Going Mobile

Chairman confirms upcoming effort to re-purpose TV spectrum for mobile broadband

For several months now the question on many TV broadcasters’ minds has been: will they or won’t they take away my spectrum and turn it over to smartphones? And while various FCC higher-ups have dropped conflicting hints about what the answer might be, the fact is that no one has expected to know for sure until the release (currently set for March 16) of the FCC’s National Broadband Plan (NBP).   But late this month Chairman Genachowski tipped the Commission’s hand, albeit without adding much practical detail. 

The FCC’s answer appears to be: TV spectrum is not being used efficiently, and would be better allocated to mobile broadband use, so the FCC plans to devise some mechanism to encourage TV licensees to cough up some or all of their spectrum in return for the prospect of taking home some portion of the proceeds when their spectrum is auctioned off for broadband.

According to the Chairman, the NBP will call for the “freeing up” of 500 MHz of spectrum over the next decade.  And one way the FCC hopes to achieve that, at least in part, will involve “establish[ing] market-based mechanisms that enable spectrum intended for the commercial marketplace to flow to the uses the market values most.” 

Can you spell “a-u-c-t-i-o-n”?

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FCC Fine-Tunes Procedural Rules

Proposals are intended to make FCC proceedings more efficient and transparent, and less prone to abuse.

Those of us charged with getting the FCC to do things – issue licenses, grant waivers, cancel fines, all of that – are vitally interested in the fine points of FCC procedures, because understanding them can spell the difference between success and failure.  Just as no one would sensibly sit down to a game of poker without knowing that three of a kind beats two pair, no competent practitioner would take on the FCC without knowing the somewhat more complex rules of that agency’s regulatory game. And, sometimes, part of the job lies in knowing how to navigate those rules most advantageously.

So we take notice when the FCC proposes to change its procedures, as it did in two recent Notices of Proposed Rulemaking (NPRMs).  By and large the amendments are meant to serve laudable goals:  to make FCC proceedings more efficient and transparent, and to forestall some of the more common forms of abuse.

One NPRM proposes internal housekeeping changes which would:

  • allow the staff (in place of the full Commission) to dispose of frivolous or repetitive requests for reconsideration;
  • allow the FCC to amend  an action (as well as to set it aside) within the first 30 days;
  • expand the use of electronic filing and notification;
  • close some of the 3,000+ dockets that have become inactive;
  • split overly large dockets; and
  • clarify the effective date of new rules.

In a separate NPRM, the FCC takes on the always-controversial subject of its ex parte rules.

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A Complaint Process Is Born!

Long in coming, closed captioning complaint process finally emerges; Contact information due by March 22, 2010

The gestation period for the closed captioning complaint process – which thus far has fallen somewhere between the gestation periods of giraffes (420-450 days) and sperm whales (480-590 days) – appears to have entered its final phase. 

The Commission first announced its new and (arguably) improved complaint process in early November, 2008. As of December, 2009, that process had still not become effective, even though the Office of Management and Budget had signed off on it in July, 2009. But now we are pleased to report that the FCC has announced that the new closed captioning complaint process is effective as of February 19, 2010 . . . except for Section 79.1(g)(3), which still isn’t.

Let’s put that exception off to the side for the moment and focus on the elements of the process that have (finally) become effective.

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Ask, And It Shall Be Given To You

HD Radio proponents ask for, and get, major digital power increase; First adjacents get minor protection

The Media Bureau has dramatically increased the power level for IBOC digital FM service (the service known in the marketplace as “HD Radio”). In so doing, the Bureau effectively dismissed, or at least minimized, serious interference concerns expressed by non-HD stations (particularly those operating on channels first adjacent to HD stations). While the increased HD power authorizations will still be subject to a complaint process which could theoretically reduce maximum power available in certain situations, that complaint process – at least at first glance – falls short of everything a victim of interference might have hoped for.

The Bureau has decided that “eligible stations” should be permitted to increase their digital power by 6 dB – meaning that their digital power can move – pretty much with no questions asked – from the current maximum ERP of 20 decibels below carrier (-20 dBc) to -14 dBc. Once the new rule becomes “effective”, eligible stations will be permitted to go to that -14 dBc limit without any prior approval, as long as they file a notification of the increase through CDBS within 10 days. While the revised power increase rule won’t technically be “effective” for some time, the Bureau, apparently eager to make the higher power available without the legalistic nicety of “effectiveness”, has announced that it will grant STAs in the meantime. (See below for more details on the STA process.) Stations “eligible” for this immediate upgrade are non-“super-powered” stations.

Read on for more details.

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Extreme Makeover (Not!) - Radio Edition

FCC adopts 307(b) “Tribal Priority”, other incentives for Native American radio proposals, but defers overhaul of basic 307(b) analysis

As we reported back then, in April, 2009, the Commission issued a sweeping set of proposals designed to re-vamp the AM/FM allotment processes. The overhaul seemed primarily intended to instill order into the chaos that had become (and largely remains) of Section 307(b) analysis. A crucial secondary aim was to stem the seemingly inexorable movement of radio stations out of rural areas and into more densely populated areas. After devoting the first half of its Notice of Proposed Rule Making to those proposals, the Commission used the second half to toss in a laundry list of far less ambitious suggestions.

On February 3, the Commission issued a First Report and Order and Further Notice of Proposed Rule Making in which it grabbed the low-hanging fruit but declined – at least for the time being – to take on the more complex and controversial Section 307(b) issues. The primary beneficiaries of the changes that were adopted will be Native American Tribes, for whom the Commission has tried to clear a path toward easier acquisition of radio stations on tribal lands.

Here’s the scoop.

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Help Wanted? Help Needed?

S.2881 would assure tech advisor slot in each Commissioner’s office

Way back in the day, each Commissioner enjoyed not only an in-office lawyer (dubbed “legal assistant”), but also an engineer to help guide the Commissioner through the technical arcana that necessarily inform most FCC decisions.  Somewhere along the line, what with belt-tightening and all, the “engineering assistant” positions got sloughed off.  As a result, the Commissioners – none of them engineers – have increasingly relied on the FCC’s Office of Engineering and Technology (OET) for direction on the technical nitty-gritty. 

That has not been a bad thing, by any means. Fortunately for us all, OET houses some of the most seasoned and well-respected engineers in the Commission.  Their shop runs efficiently, largely out of the public eye, and maintains an admirable level of consistency in engineering standards and practices.  Driven by physics, rather than politics, they do their job and do it well.

But look out.  There’s a move afoot on Capitol Hill to bring individual technical advisers back to the Commissioners’ offices.  Senators Snowe (R-ME) and Warner (D-VA) introduced a bill in December that would do just that. Under their bill, each Commissioner would be able to appoint “an electrical engineer or computer scientist” to provide the Commissioner “technical consultation”.  (The only catch is that the engineer/scientist would have to have an undergraduate or graduate degree “from an institution of higher education in their respective field of expertise”.

The proposal is no doubt born of the best intentions.  Warner wants to make sure the Commissioners have “access to the best information possible, from all relevant disciplines, and in a timely manner.”  Snowe wants each Commissioner to have “in-house technical expertise to make well informed regulatory decisions.” 

Hard to argue with that . . . except for the unstated assumptions – namely, that Commissioners do not already have timely access to expertise, and that additional staffing would automatically improve the pace and quality of the FCC’s decisionmaking.  Those assumptions may not be accurate.  To the contrary, the addition of personal “technical advisers” for each Commissioner could lead to the unnecessary politicization of technical issues, not to mention additional delay in resolving proceedings as more individuals get injected into the process.

Do we really need five separate assessments of each scientific/physical/technical conclusion – which, at least in theory, should not be open to much debate? Agreed, we all can dicker about the policy implications of data. But that’s what lawyers are for.  Generating, organizing, and presenting technical data in the first place – that’s OET’s job.

So while there may be some surface appeal to the Snowe/Warner proposal, it seems at least unnecessary and possibly counter-productive – particularly when the Commissioners have OET just one flight down.

At this point it’s impossible to reliably predict whether the Snowe/Warner bill will make it into law -- but you may want to start to spiff up your resume anyway, just in case.

Who Dat ® Own Dat Trademark?

The NFL illustrates our point, again.

A couple of days ago we ran our annual alert about the fact that some folks – large professional sports organizations in particular – seem to be trying to take control of our language by registering as trademarks just about every word or phrase in sight . . . and then telling us we have to pay to use those words and phrases. For those who may not have believed us, check this out: reports out of New Orleans indicate that the NFL is claiming that “Who Dat” – long the catch-phrase of the Super Bowl-bound (oops, make that Super Bowl ®-bound) Saints, and before that a staple of minstrel shows and vaudeville acts back into the 1800s – is a registered NFL trademark. 

According to those reports, the NFL has gone after local Big Easy tee-shirt vendors, trying to get them to stop selling their own home-grown “Who Dat” tees. Seems a bit heavy-handed, particularly in view of the hard times folks in N’awlins have suffered in recent years. (That’s what Senator David Vitter thought, at least. He fired off a letter to the NFL advising that he is printing up, for sale, a bunch of tee shirts emblazoned with the message “WHO DAT say we can’t print Who Dat!” His message to the NFL: “Please either drop your present ridiculous position [asserting control of “Who Dat”] or sue me.”)

“Ridiculous” seems about right to describe the NFL’s practice of going after local business owners for something like this. That’s especially so when any rational person would understand that this is one of those situations where you're better off cultivating support for one of your more hard-luck franchises, even if it costs you a few bucks here or there.  

But for our purposes here at CommLawBlog.com, it helps us make our point: if the NFL is willing to swim against the tide of goodwill that’s flowed into New Orleans since Hurricane Katrina, you should figure that the NFL will be perfectly happy to go after you for misuse of “Super Bowl” – darn, we messed up again – “Super Bowl ®”. Who dat ® say you haven’t been warned?

Calendar Changes

Not as momentous as the Julian-Gregorian shift, but changes you might want to note nonetheless

A couple of updates on comment deadlines that have changed since our last reports on the underlying proceeding:

Parental Empowerment – Back in November the FCC set comment dates in the “parental empowerment” inquiry. Those dates have since been extended. Comments are now due on February 24, and replies on March 26.

National EAS Test – And a couple of weeks ago we noted the issuance of an NPRM in which the Commission is proposing the establishment of an annual, nation-wide EAS test. The initial comment deadlines in that proceeding were announced on January 29: comments are due March 1, replies March 30.

"Super Bowl ®" - Emphasis on the "®"

Our annual cautionary reminder about trademark protection

Hmmmm. Rumour has it that there’s some kind of important football game coming up in a week or so, down in Miami (the anglicized spelling is another nod to the fact that I don’t consider this “real football”). 

That means it’s time for the obligatory reminder that the term “Super Bowl ®” has been registered as a trademark by the NFL, so using the term without the NFL’s permission . . . yadda, yadda, yadda, serious financial penalties for infringement.

There’s a term for this type of recurring annual story in the journalism world: “evergreen”.   Rather than waste your time and ours, we’ll simply link to the story we posted on this issue last yearJust substitute “Colts” and “Saints” for “Steelers” and “Cardinals”. The legal principles remain exactly the same.

We should also point out that the NFL is not the only organization which has managed to stake a claim to particular words or phrases that get considerable public attention periodically. For example, just over the horizon but closing in fast we have the “Olympics ®”, the “Oscars ®”, and the “FIFA World Cup ®” (you know, the real football). And there are lots more where these came from. Some trademark owners are more obnoxious than others about enforcing their rights in the mark against every little Tom, Dick or Harry – the NFL’s hard-nosed efforts along those lines are quasi-legendary. Still, the fact is that, by jumping through the trademark registration hoops, these folks have obtained the right to control the use of their marks to a significant degree. They have also obtained the right to sue anyone who infringes on their marks. You should contact us if you have any questions as to whether a term by which you might ordinarily refer to a major event – sporting or otherwise – is a registered trademark subject to these limitations.

The preceding has been brought to you as a public service by CommLawBlog ®.

FCC Tells Sky-High And Down-To-Earth 7/10/13 GHz Users How To Co-exist

FCC formalizes coordination procedures between the birds, the B’s and the C’s

The FCC has issued a Report and Order adopting new rules formalizing frequency coordination requirements between Earth Stations in the Geo- and Non-Geostationary Orbit Satellite Services (GSO/NGSO) and Broadcast Auxiliary and Cable Television Relay Service (BAS/CARS) Stations in the 7, 10 and 13 GHz frequency bands.

Satellite operators use these bands to talk to their “birds” (satellites) through uplink and downlink earth stations. The same bands are used by BAS/CARS stations for fixed and mobile microwave feeds to TV stations and cable systems (such as studio-transmitter links and relays for news and other remote programming). The FCC normally requires interference mitigation through a coordination process prior to filing for a new license. That process involves sending notices to anyone in the FCC’s license database who might be affected, waiting 30 days for responses, and resolving any objections. The process is complicated enough that most applicants farm it out to  an engineering firm (such as Comsearch, Inc.),

Formal procedures have been in effect for some time for coordination between GSO/NGSO applicants and existing GSO/NGSO operations. Ditto for coordination between BAS/CARS applicants and existing BAS/CARS operations. But the Commission has not previously formally adopted any procedure for coordination between the two types of services. The FCC has now decided that the same “notice and response” rules and procedures will be in effect for coordination between as well as within the various services, when BAS/CARS stations are at fixed locations.

While the notice and response system works fine for fixed stations, it is not so simple for stations which move around, because you can’t coordinate if you don’t know where your station will be located at any given time. Therefore, the FCC has permitted mobile or temporary fixed BAS/CARS applicants to coordinate on an ad hoc informal basis, often through a third party like the local chapter of Society of Broadcast Engineers (SBE), which keeps track of who is doing what around town and when they plan to do it. The FCC has decided that all GSO/NGSO earth station applicants must use the notice and response system to coordinate with all BAS/CARS licensees, but temporary fixed and mobile BAS/CARS applicants may choose between notice and response and ad hoc coordination with GSO/NGSO entities.

When responding to a coordination request, temporary fixed and mobile BAS/CARS licensees are expected to seek protection only for frequently used locations and not for the entirety of a wide geographic area. The receive location for a temporary fixed or mobile system may be protected, as may frequently used program origination venues such as arenas, stadiums, and convention centers.

The FCC also looked at coordination in the 10 GHz band, used by terrestrial fixed microwave services and NGSO satellite links.  A while back, terrestrial operators proposed a “Growth Zone” policy, under which they could ask satellite operators to protect not only an existing path but also an anticipated future growth path. The FCC neither accepted nor rejected the idea but declined to adopt it at this time on the ground that the satellite parties who originally supported it are no longer pursuing 10 GHz licenses.   If the issue is raised again in the future, the FCC will take a new look at it.

"Fleeting Expletives": Second Circuit, Second Time Around

Constitutional challenge to the FCC’s indecency policy is center stage in Fox’s second trip to appeals court, judges appear unsympathetic to FCC arguments

If at first you don’t succeed, try, try again. And so it was that the FCC trudged back into the U.S. Court of Appeals for the Second Circuit on January 13 to defend the “fleeting expletives” portion of its indecency regime one more time. When last the Commission fought this particular fight in this particular arena, things didn’t go so well for the agency. From what we saw, the Commission is not likely to fare any better this time around. 

Back in 2006, in the wake of Janet Jackson’s Super Bowl flash, the Commission determined that fleeting uses of “fuck” and “shit” in two live awards shows aired by Fox in 2002 and 2003 violated the prohibition on indecent broadcasts. Fox appealed the decision to the Second Circuit, which overturned the FCC on non-constitutional grounds. According to the court, the FCC failed to explain why it had chosen to abandon a longstanding policy of not penalizing the occasional “fleeting” use of expletives. As we reported here last April, the Supreme Court, having agreed to hear the FCC’s appeal of the Second Circuit ruling, reversed the Second Circuit and shipped the case back down for further consideration.

While the FCC may have been pleased to have won a temporary reprieve from the Supremes, any Commission elation must have been tempered by the grim reality that it was about to jump out of the frying pan and into the fire.

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Ban On "Electioneering Communications" Tossed By Supreme Court

Court affirms right of corporations, unions, to advertise in support of or in opposition to political candidates

The U.S. Supreme Court has struck down a long-standing ban on corporate spending on political advertising, as well as a related portion of the McCain-Feingold campaign finance reform act that prohibited “electioneering communications” by corporations and unions in the days leading up to an election. This is welcome news to broadcasters and others in the media business as the decision is widely predicted to introduce a new pool of buyers of political advertising time.

The case (which we previously described here and here) arose, oddly enough, from a documentary movie about Hillary Clinton. The film, released in the thick of Ms. Clinton’s 2008 run for the presidential nomination, was – how can we say this delicately? – brutally critical of Ms. Clinton. Its producers wanted to broadcast ads for the film, but were concerned such ads might be deemed “electioneering communications” and, therefore, might violate the law. Accordingly, they took the matter to court, and the rest is now history.

The Supreme Court’s decision, which affirms the First Amendment rights of corporations and unions, involves (among other political advertising laws) the McCain-Feingold Act, more properly referred to as the Bipartisan Campaign Reform Act of 2002 or “BCRA”. In relevant part, BCRA prohibited “electioneering communications” by corporations and labor unions. Specifically, BCRA barred such entities from directly spending money on broadcast, cable or satellite communications that (a) referred to clearly identified candidates within 60 days of a general election or 30 days of primary election and (b) reached 50,000 or more persons. The Court found that that restriction (and earlier cases upholding bans on corporate political speech) amounted to unconstitutional censorship based solely on the identity of the speaker. 

Although the Court’s decision greatly expands the free speech rights of corporations, it does not lift all restrictions on political advertising. Corporations are still prohibited from making contributions directly to the campaigns of political candidates (although Political Action Committees, or “PACs”, may still do so). Moreover, the Court specifically upheld BCRA’s disclaimer and disclosure requirements (the spoken and textual announcements of who is responsible for an ad and whether it was authorized by any candidate). Also untouched by the decision are BCRA’s “stand by your ad” announcement and certification requirements that federal candidates must meet to qualify for lowest unit rates.

Nevertheless, for broadcasters facing a down advertising market, the positive effect of the Court’s decision may be considerable. Corporations and labor unions are now permitted to spend money directly from their treasuries on ads that support or oppose political candidates and ballot issues. This greatly expands the market for the upcoming mid-term election season and brings in players with even deeper pockets than PACs and candidate committees. A complete copy of the 183-page decision (with various concurring and dissenting opinions) can be found here (the official Supreme Court site, where access to the opinion was intermittent within a day of its release, possibly because of high demand) or here (the www.scotuswiki.com site).

FCC Seeks To Build A Better Website

With “Reboot.FCC.Gov”, FCC solicits public input to improve public interaction with agency

Depending on who you ask, 2010 may or may not be the start of a new decade. Depending on who answers, 2010 may or may not be the start of a new FCC. That’s because the FCC is relying on you (and you and you, the guy in the brown shoes reading this during his lunch break) to help decide on the direction in which the agency should be moving. They’ve labeled this process “Reboot.FCC.Gov” and, like all the kids are doing nowadays, they’ have not only set up a website at that domain, but also tied the whole thing together with the Blogging, and the Twittering and the Facebooking and the YouTubing (there’s a bunch of other social media connections as well, including, for some reason MySpace, in case the next big indie band wants to participate).

A more conventional format was used to launch the rebooting process on January 13: a press release (the website does contain a one minute “welcome” video from FCC Chairman Julius Genachowski).  As that release explains, the Commission is “soliciting public input on ways to improve citizen interaction with the FCC.” The Chairman elaborates on this, explaining that the goal is to “get input from all corners of the country on ways to improve usability, accessibility, and transparency across the agency.”

The project’s efforts focus on five key elements:

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FCC Attaches Strings To Wireless Mics

Changes accommodate widespread unauthorized use of wireless mics – some uses prohibited, new labeling rules, temporary power limits imposed

The FCC has bitten the bullet and taken steps to clear the 700 MHz band of wireless microphones in order to make room for new uses. At the same time, it has legalized these devices in the hands of formerly unlawful users.

Wireless microphones are ubiquitous. We see them on live and televised music shows and in TV news reporting. They are just as important, although less visible, when hidden under clothing in movies and TV drama and in live theater; they are equally indispensable to sports arenas, houses of worship, community centers, universities – anywhere that one person speaks to many. Even the FCC’s own meeting room has a few.

Most professional wireless microphones use unoccupied channels in the TV bands. These do not cause interference to TV reception because the large users, and the companies that sell to small users, are careful about avoiding TV channels in use. Even the organizations devoted to protecting broadcast spectrum have accepted wireless microphones.

Until now, the use of wireless microphones required an FCC license. Eligibility was strictly limited to broadcasters and radio, TV, cable, and movie production, and a few other groups. All other users – music venues, Broadway shows, churches, garage bands – have been operating illegally. These folks are supposed to use non-TV frequencies, but the TV-band microphones work better, and so are by far the most popular. Even so, the unlicensed use of wireless microphones caused no trouble, so the FCC left things alone.

Then came the digital TV transition, in the course of which the FCC repacked the channels to free up the 700 MHz band (the channels formerly known as TV Channels 52-69) for other uses. But some wireless microphones left over from before the transition still operate in that part of the band. These may cause problems for the new users of 700 MHz, primarily public safety and commercial applications.

The FCC has now issued a 101-page Report and Order and Further Notice of Proposed Rulemaking that attempts to both clear the 700 MHz band and legitimize the non-licensed users.

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Annual National EAS Test Proposed

Concerned about uncertain real-world-scenario performance of national EAS operation, FCC proposes annual national test for all EAS participants

The FCC has proposed rules providing for an annual test of the national alert capability of the broadcast Emergency Alert System (EAS).  What’s more, all EAS participants in the country will have to tell the FCC whether they received the test, whether they retransmitted it, and if not, what went wrong.

Just about every full power radio and television station in the country is required to have an EAS decoder in place, and most are also required to have an encoder and to conduct weekly and monthly alert tests.   All tests must be recorded in the station’s log.  Not every station is fully attentive to these responsibilities, and fines for non-compliance pop up fairly frequently.

The EAS is capable of both national alerts and alerts restricted to a smaller area, such as one state.  If a national alert is received, all stations must cease normal programming and either (a) put the alert on the air or, if they can’t put it on the air, (b) shut down.  Retransmission of smaller area alerts is optional on the part of the licensee.

The FCC has never tested the national alert system, so they are starting to wonder what would happen if the President ever pushed the magic button and tried to get his voice on every station in the country.  A lot of EAS decoders are automated, and a lot of stations operate unattended all or part of the day.  Would the nationwide system really work, or would it crash with a dull thud? 

(Actually, the Commission does have an idea of what might happen. It turns out that, in 2007, some FEMA workers in Illinois accidentally triggered a national-level EAS alert. Since it was not intended to be a test, presumably the alert looked like a real alert, and therefore it should have rocketed coast-to-coast lickety-split. Oops. Apparently, it “caused some confusion to broadcasters and other communications in the Ohio Valley and beyond” and ultimately ran out of gas because of a “combination of EAS Participant intervention and equipment failure”. That hardly encourages confidence that the system will work when it’s triggered on purpose.)

Such uncertainty may soon come to an end, if the FCC has its way.

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NCE Fund-raising For Haiti Relief Efforts

FCC provides procedures for waiver requests by noncommercial broadcasters

As the horrific stories and images reach the mainland from earthquake-devastated Haiti, 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” – things like Hurricanes Andrew and Katrina, the January, 2005 Southeast Asia tsunami and, of course, the September 11, 2001 attacks. And just to be sure that we all know that the FCC views the Haiti earthquake 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) and Clay Pendarvis (clay.pendarvis@fcc.gov). NCE radio licensees should address their requests to Peter Doyle (peter.doyle@fcc.gov) and Michael Wagner (michael.wagner@fcc.gov).

The Good Kind of Snowe Job

Maine Senator urges FCC to wrap up pending proceedings before committing to spectrum policy

Like famed producer the Bruce Dickinson – who had a fever the only prescription for which was cowbell (actually, MORE cowbell) – the FCC in recent months has seemed to have a fever the only prescription for which is “MORE Broadband”. And that fever, in turn, has sent the agency on an intense quest for available spectrum, a quest which has led the Commission to ogle the TV band as a potential source of spectrum ripe for re-purposing. 

But now Senator Olympia Snowe (R-ME) has sent a letter to the Commission which may encourage TV broadcasters fearful that their spectrum is doomed to be sacrificed in the short term to the seemingly bottomless Broadband Maw. Before they get too far down the line in designing the National Broadband Plan, Senator Snowe urges the Commissioners to “clear the table” of five long-running proceedings relating to approximately 100 MHz worth of “currently unused or severely underutilized” spectrum. She refers in particular to:

  • WCS Band at 2305-2320 MHz and 2345-2360 MHz;
  • AWS-3 Block spectrum at 2155-2175 MHz;
  • 700 MHz D Block at 758-763 MHz and 788-793 MHz;
  • 2 GHz Mobile Satellite Band at 2000-2020 MHz and 2180-2200 MHz;
  • H Block spectrum at 1915-1920 MHz and 1995-2000 MHz ; and
  • J Block spectrum at 2020-2025 MHz and 2175-2180 MHz

The issue of spectrum availability is not new to Senator Snowe. She is a co-sponsor of S.649, a bill calling for a comprehensive and accurate inventory of spectrum between 300 megahertz and 3.5 gigahertz. (While that bill has shown little sign of life since its introduction early last year, the Senator has expressed her continued optimism that it will be passed by the Senate this year.)

Whether or not Senator Snowe is correct with respect to the particular details of each of the proceedings she lists, she is definitely correct in her underlying point: the Commission really should have a handle on exactly what spectrum is available, and how it is being used, before the agency starts to scavenge one particular portion of the band, parting it out like car thieves cannibalizing a boosted Escalade. After all, if there is considerable spectrum just sitting around unused – whether that’s because the FCC hasn’t yet handed it out to anyone to use, or because the folks to whom it has been handed out are simply warehousing it – it makes sense to focus on using that spectrum first, before disarranging other folks who are, in fact, actually using the spectrum they have.

Court Review Of Revised Form 323 Is Sought As Bureau Suspends January 11 Deadline

FHH, State Associations head to court; Bureau indicates that revised form may impose “unanticipated” practical burdens on filers

Two days before Christmas, and all was neither calm nor bright for Form 323 at the FCC. On December 23 the agency’s troubled efforts to launch its revised Form 323 – the Ownership Report for commercial broadcasters – got more troubled on a couple of fronts. In the morning, FHH, together with ten state broadcaster associations, asked the U.S. Court of Appeals for the D.C. Circuit to stay the implementation of the form pending Court review of the new burdens that form imposes. And hours later, the Media Bureau issued an order postponing indefinitely the deadline for filing biennial (but not other, non-biennial) Ownership Reports on the new form in order to fix mechanical problems that have cropped up with the form. While the two events were not directly related to one another, they both shone a glaring and none too favorable light on the FCC’s six-month (and counting) campaign to impose, without notice or comment, new and intrusive reporting obligations on commercial broadcasters.

We have already chronicled the history of, and major league flaws underlying, that campaign in considerable detail. Need a refresher? Click here and start reading. When last we checked in on things a couple of weeks ago, the FCC had finally taken the wraps off its revised form six months after first announcing in the Federal Register that the new form had been designed. (The FCC has never explained its reluctance to let us all kick the tires on the new form before having to drive it off the lot.) While the Commission had initially mandated in May, 2009, that the revised form would have to be filed by all commercial broadcast licensees by November 1 (reflecting their ownership as of October 1), that date had slipped to December 15, and then to January 11 (with the October 1 “as of” date moving to November 1). 

Meanwhile, in November FHH had filed, with the Commission, a motion to stay the implementation of the new form, and then a separate “Petition for Reconsideration or Such Alternative Relief As May Be Appropriate”. 

With the January 11 deadline closing in fast and no sign at all that the FCC was giving any serious consideration to the issues which FHH’s pleadings raised, FHH headed to court, along with the broadcaster associations from Alabama, Alaska, Arkansas, Kentucky, Louisiana, Mississippi, New Mexico, Puerto Rico, South Carolina and Tennessee.

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Nationwide LPTV/TV Translator Filing Opportunity Postponed

New date: July 26, 2010

If you’ve been counting the days until the January 25, 2010 opportunity to file for new digital-only LPTV/TV translator stations (and major mods for existing analog and digital LPTV/translator stations) in non-rural areas, it’s time to re-set the calendar. The FCC has announced that that January 25 date is slipping by six months. Mark your calendars: the new date is July 26, 2010.

We reported last July when the Commission, in a flush of optimism, flung open its doors to welcome LPTV/translator applications in “rural” areas as of August 25 – with the promise that applications for all areas could be filed as of January 25. Apparently, that initial “rural” window brought in enough applications to keep the processing staff busy: according to the FCC, the postponement of the nationwide window “is necessary to complete the processing” of rural applications filed since August.

Perhaps more ominously, the FCC advises that the postponement will also “permit Commission staff to dedicate additional time and resources for consideration of the Broadband Plan.” As concern mounts that the Commission may be determined to “re-purpose” broadcast television spectrum for broadband use, the postponement of the nation-wide LPTV/translator should send more than a frisson down broadcasters’ spines. While the FCC’s stated purpose – to free up staff – may be completely accurate, it’s hard to avoid the suspicion that an underlying purpose could be that the FCC does not want to get broadcasters’ hopes up relative to the availability of TV spectrum if that spectrum is going to be “re-purposed” out from under them even before their applications are processed. The FCC’s thinking might be that it’s better to keep potential applicants on the outside looking in for the time being, rather than to accept applications that could somehow gum up the works if the Commission eventually decides to yank TV spectrum away from broadcasters for the Greater Good of broadband.

Interestingly, the public notice makes no mention of the pending proposal by a number of public interest groups hoping to have Channels 5 and 6 re-purposed for radio use.

For the time being, “rural” applications and others permitted under the rules will continue to be accepted. But all you non-rural applicants will have to sit on the sidelines until mid-summer, if not longer.

House Tries To Turn The TV Volume Down

All is CALM as Eshoo bill moves to Senate

Last June we reported on the renewed efforts by Congresswoman Anna G. Eshoo (D-Calif.) to rid society (well, U.S. society, at least) of that scourge of the TV viewing experience, loud commercials. Having tried unsuccessfully to turn the volume down on TV advertising last year, she came back again last February, legislative mute button in hand.

And this year it looks like she may have a winner with H.R. 1084 – the Commercial Advertisement Loudness Mitigation Act (or CALM Act) – which was recently passed by the full House. But it took some tinkering to get there.

As originally drafted in February, her bill would have required the FCC to prescribe regulations to assure that: (a) ads accompanying video programming (from broadcasters and/or MVPDs) not be “excessively noisy or strident”; (b) ads not be “presented at modulation levels substantially higher” than the programming they accompany; and (c) the “average maximum loudness” of ads not be “substantially higher” than the “average maximum loudness” of the accompanying programming.

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Two Steps Forward, One Step Back

Closed captioning complaint process inches ahead

From our “Hey, Whatever Happened To . . . ?” file, here’s an update on the new (well, at least it was new a year ago) complaint process relative to the closed captioning rules for video programming. That process was first announced in November, 2008, but has still not yet gone into effect.

As we reported back in November, 2008 (and again in January, 2009), the new complaint process – set out in a Declaratory Ruling, Order and Notice of Proposed Rulemaking released in November, 2008 – requires that the recipient of an incorrectly addressed closing captioning complaint forward that complaint on to the correct party. For example, the complainant might have written to her cable company – since that’s who she normally writes her monthly subscription checks to – not realizing that the party really responsible for the complained-of captioning issue was a program producer or distributor unrelated to the cable company. Under the new rules, the cable company would be obligated to forward the complaint on to the right folks.

As it turns out, that raises a problem.

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Get Out Your Crayons and Glue Stick: It's Design-a-Database Time

Regular readers know that the FCC adopted rules to allow new, unlicensed, wireless devices to operate in unused channels of the broadcast television spectrum just over a year ago. This was an exciting development for wireless broadband access and content providers, but incumbent users (such as television broadcasters and wireless microphone operators) worried about interference. Therefore, the FCC required that white space devices – which it calls “TV band devices” – must prevent interference by having both spectrum-sensing capability and also geo-location capability with access to a database of licensed users. The idea is that a device will: (a) access a database; (b) let the data base know where the device happens to be located;  and (c) receive a list of available frequencies for that location.  As an additional safeguard, devices will also detect other users and drop off their frequencies.  A separate and more stringent procedure will authorize “sensing only” devices that lack geo-location.

Obviously, establishing a database is a crucial step in the process of designing and testing these new devices because they must be able to interface with it.  Accordingly, on November 25, 2009, the FCC’s Office of Engineering and Technology issued a Public Notice “inviting proposals from entities seeking to be designated TV band database managers.”  

This is in part a creative design competition: the FCC specifies only that each design must include “basic functional architecture . . . a data repository, a data registration process, and a query process.” Beyond that, prospective database managers are limited only by the scope of their imaginations and the number of pipe cleaners they can grab off the craft table.

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Presenting The New Form 323!!!

Dim the lights! Drum roll, please! Curtains! Cue the musicians . . . and . . . theme song (“Here it comes, Form 323, Here it comes, our ideal . . .”).

On December 8, the new Ownership Report form for commercial broadcasters was at long last made available for review on the FCC’s website.  The unveiling was decidedly downbeat, at least as far as the Commission was concerned: it merely posted a new "headline" on the front page of its website, with a link to the public notice which it had issued four days earlier.

You can check out the new form on CDBS right now. Word is that it would be a good idea to do so, and maybe give it a test drive, because it may have some minor practical quirks that could take some getting used to.

As the Commission announced on December 4, they have provided a temporary work-around, for folks who are unable to get all the FRNs they might need to complete the form by January 11. The emphasis here is definitely on “temporary”: when you click on the “Special Use FRN” button, CDBS flashes up this helpful reminder:

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EBS Leasing Primer

Tips on how to avoid getting blind-sided in EBS lease negotiations

Yes, attendance at the NESBA, 4G World and WCAI events may have been a bit sparse, and the merger of Sprint and Clearwire’s 2.6 GHz spectrum properties might seem a harbinger of inactivity in the Educational Broadband Service (EBS), particularly for those with EBS capacity to lease. But don’t be fooled.

Why worry about leasing just now? A couple of reasons. If you have EBS capacity that you already leased more than four years ago, there’s a good chance that the lease will end in the next five years – and (as discussed below), it’s never too early to scope out the options that will be available when your existing deal expires. And if you have EBS capacity that is not currently leased, don’t be surprised if you get approached in the near term about entering into a lease deal – in which case, again, it would be good to know what your options are. So if you have EBS capacity – whether it’s leased or not leased – you should consider the factors described below. From my experience, forethought and preparation relative to these items can result in serious benefits, and avoid serious mistakes.

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Revised Form 323 To Be Revealed Real Soon

January 11, 2010 deadline still effective

Breaking a long silence, the Media Bureau has at last announced that the revised Ownership Report (Form 323) for commercial broadcasters should be available for review on line at the FCC’s website sometime in the next five days. Since the Bureau (and, presumably, the Commission) is sticking with the previously announced January 11, 2010, deadline for all commercial broadcasters (including LPTVs and Class A TVs) to file that form, it might have been nice for them to make the form available by October 1 (when it was first promised), or by November 16 (the next target date), or by sometime the week of November 16 (when the date slid again), or by now. But what the heck – it looks like December 9 (or maybe sooner) is the date that All Will Be Revealed.

The public notice announcing the impending revelation of the revised form also promises that the Commission will convene an “instructional workshop” on the revised form on December 9 at 2:00 p.m. in the Commission meeting room. (Can’t make it to D.C. for the festivities? No problem – the workshop will be broadcast live on the Internet at www.fcc.gov/live.)

Frequenters of our blog may be asking themselves: “Will we still have to include FRNs for each of our individual ‘attributable interest holders’?” After all, as we pointed out to the Commission in both a motion for stay and a petition for reconsideration, imposition of that particular requirement raises a number of very difficult – some might say insurmountable – legal problems.

Apparently the Commission got the memo, but didn’t read it all the way through.

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Wireless Broadband vs. Over-The-Air TV: The Bell Rings For The Main Spectrum Event

Commission seeks comment on “uses of spectrum”

If you’ve got a TV license, you’ve got a problem. After a couple of months’ of crescendoing news reports, rumors, indirect proposals, and other non-official murmurings, the Commission has issued a formal request for comments on “uses of spectrum”. But don’t let that hopelessly vague title fool you. The focus of the inquiry is the possible repurposing of TV spectrum for wireless broadband services.

Yikes! Talk about an inquiry of staggering scope and complexity, with vast implications for the economy and the very cultural fabric of our society! Not to worry, though – you have a grand total of 19 days, to December 21, 2009 (oops - make that 18 days now), within which to gather your thoughts, bundle them up coherently and ship them off to the FCC.

The motivation here is the notion that there’s just not enough spectrum currently available to “meet the demand for wireless broadband services in the near future”. Since the arrival last summer of Chairman Genachowski (motto: “Mmmm, Broadband – Is there anything it can’t do?”), the Commission has been on an All-Broadband-All-The-Time juggernaut. With Congress adding to the frenzy through its multi-billion dollar broadband stimulus give-away program, the expansion of broadband into every nook and cranny of the USofA has become a regulatory obsession. And pushed by that obsession, the Commission has set out on a quest for a modern Philosopher’s Stone that might turn base spectrum into wireless broadband-worthy gold. Some helpful (if not entirely disinterested) observers, including the wireless industry and the Consumer Electronics Association, have suggested that TV spectrum would be a good place to look.

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FHH to FCC: Think Again

Fletcher Heald seeks review of mandatory social security number/FRN aspect of revised Form 323

Following up on the Motion for Stay it filed a couple of weeks ago relative to the revised commercial broadcast Ownership Report Form 323 (which the FCC has still not formally taken the wraps off of), Fletcher Heald & Hildreth has filed a “Petition for Reconsideration or Such Alternative Relief As May Be Appropriate” on the same topic. You can read a copy of FHH’s Petition here.

Problems with the revised Form 323 have been addressed repeatedly on this blog– but apparently not at the FCC – for months. (If you’ve been living in a cave since last June, you can start catching up by reading our posts here, here and here.) 

In its Petition FHH highlights a number of those problems, pointing out in particular that the Commission isn’t supposed to impose significant new regulatory burdens without first providing the opportunity for public comment through a rulemaking proceeding. Here, the FCC’s new form would require each and every individual with an “attributable interest” in a broadcast licensee to cough up his/her social security number to the Commission (in order to get themselves FCC Registration Numbers – or FRNs – which they would then have to include in the new Form 323). Forcing disclosure of such sensitive Identity-Theft-Prone information as SSNs is certainly a new and significant regulatory burden.

And just what “attributable interest” folks would be required to throw their SSNs into the FCC’s hopper? Um, that would be every officer and every director and everybody owning 5% or greater interests in both (a) corporate licensees and (b) corporations that in turn hold attributable interests in corporate licensees, as well as all non-insulated members of LLC’s, limited partnerships and the like which happen to be licensees or which happen to hold attributable interests in licensees. 

That’s a lot of SSNs right there.

But the Commission never bothered to mention anything about that requirement before news of it popped up on the website of the Office of Management and Budget last August.  To the contrary, up to that point the Commission had repeatedly and expressly and very publicly (like, “in the Federal Register” publicly) assured everybody that its new form would not implicate any confidentiality or privacy interests. By October, of course, the cat was out of the bag, and the FCC ‘fessed up to OMB that the new form, what with its social security/FRN requirement and all, really did raise significant privacy concerns. But even today you’ll look long and hard for any public acknowledgement of those concerns, by the Commission, in any public notice, or decision, or even a posting on its own website. Nor has the Commission ever bothered to try to explain how it could have thought that demanding the submission of thousands upon thousands of social security numbers might not have implicated any privacy concerns.

So our sense is that it’s going to be very difficult for the Commission to implement that requirement without taking a couple of giant steps backward and going through the rulemaking process which it seems to have overlooked the first time around. We shall see if the FCC agrees.

Power To The Parents Re-redux

Comment deadlines set in “parental empowerment” inquiry

Last month we reported on the FCC’s Notice of Inquiry into parental empowerment. That notice has now made it into the Federal Register, which in turn establishes the comment and reply comment deadlines. If you’re moved for whatever reason to chime in on any or all of the questions posed in the notice – sample question: Is there “a minimum level of media literacy that parents, teachers, and children must have to ensure that children can participate effectively in modern society and enjoy the benefits of electronic media while avoiding the potential harms” – you have until January 25, 2010. Reply comments are due on February 22, 2010.

It's Official: Form 323 Deadline Extended To January 11!

The December 15 deadline for filing the revised Ownership Report (Form 323) for commercial broadcasters has been extended to January 11. According to a terse public notice issued on November 23 (a scant three weeks before the previously-announced December 15 deadline), the extension was granted by the Media Bureau, acting on its own motion. The notice advises that the “Bureau is in the process of conducting final testing of the form and has delayed the release of the electronic version until the testing is complete.” The notice also assures that the Bureau wants to provide “adequate time to prepare and file the report”.

No mention is made, however, of FRN’s, or the requirement that each individual with an attributable interest of any sort obtain and file his/her own FRN as part of the revised ownership reporting process. That requirement – and the unorthodox manner in which it was imposed on the industry – have been the focus of considerable discussion since the revised form was first made public (by OMB, not the FCC). Whether the Commission intends to use the additional time to address that problem remains to be seen.

A SORN In The FCC's Side?

Privacy Act notice requirement may inhibit FCC plans for 12/15 Ownership Report filing

As of late in the afternoon on November 20, the Commission is still apparently sticking to its December 15 deadline for its revised Ownership Report (FCC Form 323) for commercial broadcasters – at least according to its website. The FCC doesn’t seem to think that it’s a problem that that revised form has still not been made public, or that the dwindling period (less than four weeks as of this writing) between now and the deadline is interrupted by the Thanksgiving holiday. While rumors swirl about possible postponement of the deadline – some suggesting a postponement is possible, others suggesting just the opposite – the Commission so far has kept mum, which means the clock is still ticking toward December 15.

Interestingly, on November 19 the Commission published in the Federal Register a “System of Records Notice” (SORN) regarding the new form. We say that this is interesting because the timing of that publication may, under the Privacy Act, force the Commission to delay the filing deadline, at least briefly, or make some changes to its filing system. 

Under the Privacy Act, any agency that intends to maintain and use any records containing personally identifiable information must publish a SORN in the Federal Register. The SORN provides details on how the records will be handled by the agency. Normally, the publication of a SORN starts a 40-day waiting period (a) during which it is to be reviewed by the OMB and Congress and (b) before the end of which the agency may not implement the system. 

But 40 days from November 19 would be (let’s see, 30 days hath November, add five, carry the seven . . .) December 29 – and that would be two weeks after the December 15 deadline toward which the Commission has been driving us all! Presumably recognizing that inconvenient fact – and still obsessively committed to the December 15 deadline – the FCC requested a waiver of the 40-day filing deadline. The basis for its waiver request? Well, the December 15 filing deadline is approaching so fast.  (Curiously, the Commission offered no explanation as to why it hadn’t bothered to publish the SORN more than 40 days before the filing deadline the Commission had chosen; it also failed to explain why the December 15 date is so overwhelmingly important that that date, rather than the SORN waiting period, cannot be changed.) 

At this point it’s unclear whether that waiver has been, or will be, granted.

But wait, there’s more.

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Interference From Lilliputian FMs Gets Senate Thumbs Up

Bill to remove third adjacent LPFM protection moves ahead

On November 19 the Senate Commerce Committee approved S. 592 (“the Local Community Radio Act of 2009”), a bill that would repeal the LPFM third adjacent channel protection requirement contained in Section 73.807 of the Commission’s rules.  The bill is now teed up for consideration by the full Senate. Meanwhile, over on the House side, a corresponding bill (H.R. 1147, going by the same catchy moniker) already made it out of Committee in mid-October. We wrote about both the House and the Senate bills when they first floated to the surface some months ago.  As a result of the Committees’ recent actions, Congressional approval of the proposed legislation is just a couple of votes from reality. And, with no sign of objection from the White House, the smart money figures that this will become the law of the land sooner rather than later.

While the bills (which are, with minor exceptions, identical) focus on the LPFM service, full-power FM stations should be sure to take a close look at the full impact of this likely-soon-to-be law. 

As we have reported previously, the Commission modified its rules in 2007 to relax considerably the extent to which LPFM stations have to protect second adjacent full service stations. That rule change was upheld in 2008 by the U.S. Court of Appeals for the D.C. Circuit. So second adjacent protection has already been seriously weakened. The Local Community Radio Act would toss third adjacent protection from LPFMs out the window – leaving full service stations fully guarded against only co- and first-adjacent LPFM interference, with only partial protection from second adjacent. (And it would not be too much of a stretch to imagine that, with Congressional elimination of third adjacent protection and the Court’s blessing of the reduction in second adjacent protection, the Commission might try to eliminate all protection from second adjacent LPFMs.)

While the Local Community Radio Act seems geared primarily toward the paring back of protection, it ironically would create a new species of protection which could give the Commission enforcement headaches galore. The Act mandates that third adjacent protection from LPFM interference is to be retained with respect to full-service noncommercial educational FM’s “that broadcast radio reading services via a subcarrier frequency”. That’s swell, except that SCA operation is largely unregulated and unmonitored by the Commission. In other words, the FCC currently has no way of knowing, from one day to the next, which stations happen to be using one or both SCAs for radio reading services. Since providing such a service will, under the new Act, afford a full service NCE station some greater measure of interference protection, it would not be surprising to see an upsurge in such services in the foreseeable future. It will be most interesting to see whether – and if so, how – the Commission will react to this particular piece of legislative handiwork.

The Local Community Radio Act promises to have continuing effect on the FM industry for some time to come. We will keep you updated on further developments as they arise.

MMTC To FCC: Rethink Form 323

Too much risk, no real benefit seen in required submission of social security numbers

The murky situation surrounding the FCC’s effort to deploy its revised Ownership Report (FCC Form 323) just got murkier with the filing of a letter from the Minority Media and Telecommunications Council (MMTC) on November 18. In its letter, MMTC lets the FCC know, in no uncertain terms, that the new form’s mandatory inclusion of individuals’ FRNs “would represent an unnecessary invasion of personal privacy.”

And that’s just in the first paragraph.

The MMTC letter is particularly significant because MMTC is seen by many as a – and, by some, the – preeminent representative of minority interests before the Commission. The new Form 323 is intended to provide the Commission with a clearer picture of minority and female ownership in the broadcast industry, presumably so that the Commission might be able to justify more aggressive “affirmative action” policies aimed at increasing minority/female ownership. But if even the MMTC believes the revised form goes Too Far in requiring private information, the Commission may be inclined to rethink its revised reporting approach.

MMTC’s letter includes some suggested alternatives which the Commission could, and probably should, explore. But with the December 15 reporting deadline looming less than four weeks away, it’s unclear how the Commission might do so . . . without, that is, abandoning that December 15 date. Of course, had the Commission announced its proposed revisions publicly last June and given us all an opportunity to comment on them (like the Commission is ordinarily expected to), this last-minute uncertainty could have been avoided.

Check back to www.commlawblog.com for updates on this evolving situation.

FHH To FCC: "Stay"

Fletcher Heald seeks stay of Form 323 filing deadline

Fletcher, Heald & Hildreth has filed a Motion for Stay with the Commission, asking it to hold off on the implementation of its new Ownership Report (FCC Form 323) for commercial broadcast stations.  You can read the FHH motion here.  As we have reported previously on our blog, the revised Form 323 is currently due to be filed by December 15, even though the Commission has still (at least as of the morning of November 17) not formally unveiled that form.  (Want a sneak peek? Here’s a link to the version of the form that was apparently approved by OMB. Whether the final version that the FCC plans to post on CDBS will differ from the version taken from the OMB site remains to be seen.)  

If the Commission stays on its current schedule, reporting licensees will have, at most, only four weeks (including the intervening Thanksgiving holiday) to access, complete and file the form. Since the universe of reporting licensees has been expanded considerably – to include, for the first time ever, LPTV and Class A TV stations – that’s a pretty tall order in any event.

But the primary problem with the new form is that it requires all individuals and entities with an “attributable” interest in the licensee to identify themselves with their own unique FCC Registration Numbers (FRNs).

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RMLC/ASCAP/BMI - Letters All Over The Place!

With existing royalty arrangement expiring at year’s end and negotiations for new deal underway, parties notify radio broadcasters of opportunities to participate

Some of you radio broadcasters out there might have received letters recently from one or more of the following:

The American Society of Composers, Authors, and Publishers (ASCAP)

Broadcast Music, Inc. (BMI)

The Radio Music License Committee (RMLC)

It’s our understanding that these letters are being sent to broadcasters who have not already authorized RMLC to negotiate licensing arrangements on their behalf with ASCAP and BMI. RMLC is already engaged in such negotiations for a lot of broadcasters, and when those negotiations are completed, the agreed-to arrangements will set the terms on which participating broadcasters will be able to transmit – over-the-air and by internet webcast – musical works owned by songwriters represented by ASCAP and BMI.  The letters which have been arriving recently provide to anybody who hasn’t signed up yet an opportunity to take advantage of those arrangements.

First, a little background.

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"That's Right, You're Not From Texas"

Unlicensed operator rejects FCC authority, FCC rejects unlicensed operator’s rejection

They think big in Texas, and they think independent in Texas, and so it should be no surprise that an FM radio operator was not impressed when the Feds arrived at his doorstep. Some FCC agents claimed that the operator – one Raymond Frank – was lacking some piece of paper or other from some agency Back East in Washington, but Mr. Frank knew better. No “pirate broadcaster” he – no, he was operating strictly within the boundaries of the Republic of Texas, and so was not subject to the laws of the Yoo-nited States or any little ol’ FCC. (Frank also argued that the FCC’s rules violate the First Amendment. But if Frank was not a U.S. Citizen – being as how he claimed Republic of Texas citizenship and all – that argument may have been a tad inconsistent, but we digress.)

Not surprisingly, the Dallas office of the FCC’s Enforcement Bureau didn’t see things that way, and whupped Mr. Frank but good with a $10,000 fine for unauthorized operation.

The most interesting aspect of the Bureau’s Forfeiture Order is the fact that the Bureau felt the need to respond, in detail, to Frank’s claim that the FCC lacks jurisdiction over radio operations in Texas. To quote the Bureau:

We also note that Texas is a “State” of the United States of America, and it and its residents are subject to the laws of the United States. According to the to the [sic] Texas Historical Commission, Texas was annexed to the United States as the 28th state on December 29, 1845; Texas seceded from the United States and joined the Confederate States of America on January 28, 1861; and Texas officially was readmitted to the Union on March 30, 1870, following the period of Reconstruction. See http://www.thc.state.tx.us/triviafun/trvgov.shtml. Because Texas is a State, Mr. Frank’s invocation of the Foreign Sovereign Immunities Act is misplaced.

Presumably the Bureau felt that, by relying for this historical review on the “Fun Facts” page of the Texas Historical Commission website, the Bureau could not be accused of any kind of Yankee Revisionism. Yee haw.

FCC Wants To Know What YOU Think Of Unprotected Six

The Commission has invited public comment on the NPR proposal to deep-six Section 73.525, the rule requiring that noncommercial FM stations provide special protection for Channel 6 TV stations. In a routine public notice issued just two weeks after the NPR petition for rulemaking was filed, the FCC opened a 30-day comment period. (We wrote about the NPR filing when it first surfaced.) You’ve got until December 2, 2009, to chip in your two cents’ worth.

This is a very preliminary step in the rulemaking process. The mere fact that the Commission has asked for comments does not necessarily mean that the NPR proposal will ever go anywhere. Even if the FCC is favorably disposed to NPR’s suggestion, there are a lot of time-consuming hurdles – e.g., issuance of a notice of proposed rulemaking, a comment/reply comment period usually lasting at least a month or two, lots of bureaucratic head-scratching, issuance of a Report and Order, reconsiderations, appeals, etc. – that would need to be jumped before we could bid farewell to Section 73.525.   In other words, there is probably no urgent need to sound off about the NPR proposal now, but if you feel like doing so, the door is open through December 2.

HD Radio and Multiple Ownership: The FCC Is Asked To Weigh In

Does simulcasting a commonly-owned, out-of-market signal on an HD stream violate the rules?  Mt. Wilson FM Broadcasters thinks so.

Digital (a/k/a “HD”) radio has yet to captivate the consuming public as much as its promoters might have hoped. Still, that technology has opened up some opportunities for creative broadcasters looking to achieve results that might not otherwise be achievable under existing FCC rules and policies. One example surfaced recently, brought to our attention (and the Commission’s) by an unhappy competitor.

It seems that Viacom, licensee of as many broadcast stations as any single licensee can own in the Los Angeles market , has been using one of the HD digital streams on its KTWV(FM) in that market to provide a country music format. No problem there, it would seem. But wait. The content for that country stream is apparently nothing more than a simulcast from a Viacom station in San Bernardino, a different market entirely. A country music competitor in LA – Mt. Wilson FM Broadcasters – sees a couple of problems with that, and has asked the Commission for a ruling declaring that Viacom’s arrangement violates both the FCC’s multiple ownership rules and its FM allocation scheme.

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Deadline For Filing New Form 323: December 15

It’s official. The Media Bureau has announced that the new biennial Ownership Report (FCC Form 323) is due to be filed by December 15, 2009. Information in that form must be current as of November 1.

We have been tracking the long-running saga of the revised Form 323 for months now. If you’re not already up to speed on it, check out our posts here, here, here and here for background history. Most recently, we reported that the Office of Management and Budget had approved the revised form, and that all that was left was an announcement from the Commission, telling us all when the first reports would be due. That’s the announcement that has just been released this afternoon.

Unfortunately, there are apparently still some loose ends dangling around the new form. According to today’s announcement, the revised form will not be up and available on CDBS until sometime “on or about November 16”. That’s not quite as definite as one might like, but at least the apparent target date of November 16, if met, would provide almost 30 days during which 323s could be uploaded. The problem, though, is that every licensee of every commercial AM, FM, TV, LPTV and Class A TV station will be having to file a new Form 323 by December 15. There are more than 15,000 stations in that universe. 

Plus, as we have reported, every person or entity with an attributable interest in each reporting licensee will have to have his/her/its own FCC Registration Number in order to properly complete Form 323. Our guess is that that means that a whole lot of folks will be having to sign up for new FRNs in the very near future.

Because of the very large number of forms that will all need to be completed, validated and submitted by December 15, the demands on CDBS’s resources are likely to be substantial (if not overwhelming). Obviously, the more available lead time, the better – which explains why even an anticipated 29-day opportunity strikes us as pretty close to the edge. But if 29 days is what we’re all getting, we’ll have to make the most of it.

Another loose end – In anticipation of the likelihood of a flood of questions flowing in once everybody gets a chance to start test-driving the new form (not to mention the “numerous inquiries” the Bureau has already received), the Bureau will be establishing a “website containing information regarding Form 323”. That website will include Frequently Asked Questions “with responses that will be updated continually throughout the biennial filing period”. 

Unfortunately, that website apparently hasn’t been set up yet (despite the fact that, as noted, the Bureau says it has already received “numerous inquiries”), and today’s public notice does not provide an anticipated kick-off date for the site. Nevertheless, if you have Form 323-related questions that you would like addressed on the to-be-unveiled-at-some-point website, the Bureau invites you to send them to Form323@fcc.gov.

We will continue to post updates as information becomes available.

Moment Method Modeling: Update V

Bureau issues FAQs for computer-modeled proofs

It may seem like forever ago, but it was in 2007 – less than three years ago – that the Commission, acting at the suggestion of an ad hoc “coalition” of broadcasters, consulting engineers and manufacturers, started to get serious about “moment method modeling”. In May of that year it invited comments on proposed rules that would permit use of computer modeling techniques to verify AM directional antenna performance. (The smart money says that such computer-assisted proofs are a huge time/effort/money saver for all concerned.)

The new rules were adopted 16 months later, but because of bureaucratic processes beyond the FCC’s control, the rules did not formally take effect until February, 2009. (As we reported here in November of last year, despite those bureaucratic roadblocks, the Media Bureau staff was very helpful effort in allowing the benefits of the new rules to be enjoyed as soon as possible. Props to them, again, for that.)

Now that everybody has had a reasonable amount of time to work with the new rules, the staff has issued a public notice clarifying a number of questions that have arisen about who gets to use the moment modeling method and under what circumstances. If you think that moment modeling is something that may be affecting you in the future, you should review the public notice carefully and confer with your consulting engineer to see how it may alter your plans (if at all). (We would ordinarily try to summarize some of the highlights of the notice, but this is Highly Technical Material that is probably best left to our friends on the other side of the legal/technical divide.)

Power To The Parents Redux

Trouble in River City?

If you’re looking for a good example of your tax dollars being spent – spent, yes, but not necessarily being put to work – you should check out the Notice of Inquiry (NOI) issued by the Commission on October 23. Entitled “Empowering Parents and Protecting Children in an Evolving Media Landscape”, it reads like a cross between an undergraduate course in child psychology and a weekend program on “modern parenting” that might be offered at the local community center. 

While no one can fault the Good Intentions presumably underlying the NOI – after all, Looking Out For The Kids ranks right up there with apple pie, the flag and motherhood in the pantheon of unassailable motivations – the NOI is grossly flawed in numerous ways. It lacks legislative authority, raises the specter of unconstitutionality, largely duplicates an inquiry just completed by the Commission, inserts the FCC into a regulatory area which other, presumably better suited, agencies are already working, and asks questions which are unanswerable.

If this is how the Genachowski Commission plans to deploy its resources, we’d all better fasten our seatbelts – it could be a bumpy night.

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Vacant NCE-FM Reserved Channel Window Postponed Two Months

Freeze on proposed changes to reference points of channels up for grabs REMAINS IN EFFECT; Freeze on ALL minor FM mods now set to commence at 11:59 p.m. on February 5, 2010

That was quick. The Commission has announced that it is postponing the upcoming opportunity to file for certain vacant NCE-reserved channels. Just a week after that opportunity was first announced (and reported here), the Commission has pushed back the dates by two months. According to a public notice released on October 23, the filing window will now open up on February 19, 2010, and shut down on February 26, 2010.

When the filing opportunity was first announced, the Commission also simultaneously imposed a freeze on any applications proposing to modify the reference coordinates of any of the 67 allotments available for filing during the upcoming window. That freeze, which started on October 16, is still in place notwithstanding the postponement, and will remain in place until the day after the close of the extended filing window. You can read more about that freeze here.

A separate freeze – on any commercial or noncommercial FM minor mod applications – was also originally announced to go into effect on November 25 and extend until the close of the window. That separate freeze has also been postponed: now that freeze on all minor mod FM applications will commence at 11:59 p.m. on February 5, 2010. It will continue in effect until the close of the window.

The postponement was sought by a number of NCE broadcast groups and their supporters, who argued that the two-month ramp-up time provided in the first place would be inadequate for many prospective NCE applicants. Reflecting what appears to be an acute sensitivity to such arguments (or, possibly to such supplicants), the Media Bureau granted their request less than 24 hours after that request had been submitted.

We can only hope that this establishes a “same day service” standard which will be available to one and all who seek accommodations from the Commission.

Unprotected Six?

NPR to FCC: Repeal Section 73.525

In a bold move guaranteed to generate heated debate, National Public Radio (NPR) has asked the Commission to dump the Channel 6 protection obligations (set out in Section 73.525) which have been imposed on noncommercial FM stations for the last quarter century. While the proposal no doubt appeals strongly to NPR’s NCE-FM constituency, the television side of the universe – and particularly current Channel 6 licensees and viewers – can’t be happy.

The protection requirements were imposed in the first place because the portion of the FM band reserved for NCE operations butts up against Channel 6, spectrum-wise. As a result, the potential for interference to Channel 6 operations from stations in the NCE-FM band was thought to be considerable, leading the Commission back in 1985 to impose extra hurdles in the path of new and improved NCE-FM service in order to shelter Channel 6. For all you spectrum historians, NPR’s petition for rulemaking provides interesting background about the development of the protection requirements. (Interesting factoid: the receivers used to determine the appropriate level of protection were all manufactured prior to 1979, meaning that the protection standards in place today are based on 30-year-old receiver technology – at best.)

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Revised 323 Approved By OMB

No immediate word on revised deadline for initial filing of new Ownership Report

Surprising many oddsmakers, the Office of Management and Budget has approved the FCC’s revised Ownership Report (FCC Form 323) for commercial broadcast licensees – but not before the Commission performed a last-minute two-step to clean up one loose end. The new form still isn’t ready for prime-time: the FCC first has to issue a public notice (a) announcing OMB’s approval and (b) cluing us in as to when we’ll all be due to file our next 323. The public notice could come any day now, but the deadline for filing will be at least 30 days after that notice. Still, if you’re a commercial AM, FM, TV, LPTV or Class A licensee, you might want to get ahead of the curve by taking a look at the form and penciling in your answers now. We expect that CDBS’s resources will be, um, strained as the deadline approaches, so early filers may avoid some headaches.

We have chronicled the FCC’s efforts to overhaul its ownership reporting process here, and here, and here . . . oh yeah, and here, too. Here's the abridged edition.

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Brrrrrrr - The Chill Is On

FCC announces immediate freeze on certain FM allotment proposals, eventual freeze on ALL FM applications in light of upcoming December filing window

With the announcement of an upcoming open window for certain FM allotments, the Commission has frozen, effective immediately (i.e., as of October 16, 2009), (a) applications proposing to modify the reference coordinates of any of the 67 allotments available for application in the upcoming window, or (b) petitions and counterproposals that propose a change in channel, class, community, or reference coordinates for any of those 67 allotments.  (Curious about precisely which allotments are in play here?  Click here for the list.) 

This freeze will remain in effect until the day after the close of the window. The window is currently set to close on December 18, which would mean that the freeze should be lifted on December 19, barring any unforeseen developments.

The Commission also froze the filing of any commercial or noncommercial minor mod applications after 11:59 p.m. on November 25, 2009 until the close of the window

These freezes are standard operating procedure when filing windows are about to be opened. The goal is to avoid the creation of any conflicts (unforeseeable or otherwise) that could muck up the filing process.

For more information on the upcoming window opportunity itself, see our relating post here, or the underlying FCC public notice here.

FCC Announces Window For Vacant NCE-Reserved Channels

Applications for NCE stations on 67 allotments in the commercial band can be filed between December 11-18

If you’re interested in filing for a new non-commercial FM construction permit specifying a channel that would otherwise be restricted for commercial use, here’s your chance. The Commission has announced that, between December 11-18, 2009, it will open a filing window opportunity for certain vacant FM allotments. The allotments being made available – 67 in all – are in the commercial band; however, at the request of some would-be applicants (who were able to satisfy relatively complex Commission policies governing such things), these channels were reserved for NCE use, so commercial applicants need not apply.

The FCC’s public notice provides general directions for those interested in applying. It solicitously cautions applicants about some of the vagaries and vexations of the CDBS filing system which must be used for the application process. (Sample advice: “[I]t is important that the applicant shares its CDBS account passwords with only those individuals who are authorized to view and/or modify proposals in progress.”) It warns that “redlight” considerations could prevent an applicant from getting in the door. It encourages all applicants to make sure that their applications really have been submitted (hint: CDBS provides a “confirmation” screen immediately after a successful submission.)  

The notice also anticipates that mutually exclusive applications will be filed. No big surprise there. It makes clear that, in the event that multiple applications are filed for a single channel, the standard NCE comparative analysis will be utilized.  (If you’re unfamiliar with that analysis, it’s set out in the FCC’s rules here.)

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It's ALIVE!!! Performance Rights Bill Approved By Senate Committee

But the odds are still against PRA enactment

The American public is seriously into zombies just now – how else to account for the fact that Zombieland took in some $25 million during its first weekend, and Pride and Prejudice and Zombies has spent considerable time on many best seller lists? So we should not be surprised that, on October 15, the Senate Judiciary Committee passed S.379, the Senate’s version of the Performance Rights Act (PRA), by a 21-9 vote. 

Yes, that means that S.379, like its House counterpart, H.R. 848, is still alive and kicking, in an undead sort of way. And either version could, theoretically, become law – if, that is, it survives a floor vote in its own chamber, gets approved by the other chamber, and is eventually signed by the President. Should all those stars happen to align, broadcasters would for the first time be required to pay copyright royalties for over-the-air performance of sound recordings.

No, we still don't know how either bill will actually survive. After all, 250 members of the House have co-sponsored the “Local Radio Freedom Act”, a nonbinding statement of opposition to the performance right embodied in H. R. 848 and S.379. Since 250 votes would constitute a majority of the House, the defeat of H. R. 848 in the House would still seem to be a mortal lock, thus pounding a stake through the PRA’s heart.  (For the record, we’re not surprised at all that S.379 passed the Senate Judiciary Committee, since that Committee’s Chairman, Patrick Leahy – like his House counterpart, John Conyers – is a supporter of the legislation, and that alone can be enough to get legislation through a committee.)

That’s all we feel the need to say on the matter right now.

Update III: AM On FM Translators - Revised Form 349 Now Available

On September 1, we reported that the FCC had, at long, long last, managed to get its order authorizing the rebroadcast of AM stations on FM translators published in the Federal Register, thus establishing an effective date for the new rule. But, as we also reported, there were still a couple of loose ends – a related rule (Section 74.1284) and several translator-related forms needed to be revised to conform to the new rules, and the revisions hadn’t yet been approved by the Office of Management and Budget. No problem – as we reported a week later, most of those loose ends got tied up pronto, allowing the new rules and revised Forms 303-S and 345 to take effect October 1.

But wait. Form 349 (for new and modified FM translator/booster CP’s) somehow got left behind, lost in OMB limbo. Not to worry, though. The Commission managed to hustle that last form over to OMB (on September 4), OMB gave it the thumbs up (on October 8), on October 16 public notice of OMB’s approval made it into the Federal Register and voilà! Revised Form 349 is now effective.

Broadcasters: Time To Come To Your Census!

The Census Bureau's public relations contractor is compiling a database of broadcast outlets to publicize the 2010 Census.  Broadcasters who would like to be included in that database should email Louise Harley, Program Analyst in the 2010 Census Publicity Office, with a brief description of their stations, including markets reached, station format, and listener demographics to facilitate media buys.  Ms. Harley's email address is Louise.M.Harley@census.gov.  Broadcasters' information must be submitted by October 15, 2009. Ms. Hartley will respond to each submission with additional instructions.

Biennial Ownership Report (Form 323) Deadline Extended

With no approved form yet available, Media Bureau puts off November 1 deadline

The Media Bureau has blinked. With the original due date – i.e., November 1, 2009 –  for the initial filing of all biennial Form 323s fast approaching, but without OMB approval of the new report forms themselves, the Bureau has announced, on its own motion, that it is extending the deadline for filing those reports. Instead, the Bureau will release a public notice at some future point, specifying a new filing deadline no less than 30 days after that public notice.

As we have previously reported (here and here), the Commission decided last Spring to revise Form 323 (the Ownership Report for commercial broadcast licensees). It also decided to abandon the longstanding practice of having stations file their respective biennial Form 323s on the anniversary date of the filing of their license renewal applications. Instead, the Commission said that all biennial Form 323s would henceforth be filed, biennially, on November 1 (with the reported information current as of the preceding October 1).

The problem that the Commission has since encountered is not surprising, in view of the fact that it set the new process in motion before it had come up with the revised form to be used.  Rather than have the revised form ready to roll last Spring, the Commission left it to the Media Bureau to concoct a new form, get it approved by OMB, and have it ready to roll by November 1. While the Bureau tried hard to get the job done, at least one aspect of the task – OMB approval – was out of the Bureau’s hands: the Bureau could prepare a revised form and ship it over to OMB, but the Bureau could not compel OMB to approve it quickly -- or at all, for that matter.

Not surprisingly, as of October 2 OMB had still not approved the revised Form 323. (Considerable objection has been raised against the revised form before OMB, presumably slowing OMB’s deliberative processes down some and possibly – or likely, depending on whom you talk to – justifying OMB rejection of the new form. Since OMB could theoretically hold off on its decision until mid-October, the Bureau recognized that the uncertainty of the situation warranted putting off the deadline. And that’s just what it did.

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FCC Opens Amendment Window for a Handful of NCE Applications . . . At Last

In a proceeding that has moved at glacial speed, even by FCC standards, the Commission has opened a window to allow noncommercial applicants that are mutually exclusive with certain commercial applicants for FM, FM translator, TV and AM stations, to amend their applications to specify commercial operations by October 30, 2009. Failure to amend by that date will result in the dismissal of the NCE applications. With two exceptions, relating to stations formerly licensed to Michael Rice, the applications subject to amendment all pre-date the Commission’s first broadcast auction in 1999 – the most recently filed of those applications date back to 1997 (you remember – that was the year the Spice Girls rocked us all with Wannabe). The Commission has thoughtfully provided lists of the MX groups – including 13 FM stations, three FM translators, one TV and two AM’s – here and here.

As some may recall, the difficulties that have kept these MX groups of applications pending so long arose when auctions were adopted as the method of picking a winner from among mutually exclusive applicants. The statute authorizing auctions provides that all authorizations for commercial broadcast stations must be auctioned but that noncommercial stations can’t be auctioned. When the auction rules were adopted, however, the Commission already had pending groups of MX applications that included both commercial and noncommercial applicants. What to do?

In 2003, the Commission decided that it would simply dismiss all of the noncommercial applicants that are MX with commercial applicants for the same channel. Then, in its Memorandum Opinion and Third Order on Reconsideration in December, 2008, the Commission decided that it would be too harsh to dismiss the noncommercial applications because of processing changes that had taken place after the applications were filed. Accordingly, the Commission gave noncommercial applicants in that peculiar situation one last chance to amend their applications to specify commercial operation, which would then clear the way for an auction. (Applicants which chose not to so amend were told that their applications would be dismissed.) The Commission directed the Media Bureau to open a window for such amendments. When we blogged about that direction, we indicated that we expected that the Bureau would be moving forward “in the near future” – how were we supposed to know it would take ten months?

In any event, the Bureau has now issued its call for amendments. The only applicants eligible to amend their applications are the noncommercial applicants listed in the 19 remaining MX groups, and the only amendments that will be accepted are those for the sole purpose of specifying commercial operation. No other portion of the application may be amended. Any NCE application that has not been amended by October 30 will be dismissed. After those dismissals, presumably the Commission will move forward with an auction among the surviving applicants. Of course, it remains to be seen how many applicants still care, or even remember that they have an application pending, some 12 to 15 years later.

FCC Invites Comments On MMTC Radio Rescue Petition

The FCC has formally invited comment on the 17-point “Radio Rescue Petition” filed by the Minority Media and Telecommunications Council (MMTC) last July. You can download a copy of the Petition from MMTC’s website here. Comments are due by October 23.

The Petition presents an extraordinarily wide range of suggested steps intended (a) to jump-start the flagging radio industry and, in so doing, (b) to promote increased participation by minorities and women in the industry as well. We described the Petition in considerable detail in Fletcher Heald’s Memorandum to Clients last month. Here are some of the Petition’s more prominent – and potentially controversial – features.

Re-purposing of TV Channels 5 and 6 for audio use– Picking up on proposals previously filed with the Commission (by, e.g., the “Broadcast Maximization Committee” in its comments in MB Docket 07-294), MMTC suggests that TV Channels 5 and 6 could be converted to audio use. That chunk of the spectrum, largely freed from television operation following the DTV transition, could serve as a new home for AM licensees interested in improving the quality of their service. Additionally, the Channel 5/6 spectrum could accommodate noncommercial FM and low-power FM stations, affording those services considerable space while, ideally, removing some interference-producing clutter from the existing FM band. MMTC proposes the establishment of a high-profile committee (patterned after the Advisory Committee on Advanced Television Services, the folks who ultimately brought us DTV) to work out the details of all this.

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Takin' Care of Bid-ness

FCC gavels Auction 79 to a close

After 50 rounds of bidding which spanned three weeks, Auction 79, featuring 122 FM construction permits, came to an end late on the afternoon of September 15. Unlike previous auctions which raked in tens of millions of dollars for the federal coffers – like the 2007 auction that brought in $21 million or the 2006 affair that fetched $54 million – Auction 79 barely brought in a paltry $5 million.

When the FCC announced that it was going to conduct an auction in the current economic climate, several industry participants complained. Those who predicted a lack of enthusiasm were proven correct. Out of 122 construction permits on th auction block, more than half attracted only the minimum bid or no bid at all. Thirty-seven permits will have to be trotted back out in a few years for re-auction because nobody showed any interest in them this year.

A few markets did spark some spirited bidding that nudged the final bids above the initial minimums. However, there were no seven-digit pay-outs this time around, unlike auctions past. The top three priced permits were in California and Florida with Murietta, CA, and Palm Coast FL, each commanding bids of around a half-million dollars. Detailed auction results may be found here.

Readers are reminded that the FCC's very strict anti-collusion rules remain in effect for several more weeks. Folks who submitted a Form 175 in this auction – even if they ended up not bidding at all –  should refrain from communicating with one another about the auction.

FCC Reminds Video Distributors of Emergency Broadcast Obligations

ALL emergency information must be accessible to ALL, regardless of disabilities

In the midst of wildfire season in California and hurricane season on the coasts, the Commission has issued a public notice reminding stations everywhere – not just in Cali or on the coasts – of their obligation to make emergency information accessible to those with either visual or hearing impairments. As stations in the danger zones have learned from past experience, there are no exceptions to this requirement, and no excuses will be accepted. The latest public notice makes clear that this policy applies in areas well away from the zones directly affected by the emergency conditions.

The obligations in question here arise from Section 79.2 of the rules, which requires that all video distributors make “emergency information” “accessible” to those with visual or hearing disabilities (the latter by closed captioning or other visual means). “Emergency information” is defined by the Commission to mean information “about a current emergency, that is intended to further the protection of life, health, safety, and property, i.e., critical details regarding the emergency and how to respond to the emergency”.

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FCC Invites Comments On "Ratchet Rule" Proposal

It seems like just last week – wait, it was just last week – that we reported on the Ron Rackley/Ben Dawson proposal to delete the “ratchet rule” from Section 73.182(q) – and already the FCC has given their magnum opus a rulemaking number (RM-11560) and asked for comments on the proposal. If you have any thoughts on Ron and Ben’s bright idea that you would care to share with the FCC, you have until October 9 to get them filed. While the public notice inviting comments may not look all that impressive, the fact that it was issued as quickly as it was could indicate that the Commission is prepared to give this proposal expedited consideration . . . or maybe not. We shall see.

Update II: AM on FM Translator Rules Still Effective On October 1

OMB approves Section 74.1284, Forms 303-S, 345; Form 349 still in limbo

On September 1 we reported that the rules permitting AM signals to be rebroadcast on FM translators will become effective on October 1 – all the rules, that is, except Section 74.1284, which supposedly still required OMB approval. (OMB approval had already been given, as it turns out and as we reported, but that word had apparently not reached the FCC by the time it made its initial announcement about the October 1 effective date.) As we predicted would happen, the Commission has now issued a follow-up notice alerting the public to the OMB approval and consequent effectiveness of Section 74.1284 as of October 1.

The lack of effectiveness of Section 74.1284 had also meant that revised Forms 303-S (for license renewal) and 345 (for assignments or transfers of control of translators) were themselves technically not effective, either. But now that OMB is on board with the 74.1284 changes, it has also signed off on the revised 303-S and 345. Those, too, are good to go as of October 1.

But there’s one remaining loose end: Form 349 (for new and modified FM translator/booster CP’s) is still lost in OMB limbo. (It looks like the FCC didn’t get around to asking for OMB approval of that revised form until September 4.) Keep your eyes out for a further notice advising of the effectiveness of revised Form 349.

Rackley/Dawson Propose Deep-Sixing The "Ratchet Rule"

AM improvement rule from 1991 is counterproductive, engineers say

Our friends Ron Rackley and Ben Dawson – high magnitude stars in the constellation of consulting engineers – have filed a petition for rule making on behalf of their firms (du Treil, Lundin & Rackley, Inc., and Hatfield & Dawson, respectively) proposing a significant change in the AM allotment rules (specifically, Footnote 1 of Section 73.182(q)). While the Commission has not yet even assigned this an RM- number or sought comment on it, anyone interested in AM matters should take a look at it and be prepared to throw in his/her two cents’ worth at the Commission when the time comes.

The petition is not for the AM neophyte. Here’s a quick test designed to help you figure out whether you need to read on. Hit the “continue reading” link below only if you (a) have read the following “simple example” – seriously, they say that this is a “simple example” – taken verbatim from the petition, and (b) can answer the question we pose below:

Station A [i]s a 5.0 kilowatt station on 1000 kilohertz with a quarterwave nondirectional antenna and a nighttime interference free level of 3.0 mV/M and Station B [i]s a 5.0 kilowatt co-channel station located some distance away that has a nighttime interference-free RSS of 13.0 mV/m including a single limit from Station A of 8.3 mV/m. The Station B antenna was designed to have a null in its vertical radiation pattern protecting Station A, but Station A was there first and does not protect Station B. Both stations have 5 mS/m ground conductivity within their coverage area. If Station A makes a transmitter site change subject to the “ratchet clause” [i.e., Section 73.182(q), Footnote 1] and is required to reduce its interference contribution by 10%, the single limit from station A will decrease from 8.3 mV/m to 7.5 mV/m and the nighttime interference-free RSS at Station B will decrease from 13.0 mV/m to 12.5 mV/m.

Our question: Say what now?

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Update: AM on FM Translator Rules Become Effective October 1, 2009

At long last, the Commission’s Report and Order amending its FM translator rules to permit carriage of AM stations has been published in the Federal Register. That means that those rules now have an effective date, and that effective date is (the envelope, please – drum roll – hushed silence) – October 1, 2009. As we reported last June (when the R&O was initially released), as of that effective date all outstanding special temporary authorizations (STAs) permitting AM-on-FM-translator operation will be automatically cancelled (and any still-pending requests for such STAs will be dismissed). 

Anyone who is currently engaged in cross-service translator operations will have to file a notification, pursuant to Section 74.1251(c) of the Commission’s rules, formally specifying their AM primary stations. (Yes, we know that Section 74.1251(c) technically refers to changes in the “primary FM station being retransmitted” and makes no reference to any primary AM station. But the R&O specifically referenced Section 74.1251(c) when it specifically – that would be in Paragraph 19 – instructed folks to file notifications about their “AM primary stations, so the fact that 74.1251 doesn’t mention AM’s is probably not a matter of consequence.) While the R&O does not specify a deadline for those notifications, logically they would appear to be due no later than the new effective date, i.e., October 1.

If you read the fine print of the Federal Register item, you will note that the October 1 effective date technically does not apply to one of the rule changes (relating to Section 74.1284) effected by the R&O. That’s because that particular section involves an “information collection” requirement that must first be approved by OMB pursuant to our old friend, the Paperwork Reduction Act. No problem – OMB concluded its review on August 31, an OMB control number has been assigned to the FCC’s information collection requirement, and any potential snag has thus been avoided. (Presumably the FCC was not aware of OMB’s action when the FCC sent the item over to be published in the Federal Register several days ago.  Look for a follow-up notice to be issued shortly to clear up any possible confusion on this front.)

2009 Reg Fees: Filing Deadline Set At September 22, 2009

It’s official! The FCC has formally announced that the deadline for reg fees this year will be 11:59 p.m. (ET) on (drum roll . . . fanfare) September 22, 2009. But why wait until then? The teller windows are now open at Fee Filer, so why not avoid the late September rush and check this chore off your to-do list right now.

The newly-officialized deadline is indeed the same as was reflected in the reminder letters received by many a week or two ago. While we had informally heard from a Commission staffer that that date might get moved a tad, that plan apparently got nixed – possibly because of the potential for confusion that it reeked of.

When you do pay your reg fees – and, given the penalities for non-payment, there really is no option here – don’t forget to include payments for all your auxiliary licenses. The reminder letter sent out by the Commission lists only your main channel(s), and leaves it to you to track down those pesky auxiliaries (the fee for which is $10 each). While the 25% late charge on a $10 fee may not look bad, the other, non-cash, penalities – including possible red-lighting – should be scary enough to get you into ULS tout de suite to doublecheck your list of auxiliaries against what the FCC thinks you have.

We here at Fletcher Heald will be happy to assist in getting reg fees paid. Let us know if we can help.

Auction 79 Update

With 13-days-to-go-and-counting, Auction 79 is looming large. The Commission has issued a notice: (a) reminding everybody about deadlines and procedures; and (b) identifying the 77 bidders who have made it through to the preliminary maze and are now qualified to participate in the auction, as well as the 44 applicants who failed to make the cut for one reason or another.

Registration materials are being sent to the 77 qualified bidders. If you are in that group and have not received those materials by 12 noon (ET) on Wednesday, August 26, then you’d better get on the horn to the FCC’s Auctions Hotline directly at (717) 338-2868 pronto. You can’t bid unless you have those materials in hand, and the Commission has made it clear that it’s the bidder’s responsibility to be sure that those materials arrive.

The Commission will conduct a mock auction starting on August 28 at 10:00 a.m. (ET). It’s open to all qualified bidders. If you’re a neophyte or tyro at this whole broadcast auction process, the Commission recommends that you take a whirl at the mock auction. The mock auction will be conducted just like a real auction, except it will involve only 20 of the available 120 CP’s, and each bidder will be assumed to have applied for (and to have thrown in up-front payments sufficient to cover) all 20 CPs.

The Real Deal Auction itself is still set to kick off at 10:00 a.m. (ET) on Tuesday, September 1. Each of the first four rounds will last an hour, and there will be a one-hour break between each. (In other words, Round 1 runs from 10:00-11:00 a.m.; Round 2 goes from 12 Noon-1:00 p.m.; Round 3 goes from 2:00-3:00 p.m.; and Round 4 goes from 4:00-5:00 p.m.) The timing of later rounds will be determined by the Commission based on the progress of the auction. Changes in scheduling will be announced through the FCC Auction System.

Caution: As we have reminded Auction 79 participants before, the anti-collusion rules are in effect, and will continue to be in effect until further explicit notice from the Commission.

Revised Form 323 Revealed

Ownership reports would require ALL attributable interest-holders to have (and report) their own FRNs; OMB comment period closes September 10

Remember last May, when the Commission issued its Report and Order about biennial Ownership Reports? Sure you do. Do you remember when it dumped onto the Media Bureau the chore of designing a new Ownership Report form (FCC Form 323)? Of course.

And do you remember how that new form would require anyone and everyone with any attributable interest in a broadcast licensee to be identified by his/her/its own separate and distinct FCC Registration Number? 

Ummm, neither do we – because the Report and Order didn’t say anything about that.

But the Media Bureau’s draft form – new, improved, hot-off-the-presses and just shipped over to OMB for approval – would impose just such a requirement.

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Meanwhile, Back At The Second Circuit . . .

Briefing schedules set for indecency remands

As we all know, last April the Supreme Court affirmed the FCC’s re-cast indecency policy on APA grounds, and sent the matter back down to the Second Circuit for further consideration. For those of you who have lost track of the case amid various summer distractions, here’s a heads up: the Second Circuit has established a briefing schedule for the remand phase. 

Fox’s brief is due September 16, along with any amici briefs supporting Fox’s position. The FCC and its friends are set to file their responsive briefs on October 28, and Fox et al. will have until November 12 to file their replies. The Court has apparently decided to hold additional oral arguments at some point after it has had a chance to review the briefs, but it won’t be announcing a schedule for the arguments until after all the paperwork has been filed. Even if the current briefing schedule doesn’t get extended for any reason (and there are never any guarantees), it’s clear that the Court won’t likely be issuing any new opinions in the case until mid-2010, at the earliest – if you figure that arguments won’t likely happen until the middle of the first quarter of 2010 (again, at the earliest) and then the Circuit takes a few months to crank out its decision.

With that schedule, the parties would not likely be asking the Supremes to take another look at it until the latter part of 2010, which in turn means that we’re not likely to see a second Supreme Court take on the matter until 2011 or later.

Meanwhile, in Philadelphia, the Third Circuit folks got a slight jump on their Second Circuit colleagues by calling for briefs in the CBS case (involving L’Affaire Janet Jackson) starting earlier this month, with the last round of reply briefs currently due toward the end of September. No word yet about plans for oral argument. While the Third Circuit’s six-week head start over the Second may result in the CBS case getting to the Supremes’ door step before the Fox case does, we’re still probably looking at 2011 as the earliest before we’ll be seeing another Supreme Court decision on the merits of the FCC’s indecency policy.

Impaired Transparency?

Where’s the FCC’s copy of the MusicFIRST Request been hiding?

As we reported recently, the FCC has invited comment on the Request for Declaratory Ruling filed by the MusicFIRST Coalition. For the convenience of our readers, we provided a link to a copy of the Request. Good thing that we did. Apparently the FCC has been having quite a time trying to track down any copy in its files reflecting a “received” stamp from the Secretary’s office. 

As an apparent result, as of 5:00 p.m. today (August 12, 2009) no copy at all of the Request had been posted in Docket No. 09-143 on ECFS, even though the public notice inviting comments was supposedly released five days ago – so anybody who (a) might have wanted to read the Request between then and now and (b) hasn’t thought to look for it on CommLawBlog.com would have had a bear of a time finding it. 

We’ve heard from one source who suggested that it’s not clear that the Request ever made it to the Secretary’s office. To be sure, the copy of the Request that we have in hand (no thanks to the FCC) includes a certificate of service indicating that it was being filed at the appropriate FCC filing address – but ordinarily, when things are filed at that address, stamped copies are made and retained by the Commission for future reference. So if it did pass through the Secretary’s office, it’s unclear why it didn’t get stamped in . . . and if it did get stamped in, it’s unclear why it’s taking so long to get a stamped copy posted for public review.

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2009 Reg Fees: Deadline Unsure Despite Letter

You may be getting a letter from the FCC in the next couple of days (if you haven’t already) alerting you to the deadline for this year’s regulatory fees.  That letter – which will not bear any signature of any FCC official or identify any originating office within the FCC – will probably say that the deadline is September 22. 

Don’t necessarily believe it.

 We have been informally advised by the Commission’s staff that the letters were prepared and shipped out by an outside company to which the FCC had given the September 22 date some time ago.  But in the meantime, the Commission’s staff has apparently determined that either September 23 or 24 might be a better date.  We are told that an official notification – including a banner to be prominently displayed on the FCC’s website – is in the works.  Of course, the final date may turn out to be September 22 after all, just like the letter says.  Sometimes you never know about these things.

Needless to say, whatever the final deadline might be, you are not required to wait until the very last minute to file your fees.  Au contraire.  You should feel free to file your fees at your earliest convenience.  As far as we can tell, the fees specified in the letter notifications that got sent out may be correct (although, as we have previously warned everyone, those notifications do not include fees for any auxiliary stations).  In other words, with the letter in hand you should be able to figure out what you owe.  So you might even be in a position to file your fees today.

Not

Unfortunately, as it turns out, the Commission’s Fee Filer system has not yet been set up to accept this year’s reg fees.  And, as we have previously reported, all reg fee filers this year must start the payment process through Fee Filer.

When will you be able to file your fees?  When will you have to file your fees?  At this point nobody seems to know for sure.  We expect all of these questions to be cleared up reasonably quickly.  Check back here to CommLawBlog for updates on getting your reg fees filed.

The Fourth Webcasting Settlement: SoundExchange/CPB Deal Is Extended

The mystery of the fourth SoundExchange settlement agreement has been solved.

As we reported last week, SoundExchange announced that it had entered into four agreements establishing webcasting royalty rates. The terms of three of those agreements were described in our blog last week, but SoundExchange withheld details about the fourth . . . until now. As it turns out, the fourth agreement is with the Corporation for Public Broadcasting (CPB), and it extends through 2015 (with some tweaks) the terms of the SoundExchange/CPB agreement reached months ago.

Under the original deal, which covered the years 2006-2010, the nearly 500 eligible stations make their royalty payments to NPR Interactive, which then makes a $1.85 million lump sum payment to SoundExchange on behalf of the participating stations. To be eligible, a station must:

  • Be licensed by the FCC;
  • Originate programming (that is, it can’t be solely a repeater station);
  • Be either (a) a member or affiliate of NPR, American Public Media, Public Radio International, Public Radio Exchange, the National Federation of Community Broadcasters or (b) a public radio station that is qualified to receive funding from CPB;
  • Qualify as a “noncommercial broadcaster” under the statutory licensing rules; and
  • Webcast as part of the mission that entitles the owner to be exempt from taxation under Section 501 of the Internal Revenue Code, or, if it is owned by a government entity, operate for a public purpose.

The new deal extends the original deal an extra five years – through 2015 – which provides certainty about future royalty rates for participating stations. (Adopting an end-date of 2015 also brings the CPB deal into conformity with other SoundExchange royalty agreements.) In 2011 there will be another lump sum payment – this time to the tune of $2.4 million (although that may increase based on increased listenership at the covered stations). Most stations will continue to enjoy the more relaxed requirement pertaining to the reporting of information about songs played (two seven-day periods per quarter), although more music-oriented stations will get stuck with census reporting.  

Again, CPB is providing the lump sum payment, so eligible stations need to keep an eye out for more information from CPB or NPR which should be arriving in the near future.

Responding To A False Alarm?

FCC invites comments on alleged improprieties in Performance Rights Act debate

A new front has been opened in the on-going struggle over the Performance Rights Act (PRA). The new battleground is the FCC, which has invited comment on a “Request for Declaratory Ruling” filed by MusicFIRST Coalition back in June.

As we have previously reported (here and here, for example), the PRA would require radio stations to pay for the on-air performance of copyrighted sound recordings. That would be over and above the royalties broadcasters already pay to the composers of the underlying works (through ASCAP, BMI and SESAC). Historically, of course, radio has provided on-air exposure to recording artists for free, just as the artists have made their recordings available to broadcasters for free. That quid pro quo arrangement has served everybody – artists, broadcasters and the listening public – well for decades. The artists – well, at least some of the artists, and certainly the record companies for which they work – now want to change the deal.

Whether the proposed change makes much sense is a matter of considerable (to put it mildly) debate. (See our colleague Peter Tannenwald’s post here for an interesting take on the situation.) But thus far, the debate has been thrashed out in Congress, in connection with various bills which would either impose a new performance rights royalty obligation or not. (While no final votes have been taken, some observers – including our colleague Kevin Goldberg – have concluded that the PRA is doomed to failure in this Congress.)

Perhaps sensing a need to expand the battlefield, MusicFIRST – a “partnership of artists and organizations in the music community who support compensating performers for their work when it's played over the air” – has tried to lure the FCC into the fray. 

And the FCC has taken the bait.

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2009 Reg Fees: A Break For Some DTV Stations

DTV-only as of October 1, 2008? This is your lucky fiscal year!

While pre-October 1, 2008, termination of analog operation was clearly the exception rather than the rule, it appears that stations which did shut down their analogs before October 1 are getting a free reg fee ride this year. In looking through the Commission’s recent reg fee order, we noted the following statement relative to DTV operation: “[S]tations that were broadcasting in digital only on October 1, 2008 would not be assessed regulatory fees for their digital license for FY 2009.”  (Stations that were broadcasting in both analog and digital modes as of October 1, 2008, however, will be required to pay regulatory fees, but those fees relate only to the analog operation.)

This exemption is limited: it does not get eligible stations off the hook for other regulatory fees that may be due, such as those for studio-transmitter links, remote pick-ups, satellite earth stations, and the like. Rather, the exemption relates only to the reg fee for the main broadcast license. (Of course, the payment for that license normally represents the lion’s share of the amount due.)

The FCC’s largesse is consistent with its treatment of DTV for the past several years.

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2009 Reg Fees Set

Filing deadline still unannounced

The Commission has adopted its final schedule of Regulatory Fees for 2009. You can find the new fees listed in Appendix C of this Report and Order. (Since the R&O – including its nine appendices – runs to 68 pages, it may be helpful to point out that Appendix C appears at pages 21-23 in the PDF version you will find when you click on the link.)

The new fees are, with one exception, the same as the Commission proposed last May. We described those proposed fees here. The sole exception is the fee associated with AM CPs. Here’s a surprise: the final fee ($400) turns out to be $80 less than the FCC had originally proposed!

The only real change this year is that electronic payment of all reg fees must be started through the FCC’s Fee Filer system as of this year. The Commission recognizes that some folks may not be able actually to pay through the Fee Filer system. (For example, the fees for some licensees may exceed $100,000, and credit card payments in such amounts may not be a happening thing.) But at a minimum, everybody is supposed to start at Fee Filer because that will enable them to generate a voucher Form 159-E which, the Commission assures us, “will have important electronic attributes associated with this regulatory fee payment.” With very limited exceptions, anyone not paying their fees through Fee Filer will need a voucher Form 159-E to accompany their payments.

Accessing the Fee Filer system requires you to have a current FCC Registration Number (FRN) and associated password. If you don’t have an FRN, we would be happy to help you work through the CORES system to get one.

As it has done for the past five years, the Commission will again send out “assessment notifications” to all broadcast licensees, advising them of the reg fees associated with their primary licenses. But, also as in past years, those notifications will NOT include any necessary fees for auxiliary licenses. This is important to remember, because even though auxiliary fees don’t show up on the FCC’s notifications, such fees are still required to be filed – and a failure to file even the weeny little $10 fee for, say, a remote pickup unit can result in “red light status” affecting all your licenses.

We expect the deadline for reg fees to be announced shortly.  Check back here to CommLawBlog.com for updates.

Locked Out of CDBS? Here's a Possible Work-Around!

The key is in the call sign.

Responding to our post about the apparent glitch in CDBS which is complicating the preparation of Form 314 assignment applications for new audio (and possibly TV) construction permits, our colleague Peter Tannenwald has provided a possible work-around. According to Peter, CDBS will let you open up a new 314 for a CP sale IF the CP has a call sign. That is, the glitch appears only to occur when all you have to identify the CP is a file number and a Facility ID number.

So PT suggests that, rather than bother Konrad Herling, you can just sign up for a regular old call sign, and once that has made it through the FCC's call sign assignment system, bingo, you should be able to open up a new 314 without a problem. Is this a great country or what!  The folks who are buying the CP can then change the call sign to one of their own choosing once the transaction has been completed, if they're so inclined.

Locked Out of CDBS?

Manual “unlocking” of CDBS necessary to access Form 314 for some CP sales

So you’ve got this AM or FM construction permit, and you really don’t need it and you’ve found a willing buyer and you’ve cut your deal and now all you need to do is get the FCC to bless it. So what do you do? Head to CDBS, access your account, and fire up the old Form 314, right? Up comes the 314 pre-form asking for the file number of the authorization you’re trying to peddle. You type that in and suddenly (cue ominous music) – aughhhh! – an error message from CDBS Hell:

Invalid combination of Call Sign (NEW) and Facility Identifier (0)

Here’s the bad news: because of a glitch which we don’t fully comprehend, Form 314 is “locked” – and therefore inaccessible through the normal CDBS interface – when it comes to proposed assignments of AM or FM CP’s.  (It’s not clear whether the same is true of TV CP’s – if you have any information on that, let us know.)

But there’s good news.

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Auction 79 - Up-Front Payments Due July 31

If you’re one of the applicants (and there are fewer than 100 of you out there, so you know who you are) who have signed up to participate in Auction 79 in September, it’s crunch time. Or more accurately, ka-ching time. The FCC has released its latest public notice, welcoming into the auction parlor the applicants whose applications were complete, and warning others about the steps they must take, pronto, if they want to get in the game. Most importantly, though, the latest public notice reminds one and all that the deadline for up-front payments is Friday, July 31 at 6:00 p.m. (EDT) – remember, the money has got to be in the FCC’s bureaucratic hands by that time.

As we have previously reported, the Commission is putting 122 FM channels on the block. It appears that about half the folks who filed are going after one channel and one channel only. About a dozen have specified two channels, and others have specified various numbers of channels, including one applicant who has targeted 120 channels and eight who have listed all 122.

The Commission identified 26 applications as “incomplete”, but all is not lost for them, as they all may be able to get back in the game. The FCC will be sending each of them its own billet doux, by overnight delivery, cluing them into why their apps were deemed “incomplete”. They will then have until 6:00 p.m. (EDT) on July 31 to (a) resubmit their applications with all the deficiencies corrected, and (b) make the necessary up-front payment. (The window for filing corrected applications opened with the release of the public notice, so if you’re in this category, you can get cracking now.)

Another six applications were rejected because the applicants were disqualified, mainly because they checked “yes” to the noncommercial election question on Form 175. (NCE applicants are not permitted to compete against mutually exclusive applicants in auctions for commercial channels.)

The public notice provides useful guidance on the payment requirements, the process for resubmitting incomplete applications, and the need to keep information in previously-filed applications updated.  Perhaps most importantly, it includes a detailed reminder about the anti-collusion rules. The Commission takes those rules VERY seriously, and it expects – nay, compels – all applicants to do the same. If you are not yet familiar with them but have filed applications in this auction, you should drop everything and bone up on the anti-collusion rules immediamente.  (If you don’t believe us, check out the materials at the FCC’s anti-collusion link.) For Auction 79, the anti-collusion rules became effective as of June 25 at 6:00 p.m. (EDT), and will stay effective until the Commission gives the all-clear signal in a public notice to be issued after the bidding closes.

Now's the Time to Reason with Hurricane Season

An FCC reminder about important emergency contact information

With the Fourth of July fading into the past and Labor Day looming ominously just beyond the horizon, hurricane season is upon us. Lisa Fowlkes, Deputy Chief of the Commission’s Public Safety & Homeland Security Bureau, has asked us to pass along to our clients and readers some important FCC contact information in case Mother Nature turns nasty in the coming weeks and months.

The link to the FCC's emergency contacts page, including its 24/7 Operations Center, is http://www.fcc.gov/pshs/about-us/contacts.html.

Also, the Bureau continues to encourage communications service providers – particularly broadcasters – to register with the Commission’s Disaster Information Reporting System (DIRS) and to participate in DIRS if the system is activated.  The link to the DIRS login page is https://www.fcc.gov/nors/disaster/Login.cfm.  FEMA and FCC emergency response personnel (ESF-2) use DIRS reports to coordinate needed assistance (e.g., fuel, generators, etc) in the aftermath of natural disasters. (“ESF-2” is FEMA-speak for “Emergency Support Function #2” – the governmental system that, among other chores, supports the restoration of the communications infrastructure and coordinates Federal communications support to response efforts during incidents requiring a coordinated Federal response.)

Thanks for the reminder, Lisa. We all hope that none of us will need to call on the guv’mint to “restore communications infrastructure”, a notion which conjures up images of worst case scenarios.   But the unfortunate truth of the matter is that Big Storms are beyond our control. This is one of those cases where a timely ounce of prevention is clearly worth a pound of cure.

Adventures in EEO-Land

Media Bureau hands out fines for re-hires, over-reliance on Internet recruitment

Following up on audits of the EEO performance of a number of broadcast licensees, the Media Bureau has dished out fines ranging from $3,000 to $12,000 to three licensees for various shortcomings. In addition to the fines, each of the three is also saddled with reporting requirements for the next three-four years – and if any of the stations happen to be sold in the meantime, the buyer will get stuck with the reporting chores. (Good luck explaining to the buyer exactly why he or she should bear that particular cross.) You can read the decisions here, here and here.      

As has been invariably the case for years, the “EEO” miscues at issue did not involve any actual, or even alleged, illegal discrimination. Rather, in each case the licensee failed to jump through various procedural hoops in just the right way. For example, one licensee failed to send out notices of vacancies to two organizations which had asked to be on its mailing list. It also neglected to “retain fully detailed documentation to support the data reported” in its annual EEO report in its public file. That’ll be $3,000, please – be sure to make the check payable to the FCC.

There’s more.

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

It’s that time of year again! Claims for cable retransmission copyright royalties and/or satellite copyright royalties earned during 2008 must be submitted to the Copyright Royalty Board of the Library of Congress by Friday, July 31, 2009

Eligibility for royalties is based on carriage of your station's programming outside of your local service area.  As a general matter, a station is eligible to receive royalties if its programs were retransmitted on "distant" cable systems and/or carried on satellites to subscribers outside the station's Designated Market Area (DMA).   A cable system is “distant" vis-à-vis a staion if the cable system is:  (1) outside the station's DMA; AND (2) at least 35 miles from the  station's community of license; AND (3) outside the station's predicted Grade B contour.

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

FCC Opening Door for New LPTV and TV Translator Applications

First-come, first-served filing opportunity for rural facilities begins August 25; Nationwide opportunity slated to start January 25, 2010

Ever want to own your own television station? Your chance is just around the corner, as long as you’re willing to start small with a Low Power Television or TV translator station. The FCC has announced that the welcome mat for applications for new LPTV/translator stations (and major changes to existing stations) will be out as of August 25, if you want a rural station; if you’re looking for Bright Lights/Big City action, though, you’ll have to wait until next January.

In a Public Notice released June 29, the FCC announced a two-phase plan for the filing of applications for new digital-only LPTV and TV translator stations (we'll call them LPTVs collectively) and for major changes of existing LPTVs.  Also, any analog LPTVs that didn't pick up a digital companion channel in the last go-round back in 2006 will now get another chance.

Phase 1 begins August 25, 2009, when the FCC will begin accepting, on a first-come, first-served basis, applications for new digital-only LPTV stations, major changes in existing LPTVs and digital companion channels in rural areas only.

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Supreme Court Says A Lot by Saying Little

The United States Supreme Court engaged in a flurry of activity as it brought to the 2008-2009 term to a close this week.  However, for those interested in communications matters, the biggest effect will likely be from cases in which the Court did not issue an opinion.  In two terse-to-the-point-of-cryptic orders – one setting one case for a second set of oral arguments, the other a standard denial of certiorari – the Court sent important signals about both (a) the future of election laws as they pertain to advertising and (b) the application of copyright law to new technologies.

BCRA on the ropes?

Broadcasters, First Amendment advocates and others eagerly awaited the Court's opinion in Citizens United v. Federal Election Commission (No. 08-205), a case we summarized when the Court granted certiorari and initially set the case for oral argument.  Now, instead of issuing an opinion, the Court has set the case for re-hearing on September 9, setting off rampant speculation that a Supreme Court may be gearing up to declare the Bipartisan Campaign Reform Act of 2002 (a/k/a BCRA, a/k/a McCain-Feingold) facially invalid. 

Rather than simply deciding whether a full-length documentary movie about Hillary Clinton constituted the type of electioneering prohibited by BCRA, the Court instead directed the parties to answer the following question:

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FCC OK's AM on FM Translators

In an effort to provide a lifeline to an AM radio industry in continued, and dramatic, competitive decline, the Commission has changed its rules to permit AM stations to rebroadcast their signals on FM translators under certain conditions. The long-awaited Report and Order – whose release was anticipated last Fall – opens the door for considerable, but not universal, “cross-service translation”.

Under the new rules, AM stations may rebroadcast on “currently authorized” translators in the non-reserved (i.e., commercial) portion of the FM band, provided that no portion of the 60 dBu contour of the translator extends beyond the smaller of either (a) the AM’s 2 mV/m daytime contour or (b) a 25-mile radius from the AM’s transmitter site. To be a “currently authorized” translator for these purposes, a translator must have been licensed or authorized in a construction permit in effect as of May 1, 2009. (In other words, translators whose initial permits are granted after May 1, 2009, will not be eligible; nor will any translators whose authorizations, even if granted on or before that date, have since expired.)

And for all you Class D AM stations, a special break: you will be allowed to originate programming on the translator during time periods when your AM station is not operating. While that does some violence to the technical concept of “translator” service (since origination, after all, does not involve “translation” in any sense), the Commission viewed it as in keeping with the agency’s desire to bolster the competitive position of AM licensees.

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FCC to NCE's: Ixnay on the "Cold Refreshing Beer"

The Commission has added to the lexicon of things you can’t say on the radio, if you’re a noncommercial broadcaster and you’re referring to people or companies who have provided you with underwriting support. We last alerted our readers to the issue of prohibited “advertisements” in a blog posted in March. Readers may recall that one of the terms declared verboten by the Commission then was “world famous pepperoni rolls”. This time around, the target is nothing less than (cue ominous music) . . . “cold refreshing beer”.

In a decision directed against a community college station in Auburn, New York, the Enforcement Bureau has declared that the following announcements were Too Promotional:

  • A cable company blurb which referred to “targeted advertising through specialized channels such as ESPN”
  • An announcement for a local bank which stated: “Meets all your banking needs. Visit one of our four branches in the Finger Lakes. Banking the old fashioned way.”
  • Reference to the Bank of America, which was said to “[p]rovide[ ] flexible financing for policemen, firemen, nurses, and others in the community that serve it so well."
  • And last but not least, an announcement which described Miller Beer as “cold refreshing beer”.
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Horseshoes and Hand Grenades - Yes! Broadcast Construction - No!

Audio Division deletes nine stations for failure to construct with authorized facilities

A scathing 23-page Memorandum Opinion and Order emphatically demonstrates that the FCC takes very seriously certifications included in applications. If we needed a reminder, the decision proves again that lying in any application can result in the loss of the station authorization in question and a referral of the matter to a U.S. attorney for potential prosecution and a separate FCC hearing to determine whether you’re basically qualified to be a licensee of any station.  Strong medicine indeed.

But most importantly, the decision conclusively establishes that, if you don’t build the facilities specified in the CP the FCC gives you, you risk losing whatever facilities you did build, along with the underlying CP.

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Caution, E-Filers: The FCC Knows Who You Are!

Audio Division provides a peek into the back-end of CDBS

Before you even think about trying to pull the wool over the Commission’s eyes by hiding behind the anonymity that CDBS’s electronic filing system might seem to provide, think again. The Commission knows all and sees all – well, it certainly can find out a lot, if not all – and any thought of Internet anonymity is largely illusory. Some folks in Michigan recently found that out the hard way.

CDBS, of course, has dramatically changed the dynamic of routine filing with the Commission. Back in the day, when paper ruled, each application (or routine regulatory report, like an Ownership Report) had to bear an original signature. That provided some assurance that the filing had actually been reviewed and approved by the signatory. But with CDBS, the notion of presenting actual signatures to the Commission went out the window. And that, in turn, gave rise to the possibility of less than honest manipulation of the system. After all, if you are able to access CDBS (which merely requires knowing the relevant CDBS account number and FCC Registration Number (FRN) and the passwords associated with each), you can type anybody’s name into the signature block and no one would be the wiser, right?

Not really.

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HD Radio Upgrade: FCC Concentrates and Asks Again

Comments on proposed IBOC power increase due by July 6, replies by July 17

About a year ago a consortium of radio licensees and equipment manufacturers asked the Commission to please, please, please increase the maximum permissible digital power of FM stations using “HD Radio” technology. The requested increase was not a minor tweak by any means: the proposal would rocket the current max upward by a factor of ten, to 10% of the station’s authorized analog power for some, but not necessarily all, stations. (It seems that some Super B stations running at that higher digital power might interfere with the analog signal of some first adjacent B’s, so Super B’s would be exempted out of the increase.) 

As we previously reported, last October the Commission invited comments on the proposal. While a bunch of comments were filed back then, in late May the FCC sent out yet another invite. The deadline for that second round of comments was just announced: July 6 for comments, July 17 for replies. 

Gentlemen (and ladies), start your word processors.

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Movin' On Up To The East Side

Nevada and Wyoming TV stations propose to pack up, head east

Two small television stations have notified the FCC that they prefer the more populous environs of Delaware and New Jersey (their licensee's home for more than 30 years) to the wide open spaces of Nevada and Wyoming. And, strange as it may seem, the law is on their side. 

PMCM TV, LLC, a company privately owned by a group of radio (and former TV) operators from New Jersey, has notified the Commission that PMCM is agreeable to moving its two TV stations – KVNV, Ely, Nevada, and KJWY, Jackson, Wyoming – to Middletown Township, New Jersey, and Wilmington, Delaware, respectively. The basis for the move? A section of the Communications Act brought to PMCM’s attention by its lawyers – Fletcher Heald & Hildreth – that specifically orders the Commission to bless a proposal such as this.

Some background here for the uninitiated.

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Next On Our Agenda . . .

FCC starts setting up procedures to dole out post-DTV transition spectrum

The arrival (at last!!) of the end of the full power DTV transition is having ripple effects beyond the full-service TV industry and its viewing public. Low Power TV and TV translator stations have been hanging fire until the Big Day, waiting for full power stations to give up one of their channels so that the final lay of the full-service digital TV land could be established. The big question has been who can file for what, and when they can file for it.

With that big question in mind, the FCC has issued the first of what we expect to be several public notices setting some ground rules.

The first such public notice affects existing Class A TV, LPTV and TV translator stations.

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Plus Ça Change, Plus C'est la Même Chose

Congress tries to quiet loud commercials . . . again

If at first you don’t succeed, try, try again. That appears to be the motto of Rep. Anna Eshoo, who has re-introduced the Commercial Advertisement Loudness Mitigation Act (H.R. 1084). (She introduced an identical bill last term as well; it went nowhere.)  The House Subcommittee on Communications, Technology, and the Internet is holding a hearing on the bill on June 11.

If enacted, her bill would require the FCC to prescribe regulations to assure that: (a) ads accompanying video programming (from broadcasters and/or MVPDs) not be “excessively noisy or strident”, and (b) ads not be “presented at modulation levels substantially higher” than the programming they accompany; and (c) the “average maximum loudness” of ads not be “substantially higher” than the “average maximum loudness” of the accompanying programming.

This isn’t the first time the government has tried to chase down this particular wild goose.

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Court Affirms LPFM-Friendly Rules

In an 18-page decision released June 5, the D.C. Circuit has rejected the NAB’s challenge to certain LPFM-friendly rules adopted by the Commission in 2007.  

Back in 2007, the Commission:  

  • modified its “cease-operation” rule (Section 73.809) to provide that an LPFM station causing interference to a later-authorized (or later-modified) full service station would apply only to co-channel and first-adjacent channel situations, not second-adjacent situations;
  • established new standards for waiving separation requirements when a later-authorized/modified full service station would ordinarily displace an LPFM but there are no alternate, rule-compliant channels to which the LPFM might relocate;
  • created a “rebuttable non-binding presumption” essentially elevating LPFM’s over later-filed full service applications for change of city of license in the overall pecking order if  the LPFM guy can demonstrate that it has “regularly provided at least eight hours per day of locally originated programming.”

The Court acknowledged that some of the NAB’s arguments were at least “seemingly intuitive” – but in the end those arguments ran smack into Congress’s language, which plainly did not support the NAB. Logically, of course, whittling away at second-adjacent protections does appear to be inconsistent with Congress’s express mandate that third­-adjacent (i.e., more attenuated) protections be maintained. However, the fact that Congress did not expressly mandate maintenance of second-adjacent protection was fatal to the NAB’s argument. (As the Court saw it, the FCC’s position was neither “demonstrably at odds” with the statute nor “contrary to common sense” – strong praise, indeed.)

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Victory!?!

Opposition to a performance right applicable to over the air radio reached 218 and beyond as five more Representatives signed on as co-sponsors to the Local Radio Freedom Act (H. Con. Res. 49).  While this is a non-binding resolution, its plain language is clear: 

That Congress should not impose any new performance fee, tax, royalty, or other charge relating to the public performance of sound recordings on a local radio station for broadcasting sound recordings over-the-air, or on any business for such public performance of sound recordings

We've added the emphasis on "any" because House Judiciary Chairman John Conyers continues to work toward passage of  the Performance Rights Act, which would impose precisely the kind of new performance fee that the Local Radio Freedom Act would bar.  Conyers recently introduced amendments to the Performance Rights Act in the hopes that it would be more palatable to opposing Member; he also held a "Town Hall" meeting in his home district on Tuesday.  But with support for the Local Radio Freedom Act now exceeding a majority of the House, the prospects for success of Conyers's contrary proposal appear non-existent.

We always knew that HR 848 would pass Conyer's committee, but despite his best efforts, it's hard to believe that the number of co-sponsors for the Local Radio Freedom Act will do anything but continue to increase. 

Post-Transition DTV Call Sign Protocol Announced

Demonstrating that we are getting down to the truly short strokes in this whole DTV transition thing, the Commission has issued a public notice on what to do about post-transition call signs for DTV stations. Talk about fine points. . .

When the DTV process started years ago, the Commission simply slapped a “-DT” suffix onto each TV station’s four-letter call sign and used that to identify that station’s separate DTV operation. But the primary call sign that was used to identify the station (both analog and digital operations) in the FCC’s database was the original analog call. (There were a small handful of exceptions involving cases where a digital station did not have a companion analog channel – the official call signs for those stations included the “-DT” suffix.)

When the transition finally arrives, the default will be retention of each station’s analog call sign. For example, if the station’s call is currently WFHH (with WFHH-DT for its digital operation), its official post-transition call will be WFHH. (Ditto for stations whose official analog calls currently include the “-TV” suffix: post-transition, that call, “-TV suffix” and all, will be the default call sign for the digital operation.) So if you’re happy with your plain ol’ analog call sign, you need do nothing at all

But if you hate to give up that spiffy “-DT” suffix, no problem.

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Any Time At All

Post-transition DTV service may commence any time of day on June 12 – coordination, but not FCC pre-approval, required

As the June 12 DTV transition date screams down toward us, the Commission has, yet again, changed some of the ground rules – but this time, it has done so in a way which may make life easier for transitioning stations. Back in March, the FCC had directed that stations could not crank up their post-transition DTV operations prior to 11:59:59 p.m. (local time) on June 12 without prior Commission approval. (On the other hand, stations were permitted to turn off their analogs anytime they chose, as long as they gave the Commission advance notice of the time.)

With a mere 10 days to go before Transition Day, the Commission has released an Order removing the requirement that prior approval be obtained for commencement of post-transition DTV operation prior to 11:59:59 p.m. on June 12. Anytime on June 12 will be OK with the Commission.

Of course, stations commencing post-transition operation on June 12 should be sure to file their license application (FCC Form 302-DTV), or at least a letter notifying the FCC of commencement of program test operation. And care should be taken to coordinate any pre-June 13 DTV operation with other stations which might be adversely affected by that early transition. If you can’t successfully coordinate, you can’t hit the switch on your post-transition facilities before 11:59:59 p.m. (local time) on June 12.

Dates Updates

Get your calendars out and sharpen your pencils – we have updates on some deadlines to report.

PPM Inquiry Comments -- The deadlines for comments in the PPM inquiry have been announced. Comments are due July 1, 2009, and reply comments are due July 31.

Replacement DTV Translator Service rules -- As we predicted, OMB appears to have had no problem with the “information collection requirements” involved in the forms for the new Replacement Digital Television Translator Service. So sure enough, the application processing rules for that service (which had been momentarily on hold) have now been cleared by OMB, and the Commission has formally announced that the newly-adopted rules governing the Replacement Digital Television Translator Service – including Section 74.787(a)(5)(i) – will become effective on June 19, 2009.

Ownership Report Comments -- The Commission has confirmed, through an Erratum that the deadline for initial comments in the ownership report/diversification proceeding is in fact June 26, 2009, as we had previously reported.  Our report was based on the notice published by the Commission in the Federal Register on May 27. Imagine our surprise when, two days later, the Commission announced, in a separate notice issued through its press office, that the comment deadline would be June 29. Say what? We promptly (that is to say, on May 29, about two nanoseconds after we saw the latter notice and realized that it specified a different date than the one we had reported) inquired politely of the folks at the Commission what the correct date might be. Lo and behold, on June 1, out popped the erratum.

Late Breaking News: June-October, 2009, Form 323 Reporting Requirement Suspended

A week and a half ago we were advised by a senior Media Bureau staffer that licensees who would ordinarily have to file biennial ownership reports (FCC Form 323) on June 1 and August 1 would still have to do so this year, even though the Commission has already decided that everybody is going to have file such reports on November 1. (The staffer indicated that the Commission had not decided how to deal with folks owing reports on October 1.)

Stop the presses – that information, which we duly reported, is (in Ron Ziegler’s felicitous turn-of-phrase) no longer operative.

In a public notice released around 6:00 p.m. on a Friday, the Commission has officially announced that it is suspending the Form 323 reporting requirement between now and November 1. In other words, if you had a report due on June 1, August 1 or October 1, you’re off the hook.

Of course, as we have also reported here, the new ownership reporting rules – including the universal November 1 filing deadline – have technically not yet become effective, and won’t become effective until OMB approval is obtained. Recognizing that that could create a problem come November, if the new rules haven’t kicked in yet, today’s public notice specifically provides that, if the new Form 323 has not yet been approved by November, then everybody who would ordinarily have had to file an ownership report between now and then will have to file on November, but using the current Form 323.

Reminder Time!!!

The deadline for FM Auction 79 short-form applications is just around the corner.

Next week will be June already, and we are fast approaching the deadline for applications of the upcoming Auction 79, featuring 122 vacant FM channels up for grabs.  As we blogged back in April, even though the auction itself is not scheduled to bebegin until September, in order to participate you will have to file your short-form application(s) (Form 175) by 6:00 p.m. Eastern Time on June 25.

And all you existing stations that might be thinking about filing for a mod in the near future: Don’t forget that the FCC will not accept any applications for changes in existing FM stations between June 16 and June 25.  If you want to avoid having your plans messed up by any new applications that might be filed for channels on the auction block, you should get your mod application(s) filed by June 15.

For anyone interested in the auction, the FCC will hold a freebie pre-auction seminar, with hands-on demos, to teach you the basics of how to use their online bidding system.  The seminar will be at 10:30 a.m. on June 16. (Since the application filing window opening at high noon the same day, any lessons you learn at the seminar should still be fresh in your mind.)  Registration for the seminar closes June 12.  The registration form may be found here. You can participate either in person at the FCC’s offices in Washington or online at http://wireless.fcc.gov/auctions/79/.  Select the “Auction Seminar” link.

The Lazy Man's Guide to the Sotomayor Nomination

We could do an analysis of Supreme Court nominee Sonia Sotomayor's past opinions and read the tea leaves as to how her appointment to the Court will affect broadcasters, newspapers, media and other First Amendment concerns. 

But there's enough out there already for us to say:  just check out the links below and amuse yourselves for a while. Note that Judge Sotomayor hasn't heard many cases on appeal from the FCC -- or even Administrative Law cases which might demonstrate how she would eventually rule in an FCC-originated case.

But there's still plenty to interest broadcasters and other media:

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NAB says: "Don't Tax That Dial!"

Radio stations: Put you thinking caps on -- it's contest time!

The NAB is running a cool new contest through its "NoPerformanceTax.org".  Entrants can help in the fight against the move for performance rights.  And one lucky radio broadcaster can win $ 2,500.00 and coach airfare, hotel for two nights and registration for two to the NAB Radio Show in Philadelphia on September 23-25 (where, as an added bonus not being touted by the NAB, you'll likely get the chance to meet real live Fletcher, Heald & Hildreth, PLC attorneys). 

The "Don't Tax That Dial" contest invites over-the-air radio broadcast stations within the United States to submit an original 30 second advertisement by July 1, 2009 that advocates against the imposition of a performance right applicable to over-the-air broadcasting.  The advertisement must specifically play off of one of these themes:

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More Comments Invited On Proposed HD Radio Power Increase

The Commission has asked for further comment on a proposal to increase the maximum digital power for FM stations using HD Radio™ technology. As we reported last October, about a year ago a consortium of radio licensees and equipment manufacturers asked the Commission to please, please, please increase the maximum permissible digital power of FM stations using “HD Radio” technology.  (You can find a link to the request in our October post.) The requested increase was not a minor tweak by any means: the proposal would rocket the current max upward by a factor of ten, to 10% of the station’s authorized analog power. (Not all stations would necessarily benefit. It seems that some Super B stations running at that higher digital power might interfere with the analog signal of some first adjacent B’s, so Super B’s would be exempted out of the increase.) 

Since the proponents painted a generally glorious picture of how good HD Radio is, you have to wonder why they feel the need for a major league power increase. And while the threat of potential interference tends to get downplayed by the proponents, the fact that even they recognize the need to deny at least one class of station the proposed increase because of interference concerns does not inspire confidence.

In any event, last October the Commission invited an initial round of comments on the proposal and, as it turns out, there appears to be considerable disagreement as to whether the proposal really is a good idea. Still, the proponents are urging expeditious action to fix “the coverage shortfalls and reception difficulties” which occur at the current levels. But NPR, which has provided a wealth of test data and related analysis already, has advised that it’s working on yet more testing, with a further report due to be presented this coming September.

So the Commission has now asked for further comment from the public.

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New Ownership Report Update: Comment Dates Are Set

The Report and Order and Fourth Further Notice of Proposed Rulemaking (R&O) overhauling the ownership reporting requirements for commercial broadcasters (and proposing to overhaul the corresponding requirements for noncommercial folks) has made it into the Federal Register. It showed up on May 27 in two parts: one encompassing the commercial end of things, the other encompassing the NCE end of things.

Normally, FedReg publication of newly-adopted rules establishes the effective date of those new rules. Not so here. Because the revised rules involve “information collection requirements”, they must first be reviewed and approved by the Office of Management and Budget (OMB). (That’s because of the Paperwork Reduction Act (PRA), as our faithful readers may recall.) Since OMB has not yet given the new rules and related forms the thumbs up, those rules and forms are currently in regulatory limbo. If and when OMB gives the go-ahead, the FCC will issue a further announcement. We’ll let you know.

Meanwhile, the FedReg publication did establish the deadlines for comments on the proposals relative to NCE ownership reporting.

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Applications Tweaked In Wake of Diversity Order

New 301, 314, 315, 345 forms now available

The FCC has announced that it is implementing another part of its sweeping Diversity Order (adopted in late 2007 but not released until March, 2008) by modifying a number of basic broadcast application forms. The changes took effect May 21.    

The forms that have gone under the knife are the 301 (for construction permits), 314 (for consent to voluntary assignment of authorization), 315 (for consent to voluntary transfer of control of licensee/permittee) and 345 (for voluntary assignment/transfer of control of FM/TV translator and LPTV authorizations). 

Generally, the Commission has changed these forms in three ways.

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PPM Inquiry: A Can of Worms?

FCC seeks comments on new Arbitron methodology

The Commission has released a Notice of Inquiry (NOI) kicking off an investigation into Arbitron’s Portable People Meter (PPM) audience measurement system. The NOI was triggered by an “Emergency Petition” (available at the FCC’s website in two separate parts, here and here) filed last September by a number of groups (the PPM Coalition) concerned that implementation of PPM “would drop a financial nuclear bomb on America’s minority radio stations”. But we wonder whether the FCC’s full-tilt leap into the PPM fray will ultimately solve the problem that the PPM Coalition has raised, and it could turn out to have significant unintended consequences for all concerned.

PPM represents an effort by Arbitron to improve the accuracy of its audience-measurement data. Historically, those data have been (and in many markets continue to be) harvested from hand-written diaries subject to a wide variety of potential errors: poor handwriting, misremembered call signs, inadvertent mis-recording, etc., etc. Trying to remove the human error component, Arbitron came up with a system which, at least in theory, is able to automatically record (on a cell-phone size gizmo which the participant carries around everywhere) every exposure to any radio stream encountered by the reporting listener.

But as it rolled out its new system, a funny thing happened. Some stations which had previously shown up well in the ratings dropped precipitously. And a surprising number of those tanking stations turned out to feature minority-oriented programming. While correlation does not necessarily establish causation, it wasn’t hard – particularly for minority stations fearing a ratings tumble – to conclude that PPM was somehow at fault.

Who to turn to in the face of such a crisis? Why, the government, of course.

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Ownership Report Update

Earlier this month we reported (in connection with the release of the Report and Order (R&O) relative to modifications to Form 323, the Broadcast Ownership Report) that the FCC has decided to have all broadcasters file their biennial Ownership Reports on November 1, starting this coming November. The uniform filing date replaces the previous, staggered, approach in which each licensee filed on the anniversary date of its renewal application.

As we noted, the R&O is silent as to biennial reports that are due between now and November – i.e., on June 1, August 1 and October 1. Our initial assumption was that the FCC’s silence should be viewed as an indication that those intervening reports would still need to be filed, even though they will then be re-filed less than six months (max) later. But you know what happens when you assume anything – so we took the bull by the horns and contacted the Commission to check on this. 

The answer? We have been advised by a Media Bureau representative that, sure enough, biennial Ownership Reports currently due to be filed by June 1 and August 1 will still have to be filed on or before those dates. We are also told that the Commission is still considering whether to suspend the requirement for reports due to be filed by October 1. 

But all is not lost. Apparently some thought is being given to waiving the filing fees for the November 1 report for those that file in June and August.  Who says the Commission doesn’t have a heart?

Replacement Digital Translator Update

The Replacement Digital Translator rules adopted by the Commission earlier this month were published in the Federal Register on May 20. According to the item as published, the new rules go into effect on June 19, except for Section 74.787(a)(5)(i), which governs the application process for the new service. Since that subsection involves “information collection requirements”, it must first be approved by the Office of Management and Budget. The Commission has shipped the item over to OMB with a request for expedited review. The smart money figures that OMB won’t have any problem with the new application forms and related rules, so it’s entirely possible that the Commission will be hanging out the “Welcome” sign for new applications just about the time (June 19) that the rest of the new rules take effect. Stay tuned and check back here for updates.

Dear Madame Speaker . . .

Last week, I delivered to House Speaker Nancy Pelosi a letter urging her to look into the impact on minority broadcasters of the Performance Rights Act (PRA) pending before Congress. I signed the letter as a Director of the Spanish Broadcasters Association and Washington counsel to the Puerto Rico Broadcasters Association. Co-signers included David Honig, Executive Director of the Minority Media and Telecommunications Council, and Barbara Arnwine, Executive Director of the Lawyers' Committee for Civil Rights Under Law.  

Two weeks ago I moderated a panel of Spanish language radio broadcasters from across the country who gathered on Capitol Hill top brief Congressional staffers on the detrimental effects of such legislation.  If passed into law, the PRA would impose hundreds of millions of new fees on local radio stations for music aired free to listeners. Fifty percent of the new fee would go directly to the record label companies, three out of four of which reside outside the United States.

The bill was approved by the House Judiciary Committee last week, over the objections of various minority groups that wanted a hearing on the potential effects of the bill.  As we said in our letter to Speaker Pelosi, the PRA "would disproportionately harm present and future minority radio broadcasters and their listening communities" and could bankrupt as many as one-third of all minority-owned radio stations.  Another point we make in the letter is that there has been no examination of whether radio should be compensated for the promotional value of their airplay; as a result, the PRA “is not ripe for floor consideration”.  

While the bill is not, by any means, a uniquely minority-focused issue, it is clear that many minority owned stations, which frequently struggle in a healthy economy, and are barely surviving in the economic downturn. They could be snuffed out entirely by the imposition of an additional performance fee. As Amador Bustos of Bustos Media noted during the Capitol Hill briefing I moderated, "The performance tax would be the added and final nail in the coffin for these small broadcasters like ours, and I think that it is just absolutely ludicrous that the record companies are trying to sort of bite the hand that feeds them." The encouraging news is that while our letter was making its way to the Speaker’s desk, additional lawmakers threw their support behind a bipartisan resolution opposing "any new performance fee, tax, royalty, or other charge" on local radio stations.

"Come and Get It" Update

At NTA convention, NTIA provides a peek inside grant program

The National Telecommunications and Information Administration (NTIA) sent a four-person contingent to the National Translator Association Convention in Denver last week to talk about their grant program for digital transmitters for Class A, LPTV, and TV Translator stations.  (We blogged about that program last week here.) They cleared up a couple of points and left at least one major question still unresolved.

We learned that while the application deadline for stations with the highest priority is July 13, 2009, as previously reported, the deadline for the second round is September 1, 2009, and subsequent rounds will close on the first of each month thereafter. (Note that this corrects our earlier report that the second round deadline would be August 13; to avoid confusion, we are also correcting that point in our original post.)

Also, you must purchase your digital transmission plant before you even apply to NTIA, let alone get a grant.   Thus, you must put yourself at financial risk before knowing whether you will get any reimbursement money.  You can start an application online and figure out how many priority points you have without actually completing the filing, so at least you don’t have to stab completely in the dark.

An important open question is whether you must have made full payment for your digital equipment before you apply or whether you may finance the purchase with installment payments to the vendor.  In other words, you do have to be legally obligated to pay for the equipment, but you may not have to lay out the full purchase price in cash.  NTIA is still mulling over that question.

NTIA strongly recommends that applications be prepared on online and then printed on old-fashioned paper and sent by an express delivery service, (UPS, Federal Express, etc.).  They discourage the use of U.S. Mail, including Express Mail, because all postal deliveries are radiated to protect against anthrax, and the radiation turns paper into crispy crumbles.  For some reason, UPS and FedEx delivery people just stroll through the door and drop their packages on the table right in NTIA’s offices.  Online filing through www.grants.gov is permitted but apparently has some glitches which indicate that perhaps other methods will be more reliable.

Reg Fees, 2009 - Up, Up and Away!

The Commission has released its Notice of Proposed Rulemaking (NPRM) laying out its proposed 2009 regulatory fees. To no one’s great surprise, for the second year in a row all but one of the 61 categories of broadcast-related fees are proposed to go up. (The lone exception is the fee for a broadcast auxiliary license, which – also for the second year in a row – is proposed to remain at $10.) The proposed fees are listed in Appendix I to the NPRM.

And when we say “up” we mean “UP”. Reg fees for all full-service TV licenses in the Top 100 markets would increase by more than 9%, with UHF stations in the Top 10 going up by more than 14% and VHF’s in Markets 11-25 up by more than 13%. 

On the radio side, Class C AM’s in all markets are looking at double digit surges mainly in the 13%-14% range (and as much as 15.4% for stations serving populations of 25,001-75,000). Class D AM’s would fare only slightly better, with increases in the 11%-12% range (except for those serving fewer than 25,000 listeners – they’d only get whacked for a 9.5% increase). All FM stations are looking at reg fees that would be 5%-9% higher than last year.

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Extreme Makeover - Radio Edition: Comment Deadlines Are Set

Last month we reported on the Commission’s proposed re-vamp of the AM/FM allocation process.  The NPRM has now been published in the Federal Register, which means that the dates for comments and reply comments have been set. Comments are currently due no later than July 13, 2009, and reply comments are due no later than August 11, 2009. In view of the breadth of the changes proposed, it is at least possible that some extension of these deadlines may be sought between now and then, but for the time being anyone who may be inclined to submit comments on the proposals should calendar in July 13 and August 11 as the operative dates.

Pursestrings Update VIII (or is it IX?): CDBS Fee Calculation Glitch Apparently Resolved

It appears that the Commission’s technical team has successfully resolved the problem reported in our last update. Recent anecdotal observations indicate that the “new” application filing fees – you know, the ones which were adopted by the Commission last September, and which officially went into effect on April 28 – are finally being automatically generated by the Commission’s CDBS on-line application filing/fee payment systems.  (No word yet on whether the problem has been resolved on the Commission’s IBFS database.)

As recently as May 11, a glitch in the system was resulting in licensees being prompted to pay the old, lower, fees.  But as we reported then, the Commission will not be giving a free pass to those who paid the incorrect fees during this time.  The Commission may approach each licensee individually to request the difference in fees, or may announce a set of procedures for licensees to submit the additional fees.

"Come And Get It!"

NTIA opens the door for LPTV/Class A/Translator/Booster grant applications

The National Telecommunications and Information Administration (NTIA) has finally issued a “Notice of Availability of Funds” (Notice) and on July 13, 2009, will start accepting applications for grants for upgrading Class A, Low Power TV (LPTV), TV Translator and TV Booster transmitters to digital operation. All you Federal Register gurus can find the Notice here.

While NTIA originally planned to dole the cash out after a formal rulemaking proceeding, that plan has gone by the boards. Instead, NTIA has simply declared that it has cash up for grabs. The Notice is NTIA’s way of saying “come and get it.”

We’ve all heard the relentless FCC-mandated propaganda about how your “analog television will be kaput!” on July 12, 2009. Of course, that’s not entirely true. The analog shut-down deadline does not apply to Class A, LPTV, and TV Translator stations (we’ll call them the “LPTV folks”), which outnumber full power stations by a considerable margin. And no deadline to convert the LPTV universe to digital operation has yet been announced.

Still, quite a few LPTV folks think that their future lies in converting to digital. But – and this is an important but – there is that pesky problem of how to pay for it. Thanks to a $44 million Congressional appropriation (Section 3009 of Public Law 109-171, for you legislative wonks), NTIA is finally stepping up to the plate with a grant program to help the LPTV folks convert. Whether the amount of money available will do the job is another question, but some grant is surely better than no grant. So let’s grit our teeth and plunge head-first into the process NTIA has set up for tapping into the stream of federal dollars.

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Performance Rights Supporters Win Battle But Face Mounting Enemy to Win the War

We reported yesterday that the House Judiciary Committee was preparing to mark up HR 848, the Performance Rights Act that would require over-the-air broadcasters to pay for the right to perform sound recordings.  The Committee has now passed the bill by a 21-8 margin.  However, by all indications, things will be a lot closer -- if not an outright defeat for HR 848 -- when it gets to the House floor. 

The Judiciary Committee also took up action that will allow even more webcasters to reach agreements with SoundExchange, Inc. regarding the royalties paid to perform sound recordings via the Internet through 2015. 

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Time to Put Up or Shut Up on Performance Rights

The House Judiciary Committee is poised to "mark up" (vote on) HR 848, the Performance Rights Act, this Wednesday, May 13.   

With HR 848 currently boasting 41 co-sponsors, and the opposition movement claiming formal support from 184 Representatives who have signed on to H Con Res 49, the Local Radio Freedom Act, the future of this legislation is currently wide open. 

Both sides have been jockeying for position and more support.  Opponents of the performance right received a huge boost from the Hill itself, when members of the Congressional Black Caucus and Congressional Hispanic Caucus wrote to Judiciary Chairman John Conyers, seeking another hearing on the issue, one which would focus specifically on how a performance right would affect minority broadcasters. Outside groups, including the Rainbow PUSH Coalition, the Lawyers Committee for Civil Rights Under Law and the Leadership Conference on Civil Rights, have also sent letters of opposition to Chairman Conyers.  But the timing of this first formal vote comes at an awkward moment for the NAB, due to the recent departure of CEO David Rehr. 

On the other side, Rep. Conyers might move to curry more support for the bill.  Radio and Records is reporting that Conyers will attempt to bring opposing Representatives into his camp by easing the bill's impact on small, mainly community-oriented broadcasters. Conyers will apparently propose a $500 annual fee for "small broadcasters", though that term has not yet been defined.  (Earlier definitions as applied to the "Small Webcaster" exemption to an analogous webcast-related performance right defined  a "small broacaster/webcaster" as an entity with gross annual revenues below $1.25 million). 

Stay tuned for more updates.

50,000,000 Birds Can't Be Wrong . . . Can They?

FCC invites comments on birders’ proposals regarding tower approvals

If you think you might be needing to build a tower in the next several years, listen up. The birding lobby has opened a new offensive in its long-running effort to force the FCC to give greater consideration to bird-related concerns when it authorizes tower construction.

Recently, the Commission invited comments on the following proposals advanced by the birders:

  • Amend the Commission’s environmental regulations so that exclusions from those rules are available only for FCC actions that have no significant environmental effects individually or cumulatively;
  • Prepare a programmatic environmental impact statement addressing the environmental consequences of the Antenna Structure Registration (ASR) program on migratory birds, their habitats, and the environment;
  • Promulgate rules to clarify the roles, responsibilities and obligations of the Commission, applicants, and non-federal representatives in complying with the Endanger Species Act (ESA); and
  • Consult with the U.S. Fish and Wildlife Service on the ASR program regarding all effects of towers and antenna structures on endangered and threatened species; and
  • Complete the proposed rulemaking in the Migratory Birds Proceeding to adopt measures to reduce migratory bird deaths in compliance with the MBTA.

Oh, and did we mention that all of these proposals are supposed to be implemented on an expedited basis?

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Pursestrings Update VII (or is it VIII?): The Beat Goes On

Faithful readers will recall that we titled the last installment of our “Pursestrings Updates” series the “final chapter”. We spoke too soon. 

On April 28, the Commission’s new application filing fees finally went into effect, after a series of delays about which we dutifully reported here . . . and here . . . and here  . . . and, well, you get the point.  We figured that, with its formal announcement of the April 28 date, the FCC had things under control.

We should have known better.

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Found In Translation

Fast-tracked replacement DTV translator service targets anticipated service area gaps

As we reported last December, on Christmas Eve Eve (that would be December 23) the FCC proposed the creation of a new “replacement digital television translator” service. The idea was to provide full service TV licensees with access to translators to enable them to fill in gaps between their soon-to-be-history analog service areas and the DTV services areas which they will be left with once the transition occurs.

Proving conclusively that the Commission can move quickly when it wants to, the FCC has released its Report and Order (R&O) wrapping up that proceeding by – you guessed it – creating the new replacement DTV translator service.

Of course, the fast-approaching June 12 transition date provides considerable motivation for the Commission here. The government as a whole – that would be the Commission and Congress and the NTIA – has consistently demonstrated an overriding (and, in the view of at least some observers, overblown and unrealistic) concern that the DTV transition not cause any U.S. TV viewer to lose access to over-the-air service. Since the DTV service area of many stations will fall short of their current analog service areas, the Commission needed to come up with a quick fix. And voilà – replacement DTV translators!

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Doubts About AM/FM Allocation Proposals Surface

Could proposed limits on AM/FM move-ins create rural spectrum ghettos?

My colleague Davina Sashkin blogged recently about the changes which have been proposed in the AM/FM allocations process. The FCC’s idea is to reduce opportunities for new and existing stations to be “moved in” toward larger metropolitan areas. The Commission is concerned that, as a result of such move-ins, smaller, rural communities/areas are losing local service. So the Commission is proposing essentially to halt the move-in process. From comments elsewhere in the proposal, it’s clear that the Commission hopes that its various changes in allocation policies – along with other changes in the reporting of broadcast ownership – are also going to help increase the number of minorities and women in the ranks of broadcast owners.

But we’ve been hearing grumbling among some minority representatives who are not at all happy about the proposed limitations in the allocations area.

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Big Trouble in Streaming Media

We wrote a couple weeks ago about a patent infringement lawsuit filed against several major radio broadcasters for their unauthorized use of software that allows them to replace over-the-air advertisements with webcast-specific ads. 

Here's an interesting take on the same case by Jerry Del Colliano in the "Inside Music Media" blog.  Mr. Del Colliano makes no bones about it:  "This is trouble -- big trouble", because the radio companies are certain to get tied up in expensive and time consuming litigation.  There's no easy resolution to the case and the radio stations are pretty much obliged to fight because they have no real alternative to using the replacement software.

He repeatedly disclaims that he's not a lawyer.  We are, but thankfully haven't heard from any clients -- or other broadcasters -- about this or similar litigation.  However, if you're a broadcaster, it's clear that you still need to be following this case and might want to consult a lawyer for more information.

New Ownership Report, Audit Designs Left To Bureau

Seeking increased “accuracy” in minority/gender ownership stats, Commission leaves unanswered questions

Last month we posted a piece about the public notice announcing that the Commission has modified its ownership reporting processes and forms. We expected that, when the full text of that action was released, we would have greater insight into the new forms, in particular.

We were wrong.

In the Report and Order and Fourth Further Notice of Proposed Rulemaking (R&O) released on May 5, the Commission has shed virtually no light at all on what the new ownership report forms (Form 323) will look like. Instead, the R&O simply delegates responsibility for development of the new forms to the Media Bureau. In other words, the Commission appears to have spent its time thinking Deep Thoughts about how nice it might be to promote “diversity”, but when it got down to the nitty gritty of actually implementing any of those Deep Thoughts, it decided not to get its fingernails dirty. Instead, it handed its penciled-on-a-cocktail-napkin notes off to the staff (think the Stonehenge scene from This is Spinal Tap) and told them to work out the details.  Oh yeah, and get the job done in time for a November 1, 2009, universal filing deadline.

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Radio Reps Rip Proposed Performance Rights Royalties

Spanish-language broadcasters bring the fight to Capitol Hill.

“It’s like throwing a surprise party for a friend, and at the end of the night your friend charges you for an appearance fee.”

That's how Spanish Broadcasting System VP/GM Frank Flores described the push by record labels to impose a performance fee on radio stations. Flores’s comparison, which was a reference to the roughly $2 billion in music sales that the Free Radio Alliance claims is earned by the record industry as a result of the free airplay of their songs on commercial radio, was made during a May 5 panel discussion by leading Spanish-language radio broadcasters, which I moderated. The broadcasters gathered on Capitol Hill to brief Congressional staffers on the potential impact of a performance royalty on their stations. Flores went on to say that "we have worked real hard with the record labels and the artists.  And to be honest with you, a lot of these artists wouldn't be where they are if it wasn't for these radio stations."

Univision Radio's top morning show host, Eddie "Piolín" Sotelo, and ten other Spanish-language radio broadcasters told a room of Congressional staffers that a new performance tax on local radio stations could mean bankruptcy and more job losses for many Hispanic stations.The performance tax would be the added and final nail in the coffin for these small broadcasters like ours, and I think that it is just absolutely ludicrous that the record companies are trying to sort of bite the hand that feeds them," Amador Bustos of Bustos Media told the audience.

Border Media's Miguel Villarreal noted the potential for more layoffs in the radio business. After the panel discussion, the broadcasters walked the halls of Congress through the afternoon, meeting with members of the Congressional Hispanic Caucus. 

The event was organized by the Free Radio Alliance, which opposes passage of HR 848, the bill which would impose a performance fee on radio stations that air recorded music. Under the terms of the bill, 50% of the royalties would go directly to the recording labels. After the panel discussion, the broadcasters met with members of the Congressional Hispanic Caucus throughout the afternoon. According to one broadcaster, the broadcasters were able to obtain additional support in opposition to the bill and in favor of the Local Radio Freedom Act, a non-binding resolution opposing the performance fee.

Time For A New Spin On "Pay For Play"

I think broadcasters have let the record companies put them on the defensive by establishing a one-sided framework for the public discussion of the performance royalty issue. And that may be why broadcasters seem to be having trouble in the struggle with record companies over that issue.  Maybe it’s time to change that framework.

At the NABOB annual awards dinner a couple of months ago, I listened to NABOB President Jim Winston bemoan the burden that would be placed on struggling minority station owners if they had to pay the “performance royalties” being touted by the record industry. I thought to myself that the performance royalty debate has been in favor of recording artists, because the record companies have managed to cast their side as poor suffering recording artists who have supposedly been victimized by a freeloading broadcasting industry.  Artists have worked hard to create these recordings – as the argument generally goes – so why should they have to let their work be used for free by fat-cat broadcasters?

That approach, of course, misses the other side of the debate: the undeniable truth that airplay provides artists with valuable, if not vital, exposure to vast audiences, exposure that helps those artists sell records (pardon me – I mean CDs and downloads), fill concert seats, move merchandise, and establish the public images which are so crucial to their popular success. You will notice that in most music awards shows, artists give an appreciative shout-out to the radio industry in their acceptance speeches.

Broadcasters have historically provided exposure for free, just as the artists have made their recordings available to broadcasters for free. That quid pro quo arrangement has served everybody – artists, broadcasters and the listening public – well for decades. But if artists now want to change the deal by charging for the use of their recordings, that is a two-way street. Why not let broadcasters ask artists to pay for the exposure they get on the radio?

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Supremes Send CBS/Janet Jackson Back To Third Circuit

In a decision which comes as no real surprise, the Supreme Court has agreed to hear the FCC’s appeal of the 2008 decision of the U.S. Court of Appeals for the Third Circuit, which reversed the forfeiture meted out to CBS for the Janet Jackson Super Bowl incident. But having agreed to hear the appeal, the Supremes lost no time in vacating the lower court’s decision and shipping the case back down to the Third Circuit for further consideration in light of the recent decision in FCC v. Fox Television Stations, Inc.

As we have previously reported here and here, the Fox decision changes certain non-constitutional considerations relating to the FCC’s indecency policy. Since the Third Circuit’s decision was based on just such non-constitutional considerations, the Supreme Court’s remand is standard operating procedure.

The remand does set up the possibility that both Fox and CBS could return to the Supremes simultaneously. Both the Second Circuit (i.e., the Fox court) and the Third Circuit (i.e., the CBS/Janet Jackson court) will be getting their respective cases back at essentially the same time (i.e., now). Since the remaining issues are relatively straightforward, both courts might be able to deal with the remand proceedings in reasonably short order. If both courts were to issue decisions in those remands at approximately the same time, consolidated review by the Supreme Court would not be out of the question.

While both Fox and CBS/Janet Jackson involve FCC findings of “indecency”, the two cases are distinct in a number of ways. Perhaps most obviously, Fox involves mere words, while CBS/Janet Jackson involves the fleeting image of Ms. Jackson’s right breast. Consolidated consideration of both cases would provide the Supremes the opportunity to consider both the verbal and visual components of indecency regulation.

Check back to www.commlawblog.com for further developments.

After 40+ Years, "Antenna Farm" Still Undefined

Do you know what constitutes an antenna farm? 

Nobody else does, either. Except maybe the FCC. But, for reasons that aren’t exactly clear, they’re not telling.

The question came up recently when a CP applicant mistakenly thought it knew, but it didn’t, and but for a legal technicality (let’s hear it for statutes of limitations!) it would have been socked with a fine from the FCC’s Audio Division.

The recent case (which was described, in a different context, in an earlier post) involved the folks who had failed to jump through the various pre-application environmental hoops established in the Commission’s National Programmatic Agreement. One reason they relied on for not doing so: their proposed tower was to be built in an “antenna farm”, and the Commission’s rules specifically state that a proposal for a new tower in an established antenna farm is categorically excluded from environmental processing. Since the proposed site already included two existing towers reasonably close together, it seemed reasonable to conclude that that site could be deemed an “antenna farm”, thus relieving them of the environmental homework.

Wrong.

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FCC v. Fox: The Six Opinions Through The Goldberg Lens

[Blogmeister’s note: As part of our overall coverage of the on-going development of FCC indecency law and policy, we present here a nitty-gritty synopsis of the six separate opinions issued by the Supreme Court in FCC v. Fox. Veteran court-watcher and First Amendment guru Kevin Goldberg has read all 72 pages, so you don’t have to . . .]

Just because the fortune-teller got it right does not necessarily mean that we have to like it when the accurately-predicted future becomes present reality. Like when we correctly read the tea leaves in the wake of the November 4, 2008 oral arguments in FCC v. Fox Television Stations, Inc. The Supreme Court has – by the 5-4 margin we predicted (though we reversed the positions of Justices Kennedy and Souter) – overturned the earlier ruling against the Commission by the United States Court of Appeals for the Second Circuit.

The Supreme Court ruled that the FCC did not violate the Administrative Procedure Act (APA) when the Commission suddenly, and without prior warning to broadcasters, reversed 25 years of agency precedent by ruling that “fleeting expletives” broadcast on the 2002 and 2003 Billboard Music Awards violated the indecency rules.  The Court did not take any position as to whether the FCC’s application of the indecency rules violated the First Amendment.

 Our post-argument impressions on the case (which include a summary of key quotes from the oral arguments) and Harry Cole’s early thoughts on the Court's decision offer significant background.  Here’s a summary of the Court’s majority, concurring and dissenting opinions.

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FCC v. Fox - The Supreme Court Rules

First reaction to the Big Decision

[Blogmeister's note: Our crack team covered the oral argument in Fox last November, and will be providing additional coverage of the Court's decision released April 28.  The following is one commentator's view of the landscape.]

The Supreme Court has issued its long-awaited decision in FCC v. Fox Television Stations, Inc., the case involving the application of the FCC’s indecency policy to “fleeting expletives”. By a 5-4 vote, the Justices concluded that the FCC’s action was consistent with its statutory obligations under the Administrative Procedure Act. Accordingly, they reversed the contrary decision of the U.S. Court of Appeals for the Second Circuit and remanded the case back to the Second Circuit. Score one for the Commission.

While any decision favoring the Commission’s indecency policy in any way is troubling, the good news here is that the Supreme Court’s ruling changes very little on the indecency front. To the contrary, its primary effect in the indecency area is to set the stage for the next, and far more important, act in this long-running drama.

But the news is not all good. Lurking behind the high profile “celebrities talking dirty on TV” allure of the case is a major shift in a seemingly mundane legal doctrine, a shift that could affect FCC regulatory activity in all respects for years to come. So while many commentators may choose to dwell on the obvious “indecency” aspects of the ruling, the real importance of this decision lies elsewhere.

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Extreme Makeover - Radio Edition: Overhaul of AM/FM Allocations Standards Proposed

Rural communities and Native American tribes would likely benefit

In a sweeping notice of proposed rulemaking (“NPRM”), the FCC has proposed a major re-vamp of the AM and FM allocations process. The wide-ranging NPRM covers a vast array of allotment-related elements, including 307(b) analyses, auction niceties, translator band-hopping and codification of terrain roughness policies, among others. Acting Chairman Copps and Commissioner Adelstein, longtime cheerleaders for small community and rural radio (and equally longtime critics of the process by which rural stations have tended to gravitate into larger markets), both issued gushing statements in support of the proposals. Commissioner McDowell’s supporting statement, on the other hand, reflected considerable reservation. 

The backstory on this should be familiar.

Section 307(b) of the Communications Act requires that the Commission “provide a fair, efficient, and equitable distribution” of broadcast channels among the “several States and communities.” Since 1982 the FCC has used a set of four “priorities” to assay the relative 307(b) merits of various AM and FM proposals. A proposal which would provide the first fulltime reception (a/k/a “white area”) service gets the highest priority; a proposal providing the second fulltime reception (a/k/a “grey area”) service falls under Priority 2. Because of the proliferation of radio stations across the country, very few current proposals trigger either of those two.

As a result, the majority of new AM and FM proposals end up being assessed under Priority 3 (i.e., whether the station or channel in question would be the first service allotted to the particular community proposed) or Priority 4, a catch-all hodge-podge of “other public interest matters” (including, among others, the total population to be served – the bigger the population, the greater the 307(b) preference).

The last decade or so has seen a trend toward moving stations in from the boonies toward larger, established population centers. Many such proposals have involved allotting a channel or station to a station-less community in or near an already well-served Urbanized Area – thereby triggering Priority 3. Other proposals lacking such a convenient station-less community have still utilized significant population increases under Priority 4 – because, after all, the bigger the proposed market, the more people there are to serve.

One apparent purpose of the NPRM is to arrest, and reverse, the allocation of channels and stations to larger markets. Another purpose seems to be to tighten up certain aspects of the broadcast auction system to drive contested applications to auction and encourage applicants entitled to “bidding credits” to participate. A third purpose – actually, a combination of the first two – is to facilitate the allocation of broadcast spectrum to Native American Tribal Groups serving tribal lands.

The specific proposals include the following:

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Pursestrings Update: The Final Chapter (We Think)

New application fee schedule still set to take effect April 28, 2009.

For those procrastinating on filing applications with the Commission, now is the time to act if you want to save a few bucks.

As we reported on March 26, the Commission’s new broadcast application fee schedule will go into effect on April 28. (Application fee schedules for other services also kick in next Tuesday, April 28. You can find a collection of 2009 Fee Filing Guides for all services here.) The current fees have been in effect far longer than the Commission originally contemplated, as faithful readers of the first five or six installments of our “Pursestrings Update” series know.  But the fun ends on Monday night: all the new fee schedules will become effective at 12:01 a.m. on Tuesday morning.

Please let us know if we can help you pull together any last-minute filings to beat the deadline.

Streaming Broadcasters: Pay Attention to Patent Action

Aldav, LLC claims big radio companies infringed patented content-substitution methods

Radio stations that stream their content onto the Internet will want to keep an eye on a patent lawsuit filed in the United States District Court for the Eastern District of Texas. Several major radio companies have been accused of patent infringement by engaging in “content replacement” – that is, they substituted Internet-friendly content in place of more locally-oriented content that went out over the air. While the complaint provides no details, it suggests that the local content which was removed consisted, at least in part, of commercials. 

The suit, filed April 16, pits Plaintiff Aldav, LLC against a list of defendants comprising a virtual who’s who of Big Name National Radio Operators: Clear Channel, CBS Radio, Citadel, Cox Radio, Cumulus, Entercom, Gap Broadcasting, Radio One, Regent, Saga, Univision and the Aloha Station Trust (which is operating some Clear Channel stations).

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Spectrum Auction Bidders In Qui Tam Scam Jam

Whistleblowers can challenge bidding credit claims, reap big rewards

With the public issuance of letters (DA 09-822, DA 09-823 and DA 09-824) to certain winners in Auctions 58 (PCS licenses), 66 (AWS licenses) and 73 (700 MHz licenses), the Commission has lifted the curtain ever so slightly on a melodrama that has been playing out in the Federal District Court since 2007. While we still don’t know the entire cast of players, much less how the melodrama will be resolved, we can say one thing for sure: it is NOT a good idea to try to play cute with the FCC’s bidding rules in an effort to secure undeserved bidding credits. Even if the FCC doesn’t catch you, a little-known provision of Federal law provides private parties both a major league financial incentive to blow the whistle on such misconduct and a non-FCC forum in which to blow that whistle.

The source of the somewhat obscure process is the False Claims Act. Usually invoked by “whistleblowers” eager to call attention to waste in the government procurement process (think hammers bought by Uncle Sam for $5,000 a pop), the FCA permits anyone to file a complaint “on behalf of the U.S. Government” to recover ill-gotten gains. (The cognoscenti refer to such actions as “qui tam” suits – don’t ask why.)  To sweeten the deal, another provision of the law also permits the person making the claim to skim off up to 30% of any settlement or damages award that might result. And since the Act also provides for treble damages, the potential payday can easily reach into the eight digits.

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Brrrrrrr - FCC Announces Freezes On FM Mods

With Auction 79 fast approaching, the Commission has frozen, effective immediately (i.e., as of April 17, 2009): (a) all applications proposing to modify the reference coordinates of any of the 122 FM channels scheduled to hit the blocks in Auction 79 (currently slated to kick off in September); and (b) all petitions or counterproposals that propose any change in channel, class, community or reference coordinates for any of those 122 channels. (Can’t remember what channels are up for sale in Auction 79? Click here for the current list.) This freeze will remain in effect until the day after the deadline for Auction 79 long form applications – which will likely be sometime late in the Fall, at the earliest.

The Commission also announced that it will not accept any commercial or noncommercial minor mod applications between June 16-25, 2009. That’s the filing window for short form (Form 175) applications for Auction 79.

These freezes are standard operating procedure when it comes to broadcast auctions. The goal is to avoid the creation of any conflicts (unforeseeable or otherwise) with auction proposals that could muck up the auction process.

For more information on the auction itself, see our relating post here.

Auction 79 - The Dates Are Set

The Commission is hustling to get Auction 79 ready to roll – the agency has already followed up its preliminary request for comments (issued at the end of February) with the issuance of a formal “Notice and Filing Requirements, Minimum Opening Bids, Upfront Payments, and Other Procedures for Auction 79”  (Auction 79 Notice).  With the Auction 79 Notice the auction process shifts into high gear.

The Auction 79 Notice contains few surprises. It addresses and resolves a small number of proposed tweaks to its auction processes, but for the most part adheres to the procedures which have been used for broadcast auctions over the years. If you (a) are interested in participating in the auction but (b) are not familiar with those procedures, you should start now to get a handle on how FCC broadcast auctions work. The system is not always intuitively obvious, and unwary (and unknowing) bidders are at a very distinct disadvantage when the action starts. 

There are at least two notable changes from the past.

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The $175,000 Question: When Is A Computer Circuit Card Not A Computer Circuit Card?

Answer: When the FCC says it’s a TV.

The FCC has hit up a manufacturer of personal computer TV tuner cards for a $175,000 forfeiture. Why? Because the manufacturer marketed cards that have only analog and not digital tuning capability.  The Notice of Apparent Liability was issued by the full Commission, as opposed to, say, the Enforcement Bureau – a clear sign that the full FCC is still in full-tilt enforcement mode with respect to the marketing of non-compliant TV receivers. (It has been in that mode for at least a couple of years, as we have previously reported here and here, for example.)

Of course, all new TV sets must have both analog and digital tuners.  That requirement, first imposed in 2002, was phased in based on screen size. Since March 1, 2007, all TV receivers imported into or shipped or marketed within the U.S. must include DTV capability.  The rule also applies to all kinds of receiving equipment, including VCRs (who remembers VCRs?) and other devices that lack their own screen and have to plugged into the back of a TV set or other display device.

The PC card manufacturer ran through a whole host of reasonable arguments for why a computer card should not be deemed subject to the rule. It argued that consumers should have a choice of what they want to buy; and in any case, a PC card is just a computer peripheral, not a TV, and is different from a VCR in that the output can’t be plugged into the back of a TV set.  No way, the FCC said.  TV is going digital, and we are not going to tolerate anything, with or without a screen, that is used to receive and display over-the-air TV signals unless it can work with digital signals.

But even the Commission, hard-nosed though it may be, had to acknowledge that, as violations go, selling cheap PC tuner cards with no screen attached is “not as egregious” as selling, like, real TVs (“television receivers with an associated viewing screen”). So rather than lower the maximum boom ($97,500 per violation) onto the manufacturer, the Commission figured it would cushion the blow by charging a mere $25,000 per violation. But what might initially have looked like a mild spanking got ugly when the Commission decided that a separate “violation” occurred with each model marketed. Since the manufacturer had sold seven different PC card models, the bottomline line turned into a considerably heftier $175,000 – not exactly pocket change.

It took me only about five minutes on the Web today to find some analog-only PC cards still for sale.  At least one catalog displayed the consumer alert that was used before digital tuners were universally required, but that alert no longer protects the vendor.  I wonder if the FCC is also browsing the Web.

New Consolidated FCC Database System In the Works

A CommLawBlog scoop: Agency brainstorming on possible "consolidated licensing system"

Word on the street (actually, word around the FCC) is that the Commission is embarking on a quest for what some might view as the bureaucratic equivalent of the Impossible Dream: an Uber-consolidated on-line licensing system to unify the balkanized collection of existing systems currently in use. This would mean “hello” to a new “Consolidated Licensing System” and “see ya” to the Universal Licensing System (ULS), OET’s Experimental Licensing System, the International Bureau’s “MyIBFS”, and the Media Bureau’s (apparently mis-named, or at least prematurely named) “Consolidated Database System” (CDBS). At this point, it’s not clear whether any other systems – such as the FCC’s tower registration operation – would also be included.

On-line filing – whether it’s used for license applications, routine reporting, or other requests or notifications – is obviously a Good Idea. It streamlines processes, permits easy on-line access to filed materials, facilitates cross-checking and searching, pushes the initial inputting burden onto the applicant (rather than the FCC’s staff), saves paper, and generally makes life better. Oh sure, there have been the occasional complaints about the user-friendliness of, say, ULS (née 1998) and CDBS (née 2000). And yes, some users have carped about how you can’t simultaneously search the various databases for information about a particular entity, or a particular location, etc.

But maybe, just maybe, the FCC has heard those cries of despair and frustration.

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New Ownership Reporting Rules Adopted As Commissioners Seek "Diversity"

In a sweeping action that signals the re-awakening of race- and gender-based government regulation of broadcast ownership, the Commission has re-vamped its rules and related forms for reporting the ownership of commercial broadcast stations. All commercial broadcast stations – including not only full-service radio and TV’s, but also LPTV and Class A stations previously exempt from ownership reporting. And noncommercial (NCE) stations did not escape the FCC’s critical gaze: the Commission has proposed changes in the way “ownership” of those stations is reported as well.

While the full text of the FCC’s action has not yet been released, the Public Notice discloses at least the following changes:

  • All ownership reports for commercial licensees will now be filed by a single filing deadline – November 1 – and will reflect data as of October 1. This abandons the longstanding policy requiring the “staggered” filing of ownership report on the anniversary of the reporting stations’ respective renewal application deadlines.
  • All commercial licensees will be required to file ownership reports. This means that LPTV, Class A, single individuals and partnerships composed exclusively of individuals – all groups previously exempted from ownership reporting requirements – are now subject to the requirement.
  • Certain less-than-controlling interests previously deemed unreportable will now be required to be included.
  • The Media Bureau is now authorized to perform random audits “to ensure the accuracy of reports”.
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NAB Seeks to Mow Down Performance Rights Act

With the Performance Rights Act creeping like a weed around Capitol Hill, the NAB is going grassroots, having created a new website that allows broadcasters to take action to defeat the legislative proposal that would require them to, for the first time, pay to perform sound recordings  in radio broadcasts. 

The "No Performance Tax" website contains:

  • Basic background information on the issue.
     
  • Multimedia and Resources, including video from the recent House Judiciary Committee hearing on the Performance Rights Act, galleries of radio and print advertisements and congressional resources.
     
  • A "Newsroom" containing articles, editorials, op-eds and letters to the editor that have appeared in major media on this issue.

Most importantly, broadcasters can take the matter into their own hands by registering through the site to get sample scripts for radio advertisements, advocacy letters directed at Members of Congress and other ideas. 

The Performance Rights Act currently has 39 co-sponsors in the House (HR 848) and 6 in the Senate (S 379).  A resolution opposing the application of a performance right  to over-the-air broadcasting, the Local Radio Freedom Act, has the support of 168 Representatives and 3 Senators. 

STAT!! Timely Filing of CP Extension/Assignment Applications Becomes Crucial

Bureau provides guidance, grace period of sorts until May 31

If you have a broadcast construction permit that’s about to expire, listen up. The Media Bureau has provided some “guidance”on how to take advantage of a rule change that took effect last year, a change that could help you breathe the breath of life into that dying CP, if only for a little while. The “guidance” doesn’t begin to answer all the possible questions, but it at least establishes an important filing deadline for some CP assignment applicants.

Way back in December, 2007, the Commission adopted a number of rule changes intended to “increase participation in the broadcasting industry by new entrants and small businesses, including minority- and women-owned businesses, which historically have not been well-represented in the broadcasting industry.” It took the FCC four months to publish its order, which hit the presses in March, 2008; some of the rules took effect in July, 2008.

In that order the FCC agreed to allow the sale of expiring CP’s to “eligible entities” who pledge that they will complete construction before the expiration or within 18 months of consummation of the permit, whichever is later. The goal was to provide the acquiring “eligible entity” its own construction period of at least 18 months. Since the permits in question would otherwise likely expire (since CP’s cannot normally be extended), the thinking was that this would create an incentive for holders of soon-to-expire permits to deal them off to “eligible entities”, thereby increasing the number of such entities participating in the broadcast business.

But the original order left a number of details up-in-the-air.

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Nightlight, Pink Slips

Do you still harbor some notion that the FCC’s cold-eyed zombie-like insistence on keeping analog service alive everywhere for as long as possible makes sense?  Consider this.

On March 20, a TV station which has been providing “enhanced analog nightlight service” went to the Commission with a simple request: could it please be relieved of the final three weeks of its analog service commitment so that it could turn off that service as soon as possible?  (The station had previously committed to enhanced analog nightlight operation until April 17, but only so that it could qualify for the right to terminate conventional analog service on February 17.)  The station pointed out that there did not appear to be any significant public concern about continued analog service, since the station had received a total of 20 inquiries about the DTV transition from the public between March 1-17 (six of which came on March 2).  So it’s not like the viewing public would be seriously threatened.

But, the station noted, keeping the analog in operation would seriously threaten some people.

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Creativity Crushed

Media Bureau puts kibosh on NCE applications with Channel 6 contingencies

Sometimes it doesn’t pay to get creative, especially where the FCC’s rules are concerned.  This was apparent in an April 1 Public Notice which supposedly “provided guidance” to noncommercial educational (NCE) FM stations with regard to television Channel 6 protection requirements.  Significantly, the Notice was issued by the Media Bureau, not the Audio Division.

Because NCE FM channels are close neighbors to Channel 6 on the spectrum, NCE FM stations (and related applications) must protect nearby Channel 6 stations.  A couple of very narrow exceptions are available, one of which involves submission of an unconditional agreement between the NCE and the Channel 6 station in which the latter “concur[s] with the proposed NCE facilities.” 

The Channel 6 protection requirement cropped up big time in the run-up to the October, 2007, NCE FM filing window.  Channel 6 problems would ordinarily have prevented the filing of many applications.  But several NCE applicants came up with a work-around.  They noted first that, after the DTV transition (then scheduled for February 17, 2009), a lot of Channel 6 operations would simply disappear, as the stations in question abandon their analog Channel 6 facilities for digital facilities elsewhere on the TV band.  The would-be applicants then calculated, correctly, that the NCE FM permits they were filing for wouldn’t be granted for at least a year or two – which means that their three-year construction periods would run well past the DTV transition. 

So, they reasoned, if there would be no Channel 6 operation to worry about when construction time actually rolls around, shouldn’t they be able to ignore Channel 6 at the application stage?

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Yes, Virginia, There are Updates

Just a quick update on some recent stories we've had on CommLawBlog.  There's a common thread running through all three.  A free CommLawBlog subscription to the first person who can find it...

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FCC Exiting Auction Bid-ness!!

eBay to Take Over Spectrum Auctions

It’s official!! The FCC has eloped with Internet auction giant eBay, forming a “strategic partnership” under which eBay will run all the Commission’s spectrum auctions. Citing “multiple significant synergistic” benefits, the FCC has turned its auction chores over to eBay, lock, stock and barrel: not only will eBay handle the bidding process, but it will also collect all payments through its PayPal system and even provide pre-auction screening of bidders through its established “feedback” system.

By relieving itself of the considerable administrative headaches of auctioneering, the Commission will now be able to devote more of its scarce resources to developing important spectrum management policies, such as increased monitoring of the completeness of broadcasters’ public inspection files and protecting the public from the all-too-occasional “fleeting expletive”.

In return for pulling the laboring oar in all spectrum auctions, eBay will receive a 20% commission on all auction proceeds collected. Additionally, it has been awarded naming rights to the Commission’s headquarters building (formerly known as “The Portals”) in Washington, D.C. 

According to the Commission, no current FCC staff positions will be terminated as a result of the eBay partnership. The existing staff of the Auctions and Spectrum Access Division of the Wireless Telecommunications Bureau – the folks who have historically handled FCC auction details – will help out with the transition of auction duties to eBay. After that, they’ll use their transitioning skills to help with the DTV Transition, staffing phone banks at the FCC’s Call-In Center and assisting in the installation of digital converter boxes and appropriate rabbit ear antennas. When the DTV Transition has been completed (projected date: 2015!!!), remaining FCC staff members will be assigned to serve on Skype Customer Support lines. Skype is an Internet-based telephone service owned by eBay. (Another benefit of the “strategic partnership”: selected FCC users will get a 0.5% bulk discount on Skype service!)

Some adjustments to the auction process will be necessary. For example, in order to accommodate the 20% commission due to eBay, the Commission will no longer permit the use of “bidding credits”, which have historically reduced the proceeds actually realized by the Commission from spectrum sales. Along the same lines, any bidder who has received two or more “negative” feedback comments in any eBay auction during the 10 years prior to an FCC auction will be subject to a 10% surcharge if it is the successful bidder.

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Pursestrings Update V (or is it VI?): The Party's Over

It’s official (we think) – New application fees to take effect April 28, 2009

Loyal readers have doubtless been on the edges of their seats since the last installment of our “Pursestrings Update” series. (Newbies can catch up by reading our earlier installments here, here, here, here, here,  and here.) We have a new development to report: the Commission has now formally announced that the revised application fee schedule first adopted last September (has it really been that long?) will take effect on April 28, 2009. Mark your calendars (and try to get any applications you’re working on filed by then – the new schedule reflects an across-the-board increase, tracking increases in the CPI).

The new effective date is just about four months later than the effective date which the Commission originally envisioned and indirectly announced. It’s also about three months later than the effective date that was formally announced in the Federal Register. And it’s a bit more than two months after the effective date that was posted, ever so briefly, on the Commission’s “application fee” webpage (and printed in some fee filing guides that the Commission posted, and then removed, from that webpage). 

But what the heck – better late than never. Actually, since the fees are going nowhere but up, the delay has been beneficial for those who have been filing feeable applications since December 30. 

But it does look like we’ve come to the end of the line.

Readers will observe that the latest public notice offers no explanation for the on-again-off-again-on-again-off-again-on-again-off-again effective dates so far. In fact, the notice makes no reference at all to any of that history. That’s probably for the best.

In any event, April 28 appears to be the day. We’ll keep our fingers crossed.

"White Space" Battle to Go At Least Another Round

Reconsideration petitions in the FCC’s “white space” proceeding – about unlicensed devices in locally vacant TV channels – show the controversy is far from over.

After carefully studying 35,000 comments, dating back to 2002, the FCC issued an order last November that tried mightily to balance the rights and interests of TV broadcasters and viewers, manufacturers and users of the wireless microphones in TV spectrum, would-be manufacturers and users of the new unlicensed devices, and cable companies, along with many other groups that shouldered their way into the proceeding. We reported on the outcome here.    

And everybody went home happy. Except the nineteen parties and groups, representing every facet of the proceeding, that last week formally asked the FCC to reconsider its decision. They include:

  • broadcast-related interests who seek a return to square one, arguing that the record does not support any unlicensed devices on TV channels;
  • LPTV stations that lack needed protection for ongoing analog operations;
  • petitioners objecting to a great many specific technical rules, including emission limits, separation requirements, sensing levels, power levels for first-adjacent channels, special procedures for sensing-only devices, fixed base station heights, and many others;
  • cable satellite TV providers that claim inadequate protection for headends and cable-ready TV sets; and
  • those presenting other issues: real-time operation of the database that catalogs available TV channels; database information security and registration requirements; pending negotiations with the Mexican government; rejected proposals, such as licensed use of white space frequencies; and too many more to list here.

In addition to these petitions are the court cases brought against the same rules by broadcasters and users of wireless microphones. Details are here. The cases have since been consolidated into one, which will likely be set aside for the year or two (or more) it will take the FCC to resolve the reconsiderations.

The FCC will soon ask for comments on the reconsideration petitions. We’re running a pool here in the commlawblog bunker. The number 35,000 is taken.

Audio Division Addresses Environmental Assessment Requirements

Staff sheds light on chores underlying environmental certification in CP applications

Back in the day, the conventional “environmental” certification required of construction permit applicants tended to be limited to the (usually) non-existent potential RF effects on passers-by at the proposed transmitter site. But in 2005 a “Nationwide Programmatic Agreement” (NPA) entered into by the Commission, the Advisory Council on Historic Preservation and the National Conference of State Historic Preservation Officers became effective.   (A copy of the NPA and related information may be found here.)  Since then, applicants for new FCC construction permits have been required to take extensive steps to confirm that their proposed construction would not cause unacceptable disruption to environmental, historical or cultural interests.

The Audio Division recently reminded us all of those requirements. In a 22-page decision, the Division took to task an applicant whose supposed efforts to comply with the requirements were “woefully insufficient”. While the Commission ultimately granted this particular applicant the permits it had asked for, the Division’s decision sends a clear message to future applicants: take the environmental certification requirement seriously before you make that certification.

The applicant in this case was proposing to locate three FM antennas on a single tower to be built on a mountain in Wyoming. In each of the three CP applications the applicant certified that the proposed construction would not have a significant environmental impact. But a petitioner opposed the applications, alleging that the applicant had not verified the accuracy of its certification. As often happens when a petitioner shines a harsh light on such things, a considerable number of previously undisclosed details popped up.  

As it turned out, the applicant had indeed taken virtually no steps to confirm that its certification was accurate. Sure, one of its principals had looked over the endangered species list and maybe received some off-the-cuff thoughts of personnel at the Bureau of Land Management indicating that the site was the “best available”. But that fell far short of what the Commission expects.

What does the Commission expect?

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S. 649: The First Step Toward Spectrum Redistribution?

Senate bill calls for “inventory of airwaves” to identify spectrum for more broadband, advanced communications use

With several trillion dollars’ worth of bills stacking up on the kitchen table, the Senate is thinking about searching for quarters under the sofa cushions.

When times get tough around the household, what’s a tried and true way of generating some quick cash? A yard sale, of course. So in these dire economic times, some Senators have proposed – in S. 649, a bill introduced on March 19 – that Congress get ready for a Federal spectrum yard sale by making a list of all the spectrum controlled by NTIA and the FCC.   (The Senators in question are former presidential wannabe John Kerry and co-sponsors Olympia Snowe, Roger Wicker and Bill Nelson.) 

After all, the public picked up $20 billion in pin money from the 700 MHz auction. Maybe lightning can strike twice.

In fairness to the bill’s sponsors, their goal supposedly is to assure that we will all be able to find “additional spectrum” to “meet the growing demands and needs of consumers and businesses alike.”   The bill’s sponsors seem particularly interested in opening up space for more broadband and advanced communications services. But in her statement in the Congressional Record, Snowe correctly observed that “there is no new spectrum to allocate, only redistribute”, which would seem to put the kibosh on the notion of finding “additional” spectrum. So it appears that the sponsors contemplate that spectrum already in use is going to be changing hands – a process which has in the recent past tended to result in payments to the guv’mint.

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LPFM Stuck With $20K Fine for "Advertisements"

Time for NCE’s to review their underwriter announcements?

The Enforcement Bureau has come down hard – very hard – on a low power FM station for broadcasting thousands of prohibited advertisements over the course of some 14 months. Total fine specified in the Notice of Apparent Liability: a cool $20,000. Ouch! And this is an 11-watt (yes, when they say “low power”, they really mean it) station we’re talking about. Double Ouch!

The Bureau’s decision highlights the perennial problem presented by the limits on noncommercial educational (NCE) licensees. (By definition LPFM stations are NCE.) NCE licensees are prohibited from broadcasting any promotional announcements on behalf of for-profit entities at any time in exchange (in whole or in part) for any consideration of any kind. BUT they MAY broadcast announcements which identify and acknowledge non-profit and/or for-profit entities (referred to by the cognoscenti as "underwriters") who contribute to the station’s operations, monetarily or otherwise. 

The trick is telling the prohibited promo from the acceptable acknowledgement.

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Send In The Clones!

Senate bill for third-adjacent protection relief for LPFMs mimics House version

Late last month we reported on a bill introduced in the House that would eliminate the third-adjacent channel protections which full power FMs have enjoyed vis-à-vis LPFM stations since 2000.  The House bill (H.R. 1147) now has a little friend over on the Senate side: on March 12, 2009, Senators Cantwell, McCain, Leahy, Durbin, Feingold, and Schumer introduced their own bill (S. 592) that would do the very same thing. 

It wouldn’t be a stretch to call these two bills “companion pieces” . . . or even identical twins. Other than minor changes in the “Findings” portion of the Senate bill, there is no difference in the way both bills would implement the changes in the interference protection standards. Just like the House version – indeed, using the same language as the House – the Senate bill would repeal the 2000 law imposing the third-adjacent channel protection (except when radio reading services are involved) and would require the Commission to consider the needs of the local community in determining whether to license LPFM or FM translator stations. 

Interestingly, the Senate’s version of the bill eliminates a pejorative reference to the consolidation of the media industry which the House had thrown in. The House alluded to testimony that there had been “too much consolidation” in some local radio markets and that consolidation had created pernicious “strong financial incentives for companies to reduce local programming”. The Senate bill retains the reference to “too much consolidation”, but drops the suggestion that consolidation is to blame for any reduction in local programming. The Senate version also corrects the House’s math with respect to the number of LPFM stations that were processed with the third-adjacent channel protections in place (the House said the number was 800; the Senate says 500).

With essentially identical measures pending before both Houses, the skids may now be greased for prompt Congressional action. Whether that will actually happen depends on the political process, and who knows how, or when, that will happen? Still, it is clear that, given the right push, Congress could move swiftly to lift the third-adjacent channel protections. Stay tuned.

CUT FATT Patent Spat: The Plot Thickens

You may remember our post from last month about the CUT FATT petition. CUT FATT is a “coalition” asking the FCC to adopt rules limiting the royalties which patent holders can charge DTV set manufacturers. We had a good chuckle about the oddness of the CUT FATT acronym (full name: Coalition United to Terminate Financial Abuses of the Television Transition) and the coalition’s somewhat limited membership (since only two companies, VIZIO and Westinghouse Digital Electronics, were identified as members). 

The initial petition appeared to be the kind of altruistic project that a “public interest” law school class, or maybe an Eagle Scout, might undertake: an effort to Do Good for Everybody Because, Gosh Darn It, It’s The Right Thing To Do.

It turns out that there was considerably more here than first met the eye. In the tradition of the late Paul Harvey, here is the rest of the story.

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Friday the 13th Meets Groundhog Day.

New DTV transition rules released.

It’s déjà vu all over again. As expected, the Commission has acted, once again on a Friday (and yes, again on a Friday the 13th), to revise its required procedures with regard to termination of analog operations and consumer education announcements. The new order may be found here.

The changes represent something of a good news/bad news situation, but the bad news outweighs the good. While some unnecessary and/or confusing requirements have been eliminated, the consumer education announcements have been bulked up to include a lot of information not previously required. . . and various non-broadcast chores have been increased . . . and the Commission has made it difficult for major network affiliates to say so long to analog.   The clear intent of the new requirements, which are especially heavy for major network affiliates, is to discourage stations from making an early transition. 

And even if some stations undertake all the new burdens, the Commission makes it clear that the Commission reserves the right either to postpone or simply deny permission for some stations to terminate analog operations early.

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Spectrum Tax or Spectral Tax? YOU Make The Call!

The sharp-eyed policy wonks here inside the Beltway spotted a line item in President Obama’s budget proposal called a “spectrum license user fee.” This tax – sorry, fee – would be assessed against users of spectrum blocks that are licensed but not auctioned. These include most AM, FM, and TV, most two-way mobile radio and fixed microwave, and all satellite, amateur radio, and several other categories. Unlicensed spectrum, such as that used for Wi-Fi and Bluetooth, would be exempt. Even so, the new fee is projected to bring in $200 million in 2010, increasing steadily to $550 million by 2019.

Outraged at this extra dip into the pockets of hard-working Americans? We don’t blame you. But don’t call your congressman quite yet. The chances of anybody ever actually paying this fee are small. The reasons have to do with the annual Washington ritual of budget politics.

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Hey Jules!!!

Editors' Note: Let’s be honest. The first day on a new job usually stinks. Everything’s new and different. Everybody’s trying to weasel up to your good side. Big and Important Stuff definitely needs to get done, but right out of the box it can be hard to tell the Big and Important Stuff from the Totally Unnecessary and Possibly Counterproductive Stuff.

As a public service, we here at CommLawBlog have put together a "To Do" List for Julius Genachowski when he arrives on the Eighth Floor of the FCC. (We know he hasn’t been confirmed yet, but who really believes that that’s going to be a problem?)  

But what do we know? The Chairman-Designate would probably benefit even more from suggestions from CommLawBlog readers. We down here in the CommLawBlog bunker merely have our fingers on the pulse of the Regulated Nation; you ARE the pulse of the Regulated Nation.

We’re sure Mr. Genachowski would welcome additional input from the blogosphere for his To Do list. Check out our initial thoughts below, then post your own using the comment box at the end of our list.

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Opponents Toss White Space to Courts

Back in November, the FCC adopted rules that will eventually allow unlicensed communications devices to use vacant TV channels: the so-called “white space” frequencies. We outlined the details here. It took another three months for the rules to make their official debut in the Federal Register. Some of the rules (although not the ones that matter most) take effect in late March. Details are here.   

The February 17 publication in the Federal Register opened the window for aggrieved parties to object to the rules in court. Some have done so.  Two associations of broadcasters, long concerned about unlicensed devices causing interference to TV reception, filed an appeal in the U.S. Court of Appeals for the D.C. Circuit. But TV stations are not the only licensed users of TV frequencies. The wireless microphones widely used for movie and TV production, and at music and sports venues, operate on vacant TV frequencies and could be crowded out by unlicensed devices. A few groups that make heavy use of the microphones – ESPN, the major professional sports leagues, and New York theater owners and producers – filed their own appeal in the U.S. Court of Appeals for the Second Circuit. The two cases will eventually be consolidated into one.

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DTV Countdown Down For the Count

100-day countdown requirement waived temporarily

What a difference a couple of weeks make! Remember a week or two ago, when the FCC came out with new orders and proposals changing the DTV consumer education rules that had been in place for a year?  And remember how the new approach included the requirement that stations which had chosen DTV consumer education Option Two (the NAB plan) would have to re-start their 100-Day Countdown calendars as of March 4? The night before that requirement was to kick in, the Commission changed course again.

On March 3, the FCC waived the new-and-improved 100-Day Countdown requirement pending resolution of the February 20 Notice of Proposed Rulemaking (NPRM). So scratch that new 100-Day Countdown, at least for the time being.

The Commission is concerned – and properly so – about potential viewer confusion. The proposals currently under consideration contemplate a gradual DTV roll-out between April and June, meaning that some stations will be transitioning in advance of the new June 12 national transition date. That being the case, the FCC is trying to figure out what kind of count-down makes sense: one tied to the broadcasting station’s own particular transition schedule, one tied to the national deadline, or possibly some combination of the two, or maybe even some other alternative that includes the transition schedules of other stations as well.

That question, and others raised in the NPRM, are expected to be addressed no later than March 13. At that point the FCC will give us all instructions as to how to proceed. Until then, though, the 100-Day Countdown requirement has been waived.

In announcing the waiver, the FCC stressed that all other DTV consumer education requirements aside from the countdown remain in place in the meantime,.  Therefore, stations must continue to air their PSA’s and crawls; they just don’t have to add countdown announcements as yet. In fact, any station that has started such announcements should stop at once.

New and Improved Performance Rights Act Hearing -- Now with More Witnesses!

The scheduled -- and then cancelled --  House Judiciary Committee hearing on the Performance Rights Act is back on.  The Committee website says it will now be held on Tuesday, March 10 at 10:00 a.m.  Even better: RBR claims to know the identity of some of the witnesses for the broadcasters (Steve Newberry and Larry Patrick). 

As that RBR article notes, the Local Radio Freedom Act, the nonbinding resolution demonstrating opposition to creation of a performance right applicable to over-the-air radio, now has 135 co-sponsors.  Only 83 more to go...

Judiciary Committee -- Hard of Hearing?

We now understand that  Wednesday's House Judiciary Committee hearing on the Performance Rights Act (which we mentioned to you earlier today) has been postponed. 

The Committee's calendar makes no mention of the cancellation (though information regarding the hearing has never been updated).  However, other outlets are reporting the cancellation (with the Radio and internet Newsletter ("RAIN") site surmising that the hearing has fallen victim to a conflict with a Joint Address to Congress by British Prime Minister Gordon Brown, also scheduled for 10 am on Wednesday, March 4).    A call to the House Judiciary Committee confirms what the Committee website will not:  the hearing is off. 

As our own Frank Jazzo said, "Probably just as well from the broadcasters' perspective".  That's especially true given that the number of supporters for the counter-movement known as the "Local Radio Freedom Act" (LRFA) is up to 131 -- did the scheduling of this hearing which never actually occurred spur more Representatives to add their names to the list of LFRA supporters?

Power to the Parents?

At Congress’s direction, FCC inquires broadly about content-blocking technologies

When Congress tells the FCC to do something, the FCC has no choice: it’s got to follow orders. Back in December, Congress told the FCC to start an inquiry into “advanced blocking technologies and existing parental empowerment tools” so, sure enough, that’s what the FCC has done. On March 2 the Commission released a Notice of Inquiry just like it was ordered to.

The law that got this started – the Child Safe Viewing Act of 2007, which was signed by the President on December 2, 2008 – was not a model of specificity or precision. It directed the Commission to “initiate an inquiry to consider measures to examine”, in effect, the entire range of “blocking technologies” which might be available to “improve or enhance the ability of a parent to protect his or her child from any indecent or objectionable video or audio programming, as determined by such parent, that is transmitted through the use of wire, wireless, or radio communication.”

Gamely attempting to comply with that near-infinite mandate, the Commission is now seeking comment on content-blocking generally.

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The (Performance) Right to a Fair Hearing?

There will be a hearing on the Performance Rights Act, but will it be fair?  This week's schedule for the House Judiciary Committee shows that the Committee will hold a hearing on H.R. 848 Wednesday, March 4, at 10:00 a.m. in Room 2141 of the Rayburn House Office Building, As we have previously discussed, H.R. 848 would require payment of copyright royalties by broadcast radio stations for performance of sound recordings.

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Coming This September: FCC Auction 79

122 FM CPs set for auction to start on September 1, 2009

Heads up, all you radio folks who have had to sit on the sidelines while the DTV transition got all the attention!! The Commission has announced that the next auction of FM broadcast permits has been scheduled to start on September 1, 2009. Mark your calendars and get your checkbooks ready.

A total of 122 CPs will be on the block. A complete list of the channels/markets involved can be found here.

The public notice is the first step in a standard process which the Commission has historically used in connection with its broadcast auctions. The notice: (a) sets forth the auction methodology which the FCC proposes to use – it appears at first glance to be essentially the same methodology used in earlier auctions, and (b) lists the CPs for sale and ascribes minimum opening bid values to each. The notice also serves as an invitation for public comment about both methodology questions and the specific minimum bid values. Comments are due no later than March 20, 2009, and reply comments by April 1.

Once those dates have passed and the Commission has had an opportunity to address any comments filed, it will issue a further notice providing more detail about the schedule of auction activities, including deadlines for initial applications, upfront payments and the like.

A word of caution. Since the FCC has bothered to include this bold-face disclaimer in its notice, we figure we should pass it along straight from the horse’s mouth:

The FCC makes no representations or warranties about the use of this spectrum for particular services. Applicants should be aware that an FCC auction represents an opportunity to become an FCC construction permittee in the broadcast service, subject to certain conditions and regulations. An FCC auction does not constitute an endorsement by the FCC of any particular service, technology, or product, nor does an FCC construction permit or license constitute a guarantee of business success.

While September may seem well into the distant future at this point, anyone who might have any interest at all in participating in the auction should begin immediately to get familiar with the process.

CUT FATT Patent Spat

Coalition (of two) urges FCC to oversee patent licenses as well as broadcast licenses

Now and then we get an item down here in the CommLawBlog bunker that leaves us scratching our heads.

This week’s baffler is a Petition for Rulemaking from an entity calling itself the “Coalition United to Terminate Financial Abuses of the Television Transition LLC,” or CUT FATT. As far as we can tell from its own description of itself, the membership consists of a grand total of two manufacturers of TV sets. (Any fewer, of course, and it loses its “Coalition” status.) 

CUT FATT states as follows:

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Third-Adjacent Protection From LPFM's On The Chopping Block

House proposal would boost Lilliputians’ status in FM hierarchy

This week a bill (H.R. 1147) was introduced in the House that may lead to a wave of new Low Power FM stations – possibly as many as 3,000. The bill would statutorily eliminate the third-adjacent channel protection to full-power FM stations. It has garnered the support of 22 Congressman (from both sides of the aisle) thus far.

In addition to adding one more back (or maybe it’s one more forth) to the long-running back-and-forth struggle over third adjacent protections, the bill – if ultimately passed – is also likely to fan the FCC’s ardor for “localism”.

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The DTV Comment Deadlines Are Coming! The DTV Comment Deadlines Are Coming!

We hear that the Second Report and Order and Notice of Proposed Rulemaking  (SRONPRM) which the FCC adopted last Friday night relative to the on-going DTV transition will be published in the Federal Register tomorrow, Friday, February 27. (Actually, we found that out from a convenient but little known feature of the U.S. Archives website, which provides a glimpse at the contents of the next day’s Federal Register.) We reported on the SRONPRM on Saturday, February 21, the day after it was released (what the heck – if the FCC has to work late into the weekend in these trying times, the least we can do is follow suit). 

Most (but not necessarily all) of the rules adopted in the SRONPRM take effect “upon publication of the [SRONPRM] in the Federal Register”, so you can now figure that that date will be February 27. And as to the rules proposed by the Commission there, you will recall that the FCC provided for a less than generous comment period amounting to “5 days after publication in the Federal Register”. Since the Commission didn’t qualify that to mean only business days, we figure that comments will be due on Wednesday, March 4. If you have anything to say about the proposed rules, be sure to mark your calendar so you can meet that deadline, since the Commission won’t be accepting any reply comments.

Another Friday Night, Another DTV Order

New provisions adopted, proposed for early analog termination

Talk about a 24/7 agency. The FCC has, for the second week in a row, kept its own nightlight burning beyond the usual Friday afternoon quitting time: during the evening of February 20, the Commission released a Second Report and Order and Notice of Proposed Rulemaking (SRONPRM) adopting new rules and proposing others to govern the recently-extended DTV transition.

While some of the rule changes are obvious and necessary simply to assure that the Commission’s rules reflect that Congressionally-mandated June 12, 2009, national transition date, others – including both adopted and proposed rules – appear to arise from the Commission’s continuing concern about the public’s readiness for the transition. In any event, if you declined to take advantage of the opportunity to terminate your analog prior to February 17 pursuant to the relatively simple process specified in the Commission’s Third Periodic Report, tough luck: the Commission appears to be determined to make your life harder.

Adopted rule changes

Among the changes which the Commission has formally adopted (and which will take effect upon publication of the SRONPRM in the Federal Register) are the following:

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Day Three And Counting: The Mini-DTV Transition Sets In

We’re now three days into the preliminary DTV transition (i.e., the "mini" transition that went forward on the originally-scheduled date, notwithstanding the last-minute Congressional extension of that date) and it does not appear that the world as we know it has yet come to an end. The sun continues to rise in the east, dogs and cats continue to live apart, and i continues to come before e except after c. The Washington, D.C. subway system did report three separate derailments on February 19, but there is no indication yet that those were directly related to the DTV transition.

Warning: Don’t drink and try to watch DTV

Before we get all optimistic, though, a cautionary note in these transitionary times. According to the website of Station KARE(TV), Minneapolis,on February 18 (DTV Transition Day One),

Police responded to a home in Joplin Wednesday after reports of shots being fired inside.

The 70 year old homeowner was angry that he had lost his cable, and was unable to get his new DTV converter to work properly.

After a brief standoff, the man was taken into custody. His wife told officers the suspect had been drinking.

There’s a lesson to be learned here: Friends don’t let friends try to watch DTV drunk.

Nevertheless, FCC “encourage[d]” by initial public reaction

For its part, the Commission has continued in Hyper-Self-Congratulatory mode by issuing a public notice characterizing the initial phase of the transition as “encouraging”. That was based on a report from the FCC’s DTV Call Center indicating that fewer than 26,000 DTV-related calls were received on Wednesday, February 18 – the first day of the transition. While the FCC’s statistical “overview”  of the various calls was not a model of usefulness, it at least reflected relatively low overall percentages of viewers having actual reception DTV problems – fewer than 33% of the callers (fewer than 9,000 callers in all) complained of such problems.

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Pursestrings Update IV: The Continuing Mystery of the Disappearing Revised Fees

February 18 has come and gone, and the new application fee schedule which was supposed to go into effect on that day has NOT gone into effect. (By the way, if you want copies of the Commission’s now-you-see-it-now-you-don’t 2009 fee filing guides, let us know – we have a complete set of those bad boys and we’ll be happy to make them available to one and all.)

In response to our February 18 post, we heard from one off-the-record source that the folks charged with updating the on-line CDBS payment process have finished their work, so they’re apparently not the cause of the delay, contrary to our earlier suspicions. We also heard that at least somebody inside the Commission was saying that the effective date had to be postponed from February 18 because of some “legal ‘notice’” (the internal FCC memo reportedly included quotation marks around “notice”) requirement that they supposedly just learned about.

Just learned about? Since we’ve been on this topic like a hobo on a ham sandwich for weeks already – not to mention our original post about the new fees that appeared months ago – that suggests that they haven’t been reading CommLawBlog.com, which hurts us deeply. 

But wait a minute – the Commission did put a notice in the Federal Register about the new fees back in January, which suggests that they do know about the notice requirements. Curiouser and curiouser.

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Pursestrings Update III: Adjusted Fee Schedule Is Apparently NOT Effective February 18, 2009

The latest word is that the adjusted application fee schedule which the Commission adopted six months ago, and which was supposed to go into effect on December 30 -- no, wait, make that January 29 . . . no, no, that’s not it . . . wasn’t it February 18? – will NOT be going into effect on February 18 after all. That rumor appears to have legs because the 2009 Fee Filing Guides – you know, the unofficial items that the FCC quietly posted on its site in early February, as we previously noted – have been equally quietly removed from the site. We checked this morning (February 18) and, sure enough, they had disappeared.

If we had to guess, we’d suspect that the on-going delay may have something to do with revising the automatic fee payment system in CDBS, which has to be adjusted to conform to the new fee schedule. And, of course, we do have to guess, because the FCC has not bothered to announce any of this to the public. So much for governmental transparency.

As a practical matter, the Commission’s delays on this particular front are welcome, as they postpone across-the-board fee increases. But it’s troubling that the Commission seems incapable of dealing with what should be a relatively mundane internal updating process, and it’s troubling that the Commission appears willing to ignore its own orders (e.g., its September Order expressly mandating that the new fees would become effective within a very specific time frame) without public explanation. And it’s even more troubling that the Commission hasn’t elected to let its regulatees – who, after all, are the ones most directly affected by the fee change – in on any of this.

Stay tuned. We’ll try to be your go-to site for Adjusted Fee Schedule updates.

White Space Update: Some Rules To Take Effect March 19

But the devil is still in the details – information collection requirements stall effectiveness of all the new rules, probably for months.

The TV “white space” rules appeared in the Federal Register on February 17, 2009, and will (at least according to the Federal Register) take effect in 30 days, on March 19 – which is about time, since the rules were adopted by the Commission several months ago.

Despite what the Federal Register says, however, certain of the rule sections involve new information collections and, because of that, require approval from the Office of Management and Budget. These will not take effect until further notice, probably at least a few months. They are the rules concerning the database of occupied channels and the procedures for approving sensing-only devices. Without these, the other rules are useless. The rules not taking effect on March 19 are Sections 15.713 (TV bands database), 15.714 (TV bands database administration fees), 15.715 (TV bands database administrator), and 15.717 (TV band devices that rely on spectrum sensing).

Even after these rules do take effect, we will not see white space devices on the market until well after the database is up and running. The FCC intends to request applications from entities interested in designing, setting up, and operating the database. But the selection process has not yet begun, with the large and complex task of implementation still to follow. Once started, the whole process will take many months, and possibly a year or more.

Washington's Birthday Special: Another DTV Public Notice!!!

The Media Bureau, in the role of Jack Bauer with 24 hours to go

That loud cracking noise you may have heard on your way home from your long Presidents’ Day weekend out of town was probably the sound of the FCC breaking its arm trying to pat itself on the back about – what else? – the DTV transition. In what is fast becoming an FCC tradition of ignoring Federal holidays, on February 16 (that would be Presidents’ Day, a/k/a Washington’s Birthday) the Commission issued a public notice touting its efforts to “seek to protect access to analog news and emergency information” when the first big wave of DTV transition arrives on February 17.

The Notice announced no real news or policy changes. (That chore had been taken care of in a string of public notices issued between February 5-13. Check out our coverage here, here, here , and, oh yeah, here.) Rather, it seemed intended primarily to let the world know that the FCC really has been busy trying to protect the public from the Transition Trauma anticipated by some. 

One might justifiably ask why the FCC bothered to issue its Notice, especially on a Federal holiday. The most likely explanation is that Acting Chairman Copps (who happens to be quoted extensively in the notice) wants to deploy deflector shields so that, if Bad Things occur as a result of the February 17 mini-Transition, the FCC will be able to disclaim any blame.

This seems a pointless exercise for at least a couple of reasons.

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The Commission Hunkers Down For D(TV)-Day

As anticipated on our posting on Black Friday the 13th, the FCC's Media Bureau Staff had no respite over the holiday weekend.  On President's Day itself, they issued a public notice along with what should be the final list of which TV stations will shut down their analog operation the next day – Tuesday, February 17 – and which will stay on the air analog or broadcast "nightlight" or "enhanced nightlight" services.

According to the FCC's latest, 220 stations have already shut down analog operation, and 421 more will do so tomorrow; so about 36% of the nation's full power TV stations will lower the analog curtain on February 17.

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Valentine's Eve DTV Massacre??

After the sun had set on Washington, D.C., on the notable combination of Friday the 13th and Valentine’s Day eve, the FCC released a Report and Order and Sua Sponte Order on Reconsideration, implementing the DTV Delay Act signed by the President two days ago. 

The most notable immediate action is that full power TV stations which have previously notified the FCC that they will shut down analog operations on February 17 but now wish to remain on the air mind must notify the FCC by e-mail of their change of heart by 6 p.m. on Sunday, February 15. Notifications must be made by e-mail to barbara.kreisman@fcc.gov with the phrase “Withdrawal of Termination Notification” in the subject line.

 Meanwhile, if you were trying to find a Valentine for your lover before the stores closed Friday evening, shame on you for procrastinating; but it is time to listen up for what is “in” and what is “out” this weekend in the DTV world.

The FCC had previously declared that all full power TV analog licenses would expire on February 17. Not any more. As of this evening, all full power TV analog licenses officially expire at 11:59:59 p.m. local time on June 12.

Read on -- there's more.

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FCC Applies Over-the-Air Contest Rules to On-Line Contest

And you thought that a contest on your website couldn’t get you in trouble with the FCC? No such luck – you’ve got at least one more think coming!

As it turns out, while the FCC’s jurisdiction over broadcasters is generally limited to their over-the-air activities, a contest on a website that does not toe the line with FCC disclosure requirements for on-air contests can still raise the FCC’s ire IF on-air announcements allude to the contest and IF the station somehow ties the website to listening to the station in some way. Who knew? In a recent decision out of the Enforcement Bureau, a Los Angeles FM licensee found out the hard way.

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Do FCC Auction Participants Have An Enforceable Contract With the FCC?

Court Says Maybe

In a case viewed with considerable interest by many wireless industry participants, the U.S. Court of Appeals for the Federal Circuit (“the Federal Circuit”) has denied a request by a jilted auction participant for money damages against the FCC. 

The case arose from an auction of an FM station in 1998. The FCC awarded the license to the high bidder even though the high bidder had failed to submit certain pre-auction documentation that the FCC had said was essential to being allowed to participate in the auction. The second-highest bidder (Biltmore Forest Broadcasting FM) challenged the FCC’s decision through the usual appellate channels all the way to the Supreme Court. Bowing to the time-worn policy that administrative agencies are best able to interpret their own rules, these courts deferred to the FCC’s determination that the mandatory pre-auction eligibility criteria were actually just “admonishments.” (Full disclosure: the author represents the challenging applicant.)

Still outraged by the FCC’s post-auction manipulation of the rules, Biltmore Forest decided to take a novel path. Having been denied the radio license it felt it deserved, it turned to the U.S. Court of Federal Claims for money damages from the FCC. It sought over $8 million in damages for breach of the contract that it alleged had been established by the eligibility ground rules announced prior to the auction.

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Early Analog Shut-Down? FCC Tells 123 Stations to Think Again

At around 10:00 p.m. on February 11, word came in that the FCC had released yet another public notice relating to the anticipated of analog TV operations on February 17. In this latest missive, the Commission announced that, with respect to 123 particular stations, it has reconsidered the early shut-down waiver it had announced on less than a week earlier (in its February 5 public notice).  (We described the February 5 notice here.) As a result, those 123 stations may not terminate analog services on February 17 (as previously planned) unless they either (a) certify that they will comply with a list of eight terms and conditions or (b) convince the Commission that “extraordinary, exigent circumstances” require such early termination.

According to the FCC, early termination of analog service by the 123 stations the FCC is picking on “poses a significant risk of substantial public harm.” The target stations are all commercial network affiliates in markets in which, according to the early shut-down notifications filed with the Commission, all major network affiliates otherwise planned to take their analogs dark on February 17. The FCC limited its waiver rescission to network stations because

the presence of major networks and their affiliates [is] critical to ensuring that viewers have access to local news and public affairs available over the air because the major network affiliates are the primary source of local broadcast news and public affairs programming. Therefore, even if independent or non-commercial stations remain on the air in these markets, we still considered these areas at risk.

If you’re on the list, the good news is that you can get off the list if you jump through the right hoops by 6:00 p.m. EST on February 13. The bad news is that those hoops may pose more of a burden than it’s worth.

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DTV Transition Extension - June 12 is Now THE Date

DTV Delay Act signed by President. 

Word has just arrived that President Obama has signed the DTV Delay Act into law. That makes it official: the national DTV transition date has moved from February 17 to June 12. In case you've been stuck in a cave for the last couple of weeks, see our earlier posts (e.g., here and here) for descriptions of the nuts and bolts of the DTV Delay Act. And stay tuned to commlawblog.com for updates as the FCC continues to grapple with the administrative fall-out from Congress’s last-minute change of the deadline.

DTV Transition Update - 680+ Analogs Set To Turn Off Early

With just a week to go before the still-on-the-books February 17 DTV transition date, things at the FCC were continuing to percolate.

Still-on-the-books? Why, yes, as of this morning (Wednesday, February 11), it appears that the President had still not signed the DTV Delay Act into law. No one seriously doubts that he will sign it at some point, but it hasn’t happened yet, at least as far as we can tell from the White House web site. 

Despite the fact that the statutory deadline is thus technically still February 17 (at least until Obama signs off on the extension provision), the FCC is charging ahead as if the extension (to June 12) were a done deal. While it’s dicey business to assume that something is going to happen and act accordingly, the Commission is in a difficult spot here, thanks to Congress, so they’re probably entitled to some slack. (We hope that the Commission will be as understanding if/when we happen to get caught between a rock and a hard place and have to act on similar assumptions.)

As previously reported, the Commission has issued a blanket waiver permitting stations to turn off their analog as of February 17 upon appropriate notice to the Commission. (Of course, no such waiver is technically necessary unless/until the DTV Delay Act gets signed into law – but since the FCC is being forced to operate in the Land of Assumptions, the Commission expects the rest of us to join in the fantasy.) But in issuing that waiver, the Commission reserved the right to “limit or reconsider” it. On February 10, the Commission issued a public notice re-emphasizing the potential for “limit[ing]” or “reconsider[ing]” the waiver “in the event that the Commission determines that analog termination on February 17 by a station or group of stations is contrary to the public interest.”   

How might the FCC make that determination?

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DTV Extension: It Ain't Over 'Til The Paperwork's . . .

Almost immediately after the House finally passed the DTV Delay Act with its do-over vote on Wednesday, February 4, the Commission hustled out a new set of DTV transition procedures (on February 5), some of which require broadcaster action as early as Monday, February 9, and all of which are based on the assumption that the transition deadline has been officially moved back to June 12.

But hold your horses. Constitutional tradition – wait, it’s really more of a specific and express constitutional requirement, isn’t it? – provides that, with certain extraordinary exceptions, an Act of Congress doesn’t become law until the President signs off on it. And that had not happened, at least as of February 5, or even February 8.  

While nobody has any serious doubt about the outcome here – President Obama has made his support for the DTV delay abundantly clear – the problem is that he also has made a “commitment to introducing more sunlight into the lawmaking process by posting non-emergency legislation online for five days before signing it.”  Notwithstanding the FCC’s seeming sense of urgency, the White House apparently views the DTV Delay Act as “non-emergency”, since it has posted the Act on-line for public comment.

It’s not clear when the White House’s self-imposed five-day holding period started. If the first day was the date that the House passed the bill, then Obama could sign it into law as early as Monday, February 9. Of course, if the White House views its solicitation of public comment as anything more than 100% political charade, it may hold off at least a day or two so that it can review and consider (or at least pretend to have reviewed and considered) whatever comments may have been submitted – in which case the President may not ink the deal until later in the week. We shall see.

February 4: The Day the Music Started to Die?

Talk about irony. Just one day after the 50th Anniversary of “The Day the Music Died”, legislation – the Performance Rights Act (PRA) – was introduced that could hasten the death of all music on over-the-air radio.

If you believe PRA supporters (including perhaps most prominently the Recording Industry Association of America), payment of copyright royalties for performance of sound recordings is nothing more than fair and just compensation for intellectual property. 

Opponents of the proposal – including the NAB, State Broadcast Associations and others – see it differently. In their view, it’s a new tax that would cripple broadcast radio. The opposition goes further: the ultimate effect of the PRA would also be disastrous for the recording artists and record companies who are pushing for its enactment. That’s because the revenues many recording artists and record labels seek in exchange for performance of their copyrighted recordings would be reduced, while the essentially free broadcast advertising of concerts (and related merchandise) that has existed for years would also dwindle, leaving everybody involved worse off than before. And the record industry would have no one to blame but itself.

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New Rules On Pulling the Analog Plug

Public notice changes requirements in light of DTV Delay Act

Jumping the gun ever so slightly – after all, the DTV Delay Act still hadn’t been signed into law by the President (at least as far as we can tell) – on Thursday afternoon, February 5, the FCC released its long-anticipated public notice regarding termination of analog service on or after February 17. The following are some of the highlights of the notice.

  • All stations which plan to terminate analog operation as of February 17 have to notify the Commission of their plans by Monday, February 9. This is true even though most, if not all, of those stations may have already filed such notifications. (The reason for this seeming repetitious and duplicative redundancy? The Commission wants to be sure that the hot-off-the-presses extension of the transition date – from February 17 to June 12 – has not altered any earlier decisions.)
  • The FCC is granting stations that wish to terminate analog service on February 17 a partial waiver of its rules to allow for that (since termination as of February 17, once a statutory imperative, has become a statutory violation with the transition extension to June 12).  However, the FCC reserves the right to limit or reconsider this partial waiver in the event it determines that analog termination on February 17 by a station or group of stations is contrary to the public interest.
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Pursestrings Update II - OMD Says Adjusted Fee Schedule Is Effective February 18, 2009

Unofficial Fee Filing Guides said to trump Federal Register notice

True to our word, we have doggedly pursued the mystery of the effective date of the new application fees. Here’s what we found out.

Back in September, when the Commission adopted the new fees, it specified that “the amendment to the Schedule of Application Fees made herein shall become effective 90 days after notification to Congress.” The FCC then promptly notified Congress and, according to a representative of the Office of Managing Director (OMD), the 90-day waiting period ended on December 30, 2008. Now the FCC’s own language (i.e., “the Schedule . . . shall become effective 90 days” blah blah blah) certainly seems to be self-executing – that is, one might have thought that, once those 90 days elapsed, bingo, the new fees would automatically go into effect.

But no.

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Pursestrings Update: New Application Fees Won't Go Into Effect Until February 18, Maybe

A couple of days ago we reported that the new application fees adopted back in September had, at long last, become effective as of January 29. Our report was based on an order that appeared in the Federal Register on January 29 which specified that the new fees were, in fact, effective on January 29.

We suspected that something might be amiss, though, when the automatic fee calculator in CDBS continued to demand the former (i.e., lower) fees, rather than the newly effective “adjusted” fees, but that could just have been a problem with the CDBS administration.

Now the Commission has indicated that, despite the Federal Register directive, the effective date for the new fees will not be until February 18, 2009. We say that this was “indicated”, rather than “announced”, because the information showed up without fanfare (let alone public notice) on a page deep in the bowels of the FCC’s website. There the Commission posted revised Fee Filing Guides for the various services, with the link to each of the Guides labeled “Effective 2/18/09”. So it looks like February 18 is the official date.

But wait.

On the front page of each of the Fee Filing Guides is a notation which reads “This is an unofficial compilation of the radio services and requests for FCC actions that are subject to fees.”  Unofficial? Does that mean that the Federal Register date – which sure looks official, being in the Federal Register and all – supersedes the Guides? We’re looking into this and will post the answers if and when we get any.

Moment Method Modeling: Update IV

Way back in September the Commission approved moment method computer modeling for directional AM proofs, but the rules didn’t go into effect until December 1, 2008 – and even then (as we reported here), they didn’t really go into effect because the application forms on which such proofs must be submitted hadn’t jumped through all the requisite bureaucratic hoops. If that minor technicality stopped any of you from proceeding with preparation and submission of streamlined proofs, your wait is over. The Office of Management and Budget approved the FCC’s modified forms on January 26, and notice of that approval popped up in the Federal Register this morning.  According to that notice, the forms (and associated rules) are effective as of February 5, 2009.

DTV Extension? June 12 Is Looking Like The New Date!

House Tries, Tries Again – and Comes Up With June 12

Word just in from Capitol Hill indicates that the House has passed the DTV extension bill by a resounding 264-158 vote (wait – aren’t those almost the same numbers that came up short in last week’s vote? Ahh, the miracles of the parliamentary process . . . ). The House reportedly accepted the language adopted by the Senate in S. 352, which provides for a We-Really-Mean-It-This-Time final date of June 12, 2009, after which analog television broadcasting will be gone. It also authorizes NTIA to re-issue DTV converter coupons to households which failed to redeem their coupons within the original 90-day life of the coupons. And, perhaps most important to many licensees who have been gearing up to dump their analog operations as of February 17 (which used to be the We-Really-Mean-It deadline), Congress’s action does not require stations to continue analog broadcasting all the way to June 12. Rather, analogs can be terminated prior to that date “so long as such prior termination is conducted in accordance with the Federal Communications Commission's requirements in effect on the date of enactment of this Act, including the flexible procedures established in the Matter of Third Periodic Review of the Commission's Rules and Policies Affecting the Conversion to Digital Television (FCC 07-228, MB Docket No. 07-91, released December 31, 2007).”

Next stop for the bill – 1600 Pennsylvania Avenue, where the President must affix his John Hancock on the dotted line in order to complete the process and make it all legal. The smart money says that that is likely to happen as soon as tomorrow, February 5.

Then, of course, the real fun will begin, as the unfortunate folks at the FCC have to slam the brakes on the February 17 express train (with less than two weeks to go before that particular deadline, thank you very much), switch that train over onto the spur labeled June 12, and get it cranked back up to full speed again. The FCC’s staff, which has done an incredible job so far in the transition process, deserves better than this.

Pursestrings Note: Increased Application Fees Now In Effect

Way back in September we alerted our readers that the Commission had “adjusted” its schedule of  application fees to reflect increases in the consumer price index. (Reminder: The term “adjustment” here is a euphemism for “4.9% across-the-board increase”.) But, as so often happens, the new rates weren’t put into effect right away. Instead, the FCC had to notify Congress of the changes and then sit back and twiddle its regulatory thumbs for 90 days. That process has now run its course, and on January 29, 2009, the Commission published a notice in the Federal Register letting us all know that the new fee schedule took effect as of that notice. Presumably the Commission will eventually get around to issuing revised versions of its Fee Guides for the various services. Until then, all of the revised fees may be found in the schedules included in the 1/29/09 Federal Register notice.

Don't Look Now, But You're STILL Being Watched (Update II)

Last September we reported that FCC staffers were apparently sitting in the comfort of their cubicles in the Portals, checking out station websites to determine whether stations had posted their Form 397 EEO “Broadcast Mid-Term Report” on-line. After we did some checking, though, we updated that report to advise that, contrary to what had been told to us by a staffer, Form 397 is not required to be posted on the station’s website (although a copy is required to be placed in the station’s local public inspection file). This was confirmed by a supervisory FCC official, so we’re reasonably sure that it’s correct.

What, then, do we make of an email received from an FCC staffmember on January 30, 2009, with the subject line reading “Mid-Term Report (FCC Form 397)/[licensee name omitted here for obvious reasons]” and the content of which read, in its entirety, “A review of the above-noted stations' website shows that the 2007 public file report is still posted.  Please ask the licensee to upload the 2008 report by February 3, 2009.”

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Finding the Harm in "Harmful Interference"

The concept of “harmful interference” is central to FCC spectrum policy. The FCC has never said just what the term means. Oddly, though, that might be a good thing.

Nearly every band of the radio spectrum is shared among two or more categories of users. If we think of the spectrum as being spread out horizontally, the users of each band are stacked vertically. To see how this looks, click here.

Each band has a predetermined pecking order among its users: primary, secondary, and unlicensed. The relationships among all of these turn on harmful interference. Specifically:

  • “Primary” users are protected against harmful interference from all other users.
  • “Co-primary” users – services in the same band jointly designated as primary – may not cause harmful interference to each other.
  • "Secondary” users may not cause harmful interference to primary users, and must accept harmful interference from primary users.
  • Unlicensed users may not cause harmful interference to primary or secondary users, and must accept harmful interference from everybody.

The notion of harmful interference being key to the whole enterprise, we might expect to find a crisp and objective definition in the FCC rules. But when we look, we find something else. It comes in two parts:

In the case of a radio-navigation service (like GPS) or a safety service (police, fire, distress beacons, etc.), harmful interference is anything that “endangers” its functioning.

In the case of any other licensed service, harmful interference is whatever “seriously degrades, obstructs, or repeatedly interrupts” the service.

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Roadmap to a February 17 Analog Shut-down

Planning to turn off your analog on February 17, regardless of any Congressional extension? Here’s what you need to do.

Even if Congress finally gets its act together and extends the DTV transition date, we expect that many, if not most, TV licensees will still be inclined to shut down their analog operations as of February 17 anyway. (The “DTV Delay” bill already passed twice by the Senate specifically contemplates such pre-June 12 analog turn-offs.)

If you’re one of those planning to permanently cease broadcasting your analog signal as of February 17 (assuming the transition date does get delayed), you need to do a couple of things and you need to do them quickly.

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DTV Extension? Senate Says June 12 - AGAIN!

Looks like it’s mulligan time on Capitol Hill. As previously reported, the Senate passed a DTV Delay bill on Monday, January 26. However, also as previously reported, the House vote on a corresponding bill came up a tad short vote-wise on Wednesday, January 28.

Go on ahead, gang, why not tee it up again? Who’s looking, anyway?

Sure enough, in Congress as in life generally, if at first you don’t succeed, try, try again. So on Thursday, January 29, the Senate passed its DTV Delay bill . . . again. (Actually, the later bill – dubbed S. 352, not to be confused with S. 328 – included some modest, mainly cosmetic changes that do not alter the bottom line effect of the legislation.) The thinking appears to be that the House – when it gets back to work next week after the long Super Bowl weekend – will be able to take up the new bill again. This time, however, the House will presumably avoid the procedure that got it into a pickle the first time around – i.e., an expedited procedure that required a two-thirds vote which the bill’s sponsors couldn’t muster. But they did have more than a simple majority. So as long as the new bill is considered in a parliamentary process in which a bill can pass with a simple majority (and as long as the original “aye” votes hold), the DTV Delay should be back on track next week.

And none too soon, what with the February 17 deadline less than three weeks away.

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DTV Extension? House Says "Concentrate and Ask Again!"

This just in (at 1:04 p.m. on January 28): a 258-168 majority of the House has voted in favor of the DTV Delay Act, BUT that was NOT enough to pass the bill. It turns out that, because of some arcane parliamentary hocus-pocus involving proposed legislation placed on the House “suspension calendar” (we told you it was arcane), the DTV Delay Act needed a two-thirds majority in the House, and if you do the math, you’ll see that 258-168 doesn’t get you there. Word is that some in the House may now be considering various arcane parliamentary options (e.g., whether or not to bring the bill to the floor under a rule, whereby the bill would need to go through the Rules Committee – remember, we told you it was arcane) through which the bill might be adopted by a simple majority. Stay tuned.

DTV Extension? Senate Says June 12!

Trying to get a fix on exactly when the final DTV transition deadline will be has lately been a lot like trying to nail Jell-O to the wall. But in an effort to keep our readers up to date, we are pleased to report that the Senate has voted unanimously in favor of extending the deadline from February 17 to June 12. (Note: some press reports have characterized the extension as a “four-month” extension. Don’t be fooled. If the June 12 date holds, the extension will be for 115 days, not four months – since “four months” would take it to June 17.)

You can read the full text of the Senate bill here. While it extends the transition date, it expressly does not require stations to continue to operate in analog up to June 12. Earlier termination is permitted, as long as it occurs in accordance with Commission policies and rules (including those set out in the Third Periodic DTV Review released in December, 2007).

The bill also gives folks who received government-issued DTV converter box coupons but failed to use them another chance. Originally those coupons were issued on a two-per-household, use-them-or-lose-them basis, with a shelf-life of 90 days. A fair number of households apparently got their coupons but then didn’t cash them in, and the Senate has decided to give those folks another chance.

It looks like the House is going to bring a version of the bill to the floor for a vote, possibly as early as today (January 27). Stay tuned.

If You Play Your Cards Right, You Can Cover the Game and Steel be Super

Apparently there is some kind of big football game upon us. Not really caring for the sport myself and wanting to stay out of trouble, I won't actually say the name of the game or the teams involved.  What's that?  You didn't know about the implications of using the NFL's registered trademarks without their permission? 

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A New (well, sort of new) Sheriff In Town

On January 22, President Obama elevated Commissioner Michael Copps to the position of Acting Chairman of the Commission. Copps, who has been a Commissioner since 2001, will preside over the slimmed-down three-person Commission until a permanent Chairman takes over. Former Commissioner Tate left the agency in December  when her term ended, and former Chairman Martin bailed out as of Inauguration Day – leaving Acting Chairman Copps to rule the roost over remaining Commissioners Adelstein (D) and McDowell (R). No word yet on how long it may be before the Commission returns to full five-member strength (or who might be filling at least one of the two empty seats). Repeated media reports have indicated that President Obama intends to nominate Julius Genachowski – an Obama Harvard Law School chum and Chief Counsel to Former FCC Chairman Reed Hundt – to be permanent Chairman, but until the President makes a nomination and that nominee is confirmed by the Senate, Copps is The Man.

ION the Prize: Update II

There's two sides to every story . . .

From much of the trade press coverage of the ION/Urban “share-time” proposal, it would appear to be an odds-on mortal lock for approval. Considerable attention has been devoted to the generally supportive consolidated comments and reply comments of 13 “civil rights organizations”, a group which included the NAACP, Rainbow PUSH, NABOB, Minority Media and Telecommunications Council, National Urban League and others. Additionally, Common Cause and Media Access Project joined in some equally supportive comments, and most recently Media Bureau Chief Monica Desai waxed eloquent about the proposal at an open Commission meeting. (According to Radio Business Reports, Desai spoke of “the deal in tones suggesting it was the best idea the Media Bureau has heard since the discovery of frequency modulation.”)

With all those stars aligning just so, it’s hard to see where the downside to the proposal may be.

But wait.

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FCC Leaves The Light On

“Analog Nightlight” service adopted

As directed by Congress last month, the FCC adopted rules on January 15, 2009, permitting many full power TV stations to continue to operate their analog transmitters beyond February 17, 2009, when all normal full power normal analog broadcasting is scheduled to end. Analog transmitters may stay on the air only to transmit emergency messages and information about the DTV transition and must shut down completely no later than 11:59:59 p.m. on March 19, 2009.

As has been widely reported, some members in Congress and President-Elect Obama are getting cold feet about the digital transition, fearing adverse political fall-out from viewers who, having not prepared for the transition, could lose their TV service on February 18.  Acknowledging that the FCC has been working “furiously” to complete the transition (well, a lot of people do seem to be furious), Congress sought to cushion the shock by passing the “Short-Term Analog Flash and Emergency Readiness Act", which the FCC is now implementing. Consideration is also being given to extending the transition deadline three months for all analog programming, but there is considerable disagreement over that proposal, and it has not yet been enacted.

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New Meaning For Digital TV?

Bird flipped on the Peacock, complaints ensue

When is a finger just a finger, and when is it a potentially multi-million dollar fine? NBC may well find out soon enough.  At least 18 complaints have reportedly been lodged with the FCC for the Peacock Net’s live broadcast of the Golden Globe Awards on January 11. The gripes involve actor Mickey Rourke’s acceptance speech and, more specifically, producer Darren Aronofsky’s pantomimed response during that speech, a response which NBC dutifully broadcast (for those of you on the West Coast who got a two-second black screen, YouTube is your friend – for research only, of course).

We can’t recall a single instance in the indecency era in which a televised image of a middle finger provoked an enforcement response from the Commission. While we highly doubt that the airwaves have been completely void of such gestures over the last 30 years, the lack of any cases involving such a gesture shouldn’t be surprising: after all, the FCC’s rules define broadcast indecency as “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.” Does flipping the bird really fit in there? We would think not, but then again, we thought that a millisecond flash of nipple was OK and a fleeting view of an attractive woman’s buttocks might be, too . . . and the FCC disagreed. So who knows?

There’s no word yet whether the FCC will take any action at all here, but the stage has been set. Just how far will the Commission be inclined to stretch the long arm (or finger) of the law?

At Long Last, Closed Captioning Order Printed in Federal Register

Deadlines set for rulemaking comments, but new complaint process, recordkeeping requirements still NOT in effect

Back in November the Commission released a Declaratory Ruling, Order and Notice of Proposed Rulemaking (DRONPRM) in which it (a) imposed a number of new obligations on TV licensees and other video programming distributors and (b) sought comment on how the revenue-based per channel exemption from closed captioning requirements should be applied to stations with multicast programming streams. But as we reported back then, neither the effective date of the changes nor the deadlines for comments and reply comments would be set until the DRONPRM popped up in the Federal Register. 

Lo and behold, more than two months later, the DRONPRM was published in the Federal Register, in two separate items, on January 13, 2009. (The rule changes which were adopted appear in one document, while the proposed rule changes, on which comment is sought, appear in another.) As a result, a couple of clocks are now running.

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DTV Transition Extension - The Line(s) From Vegas

Apparently not content to let Congress and the incoming administration be the only ones to sow potential confusion about the DTV Transition date, Chairman Martin and Commissioner Adelstein took time over the weekend to send decidedly mixed signals to all concerned. As we have previously reported, despite the fact that, years ago, Congress set February 17, 2009, as the final Transition date, in recent days a serious case of the yips has plagued various folks, including high-ranking members of Congress as well as Team Obama. As a result, at this point it’s not clear when the Transition ball will ultimately drop into the hole.

The deadline is a statutory matter – that is, Congress expressly imposed it and the President signed it into law – so it’s up to our elected representatives to decide whether or not to change it. The FCC technically has no say in the date. Rather, the Commission must do what Congress tells them to do.

But that didn't stop a couple of the Commissioners from doing their best to muddy the already muddied waters just a little bit more.

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Moment Method Modeling: Update III

If you are inclined to comment on the petition for reconsideration which was filed in connection with the moment method modeling rules adopted by the Commission last September, the window is now open – the notice concerning the petition appeared in the Federal Register on January 8, 2009. But watch out – that window is small, and will slam shut on January 23, 2009.

DTV Transition Extension: What's the Over/Under?

When it comes to inevitabilities, the February 17, 2009 DTV transition deadline has, in the minds of many, been right up there with death and taxes since Congress wrote that date into law three years ago. But as we said back in 2005 (when it looked like April 9, 2009, was a front-runner), we wouldn’t be betting the farm that the date might not be on the move again before the actual transition happens. And sure enough, we’re starting to hear rumblings that February 17 might have to step aside for some later date – to be determined.

The Washington Post is reporting (in its January 8, 2009 edition) that Consumers Union has urged delay in the transition because of concern that the General Public (a/k/a the Voting Public, a beast politicians prefer not to rile) may not be ready for it. While normally that kind of suggestion might trigger a big ho-hum among jaded observers accustomed to such PR moves, there’s more here: the Post also reports that a spokesperson for Rep. Edward Markey responded that “with the date looming, moving the date back certainly warrants further discussion and may be a wise choice”. Since Markey is the Chair of the House Subcommittee on Telecommunications and the Internet, the smart money figures that the prospects for some extension of the deadline may be looking up. Meanwhile, WashingtonPost.com is also reporting that Team Obama has jumped on the bandwagon and is urging Congress to hit the brakes on the transition. That should get the odds-makers’ attention.

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FCC Whacks Six Licensees for EEO-Related Violations

Four-to-five figure fines for recordkeeping, self-assessment short-falls

With the release of six notices of apparent liability (NAL) at the very tail end of 2008, the FCC has given us a glimpse of what EEO enforcement is likely to look like for the foreseeable future. And the outlook is what you might expect: continued emphasis on detailed record-keeping despite the absence of any indication that any unlawful employment discrimination has occurred.

The six decisions appear to be directed to the broadest possible range of stations, with stations in the east and west, large and small licensees, minority and non-minority ownership. One common factor that all share is the age of the alleged violations: all of the alleged recordkeeping shortfalls took place at least two years ago, with most of the data going back to 2003 or 2004.   The penalty in all cases was a combination of a fine (with amounts varying from $7,000 to $20,000) and reporting conditions.

Each of the NALs arose from the Commission’s random audit program. Each year the FCC requires that randomly-selected stations submit detailed information concerning their EEO efforts. The FCC’s review process is apparently rigorous – how else to explain the multi-year timeframe from initial submission of the EEO information to the 2008 issuance of the NALs?

There are a number of lessons to be taken from the NALs.

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NTIA Wait Lists Coupon Requests

That loud clunking noise you heard a little while ago was the NTIA’s DTV converter coupon program hitting its upper spending limit. That’s right, it appears that all of the $1.34 billion allocated by Congress has been sucked up by DTV coupons already issued. So NTIA has announced that, until Congress slips it some more cash (or until it hits the Powerball), anyone sending in for a DTV coupon will be placed on a waiting list. Don’t call them, they’ll call you.

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"Replacement Translator" Update: Comments Are Due January 12

If you’re planning on submitting comments in response to the FCC’s Notice of Proposed Rule Making (NPRM) concerning digital replacement translators, you’ve got until Monday, January 12 to get them filed. The NPRM appeared in the Federal Register bright and early on January 2. As we previously reported, the Commission limited the comment period to ten days following FedReg publication, so that ten-day clock is now ticking. Reply comments will be due ten days after that, on Thursday, January 22.

"Analog Nightlight" Update: Comments Are Due January 5

If you are planning to file comments on the FCC’s effort to implement the “analog nightlight” service, you’d better put aside thoughts of a pleasant New Year’s Eve and New Year’s Day holiday and start drafting now. The Commission’s Notice of Proposed Rule Making was published in the Federal Register today, December 31. Since (as we previously reported ) the FCC is providing a whopping five days for comments (following FedReg publication), those comments are officially due on Monday, January 5, 2009. Reply comments are due three days later, on Thursday, January 8.  (Don’t forget the FCC’s cheery seasonal greeting at Paragraph 2 of the NPRM: “Notwithstanding the holiday season, these dates will not be extended.”)  Happy New Year!!!

In the Starting Blocks: Replacement Translator Spectrum Rush Set to Kick Off On January 5

As we reported on December 23, the Commission proposed the creation of a new “replacement digital television translator service” to provide one more way to avoid loss of TV service when we all cross the threshold into DigitalOnlyLand in February. Now, before anyone has even had a chance to file comments on the proposed new service, the Media Bureau has announced that it will start accepting applications for new replacement digital translators on January 5, 2009. 

Processing of the CP applications will be deferred until the Commission gets around to adopting the rule changes necessary to implement the new service but that doesn’t mean we won’t be seeing new replacement translators cranking up all over the place in the immediate future: the Bureau has also announced (with the full Commission’s blessing) that the STA window will be open for business as of January 5 as well.

Here’s how the system will work.

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"Analog Nightlight" Service Standards Proposed

FCC rushes to implement “Analog Nightlight Act” (formerly known as “SAFER Act”) by January 15 deadline

Acting with blazing speed, on Christmas Eve the Commission released a Notice of Proposed Rulemaking (NPRM) setting out the tentative standards and processes for implementation of the SAFER Act which was signed into law on December 23, just the day before the NPRM was released. The SAFER Act – which the FCC now catchily refers to as the “Analog Nightlight Act” – authorizes continued, albeit very limited, operation of some analog TV stations beyond the previously-established February 17, 2009, termination date of such operation.

Since the SAFER, er, Analog Nightlight, Act left little room – and even less time (the Act requires the standards to be in place by January 15, 2009) – for agency creativity, there are few surprises in the NPRM. The Act permits continued analog operation for 30 days beyond the February 17, 2009, final transition date as long as such operation would not cause interference to digital TV signals (or public safety services) and as long as the content of such operation is limited to emergencies and/or educational/informational matter relating to the DTV transition.

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In the DTV Christmas Stocking: Replacement Translators!!

FCC proposes new Replacement translator service for full-service DTV fill-in, opens door for immediate filing

Having canceled its December 18 open meeting and substituted a quick conference call on December 30 to meet the statutory monthly meeting requirement, the FCC now seems to relish putting out significant items just in time to keep everyone working over Christmas. The latest example: the December 23 (that’s right, Christmas Eve Eve) release of a Notice of Proposed Rulemaking (NPRM) proposing to open a special opportunity for full power television stations to apply for what will be known as digital “Replacement” translators to fill in gaps in the coverage of their primary signal. These applications will be accepted even though applications for new translators generally may not be filed absent a general translator application window, which the FCC evidently does not intend to open until any rush of Replacement translator applications dies down.

Because the new “Replacement” service will serve as the spackle patching over holes in signal coverage resulting from the fast-approaching DTV transition, the Commission has put the NPRM on a super-fast track. Comments will be due a mere 10 days after the proposals are published in the Federal Register. And even before the clock for comments starts running, applications will be accepted: the FCC authorized the Media Bureau to start accepting applications as early as Christmas Eve, just as Santa Claus cranks up his reindeer and sleigh. And while the applications may not be granted until the rulemaking is completed, the staff will be able to grant special temporary authority (STA) in the meantime. 

If you want to file an application, do it quickly, because applications will be processed on a first-come, first-served basis, with the earliest filed application getting priority. If more than one mutually exclusive application is filed on the same day, the FCC will allow a 10-day settlement period. If there is no settlement, the applications will go to auction.

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It's Not Just a Bill - It's the LAW!

It’s official. According to the White House, President Bush has signed the SAFER Act on December 23. Analog TV will live on for another 30 days – subject to the limitations we described in our earlier post.

ION the Prize: Update

 It's ex parte time as FCC pins "permit-but-disclose" label on application!!

Earlier this month we posted a piece about the ION/Urban Television “assignment” application which proposes the sale of a bunch of secondary digital TV streams – but not the primary streams associated with them – from ION Media Networks to Urban Television LLC, a company controlled by media mogul Robert Johnson.  We have nothing new to report about the proposal itself, but we do have some news about the FCC’s processing of that proposal. 

The Commission has announced that the application will be treated as a “permit-but-disclose” proceeding.  This means that interested parties may communicate with FCC staffers on an ex parte basis – i.e., on a “one-sided”, or one-on-one, basis, away from the prying eyes of other interested parties.

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Moment Method Modeling: Update II

In case you thought the rule making on computer moment method modeling for AM proofs had been put in the finito file, you may have another think coming. Cohen, Dippell and Everist (CDE), one of the oldest broadcast engineering firms around, has sought partial reconsideration.

Not that the folks at CDE appear to have much problem with the basic idea of moment method computer modeling for handling cumbersome directional antenna proofs. To the contrary, their petition simply seeks some practical guidance relative to precisely what the Commission will be looking for in such proofs. For example, while the new rules list what must be included in the model description in order to derive the parameters, the rules do not specify what information must be provided with the proof when it’s filed with the Commission. CDE reasonably asks that the Commission provide a tad more guidance so that applicants preparing such showings for submission will not be forced to guess at what the Commission wants to see.

CDE also raises what it refers to as the “moral hazard” issue. This is where things get interesting.

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Antennas: When is an Omni Not an Omni?

FCC rejects petitioner’s reliance on 1984 public notice

The Ghost of Public Notices Past dropped by the FCC recently, rattling its creaky 24-year-old regulatory chains. While the Audio Division staff had little difficulty shooing the problem away, this kind of ghost is hard to exorcise entirely. Broadcasters (and particularly FM stations) with plans to change their antennas in the near term may wish to take note.

The public notice in question is a four-paragraph item, released in September, 1984, entitled “Criteria for Licensing of FM Broadcast Antenna Systems”. According to the notice, the Commission assumes that omnidirectional FM antennas have “perfectly circular horizontal radiation patterns”. The notice then warns ominously that the “use of any technique or means (including side mounting) which intentionally distorts the radiation pattern of what is nominally a non-directional antenna makes that antenna directional and it must be licensed as such.” Of course, the licensing process tends to be considerably more complicated and expensive for a directional than for an omni, so it would normally be an unpleasant surprise if you planned on installing an omni only to find that the FCC will be treating it as a directional.

As far as we can tell, the 1984 notice has been cited by the FCC only twice in the last 24 years, and not at all since 1992. The Commission does not appear ever to have even suggested, much less formally held, that the public notice could or should be invoked with respect to your average, garden-variety omni installation, whether that antenna be top-mounted or side-mounted. Despite the fact that hundreds – or, more likely, thousands – of omni antennas have been proposed, installed and licensed since 1984, none of them has been declared a de facto directional under the public notice.

But that didn’t stop a petitioner who recently tried to block a proposed station modification by claiming (among other things) that the omnidirectional antenna proposed should be treated as a directional.

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Commission Un-announces Final Open Meeting of 2008

On Friday, December 12, we told you that the Commission had released the agenda for their final hurrah of 2008 (scheduled for December 18) - remember? Well, that was sooo yesterday’s news. 

Late that same day, the Commission announced that the December 18th meeting was cancelled. After the Agenda was released Thursday evening, Chairman Martin received a letter from Representative Waxman and Senator Rockefeller asking the Commission to cancel the meeting and expend the Commission’s resources on the DTV Transition. Apparently, there were items on the agenda, including the AWS-3 Auction, that had raised substantial controversy and the members of Congress did not want the Commission to be distracted from the DTV Transition. According to the FCC spokesman, after receiving the letter, Chairman Martin determined that it did “not appear that there [was] consensus to move forward and the agenda meeting has been canceled.”

The public notice indicated that the Commissioners will resolve the seven items that were on the agenda via circulation. So, just like the weather in Washington, if you don’t like what's on the FCC Agenda, wait ten minutes, and it may change…

Commission Announces Final Open Meeting of 2008

The FCC has announced its official agenda for its final meeting of 2008, to be held Thursday, December 18, 2008 in Room TW-C305 at the Commission with a tentative start time of 10 a.m.  At the meeting, the Commission is currently planning to consider seven items:

  1. A spectrum auction rules/free broadband proposal
  2. Wireless license renewal
  3. DTV translator service
  4. Cable carriage rules
  5. Violations of the Commission’s DTV consumer education requirements
  6. Wireless, enhanced 911 location requirements; and
  7. Satellite Digital Audio Radio Service.

Admission is free and open to the general public.  For those who cannot make it in person, audio/video coverage of the meeting will be broadcast live with open captioning over the Internet at www.fcc.gov/realaudio.

SAFER Act Passed

New lease on life for analog TV – but only a short-term 30-day lease, with plenty of strings attached

It looks like over-the-air analog TV will live on beyond February 17, 2009, thanks to Congress – but at most it will live on only for 30 days, and only subject to severe content limitations.

One of the biggest fears associated with the DTV Transition is that, when folks wake up on February 18, 2009, to find the catastrophic [fill in any disaster scenario of your choice here – blizzard, earthquake, wildfire, tsunami, train wreck, etc., etc.] conditions that arose while they were sleeping, they will turn on their over-the-air analog TVs looking for news and get, instead, nothing but static. Congress and the Commission are concerned that any viewers still reliant on over-the-air analog service – i.e., viewers who will be unable to get weather or emergency information post-DTV Transition – will spill their coffee, shriek with horror and then, in the ultimate act of retribution, conclude that Congress is to blame for the problem and vote the bastards out at the next opportunity. (While FCC Commissioners technically can’t get voted out, they can certainly experience what forensic experts refer to as “blowback”.)

In a preemptive effort to head off any such PR disaster, the Commission imposed extensive DTV Education requirements. But misgivings still exist (possibly exacerbated by the results of the Wilmington, NC DTV test last summer). And so, on December 11, Congress chimed in by passing the Short-term Analog Flash and Emergency Readiness (“SAFER”) Act.

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How Much Is a Child Worth to You?

Well, to Sony BMG Entertainment group, the answer was recently "about $ 33.00".  That's the amount per child Sony paid in settling a civil action brough by the US government for violations of the Children's Online Privacy Protection Act (COPPA), a federal law enacted in 1998 and implemented by the FTC in 2000. 

While the financial portion of the settlement -- $ 1 million -- may not be much to Sony BMG Entertainment, it should serve as a warning to smaller companies with a kid-friendly web presence that they need to learn about and abide by COPPA.  Any broadcast television or radio station that dedicates a portion of its website to children's programming, a "Kid's Club" or "Birthday Club", etc., or otherwise directs content to or collects information from children under the age of 13 should definitely read further. 

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Comment Deadlines Set In FCC Tower Inquiry

Back in September we reported on an invitation for comments on how to amend the rules regulating tower construction near AM stations. At long last the Second Further Notice of Proposed Rulemaking (SFNPRM) has made it into the Federal Register.   Publication in the FedReg in turn establishes the dates for comments. If you want to file comments in response to the SFNPRM, you’ve got until January 12, 2009; reply comments are due by February 9, 2009.

Postcard from the Sausage Factory

With much ballyhoo, on December 9 a report from the majority (i.e., Democratic) staff of the House Committee on Energy and Commerce was released, slapping the bejeebers out of Chairman Martin. Titled “Deception and Distrust: The Federal Communications Commission under Chairman Kevin J. Martin”, the report concluded a year-long investigation. But despite a considerable amount of grandstanding on the part of the House Committee, the report itself is disappointing on a couple of levels. 

While it does conclude that Martin “withheld important and relevant data”, “manipulat[ed]” a staff report, “undermined the integrity of the staff”, engaged in “senseless waste of resources”, yadda, yadda, yadda, the report does not contain any truly blockbuster, make-your-eyes-bleed, exposés – no 8’x10’ glossies or lurid videos of Martin in flagrante delicto committing [fill in the political nightmare of your choice here]. In fact, none of the Committee’s charges even seems to rise to the level of a punishable violation of law or rule (although the Committee does suggest that further investigation into some matters may be in order).

More depressingly, though, the report tends to confirm the long-held but seldom articulated beliefs of a number of observers about the way the FCC operates, regardless of who happens to be its Chair. And the odds are that the issuance of the report is not likely to change anything.

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FCC to Open Amendment Window for a Handful of NCE Applications

A lucky few, very patient, noncommercial educational (NCE) applicants got an early Christmas present this year: the Commission has reconsidered its Grinch-like 2003 decision to summarily dismiss their applications. But they’re not out of the woods yet.

Historically, NCE applicants could file applications for new stations on commercial (a/k/a “non-reserved”) channels.  If mutually exclusive (MX) commercial applicants also filed, the competing applicants would have to duke it out in a hearing.  But when the Commission moved to an auction process for doling out new CP’s, things got complicated.  Congress had said that NCE applicants would not be subject to auctions, which meant that “mixed” application groups – i.e., MX situations involving both commercial and NCE applicants – could not be resolved through auction.  That left a number of MX groups – including applications filed more than 10 years ago – in limbo, as the Commission had no alternate way of picking a winning applicant from a universe of both commercial and NCE applicants.  In 2003, the Commission decided that the way to move things along in those proceedings was simply to throw out the NCE applicants, thereby clearing the way for the remaining commercial contenders to slug it out in auctions.

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ION the Prize

Talk about outside-the-box thinking. In a deft attempt to snag FCC-blessed mandatory cable carriage for non-primary digital streams – an issue which the FCC has managed to dodge for years – ION Media Networks and BET founder and billionaire Robert Johnson have lobbed in an assignment application which, if granted, would likely have profound effects on the DTV television industry. And by stirring more than a dash of “diversity” flavoring into the mix, ION and Johnson are looking to take advantage of the fascination with diversity that has gripped the Commission for the last year or two (and which will almost certainly continue to grip it in the upcoming Obama administration).

The FCC has invited public comment on (or petitions to deny) the proposal. The current deadline for comments/petitions is December 26. Merry Christmas.

The application, filed by ION and a new Johnson-controlled company (Urban Television LLC), proposes the “assignment” of the licenses of 42 television stations currently held by ION. But ION would not be letting go of its stations in any conventional sense. Rather, Urban is proposing to buy “licenses” to operate on a second digital stream of each of ION’s stations. In other words, ION and Johnson are asking the FCC to treat non-primary digital streams as separate, and separately licensable, authorizations. The proposal contemplates that Urban would hold a separate license for its operations in each of the 42 markets, while ION would continue to hold its own licenses in those same markets.

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There's More Than One Way to Fix An Election

During my trip to Venezuela earlier this year as part of a delegation of the American Society of Newspaper Editors, I was apparently put on the Ministry of Information mailing list because, ever since my return, I've gotten 2-3 press releases a day.  Most get deleted immediately, but given our own recent elections, I found this one particularly interesting and perhaps enlightening to broadcasters who engaged in "exit polling" on November 4: 

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The Devil and the Details: FCC Adopts Elaborate White Space Rules

With extensive protections accorded to licensed operations, the ball is now in the white space proponents’ court

Thudding a 1.3 pound order on the press table late last Friday, the FCC not only ruined a lot of Washington weekends, but ended years of dispute by authorizing unlicensed devices on TV frequencies. A lot of the paper is taken up with the explanations and rationales needed to weatherproof against the inevitable court appeals. But the rules themselves still run to 15 single-spaced pages, making this by far the most complex regime for any unlicensed service.

Down here in the commlawblog bunker, we have long been doubtful that any workable set of rules could adequately protect TV stations and wireless microphones from interference. Poor device performance in recent engineering tests only deepened our skepticism. It does not happen often, but we could have been wrong. The FCC may have pulled it off.  Sure, there is always room to quibble over the numerical details – more channels for wireless microphones, lower detection thresholds, etc.  And we will have to wait and see how the Commission implements the new procedures and polices the marketplace for non-compliance. 

But the basic regulatory structure seems workable.

A rulemaking like this one – dropping new users into an occupied band – always involves a delicate trade-off between power and flexibility for the newcomer, on the one hand, versus protection for the incumbent, on the other. Here, once having made the decision to allow the devices at all, the FCC seems to have resolved most doubts – and there are a lot of them – in favor of the incumbents, and there are a lot of them, too. The new rules protect:

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DIGITAL TV TRANSITION Ford Fusion Doesn't Crash in Final Race!!!!

Elvis has left the building. The magic number for David Gilliland and the Number 38 DIGITAL TV TRANSITION Ford Fusion is 2009. The 2008 NASCAR season wrapped up on November 16 at the Ford 400 in Homestead, Florida, where the good news was that Gilliland finally managed to finish a race while sporting the bureaucratically text-heavy/graphics-free/black-and-white standards of its sponsor, the FCC.

As previously reported here, the Number 38 car failed to make it to the finish line in the first two of the three races it ran under FCC sponsorship, so the Homestead finish might have been cause for celebration at the Commission. But despite briefly cracking the top ten late in the race, Gilliland managed to slide back into the pack to end up in the 27 spot when the checkered flag came down. So they probably weren’t popping the Cristal on the Eighth Floor.

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Hillary Clinton Heading to the Supreme Court?

Maybe, but not as a Justice.  Nor, technically, as a litigant.  Instead, she's at the center of a controversy involving whether a documentary film entitled "Hillary: The Movie":

 

is an “electioneering communication” under the Bipartisan Campaign Reform Act of 2002 (also known as "BCRA" or the "McCain-Feingold Law").  A finding that the movie is an “electioneering communication” would limit the programming that could be offered by broadcasters on political candidates and topics; it would also subject the movie’s producers to extensive disclosure obligations.

Technically, an “electioneering communication” is any paid broadcast, cable or satellite programming that: (a) “refers to a clearly identified” candidate for Federal office; and (b) is telecast within 60 days of the general election or 30 days of a primary; in the case of a presidential candidate, it must also be received by 50,000 or more people. (Some exemptions exist for news stories, editorials and the like, as long as the broadcaster is not controlled by a political party or candidate.)

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A Deaf Ear No More: FCC Turns Up Volume On Closed Captioning Complaints

Agency takes closer look at closed captioning in the Digital Age

In the guise of looking at closed captioning requirements for digital television and easing the complaint filing process, the Commission has added new contact information posting and filing requirements for television stations and other video programming distributors. The Commission also has sought comment on how the revenue-based per channel exemption from closed captioning requirements should be applied to stations with multicast programming streams. The impressively-titled Declaratory Ruling, Order, and Notice of Proposed Rulemaking was the outgrowth of a petition filed by Telecommunications for the Deaf, Inc. and other advocacy groups for the deaf and hard of hearing back in 2004.

Of immediate import to most television stations are the changes that the Commission has made in the complaint process for viewers who run encounter difficulties with closed captioning.  The changes are designed primarily to help consumers make their problems known and obtain a prompt resolution.

Who’s who? Contact information – file it, post it, keep it current. From an operational standpoint, the most significant change is the new requirement that video programming distributors (VPDs) – a group which, for these purposes, consists of over-the-air broadcaster and multichannel video programming distributors, such as cable operators and satellite TV operators – provide contact information so that viewers will know how best to direct their inquiries and complaints. Apparently, a major issue has been that viewers have been uncertain as to whom they should contact with questions and problems. In order to alleviate that perceived difficulty, the Commission will now require that two different types of contact information be made available. While these new information requirements should prove useful, they also set up a trap for the unwary.

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DTV Ancillary and Supplementary Service Reports - AND Fees - Due December 1

 DTV Permittees – This Means You!!!

The FCC has its hand in more broadcasters' pockets again. Effective November 10, 2009, responsibility for annual fees of 5% of revenues from ancillary or supplemental services (e.g., data transmission) extends to DTV permittees as well as DTV licensees. The fees are due on December 1 for the period through the preceding September 30 of each year, accompanied by FCC Form 317 (which must be filed electronically through CDBS). While DTV licensees have had to deal with Form 317 for some time, this year will be the first for DTV permittees – but since the impending DTV transition has already triggered an avalanche of new paperwork for DTV permittees (including quarterly public education reports and construction status reports, not to mention mod applications and license applications), what’s one more report, anyway?

According to the Commission, the services that are subject to reporting and fee requirements include “any ancillary or supplementary service for which a subscription fee is required or for which the licensee receives any compensation for transmission of material other than commercial advertisements used to support broadcasting.” That narrows it right down. In fairness to the Commission, though, this whole ancillary/supplementary fee business came from Congress, which dumped it in the Commission’s lap back in 1996.

Form 317, now available online at CDBS, requires each DTV licensee and permitted to describe:  (1) any and all ancillary/supplementary services provided; (2) which services were feeable; (3) whether any ancillary or supplemental services were not subject to a fee; (4) gross revenues received from all feeable ancillary and supplemental services provided during the applicable period; and (5) the amount of bitstream used to provide the services. From this wealth of information you will be able to determine whether you owe the Feds their 5%. If it turns out you do owe a payment, you’ll have to pony up when you file the report and you’ll have to include Form 159. But even if you owe no payment, you’ve still got to submit Form 317 to verify that you do not.

If you neglect or forget to ante up, you may get caught up in an FCC audit of your records which support the calculation of your payment. To help the FCC nail you, the FCC's rule here requires that you retain records related to the services for three (3) years from the date of payment. (Where’s that pesky Fifth Amendment when you really need it?)

If you would like any help on this latest reporting and payment obligation, let us know. We won't help you pay it, but we can help you with the form and any questions you may have about it.

On Fire, DIGITAL TV TRANSITION Ford Fusion Takes to the Airways - Literally

After a disappointing maiden appearance at Martinsville last month, the Number 38 FCC DIGITAL TV TRANSITION Ford Fusion came up short again in its sophomore run at the Checker O’Reilly Auto Parts 500 at the Phoenix International Raceway on November 9. But at least it went out in style, finally burning the DIGITAL TV TRANSITION logo (actually, it’s not so much a logo as a, er, um, uh, a name spelled out on the hood) into the consciousness of the average NASCAR viewer who was still watching in Lap 275 (out of a possible 313). The Number 38 got mixed up in a chain reaction collision, went air-borne, and landed on the hood of another car. (For those of you keeping track, that’s the third DNF in the four races since the FCC signed on to sponsor the Number 38.) Click on the "continue reading" link below to check out the You Tube-posted video below, from which the screen grab above was taken.

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The Vest Is Yet To Come

Attention all broadcasters! The fall fashion season has arrived! Don’t be caught wearing last season’s plain, boring, non-neon duds! It's not just fashion – it's the law!

Our friends at the Federal Highway Administration (FHWA) are ready to ensure you aren’t caught looking (or becoming) lame on the side of the road. Beginning November 24, 2008, “all workers within the right-of-way of a Federal-aid highway” must wear “high-visibility safety apparel.” In fashion terms, this means that every time you put a reporter, producer, camera operator or other station personnel on the road to cover an accident, traffic jam, parade, meteorological phenomenon, Bigfoot-sighting, etc., etc., you will need to be sure that those personnel are decked-out in the latest smokin’-hot fashion accessory: a neon orange, yellow or lime green vest with super-cute reflector strips.

As with most hot fashion trends, this one has been on the drawing boards for some time. Back in 2005, Congress – known to so many as Project Runway on the Potomac – passed a law directing the Secretary of Transportation to issue regs “to decrease the likelihood of worker injury and maintain the free flow of vehicular traffic by requiring workers whose duties place them on or in close proximity to a Federal-aid highway to wear high-visibility safety apparel.” [Congress titled this legislative gem the “Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users” – seriously, that’s what they called it.] Within a year the FHWA had adopted the visibility rules, but their effective date was put off until November, 2008.  

So now the party’s about to start, and it’s time to tog up.

For those of you not well-versed in the ins-and-outs of federal highway couture, here’s a breakdown of the new rule:

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Security Interests in FCC Licenses: A Key to Unlocking Capital Sources?

(The following is an extended essay originally published in Radio World – The Newspaper for Radio Managers and Engineers. Check it out at http://www.rwonline.com/.)

For decades the Federal Communications Commission has refused, as a matter of policy, to allow lenders and equity investors to take security interests in the FCC licenses that permit spectrum users — broadcasters, wireless operators and all the rest — to use the spectrum.

While this may not seem like a big deal to some, many lenders disagree: They claim that the FCC's policy significantly impedes the flow of communications-related investment funding.

While debates over the wisdom of the FCC's policy have flared up periodically over the years, the FCC has not budged and its policy has remained unchanged.

But the current credit crunch has brought this issue into focus for renewed reevaluation. With the availability of capital drying up for small- and medium-size broadcasters and telecommunications companies, it is important to examine any kinks in the financial pipeline that might unnecessarily slow, or block, the flow of capital.

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White Space Spectrum: Hard Questions Deferred

FCC embraces unprecedented device-by-device testing regimen

Engineering and politics do not mix well.

The FCC encountered that truth again this week when it authorized the use of unlicensed devices in vacant TV frequencies, the so-called "white space" spectrum.

The idea is controversial because unlicensed devices pose a potential risk both to TV reception and to the wireless microphones that use empty TV frequencies. The idea became more controversial three weeks ago when the FCC's own engineers released a report showing that white space devices might indeed cause interference, especially when an adjacent TV channel is in use.  The report concluded, however, that white space proponents had shown “proof of concept.”  The proponents seized on this language as establishing that white space devices could safely be deployed.  I noted then that the Wright brothers had established “proof of concept” at Kitty Hawk – that is, they proved the feasibility of powered, heavier-than-air flight.  But it still took another thirty years to develop safe, commercial air travel.  "Proof of concept" does not mean ready for everyday use.

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From the Horses' Mouths

Ordure in the Court, Part II

Elsewhere on this blog we have posted reports about the oral argument in FCC v. Fox, the first broadcast indecency case to reach the Supreme Court in 30 years. From our notes taken during the argument, we have mined the following nuggets:

  • Justice Ginsburg noted that there was “no rhyme or reason” in the FCC’s application of its indecency policy.
  • In a brief reference to the “scarcity rationale” which has historically been invoked to justify content regulation of broadcasting, one justice suggested that that rationale was not involved in the seminal Pacifica case (the 1978 Supreme Court decision which upheld the FCC’s first enforcement action under its then-new indecency policy). In response, Justice Stevens pointed out that scarcity was indeed a basis for Red Lion (the 1969 Supreme Court decision upholding the Fairness Doctrine), and Red Lion, in turn, was a basis for Pacifica. No one in the courtroom was in a position to argue with that statement, since Stevens unquestionably knows whereof he speaks: he was the author of the plurality opinion in Pacifica.
  • Speaking of the scarcity rationale, Justice Ginsburg pointed out that Pacifica arose “before the Internet”, an observation which suggests that she may believe that the explosion in available media sources over the last 10-15 years might undermine the scarcity rationale.
  • When asked by Ginsburg how the FCC determines what the “community standards” for indecency are, the Commission’s lawyer responded that the FCC applies its “collective experience”.
  • In a discussion of whether the “community” is more tolerant of certain words today than it was in 1978, Justice Scalia bemoaned the “coarsening of manners” which he apparently perceives around him – and which he apparently attributes, at least in part, to broadcast content – and indicated that the expletives under consideration are not used “in polite society”.
  • Justice Stevens, who got the indecency ball rolling with his opinion in Pacifica, asked whether the determination of whether or not a particular word or term is indecent is dependent on whether it is “hilarious” -- a proposition which Justice Scalia re-stated (probably sarcastically) to ask whether bawdy jokes might be judged not indecent “if they’re really good”. Later, Stevens also inquired of the FCC’s lawyer whether the word “dung” is indecent. (Like any good lawyer, FCC counsel answered with a solid maybe.)

Court to Goldberg: Express Yourself Somewhere Else

(The following is an editorial sidebar from Kevin Goldberg, who swears that it's all true.)

Upon entering the Supreme Court chambers to hear arguments in FCC v. Fox Television Stations, Inc., I was asked by one of the Court's marshals to take off my very standard, very small "I voted" sticker (see illustration at left) because it was a form of "sloganeering" -- an act that shouldn't surprise me given the Court's record on election day issues (see, e.g. 2000) but still one that I find incredible when there were plenty of people expressing various messages by wearing items like flag pins on their lapels -- and at least one former Solicitor General (who was spectating just like I was) who was allowed to keep his "I voted" sticker intact.

Report from the Front: Team Coverage of Oral Arguments in FCC v. Fox

Three FHH attorneys who have followed the ups and downs of the FCC’s indecency policies over the years attended the Supreme Court oral argument in FCC v. Fox Television Stations, Inc., the first broadcast indecency case to reach the high court in 30 years. They filed the following reports with www.CommLawBlog.com.

 

Jeff Gee reports:

Anyone hoping to hear Justice Ginsburg drop the F-bomb in open court was sorely disappointed as the U.S. Supreme Court held oral arguments on the FCC's indecency rules. Justices and attorneys alike proceeded without a single utterance (fleeting or otherwise) of any of Carlin's famous seven dirty words. Instead, the audience was treated to debate on the finer points of the Administrative Procedure Act. What about the part where the FCC's rules violate First Amendment? Oddly enough, that might not matter too much.

As readers of our Memo to Clients may recall, the case being considered by the U.S. Supreme Court (formally titled FCC v. Fox Television Stations, Inc.) arose from a decision made by the U.S. Court of Appeals for the Second Circuit. The Second Circuit overturned the FCC's rules prohibiting "isolated" or "fleeting" indecent utterances solely on the grounds that the FCC failed to adequately justify its rules. Although the Second Circuit's decision also suggested that the FCC’s rules might not pass a First Amendment review, the Second Circuit made clear that its decision was based solely on administrative law and not constitutional law. As a result, the issue before the Supreme Court technically was not whether the FCC's rules are constitutional or even workable. Rather, the issue before the Court was whether the FCC sufficiently followed the rules applicable to Federal agencies as they make policy.

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Welcome to the White Spaces - No License? No Problem!

 FCC opens TV band to unlicensed devices

The FCC has voted to allow unlicensed devices to use "white spaces" in the TV band for wireless broadband. Preliminarily, only devices that determine available channels based on geolocation and a database of existing users will be authorized, but procedures have been put in place to allow future approval of devices that choose available channels based on only signal-sensing.

This is a preliminary report based on listening to the discussion at the FCC meeting and review of the public notice issued by the Commission following its meeting. The actual report and order may reflect edits made after the meeting and so may not be exactly the same as this description.

Both fixed location and personal portable transmitters will be permitted. Fixed devices will be allowed to use higher power than portable devices. Portable devices must have automatic power control that reduces operating power to the minimum required to link successfully to a base station or other portable device with which it communicates.

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Moment Method Modeling: Update

An informal work-around for a work-around?

In a post last September we called attention to the Commission’s approval of moment method computer modeling for directional AM proofs. Use of such modeling was touted as hugely advantageous to many AM licensees because it would relieve them of an exceedingly time-consuming and expensive burden.

But just because the Commission approved moment method modeling did not mean that we could take advantage of it. The effective date of the new rules was not announced in September; rather, the FCC indicated that they would become effective once the Office of Management and Budget (OMB) had reviewed and approved the revised rules. 

So it was something of a surprise when we happened to be thumbing through the Federal Register on October 30 and came across a notice, from the Commission, advising that the changes would become effective December 1, 2008, “except for the amendments to §§73.61, 73.68, 73.151, and 73.155.” But, as it turns out, those sections are pretty much the only ones that were changed last September – which led to the next obvious question: what exactly goes into effect on December 1?

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Court Rejects Attack On DTV Transition-related "Viewability" Rules For Cable Operators

In November, 2007, the Commission imposed a “viewability” requirement on cable operators in anticipation of the DTV Transition. That requirement – which was viewed by some as imposing a kind of dual-carriage obligation on cable systems – provided that cable operators will (until February, 2012) have to either: (a) continue to provide an analog tier, but down-convert the digital signal of must-carry stations into analog format; or (b) transmit the signal of must-carry stations in digital format only (for systems which are digital-only) while ensuring that all subscribers, including those with analog TV receivers, have the necessary equipment to view the broadcast content. We described the “viewability” rules in the February, 2008 Memo to Clients (and we described a later-adopted small-system exemption in the September, 2008 Memo to Clients).

In a terse decision issued on Halloween, the U.S. Court of Appeals for the D.C. Circuit rejected a challenge to the “viewability” rules which had been brought by a number of cable programmers.  The Court’s decision did not address the merits of the various arguments the programmers had advanced because, in the Court’s view, the programmers had failed to satisfy the threshold requirement of demonstrating how the programmers would be harmed by the new rules.

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Palin, the First Amendment and the Media - Need for Concern?

In September's "Memo to Clients", our readers were treated to an extensive analysis of the Presidential candidates’ positions on communications issues. Jeff Gee concluded that Senator McCain’s and Senator Obama’s views are - to the extent they have been stated - rather similar on matters affecting the broadcast and telecommunications industries (their opposing viewpoints on media ownership being the glaring exception).

We didn’t examine the views of the Vice Presidential candidates. After all, there really isn’t much information out there from which we might form any conclusions about the likely media policies of either Senator Biden or Governor Palin. Nevertheless, a recent statement made by Palin has caused us to ponder her overall agenda for the FCC and the communications industry. 

While being interviewed by Chris Plante on Washington, D.C. radio station WMAL, Palin made the following statement regarding media coverage of her strong statements about Obama’s past associations.

If [the media] convince enough voters that that is negative campaigning, for me to call Barack Obama out on his associations, then I don’t know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks by the mainstream media.

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Nondiscrimination in Advertising Policy In Effect - Are You Ready?

New renewal application form with new certification requirement still not yet approved by OMB - BUT the underlying policy has already kicked in

In our March and June, 2008, Memos to Clients, we described the FCC’s “diversity” initiative order, and the wide ranging nature of the new rules and policies adopted by the FCC in the name of expanding opportunities for minority- and women-owned broadcasting outlets.

A new policy, adopted as part of the order, requires broadcasters to add nondiscrimination clauses to their advertising contracts. Not complying with this new requirement could result in delays and, possibly, fines when your next license renewal application is processed.

The policy in question requires each broadcaster to certify in its next license renewal application that: (a) the broadcaster’s advertising contracts do not discriminate on the basis of race or gender; and (b) such contracts contain nondiscrimination clauses. Its purpose is to combat long-rumored practices in the advertising business regarding “no urban/no Spanish” provisions which specify that commercials will not be run on stations which feature such formats. While the existence of such practices has not been conclusively established, anecdotal evidence has for decades fueled concern about the adverse effects that such practices could have – and, according to some, have actually had – on minority broadcasters.

The good news is that compliance with this new policy appears to be fairly simple. All that is required is “yes/no” certification at renewal time that the licensee/renewal applicant is in compliance. Simple, no?

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Comments Invited on Proposed HD Radio Power Increase

Last June a group of broadcasters and equipment manufacturers filed a letter request seeking changes in the technical specs relative to FM digital broadcasting. The Commission has now opened that proposal up for public comment. Comments are due by November 28, 2008; replies by January 4, 2009.

In a tacit admission that the HD Radio ™ digital audio service may not deliver all that everybody hoped for in the way of signal strength, the proponents have asked for an increase in HD power by up to 10 dB . . . except (according to the proponents’ letter request) that the increase would not necessarily apply to some Super B stations (because higher digital power for those stations were found to have potential adverse effects on the analog signal of first adjacent Class Bs). The proposal would, according to its proponents, result in significantly greater HD coverage areas and improved signal penetration into buildings. Of course, the proponents say nothing but nice things about HD service, but one may well wonder why, if HD service is everything it’s cracked up to be, a significant power increase might be called for. 

Additionally, the fact that even the proponents – who seem to be avid cheerleaders for the HD service – have to carve out some exceptions because of interference concerns does not inspire confidence. While it may be possible that interference would be limited to a particular class of station in particular circumstances, the acknowledgment of any potential interference at least establishes, well, that there is a potential for interference at all. 

Months ago – long before the FCC’s 10/23/08 notice formally opening this up for comment – a number of broadcasters lobbed in fairly strident oppositions.  Those included NPR, which provided several hundred pages of very detailed, and very critical, studies.  Now that the FCC has affirmatively solicited comments, it will be interesting to see what level of response results.

Muy Caliente: Payola Probe Turns Up Heat On Spanish Radio

If you thought that the departure of Elliott Spitzer from the public scene might have put out the FCC’s fire for enforcement of the payola rules, think again. That fire is still blazing. In recent days the Enforcement Bureau has sent out letters of inquiry to a number of Spanish-language radio stations demanding responses concerning allegations of payola.

The claims arise from a lawsuit filed in Los Angeles two years ago. The plaintiff there, one Daniel Mireles, claims that he was wrongfully discharged from his position as Vice President of Promotions at Univision Music. (As always, the pivotal role of the “disgruntled former employee” should never be underestimated.) According to his complaint, Mireles was instructed by management-level executives of Univision and Fonovisa (a record label owned by Univision) to make “cash payments to the program directors and others at radio stations in order to increase the airplay of Fonovisa’s records”. While Mireles alleges that he resisted those instructions initially (apparently he had been involved in a payola investigation in the 1990s and was understandably gun-shy about going through the meat grinder again), he acknowledges that, between February-June, 2006, he was given some $720,000 to pay to “individuals at radio stations”. The goal was apparently to “get Fonovisa’s records played more frequently on the radio”.

Mireles claims that, in drawing up his list of “individuals at radio stations”, he spoke with people at “approximately fifty or more” stations. He allegedly made deals to make payments ranging from $3,000-$10,000 per month.

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Still Searching for Mr. Goodwrench?

We offer no comment on the story (“FCC’s Martin Named ‘Porker of the Month”), which appeared in TVNewsday on October 23. We do, however, observe that Commissioner Adelstein is quoted there as having said of the decision to sponsor the Number 38 Digital TV Transition Ford Fusion: “This doesn't seem like the most efficient use of resources.”

If that quote is accurate, we’ll take it to mean that Commissioner Adelstein is not ready to settle into the passenger seat, put his feet up on the dash, and take a few quick laps around the track. (See graphic, previously posted on this site.) So if he didn’t support the NASCAR sponsorship, and Commissioner Copps didn’t, either (that’s at least what we were advised last week), the list of possible supporters is dwindling fast.

New DTV Search Page Unveiled on CDBS

Another omen of the coming DTV Transition – the FCC has added a new search option to its CDBS Public Access menu. Now you have the option of clicking on “Search for DTV Station Information”, which will whisk you to a query page that permits searches based on call sign, facility ID number, channel, city/state of license, network affiliation and even Nielsen DMA. You can also opt to include or exclude LPTV and Class A stations from your search. Interestingly, while you can include “network” as part of your search, the results do not identify any station’s network. For example, you can insert “ABC” in the network search field and the system will throw up a list of stations, all of them presumably ABC affiliates. But if you simply search for, say, “KABC-TV”, it will find that station, but will not identify it as an ABC affiliate. Also, the results table does not list the states or the Nielsen markets in which the found stations are located.

This is, presumably, a work in progress, so we might see some changes in it as people try it out and bugs get worked out. We have one request of any debuggers who might be reading this – could you please make the wild card character “%”, rather than “*”. It’s not that we’re in love with “%”, but “%” is the wild card character that is (and has historically been) used on all other CDBS Public Access search pages, and it seems a bit silly to use a different one for this particular page. We’re just sayin’ . . .

Number 38 Crashes, Leaving FCC at 0-1 on the NASCAR Circuit

The headline on our update late last Friday (10/17) on L’Affaire NASCAR (“L’Affaire NASCAR: The Yellow Caution Flag Comes Out”) appears to have been more predictive than we imagined. On Sunday (10/19) at the TUMS QuikPak 500 in Martinsville, the eleventh caution flag of the afternoon came out in Lap 485 when the Number 38 Digital TV Transition Ford Fusion ran hard into the wall after making contact with the Number 44 UPS Toyota. That was all she wrote for the David Gilliland-piloted car in its maiden race under the FCC brand. Add one more DNF to Gilliland’s record this year.

While the temptation to draw parallels between the fates of (a) the Number 38 Digital TV Transition Ford Fusion, on the one hand, and (b) the upcoming DTV Transition from which it gets its name, on the other, is nigh on overwhelming, that’s really too cheap and easy a shot to take. We can, and will, pass (unlike Gilliland, who seemed to be glued in the middle of the pack through most of the race).

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L'Affaire NASCAR: The Yellow Caution Flag Comes Out

Attentive readers of this blog probably noticed the posting below about the FCC’s sponsorship of the Number 38 Digital TV Transition Ford Fusion. And really attentive readers may have noticed that, in the accompanying graphic, it originally appeared that Commissioner Copps was riding shotgun while Chairman Martin did the steering. The graphic no longer includes Copps because we have since been advised that Commissioner Copps had nothing to do with the decision to allot $350,000 to the NASCAR sponsorship. Of course, Copps has been extraordinarily vocal about the need for the FCC to get the DTV Transition word out to the public at large, but in going back over his statements (including, e.g., his personal letter to Martin following the Wilmington, NC experiment) we can’t find anything that says that slapping FCC decals on a NASCAR is likely to do the trick. Since it looks like we can’t lay any responsibility for the L’Affaire NASCAR on Copps, and since we have now been specifically advised that he had nothing to do with it, we have, through the miracle of modern computer technology, removed Commissioner Copps from the graphic.  10-4, Good Buddy. (If you happened to save a copy of the first edition, hold onto it – it’s now officially a collector’s item.)

Of course, the fact that Commissioner Copps was apparently not involved in the NASCAR decision raises an obvious question: who was involved? We don’t have a good answer for that, but if and when we do, we’ll let you know. (Of course, if other Commissioners advise us that they were in fact consulted and gave their approval of the NASCAR deal before it was announced, we will happily pass that word along to our readers.) It seems odd that a $350,000 expenditure – especially one of this unusual nature – might have been made single-handedly by the Chairman, but such are the mysteries of the Washington bureaucracy.

FCC Rushes To Authorize White Space Use - Who Needs Facts?

It always looked good on paper. Every city has dozens of TV channels sitting empty. Why not use them for something? As Wi-Fi became popular, Wi-Fi-like unlicensed operation became the application of choice for these “white space” channels – so called because they show up in white on a frequency map. Big money signed on: Microsoft, Google, Motorola, and Intel, among others. Coalitions formed. Websites launched. Herds of dark-suited lawyers roamed the halls of the FCC.

As plans for digital TV took shape, the white space idea should have lost some of its gleam. Digital channels can be packed together much more tightly than analog – enough to have freed up 18 former TV channels for other uses. That leaves a lot less white space, and a lot less spectrum for white space devices. But this is Washington, after all, where policy routinely comes unhooked from the underlying facts. The proponents of white space devices continued to press their cause with undiminished fervor.

The prospect of millions of consumer-grade transmitters on TV frequencies makes two groups very nervous. One is the broadcast industry, which fears these products will stray into occupied TV channels and cause interference to viewers. Equally concerned are users of the wireless microphones licensed to TV and motion picture producers, and sometimes used also by other groups such as churches and live music venues. These microphones have long used vacant TV channels without causing harm, but are highly susceptible to interference from white space devices.

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The FCC Heads For the Pit

Vroom, Vroom, Vroom

Tach it up, tach it up, Buddy gonna shut you down

In a brilliant move designed to rev up awareness of the coming sprint to the finish as the white flag drops in the DTV Transition 500, the FCC has jumped into the driver’s seat and shot onto the track by sponsoring the Number 38 Digital TV Transition Ford Fusion driven by David Gilliland in the NASCAR (unofficial motto: Drive Fast, Turn Left) Sprint Cup Series. (See photo above – which is not a real photo, in case you were concerned.)

The Commission’s goal is to increase awareness of the transition, and it figures that slapping its logo on the side of a Fusion and sending it out to trade paint with 40 other cars in the TUMS QuikPak 500 at Martinsville (and two other races at Phoenix and Miami) is just what the crew chief ordered.  And the FCC reportedly has put $350,000 on the line to make it happen.  That’s probably not a bad bet, since NASCAR has enjoyed considerable popularity nationwide for years. According to the FCC, nearly 8 million TV viewers tune in weekly. 

Of course, those 8 million viewers watch only one event per week, as contrasted with, say, the MLB league championship baseball play-offs – of which there are at least four per league, and up to seven over the course of 10 days, with per game audiences ranging from about 4 million to more than 10 million. So if reaching viewers is the name of the game, the baseball play-offs – not to mention the World Series – might have been the preferable play.

But let’s not second-guess the Commission, which is clearly thinking outside the box on this one.

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Commission Inquisition To Focus On Cable Carriage Discrimination Claims

For years a number of programmers have complained that their requests for carriage have not been treated fairly by a number of large cable operators. Now those complaints have been referred to an Administrative Law Judge (ALJ), who has been charged with the task of “resolv[ing] the factual disputes” and recommending some resolution of the dispute within 60 days. 

While the precise issues to be resolved by the ALJ are not laid out with specificity in the “Memorandum Opinion and Hearing Designation Order” (HDO) issued by the Media Bureau, the HDO includes considerable discussion of allegations that cable systems owned by Comcast, Time-Warner, and Cox discriminated in favor of program services in which they own an interest against Wealth TV, the NFL Network, and MASN (a mid-Atlantic baseball network). Discrimination in favor of cable-owned program services is not permitted.

Wealth TV made a prima facie showing, sufficient to warrant a hearing, that MOJO, a programming service in which the cable operators have an interest that has similar content and aims at a similar demographic, was given nationwide distribution when all Wealth TV could get was a so-called "hunting license" to negotiate with individual cable systems. On the sports side, the NFL Network and MASN made a case that the cable companies treat sports channels in which they have an interest better in terms of tier selection. The FCC also raised an eyebrow about the charge that the cable companies asked for licensing fees from the sports channels, as demanding an equity interest in programming in return for carriage is forbidden.

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Update: The FCC Is Not Watching You Anymore (or so they have told us)

Last month, in a blog posting about apparent FCC monitoring of station websites (to see if stations’ Form 397s – the mid-term EEO report – are being posted on those websites), we indicated that Form 397 is required to be posted on the website of each station required to submit a Form 397. That was based on what a Commission staffer informally told one of our colleagues. That staffer also advised that the staffer’s job activities include on-line checking on whether Form 397s have been posted on stations’ websites.

 We have since done some double- and triple-checking of our own, and as it turns out, the rules do not require Form 397 to be placed on a station’s website. No such requirement of website posting is imposed, implicitly or explicitly, by the public file rules (Section 73.3526 and 73.3527) or by the EEO rule (Section 73.2080). In fact, those rules don’t even require, explicitly or implicitly, that Form 397 be placed in the station’s hard-copy local public inspection file. While the instructions to Form 397 do explicitly state that a copy of the Form 397 “must be kept in the station’s public file”, those instructions say nothing about posting the Form 397 on the station’s website.

Still, as noted above and in our earlier posting, we were advised by the Commission’s staff that they understand that website posting of Form 397 is de rigueur and, moreover, that they are doing their own on-line spot-checks for compliance.

What to do?

We have contacted a senior FCC official whose responsibilities include EEO enforcement. He has confirmed our research: Form 397 is NOT required to be placed on any station’s website. He also assured us that, if there is any misunderstanding on that point among FCC staff, he will correct it right away.

Note that, even if monitoring for the presence of Form 397 stops (as we expect it will), the fact remains that FCC staffers can still visit station websites -- anonymously and long-distance -- to check out, f'rinstance, the on-line availability of annual EEO public file reports (which are required to be posted on station websites).  In other words, long-distance snooping may still go on -- it just won't involve the supposed violation of imaginary rules.  Licensees with websites should continue to maintain them in accordance with the rules that do exist, particularly since prying eyes may be watching . . .

PSIP-itation

An Annual Autumnal Occurrence As Daylight Savings Time Falls Back To Standard

At 2:00 a.m. on Sunday, November 2, most of us will return to Standard Time. Historically, that change has tended to affect mainly AM stations whose nighttime facilities differ from their daytime facilities – since the switch from day-to-night and vice versa is normally dependent on the local time of day, which obviously changes with the return of standard time.

But now DTV operators also have to worry about the time shift, since their PSIP is time-dependent as well. The NAB has helpfully alerted us all that, effective October 3, 2008 (between 12:00 midnight and 12:01 a.m.), DTV operators need to adjust the daylight savings settings in their systems in order to assure technical compliance with Section 73.682(d) of the rules, which in turn requires compliance with, among other things, ATSC A/65C. (The link to ATSC A/65C takes you to the complete 155-page PDF -- Annex A of ATSC A/65C, which addresses necessary daylight savings time adjustments, may be found on page 88 of that PDF.)

The reason that action is required on October 3 is that the DST fields in the PSIP change one month before the time change goes into effect. They will change again on November 2, when the time change actually kicks in. The details in the ATSC standard for the change on October 3 are as follows:

When the transition out of daylight savings time is within less than one month, the DS_day_of_month field takes the value day_out, and the DS_hour field takes the value hour_out. The DS_status bit is 1 indicating it is still daylight savings time. (The transition is to occur on the day_out day of the month at hour=hour_out; for example, if the transition were on October 27 at 2 a.m., then day_out=27 and hour_out=2) ‘1’ day_out hour_out

FCC Considers Regulating Construction of Towers (and Possibly Other Structures) Near AM Antennas

 FCC – the Federal Construction Commission?

As reported elsewhere on this blog, the FCC has decided to permit most directional AM licensees to use “moment method” computer programs to verify antenna performance. In a Second Further Notice of Proposed Rulemaking included as a portion of that decision, the Commission has also invited comment on how to amend its rules regulating tower construction near AM stations.

AM antennas are notoriously susceptible to unwanted effects caused by structures located near to the antennas. Such structures – for example, other towers, or large buildings, or construction cranes, or bridges – can re-radiate the AM signal, thus distorting the pattern which the AM station’s antenna was designed to produce.

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Moment Method Modeling Manumits AMers From Measurement Manacles

The Commission has given the thumbs-up to the use of moment method computer modeling for directional AM proofs in many, but not all, circumstances. This should ease one of the most time-consuming and expensive burdens traditionally borne by AM licensees.

Directional AM antenna systems are designed to generate carefully sculpted patterns of radiation – with the signal intentionally suppressed in one or more directions in order to prevent interference. Normally, these systems are designed on paper, using that voodoo that consulting engineers do so well. But the FCC, not to mention other licensees, expects the signal produced when the design is actually constructed will conform to the theoretical design. Accordingly, the Commission has historically required directional AM licensees to submit “proofs” of their antenna patterns, proofs obtained by the taking of a boatload of measurements at a boatload of points along several bearings at varying distances from the transmitter. It is an understatement to say that doing proofs is cumbersome – or, as the FCC describes it, “daunting, slow, and expensive.”

As computer programming has developed, however, various alternatives to the hand-crank proof method have evolved in the form of programs known generically as “moment method” programs. These verify antenna performance based on measurements of the current and phase measured at specific locations on the antenna elements. While there is some debate in engineering circles as to whether moment method programs are a valid substitute for field measurements, the Commission decided to accept proofs generated by the moment method, subject to a number of caveats.

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FCC Clarifies Post-transition Must Carry Issues For DTV

On September 26, the FCC released a short Declaratory Order clarifying certain issues relating to the mandatory carriage of DTV broadcast television stations on cable systems. The Order addresses the post-DTV transition effect of television stations’ must carry elections (which are due on or before October 1, 2008), the post-DTV transition channel placement rights and obligations and low power television carriage rights.

Specifically, the FCC clarified that the carriage elections for the 2009-2011 carriage election cycle will control both before and after the DTV transition. That is, the must carry election of a station currently broadcasting in analog will apply as a must carry election for the station’s primary DTV signal after the station ceases broadcasting in analog. Stations that intend to terminate analog broadcasts before the February 17, 2009, statutory deadline will need to notify their local cable operators 30 days before terminating their analog signal.

In addition, the FCC clarified that stations’ channel placement rights in the post-DTV transition world will be substantially similar to the current situation. Currently, commercial analog must carry stations are entitled to be carried: (1) on the channel number on which the station broadcasts over-the-air; or (2) on the channel on which it was carried on July 1, 1985; or (3) on the channel on which it was carried on January 1, 1992; or (4) on any alternative channel by mutual agreement. Noncommercial analog must carry stations cannot elect their 1992 channel position but otherwise have the same options.

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Application Fees: Up, Up and Away!

With just about everything else getting more expensive by the minute, why should filing applications with the FCC be any different? And sure enough, on September 22 the Commission announced that it was “making adjustments” to its application fee schedule to reflect changes in the Consumer Price Index. In this case, “making adjustments” is just a euphemism for “4.9% across-the-board increase”. The new fee schedule appears as an appendix to the Commission’s Order. The increases take effect 90 days after the FCC notifies Congress of the changes, so you have at least three months to get applications filed before the price jumps kick in.

Don't Look Now, But You're Being Watched . . .

"We're from the government, we're here to help . . . "By now all radio and TV licensees with "station employment units" (SEUs) having five or more full-time employees should be in the habit of preparing the annual EEO report that must be placed in the station's local public inspection file each year on the anniversary of the due date for their renewal application. Those annual reports are also required to be posted on the station's website, IF the station has a website.  Ditto for FCC Form 397, the mid-term EEO report required of TV SEUs with five or more full-timers and radio SEUs with 11 or more full-timers at the mid-point of their license terms.  

One of the miracles of the Internet, of course, is the fact that pretty much anything that's posted there can be viewed by pretty much anybody pretty much anywhere. So it should come as no surprise that we have heard that FCC staffers – sitting in the comfort of their government-issued chairs in beautiful Washington, D.C. (our nation's capital) – have been checking station websites across the country to see whether those websites include FCC Form 397 like they're supposed to. 

So far we have not heard of any fines being issued for any apparent violations detected through this remote investigation technique, but it's probably just a matter of time. You have been warned.

Ordure in the Court?

Fox oral argument in Supremes set for November 4

In planning your Election Day activities this Fall, you might want to pencil in a stop by the U.S. Supreme Court to catch the oral argument in the Fox v. FCC indecency case. (Read about the case in our earlier post.)  It’s currently scheduled for the first argument slot of the day on Tuesday, November 4. On argument days the Court convenes promptly at 10:00 a.m. Doors open at 9:30 a.m., but the line generally starts to form long before that – so vote super early and then drop on by the Court to stand in line, soak up some atmosphere, and hope to get a good seat.  Need directions?  Check out the Court's website for maps, directions and other useful information.  But heads up -- you are not permitted to carry ANYTHING into the courtroom, so leave those Blackberrys, cellphones, umbrellas, newspapers, lunch boxes, brief cases, etc., etc., etc. back at home.  (The Court does provide a coat-check service, if you don't mind fighting through a rugby-like scrum to try to retrieve your belongings.)

Deadlines Set For 700 MHz Comments

On August 22 we reported on the FCC’s Notice of Proposed Rulemaking looking to clear out all auxiliary operations in the 700 MHz band in advance of the February 17, 2009, DTV Transition.  The deadlines for submitting comments on the Commission’s proposals have been established.  October 3, 2008, is the deadline for comments, and October 20 is the deadline for reply comments.

Beware of Fake FCC Websites

 ALERT! ALERT! ALERT!

We have discovered two fake FCC websites set up to intercept your financial information when you pay FCC fees.  These appear to be "phishing" sites designed to resemble the FCC's official site, in order to dupe the unwary into uploading confidential information which can then be utilized by the sites' creators.

DO NOT BE FOOLED!!  When paying fees, you should be cautious to ensure that the site you are accessing is, in fact, the FCC's official site, and not a cleverly disguised impostor.  When you want to access the FCC's reg fee site, a good practice is ALWAYS to start by manually typing www.fcc.gov into the browser address window. Once there, click on the "FY 2008 REGULATORY FEES" link at the top of the page.  DO NOT attempt to access the FCC website by following other people's links or by using a search engine (e.g., Google).

Note that the phishing sites are designed to look exactly like the official FCC site, complete with “FY 2006 REGULATORY FEES” link and other seemingly official features.

Deadline for Reg Fee Payment Set

It’s official!! The FCC has announced that the deadline for filing 2008 regulatory fees is 11:59 p.m. on September 25, 2008.  The announcement was made in the context of a notice issued by the Commission providing information about the available mechanisms for paying the fee. Whatever payment approach you use, you would be well-advised to use it before the deadline – the Commission charges a 25% late-payment fee to those who miss the deadline.

FCC Whacks 700 (MHz) Club

As part of its effort to completely clear all broadcast operations out of the 700 MHz band following the February 17, 2009, DTV transition, the Commission has imposed a freeze on any new authorizations for low power auxiliary equipment in that band. (Actually, the precise frequency block at issue runs from 698-806 MHz, but that chunk of spectrum is commonly referred to as the 700 MHz band.) Perhaps more importantly, the Commission has also proposed to modify all outstanding licenses which provide for such operation – the proposed modification being that authority to operate in the 700 MHz band will terminate as of February 17, 2009.

Generally, the equipment affected by this sweeping order and related proposal serves auxiliary functions, such as cue and control communications, TV camera synchronization and the like – but it appears that the most prevalent, or at least most controversial, low power 700 MHz equipment consists of wireless microphones.

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The Reg Fee Payment Window Is Open

Although the FCC has not yet formally said so, a recent visit to the FCC’s website indicates that it is now possible to pay 2008 Regulatory Fees on-line through the Commission’s Fee Filer system (http://www.fcc.gov/fees/feefiler.html).  

The Commission has not yet announced the deadline by which reg fees must be made this year. But in view of the fact that late-filed fees trigger a 25% late fee, it would be prudent to get your payments taken care of sooner rather than later, in order to avoid that unnecessary expense.

Let us know if you would like any help in navigating the Fee Filer system to get your reg fees paid.

 

The Commissioners Are Coming!! The Commissioners Are Coming!!

Vacuum the red carpet, gas up the welcome wagon, get a couple of keys to the city copied up and notify the media.  The FCC has announced that, between now and February 17, 2009, the Commissioners themselves are hitting the road, “fan[ning] out” across the country to “raise awareness and educate consumers” about the coming DTV transition.  Each stop will feature a “public event”, such as a town hall meeting, workshop or roundtable with a Commissioner, who will (the FCC assures us) also “be available to local press”.

A phalanx of FCC staffers will precede by a couple of days the arrival of a Commissioner in each town.  The staffers will provide technical and outreach assistance to broadcasters, local officials and others interested in a smooth transition.

Targeted markets include all markets in which more than 100,000 households or at least 15% of the households rely solely on over-the-air signals. The Commission has released a list of 81 markets that will be visited between now and February.  Dates for 23 of the visits have been released. Perhaps not surprisingly, the

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2008 Reg Fees Adopted

The FCC has adopted the schedule for 2008 regulatory fees, although in so doing it did not indicate the deadline by which this year’s fees must be filed.  Check back here for updates.

 While the schedule as originally proposed last Spring included a number of increases over the 2007 fees (see the article in FHH’s Memo to Clients from May, 2008), the schedule as adopted ups the ante still more in a number of instances. VHF TV licenses in the Top 10 markets went from $69,400 to $71,050, and in Markets 11-20 they went from $50,850 to $53,525; on the other hand, the fee in Markets 26-50 dropped modestly, from a proposed $34,900 to $33,525. On the UHF side, though, the pric