and reply comments in June 20.

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

[Blogmeister’s Note: In keeping with the practice we introduced with our last white space database post, we have sought to capture the essence of these recent developments poetically:

An FCC Haiku to the Public

Key Bridge and Google
filed database test reports.
Comments?  We’re all ears.]

2013 Reg Fees: The FCC Proposes a Couple of Alternatives

Commission looks to update its methodology for calculating regulatory fees, but proposes a possible alternative approach to cushion the blow this year.

One of the time-honored rites of spring – at least at the FCC – is the release, every April or May, of a Notice of Proposed Rulemaking setting out the schedule of regulatory fees the Commission thinks it may impose on all regulatees come August-September. Historically, we here at CommLawBlog have tried to be Johnny-on-the-spot in letting our readers know the fees that have been proposed, even though the fees that eventually adopted (usually in July) may vary here and there from the initial proposal.

But this year is different.

Instead of providing one set of proposed fees, the Commission has given us a Notice of Proposed Rulemaking (NPRM) laying out two sets of possible fees . . . because it’s in the process of a much-needed update of its calculation methodology, and it’s still not sure: (a) whether the new approach is exactly right and, even if it is, (b) whether that new approach should be applied this year. Depending on which method it ultimately adopts, the fees for some broadcasters could swing by a couple of thousand dollars. As a result, we’ve had to prepare a more elaborate table reflecting the proposals, so we’re a day or so behind our usual curve. Please bear with us.

To understand what’s going on here, you have to understand how reg fees are calculated.

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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.

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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.

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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.

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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.

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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.)

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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