It's Almost December, 2014 - Do YOU Comply with the CALM Act?

The FCC’s rules contemplated waivers extending, at most, for two years. Those two years are just about up.

With December just around the corner, full power TV licensees and MVPDs should probably be checking their compliance with our old friend, the Commercial Advertising Loudness Mitigation Act (you probably know it as the CALM Act) and the related FCC rules.

When the FCC’s rules governing the “loudness” of TV commercials were first adopted, they were set to take effect on December 13, 2012. One-year waivers were available which, if granted, took the compliance deadline to December 13, 2013. One-year extensions of those waivers were also available; anybody who received such an extension has until December 13, 2014 – less than a month – to get with the program.

The two one-year waivers were expressly provided for by Congress in the CALM Act. But Congress also confirmed that the FCC retains its general authority to waive its rules if the public interest warrants. So theoretically, anybody currently facing a December 13, 2014 deadline may – and we emphasize may – be able to get a further extension.

But we wouldn’t count on it.

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Just in Time for Halloween: Zombie Aereo!

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

It’s still alive!!!

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

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

And now we know.

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FCC KO's Sports Blackout Rules

The clock is running down for the FCC’s sports blackout rules. The two-minute warning (actually, the 31-day warning) has been whistled.

As pretty much everybody expected, the Commission abolished its blackout rules late last month. That action is now set to take effect on November 24, 2014, according to a notice in the Federal Register.

Despite an aggressive defense mounted by the NAB and various sports leagues (including, most notably, the NFL), the Commission punted on the rules because they believed the rules were no longer necessary to ensure that sporting events remain widely available on television. Instead, the FCC was content to let blackout provisions be thrashed out privately between the leagues and their broadcast, cable, and satellite partners. In other words, sports blackouts may still occur, but not as a result of any FCC rule.

In a nutshell, the sports blackout rules prohibited MVPDs from carrying a live sporting event if that event was not available on local over-the-air television in a certain geographic area. The ability to invoke the rule required prior, private blackout-related agreements between leagues or teams and local broadcasters; the rules simply provided a separate mechanism for enforcing those private agreements.

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Upcoming Webinar: "Cable TV Must-Carry & Retransmission Consent: Negotiating Agreements & Enforcing Rights"

Even though October 1 – and the triennial election between must-carry and retransmission consent that had to be made by then – may be fading in our rear views, TV licensees and cable operators still have much to think about. Tying down the details of the retrans deal is an important project for anyone who chose that route. And for those on the must-carry side, there are a slew of practical considerations about which to be aware: for example, TV stations should be up on how must-carry elections can be enforced; and both cable operators and TV stations should be aware of the steps available to insure that must-carry claims are indeed valid and enforceable. On that latter score, there are a number of factors that can de-rail seemingly straightforward must-carry demands.

In other words, just because the must-carry/retrans election has been made, don’t think that you can simply stick this in the finito file and move on.

On October 23, 2014 at 1:00 p.m. (ET), FHH cable gurus Dan Kirkpatrick and Paul Feldman will present a FREE webinar entitled “Cable TV Must-Carry & Retransmission Consent: Negotiating Agreements & Enforcing Rights”. This will be a follow-up to their September webinar on the must-carry/retrans election process. It will address a long list of post-election issues that both TV folks and cable folks should be focused on.

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

LStelcom Joins the Ranks of Approved Whitespace Database Administrators

And then there were five (or six).

It never rains but what it pours. We went nearly 10 months without any new whitespace database administrators being approved, and now we’ve had the second approval in under a month. The Commission has announced that LStelcom AG has made it over the final hurdle and its system has now been approved for operation.

This brings to six the number of such approvals that have been issued. The others already admitted to the club: Key Bridge Global LLC, Spectrum Bridge, Telcordia Technologies and Google (twice). (Fun factoid: From the fine print of the LStelcom public notice we learn that Telcordia is now referred to as “iconectiv”. We have modified our table below accordingly.)

From our handy table, it looks like the next contestant likely to join the ranks of the approved will be Comsearch. Our guess on that score is based on the facts that: (a) Comsearch wrapped up its testing – i.e., the penultimate step in the approval process – back in June; and (b) none of the other four contenders has even started its testing.

So six down (if you count Google twice), five to go. Check back here for further updates. 

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

Coordinator

Test Started

Test Finished; Comments Sought

Coordinator Approved

Comsearch

Feb. 24, 2014

June 23, 2014

 

Frequency Finder Inc.

     

Google Inc.

Feb. 27, 2013

May 29, 2013

June 28, 2013

Google Inc. II

June 2, 2014

July 29, 2014

Sept. 10, 2014

LStelcom AG

June 18, 2013

     Nov. 14, 2013

Oct. 1, 2014

Key Bridge Global LLC

March 4, 2013

May 29, 2013

Nov. 19, 2013

Microsoft Corp.

     

Neustar Inc.

     

Spectrum Bridge Inc.

Sept. 14, 2011

Nov. 10, 2011

Dec. 22, 2011

iconectiv  (f/k/a Telcordia Technologies)

Dec. 2, 2011

Feb. 1, 2012

March 26, 2012

   WSdb LLC

     

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Five down (if you count Google twice), six to go. Check back here for further updates. 

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

Coordinator

Test Started

Test Finished; Comments Sought

Coordinator Approved

Comsearch

Feb. 24, 2014

June 23, 2014

 

Frequency Finder Inc.

     

Google Inc.

Feb. 27, 2013

May 29, 2013

June 28, 2013

Google Inc. II

June 2, 2014

July 29, 2014

Sept. 10, 2014

LS telcom AG

June 18, 2013

     Nov. 14, 2013

 

Key Bridge Global LLC

March 4, 2013

May 29, 2013

 Nov. 19, 2013

Microsoft Corp.

     

Neustar Inc.

     

Spectrum Bridge Inc.

Sept. 14, 2011

Nov. 10, 2011

Dec. 22, 2011

Telcordia Technologies

Dec. 2, 2011

Feb. 1, 2012

March 26, 2012

   WSdb LLC

     

 

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

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

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

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

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

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

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

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

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

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

Never fear.

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

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

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

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

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

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

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

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

The only real question here: What took so long?

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

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

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

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

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

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

Surprise, surprise.

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Testing Completed For Seventh White Space Database System

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

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

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

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

Coordinator

Test Started

Test Finished; Comments Sought

Coordinator Approved

Comsearch

Feb. 24, 2014

June 23, 2014

 

Frequency Finder Inc.

     

Google Inc.

Feb. 27, 2013

May 29, 2013

June 28, 2013

Google Inc. II

June 2, 2014

July 29, 2014

 

LS telcom AG

June 18, 2013

     Nov. 14, 2013

 

Key Bridge Global LLC

March 4, 2013

May 29, 2013

 Nov. 19, 2013

Microsoft Corp.

     

Neustar Inc.

     

Spectrum Bridge Inc.

Sept. 14, 2011

Nov. 10, 2011

Dec. 22, 2011

Telcordia Technologies

Dec. 2, 2011

Feb. 1, 2012

March 26, 2012

   WSdb LLC

     

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

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

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

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

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Update: Comment Deadlines Set in Latest EAS Proceeding

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

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

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

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

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

And right we were.

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

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

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Update: FCC Re-Whacks TV Max

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

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

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

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

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FCC Seeks Input on EAS Fixes

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

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

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

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

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

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

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

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

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

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

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Aereo Update: Supreme Court Rules for Broadcasters!

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

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

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

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Sixth White Space Coordinator Completes Tests

Comsearch wraps up tests, FCC invites comments.

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

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

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

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

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

Coordinator

Test Started

Test Finished; Comments Sought

Coordinator Approved

Comsearch

Feb. 24, 2014

June 23, 2014

 

Frequency Finder Inc.

 

 

 

Google Inc.

Feb. 27, 2013

May 29, 2013

June 28, 2013

Google Inc. II

June 2, 2014

 

 

LS telcom AG

June 18, 2013

     Nov. 14, 2013

 

Key Bridge Global LLC

March 4, 2013

May 29, 2013

  Nov. 19, 2013

Microsoft Corp.

 

 

 

Neustar Inc.

 

 

 

Spectrum Bridge Inc.

Sept. 14, 2011

Nov. 10, 2011

Dec. 22, 2011

Telcordia Technologies

Dec. 2, 2011

Feb. 1, 2012

March 26, 2012

   WSdb LLC

 

 

 

Aereo in the Supremes: What Are the Odds?

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

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

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

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

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

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

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

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

Never fear – the proposed 2014 reg fees are here!

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

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

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Update: Revised CALM Act Rules Adopted

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

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

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

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

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

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

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

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

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

New Technologies Once Again Blurring the Lines of Copyright Law

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

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

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

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

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

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

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

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

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

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

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

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Pursestrings 2014: Possible Effective Date for New Application Fees Announced

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

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

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

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

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

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Aereo in the Supremes: A Post Mortem Post

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

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

Several highlights, in no apparent order:

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

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

Reminder: Aereo Webinar Set for April 16

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

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

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

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

Free Webinar on Aereo - April 16

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

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

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

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

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

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


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

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

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

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

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

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

The Retrans R&O adds one more indicium.

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

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

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

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

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

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

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Pursestrings 2014: New Application Fees Announced

Effective date TBD

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

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

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

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

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

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

Aereo’s losing streak continues.

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

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

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

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

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

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

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

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

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

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

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

Aereo Update: Supreme Developments

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

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

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

Check out DOJ’s summary of its own argument:

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

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

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

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

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

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

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

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Utah Judge to Aereo: Not in this Circuit!

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

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

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

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

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

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

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

And the bottom line?

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White Space Database Update: Comsearch System Ready for Testing

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

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

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

Coordinator

Test Started

Test Finished; Comments Sought

Coordinator Approved

Comsearch

 Feb. 24, 2014    

Frequency Finder Inc.

     

Google Inc.

Feb. 27, 2013

May 29, 2013

June 28, 2013

LS telecom AG

June 18, 2013

     Nov. 14, 2013

 

Key Bridge Global LLC

March 4, 2013

May 29, 2013

   Nov. 19, 2013

Microsoft Corp.

     

Neustar Inc.

     

Spectrum Bridge Inc.

Sept. 14, 2011

Nov. 10, 2011

Dec. 22, 2011

Telcordia Technologies

Dec. 2, 2011

Feb. 1, 2012

March 26, 2012

WSdb LLC

     

OSHA to Tower Industry: Protect Your Workers

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

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

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

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

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

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

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In the Supreme Court: Aereo Argument Date Set

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

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

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

Aereo Update: Side Action in Utah

The Swami weighs in.

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

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

This is pretty hard to put odds on. 

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

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Complete Waiver of Tower Inspection Requirement Sought

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

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

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

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

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

Aereo Update: And the Question is . . .

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

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

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

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

The question presented is:

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

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

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

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Update: Comment Deadlines Set in Sports Blackout Proceeding

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

Size Still Matters to M&A Regulators

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

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

The FCC, of course, can choose to review, or not to review many, if not most, communications-related transactions in detail before issuing an approval.  On the other hand, Congress long ago deemed that the Department of Justice and the Federal Trade Commission must review transactions that cross certain dollar amount thresholds.  The dollar amounts of those thresholds for the rest of 2014 have now been announced.  They are set to take effect as of February 24, 2014.  Readers considering a merger or acquisition should bear in mind that the administration automatically will be sending at least two agencies to take a closer look at transactions where either:

  • the total value of the transaction exceeds $303,400,000; or
  • the total value of the transaction exceeds $75.9 million and one party to the deal has total assets of at least $15.2 million (or, if a manufacturer, has $15.2 million in annual net sales) and the other party has net sales or total assets of at least $151.7 million

The new thresholds also affect the filing fees that parties to a deal have to pay the government for the pleasure of going through the review process. (Fees are split between the FTC and the Department of Justice.) For most of 2014, any deal subject to review and valued at less than $151.7 million will pay a $45,000 fee. (Used to be that deals coming in at a mere $100 million got to pay that.) For deals valued at more than $151.7 million but less than $758.6 million, the review fee will be $125,000. And if you’re proposing a deal valued at more than $758.6 million, get set to fork over a tidy $280,000.

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

Comm Act Overhaul Underway . . . Sort of

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

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

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

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

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

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Aereo: Supreme Court Bound!

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

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

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

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

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

Second, Justice Kagan did not recuse herself.

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

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

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

Aereo Cert Day - January 13, 2014?

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

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

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

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

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

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Sports Blackout Rules on the Ropes?

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

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

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

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

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

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

Concurring opinion raises questions about constitutionality of must-carry rules

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

The viewability rule, adopted in 2007, applied to “hybrid” cable companies. (“Hybrid” cable operators are those that opted, after the 2009 DTV transition, to provide an analog tier of programming – consisting of local TV signals and, in some cases some cable channels – so that subscribers with analog receivers would not require additional equipment.) The rule provided that such operators could either (1) provide the digital signal of all must-carry stations in analog format (in addition to any digital version carried) to all analog cable subscribers, or (2) transition to an all-digital system and carry the signal in digital format only, provided that all subscribers have the necessary equipment to view the broadcast content. 

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

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

To no avail.

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

Commission considers mandating captioning of video “clips”.

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

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

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

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Aereo Armageddon Ahead?

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

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

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

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

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

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Upcoming Webinar: Goldberg on Aereo

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

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

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

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

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

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

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

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

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

Coordinator

Test Started

Test Finished; Comments Sought

Coordinator Approved

Comsearch

     

Frequency Finder Inc.

     

Google Inc.

Feb. 27, 2013

May 29, 2013

June 28, 2013

LS telecom AG

June 18, 2013

     Nov. 14, 2013

 

Key Bridge Global LLC

March 4, 2013

May 29, 2013

   Nov. 19, 2013

Microsoft Corp.

     

Neustar Inc.

     

Spectrum Bridge Inc.

Sept. 14, 2011

Nov. 10, 2011

Dec. 22, 2011

Telcordia Technologies

Dec. 2, 2011

Feb. 1, 2012

March 26, 2012

WSdb LLC

     

 

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

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

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

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

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

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

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Meet the New Boss(es) . . .

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

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

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

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

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

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

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

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Yeah, Who DOES Need the FCC?

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

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

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

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

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

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Who Needs the FCC?

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

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

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

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

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

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

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

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Buddy, Gonna Shut You Down (Reprise)

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

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

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

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

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

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

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

As broadcasters, cable/fiber system operators and satellite television services have learned from past experience, there are no exceptions to this requirement, and no excuses will be accepted for less than full compliance – even in areas well away from the zones directly affected by the emergency conditions. And let’s be clear: this requirement is over and above routine closed captioning or video description obligations. Existing, everyday procedures to meet those routine obligations may not be enough during an emergency.

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Net Neutrality 2013: The D.C. Circuit Hears the Arguments

Three-judge panel grills opposing counsel for two hours, seems to signal doubts about FCC’s Open Internet rules.

It’s been almost two years since net neutrality was the Big Issue here – and now it’s back! On September 9 the U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments in Verizon’s appeal of the FCC’s effort, dating back to late 2010, to impose “open Internet” rules on broadband providers. The importance of the argument could be seen from the turn-out at the court: it was SRO in the D.C. Circuit’s main courtroom, forcing the marshals to herd the overflow into a separate courtroom where they piped in the audio of the argument.

As we have repeatedly cautioned, trying to guess the result in a case based on oral argument is an iffy proposition. Judges are adept at keeping their cards close to their robes. But still and all, it sure sounded to us like the Commission’s net neutrality effort – or at least much of it – is skating on very thin ice. In particular, at least two of the three judges on the panel (Judges David Tatel and Laurence Silberman) seemed especially “dubious” – to use a term that popped up during the argument – of the anti-discrimination component of the Open Internet rules. And whether the remaining anti-blocking provision could survive in the absence of its companion anti-discrimination provision was far from clear (although at one point Judge David Tatel seemed to suggest that there might be some way to preserve the former without the latter). Judge Silberman, on the other hand, seemed convinced that the anti-blocking provision is also a goner.  (The third judge -- Judge Judith Rogers -- asked significantly fewer questions than her confreres.)

With respect to Verizon’s argument concerning the FCC’s lack of clear statutory authority for its Net Neutrality rules, Judge Silberman jokingly suggested that the Commission’s authority derives from “emanations from a penumbra” of some statutory language – which seemed to some observers, at least, to indicate that he may be more than a little sympathetic to Verizon on this point as well.  Tatel, on the other hand, seemed at times to suggest that he could see some statutory basis for the FCC.

In our post about the recent Ninth Circuit argument about Aereokiller, we observed that, in that argument, at least, the Ninth Circuit wasn’t particularly chatty. That was not a problem in the net neutrality argument. Although each side was originally allotted a total of 20 minutes of argument time, the whole affair ended up taking two hours – much of it because of extensive probing by the judges. But don’t take our word for that – listen yourself. As it turns out, effective September 9, the D.C. Circuit is now posting recordings of oral arguments on its website! Here is a link to the argument in the Verizon net neutrality appeal. Grab some popcorn and a drink and prepare to be entertained for 120 minutes.

Conventionally the D.C. Circuit takes at least a couple of months to prepare its opinions following oral argument. Because of the complexities of the net neutrality case, it may take the court longer to crank out its decision. You never know. Check back here for updates.

AereoKiller Cuffed Nationwide

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

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

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

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

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

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

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Aereokiller in the Ninth Circuit

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

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

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

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

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

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

FHH foreign ownership gurus on the bill in upcoming webinar

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

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

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

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

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

The decision involves the “Hopper” from Dish. 

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

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

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

Enter Fox Broadcasting Company. 

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

Not so fast.

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Aereo Update: Second Circuit Nixes En Banc Review

Procedural rejection does not resolve merits of broadcasters’ case.

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

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

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

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FCC Whacks TV Max

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

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

Do we have your attention?

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

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

First, some background.

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Website Operators: Be Aware, and Beware, of COPPA

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

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

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

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

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Raisin' Defenses at the FCC

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

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

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

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

What does this have to do with raisins?

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Aero Freq Leaks: A Potentially Expensive Problem for Non-Cable MVPDs

Citation issued to Florida motel serves as reminder of possible penalties for leaky cable systems.

 If you’re a school, or a hotel, or a hospital, or some other operation offering in-house cable TV service, you may be subject to a six-figure FCC fine, even though you might not think that you’re subject to the long arm of the FCC’s enforcement machine.  The Commission has been kind enough to issue us all a reminder of that – in the form of a “Citation and Order” directed to the Parkway Inn Motel in sunny Miami Springs, Florida. 

From its website you might not think the Parkway Inn (Motto: “Your Satisfaction is our Main Purpose”) would attract the FCC’s attention, but it did.  According to FCC inspectors, the Parkway’s video system was leaking big-time (in one case by a factor of more than 100 times the permitted level) on a couple of aeronautical frequencies.  Yikes!

As our faithful readers may recall, last August we reported on an FCC public notice warning “non-cable MVPDs” of their obligations relative to their useof aeronautical frequency bands.  The notice – issued in connection with three separate citations notifying, respectively, an inn, an elder care facility, and a rehabilitation hospital, that they were all in violation of the rules – was an effort to get the word out to other unsuspecting non-cable MVPDs.

The FCC’s notice, and our related post, apparently weren’t entirely successful, since not everyone got the message – at least the Parkway Inn Motel didn’t.

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2013 Reg Fees: The FCC Proposes a Couple of Alternatives

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

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

But this year is different.

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

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

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

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

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

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

Promoting “A la Carte” MVPD offerings

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

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

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Aereo Update: Next Stop, En Banc?

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

We told you the Aereo saga wasn’t over. 

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

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

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

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

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Aereo in the Second Circuit: Wha' Happened?

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

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

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

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

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

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

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

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

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

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

FCC Announces Restoration of Media Bureau

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

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

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

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

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Will ivi Wither on the Vine?

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

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

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

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

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

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Third "White Space" Database Coordinator to Begin Tests

Google is up next; seven more to come.

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

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

Seven more to go.

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

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

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

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

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

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

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

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

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

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

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

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

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FCC Urges Broadcasters to Secure EAS Equipment

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

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

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

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

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

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

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

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

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

This has been a public service announcement from CommLawBlog.

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

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

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

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

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

Feds revise triggers for automatic merger and acquisition review.

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

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

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

The new thresholds also affect the filing fees that parties to a deal have to pay the government for the pleasure of going through the review process. (Fees are split between the FTC and the Department of Justice.) For most of 2013, any deal subject to review and valued at less than $141.8 million will pay a $45,000 fee. (Used to be that deals coming in at a mere $100 million got to pay that.) For deals valued at more than $141.8 million but less than $709.1 million, the review fee will be $125,000. And if you’re proposing a deal valued at more than $709.1 million, get set to fork over a tidy $280,000.

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

113th Congress: Cooperation and Convergence?

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

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

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

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

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

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Judge Puts the Cuffs on AereoKiller

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

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

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

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

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

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

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

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

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

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

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Update: Reply Comment Deadline Extended in Latest CVAA Rulemaking

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

FCC Looks to Bring More Emergency Information to the Visually Impaired

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

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

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

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

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

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DIRS Activated as Hurricane Sandy Makes Landfall

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

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

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

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

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

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As Sandy Nears, FCC Provides Emergency Response Information

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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FCC Approves Verizon Acquisition of Cable AWS Holdings

Commission acknowledges numerous competitive downsides to deal, but still says “No Problem”

In recent years the FCC could justly be accused of never having met a merger it didn’t like. While regularly grousing, huffing, and puffing about consolidation in the wireless industry, the FCC has just as regularly approved all mergers and acquisitions that came before it, with the notable recent exception of the AT&T/T-Mobile merger. This “raise eyebrows but approve” policy is one of the reasons that the wireless industry in the United States is more consolidated than at any time since the break-up of the old AT&T more than 25 years ago.

By mustering up its resolve to derail the AT&T deal, the Commission gave hope to progressives that the FCC and Department of Justice had gotten some trust-busting mojo. But the FCC seems to have now retreated back into its “anything goes” posture. The most recent example is its approval of Verizon’s acquisition of large chunks of AWS spectrum across the United States.

In a blockbuster deal, Verizon proposed to acquire a host of AWS licenses from SpectrumCo (composed of several major cable companies) and Cox Cable, who had bought the licenses in a 2006 FCC auction. The cable companies had intended to use the spectrum to launch their own wireless operations in competition with the major cell phone carriers. After years of trying unsuccessfully to develop a workable business model, however, they decided to throw in the towel and sell out to Verizon. In a separate component of the deal, Verizon sought to acquire 30 or 40 PCS and AWS licenses from Leap Wireless in exchange for Verizon’s 700 MHz license in Chicago. When it became clear that there was some pushback from the Commission, Verizon quickly entered into a deal with T-Mobile to offload 47 of the AWS licenses it would otherwise be getting from the cable companies. This lessened Verizon’s spectrum agglomeration considerably in key markets.

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

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

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

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

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

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

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DIRS Activated as Isaac Approaches

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

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

Alabama counties: Baldwin and Mobile;

Florida counties: Escambia and Santa Rosa;

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

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

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

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

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

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

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

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

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

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

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

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

ivi TV Loses Round Two

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

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

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

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

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

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

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

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

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

Not so fast.

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Reg Fee Calculation Method Under the Microscope

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

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

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

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

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

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FCC to Non-Cable MVPDs: Aero Freqs? No Leaks!

Universities, elder care residences, hospitals, hotels – all could be subject to potential penalties for signal leakage if they happen to be non-cable video program distributors using aeronautical frequencies.

Universities, hospitals, hotels, apartment complexes, office buildings, even prisons.  Don’t look now, but you might have signal leakage problems that could get you into serious trouble with the FCC.

That’s the take-home message of a recent FCC public notice aimed at non-cable multichannel video programming distributors (MVPDs), warning them of their obligations to notify the Commission prior to the use of any aeronautical frequency bands by their systems. The public notice coincided with the release of three separate citations – addressed to an inn, an elder care residential facility, and a rehabilitation hospital – seeking more information about possible violations of those obligations and warning of potential fines and other penalties should any violations persist.

Obviously, the FCC is trying to get the word out that enforcement in this area may be on the upswing. So if you’re a non-cable MVPD – whether or not you’re aware that you fit in that category – you’d be wise to pay attention.

A couple of definitions are in order.

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

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

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

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

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

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

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

Out of the ashes of one MVPD wannabe rises another.

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

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

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

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

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

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Reg Fee Payment Tips

Some hopefully helpful hints for fee filers

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

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

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

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

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

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Update: 2012 Reg Fee Payment Deadline Set

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

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

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

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

2012 Reg Fees Set

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

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

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

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

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Update: Aereo Allowed to Continue Operation During Copyright Challenge

 Judge denies broadcasters’ request for injunction.

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

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

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

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

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

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

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

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

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

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

Update: Video Description Now In Effect

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

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

Big MVPDs
Also provide 50 hours
On top five channels

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

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

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

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

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

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

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

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

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

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

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

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

The Viewability Rule

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

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Revised Tower Registration Process Now In Effect

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

This is important news for anyone who is:

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

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

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

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

Update: Remaining EAS Rules Get OMB Approval, Take Effect

If you’ve been worrying about whether the “information collection” aspects of the FCC’s revised Emergency Alert System (EAS) rules would be in effect soon enough to give everybody time to meet the upcoming June 30, 2012 deadline for CAP compliance, you can breathe easy. According to a notice in the Federal Register, the Office of Management and Budget (OMB) has approved those aspects for six months, effective June 7, 2012. So everything should be good to go for CAP compliance purposes. 

While OMB approval normally lasts three years, the Commission had sought “emergency” OMB review, meaning that the FCC had cut some procedural corners in the usual Paperwork Reduction Act clearance process. The abbreviated six-month approval from OMB will give the Commission the opportunity to fill in the gaps.

Interestingly, OMB appears to have approved, as “information collections”, Sections 11.41(b), 11.42 and 11.54(b)(13). That’s interesting because all three sections have been deleted from the rules, so it’s hard to see how they might be deemed “information collections” that might require OMB approval. To be sure, Section 11.54(b)(13) has been re-codified as Section 11.54(a)(3), so the underlying requirements of that particular subsection are still in the books . . . but Section 11.54(a)(3) itself isn’t expressly included in OMB’s list of “information collections” covered by its approval. That’s probably not a fatal flaw, though, since OMB’s list does include a blanket reference to all of 47 C.F.R. Part 11, which comprises the entirety of the revised EAS rules.

Update: Revised "White Space" Rules To Take Effect June 18

Last month we reported on an FCC action that may mark the end of the decade-long “white space” proceeding authorizing the operation of some unlicensed devices in the broadcast television bands. The Commission’s Third Memorandum Opinion and Order (3rd MO&O), released in early April, disposed of a handful of petitions for reconsideration of the agency’s 2010 decision which had in turn tweaked technical “white space” specs adopted back in 2008. The 3rd MO&O has now been published in the Federal Register, which means that, barring any extraordinary intervening event (like the issuance of a stay – the approximate likelihood of which is pretty much zero), the rules as modified last month will take effect on June 18, 2012

Media Access Project Exits Stage Left

Public interest communications “law firm and advocacy organization” closes up shop

Media Access Project (MAP), a long-time player in the soap opera that is communications law, has left the show. As of May 1, MAP suspended operations “after evaluating the difficult funding environment facing MAP and other progressive public interest groups.”

Founded in 1973, MAP assumed a variety of roles over the course of its 39-year history. To some it was a tough litigator, a thoughtful advocate, and a mouthpiece for a wide range of interests that might not otherwise have had a mouthpiece. To others, it was a self-promoting buttinsky given to advancing positions of questionable (if any) validity. A seemingly constant presence in the mainstream press, it could be a total pain in the tail to those with whom it disagreed. Many – maybe even most – “industry” representatives may have disagreed with many – maybe even most – of MAP’s positions and tactics. But MAP, apparently indefatigable and unquestionably resourceful, made its voice heard, for better or for worse.

MAP prevailed in a number of important cases before the Commission and the courts and succeeded in swaying legislative policy. But MAP’s more lasting impact will likely be the fact that it spawned, directly and indirectly, a new generation of like-minded organizations that will carry on MAP’s work into the 21st Century. The ongoing work of those organizations will be MAP’s true legacy.

The demise of MAP has a particular, personal, effect on this blogger.

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Wireless Bureau Sheds Light on Upcoming Tower Registration Regimen

Announcement of OMB approval expected soon

If you’re planning on building a new tower, or significantly modifying an existing tower, in the foreseeable future, listen up. The Commission’s Wireless Telecommunications Bureau has issued a public notice laying out the new registration procedures that have been adopted (but not yet implemented) to provide pre-registration notice-and-comment opportunities relative to environmental considerations. We have previously reported on the new procedures; the public notice puts a little more meat on the procedural bones we have already described.

Who needs to worry about this? You do, if you’re:

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

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

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

If you’re in one of those categories, here’s what the Bureau will expect you to do once the new process takes effect.

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EAS Update: On Second Thought, Text-to-Speech Conversion IS Permitted, Effective May 7, 2012

Commission reverses decision released in January, 2012, but still defers further consideration of TTS technology

Back in January the Commission released its Fifth Report and Order (5th R&O) in its long-running effort to modernize the Emergency Alert System. Under the new rules (many of which became effective on April 23, 2012), EAS participants are required to be able to convert CAP-formatted EAS messages into messages that comply with the EAS Protocol requirements, following the procedures for such conversion as set forth in the EAS-CAP Industry Group (ECIG) Implementation Guide

One notable exception, though, involved the Guide’s provisions concerning text-to-speech (TTS) conversion. The Commission was not confident in the accuracy and reliability of current TTS technology. Additionally, the FCC figured that it might be preferable to require TTS conversion software to be utilized by the originators of EAS messages, rather than by EAS participants – the goal being to minimize the risk of “differing, and thus confusing” audio messages that might otherwise result.

Bottom line in January: the FCC mandated that TTS conversion would not be permitted, notwithstanding the ECIG Implementation Guide.

That decision was apparently news – and disappointing news, at that – to the FCC’s EAS regulatory partner, the Federal Emergency Management Agency (FEMA). FEMA fired off a petition for reconsideration, pointing out that, by prohibiting TTS conversion by EAS participants, the FCC was discouraging development of TTS technology. What’s worse, the lack of TTS conversion capability could “possibly disrupt dissemination of National Weather Service alerts, delay retrieval of referenced audio files in alerts, and impact the ability of jurisdictions with limited resources, or those with certain, already implemented CAP alerting capabilities, to issue CAP-formatted alerts.”

FEMA’s position was seconded by a number of state and local emergency management agencies, as well as the Commission’s own Communications Security, Reliability and Interoperability Council.

That was enough for the Commission. It has revised its rules to permit, but not require, EAS participants to follow the ECIG Implementation Guide with respect to TTS. In so doing, the FCC made clear that it was still not prepared to embrace the ECIG’s adoption of TTS software configured in EAS equipment to generate the audio portion of an EAS message; rather, consideration of that particular item has been deferred.

With the publication of the rule change in the Federal Register, that change takes effect May 7, 2012.

2012 Reg Fees Proposed: Up, Up and Away!

The FCC has performed that annual rite of spring – its announcement of proposed regulatory fees for 2012. These are the reg fees that, for the vast majority of Commission regulatees, will be due and payable by a to-be-announced date (probably sometime in August or September). As with most ritual activities, there are no real surprises here: the rates are, with very few exceptions, proposed to go up. 

In general, the Commission figures that broadcast-related reg fees should get bumped up between 4-7% or thereabouts, depending on the type of facility in question and the market in which it’s located. There are some exceptions, though. For example, commercial VHF TV stations in Markets 51-100 would enjoy a nearly 9% reduction (amounting to $2,205) compared to last year’s fee, if the FCC’s proposal holds. And fees for UHF stations in Markets 11-25 would drop $1,000 (about 3%) from last year’s levels.

We’re attaching a grid providing the proposed 2012 fees along with some comparative information showing the changes from the fees actually imposed last year. (Red entries reflect 2012 fees that would go up over last year’s fees; the small handful of green entries reflect fees that would go down this year.)

As always, the Commission is giving everybody a chance to comment on the proposed fees. If you’ve got something to say about the proposals, you’ve got until May 31, 2012 to file comment with the Commission. Reply comments may be filed until June 7

Over and above the fees themselves, this year’s Notice of Proposed Rulemaking (NPRM) contains a couple of elements of interest.

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TV Public Files Moving Online

FCC to host all TV public files in the cloud, once it figures out how to host all TV public files in the cloud

Coming soon to an Internet near you (well, maybe not that soon)!!!  The public files of every U.S. TV station, commercial and noncommercial, all hosted on a cloud-based system that the Commission promises to develop and manage. And radio and MVPD operators can probably expect that they, too, will eventually be required to make their public files available on the same system. In the latest possible culmination of a proceeding that has already lasted more than a decade, the FCC, turning a deaf ear to most of the objections of the broadcast industry, has directed television licensees to upload big chunks of their public files to a yet-to-be revealed web portal the FCC will host.

“Possible” culmination? Well, yes. Those familiar with the recent history of the public file requirement will recall that, in 2007, the Commission mandated that TV public files be made available online. But the Commission never jumped through the hoops that would have been necessary to translate that mandate into regulatory reality. Will this latest effort produce different results? It’s hard to say. The Commission sure seems serious about it, but there are a number of practical problems that could gum up the works, at least in the short term.

For background on the move to make public files Internet-accessible, check out this post from last October. The rules which the Commission has now adopted vary somewhat from the proposal described there, but the core requirements are pretty much the same. In short, TV public files are moving to the Internet (although some vestiges of the old-fashioned paper filing will remain.)

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Update: Comment Deadlines Set in Alien Ownership Inquiry

A week or two ago we reported on a request for further comments in the alien ownership proceeding. The FCC’s notice asking for more comments has now made it into the Federal Register, which establishes the deadlines for anyone interested in chipping in his/her two cents’ worth. Comments in response to the notice are due by May 15, 2012; reply comments are due by May 25.

The Quinquennial Question: Should the Ban on Exclusive Program Access Deals Stay or Go?

Tempus fugit! Time for the next five-year assessment of the ban on certain exclusive program access deals – Comments are due by June 22, 2012.

Hard to believe, but it’s that time again – time for the Commission to take a look at competition in the multichannel video programming distribution (MVPD) industry to determine whether the 20-year-old ban on certain exclusive program access deals is still necessary. With the release of a Notice of Proposed Rulemaking (NPRM), the Commission has started that ball rolling again. Interested parties have until June 22 to let the FCC know their thoughts on the issue.

The last two times the Commission considered this question, it concluded that the ban should remain in place. Thanks to at least one intervening court decision, though, this time could be different.

Back in 1992, Congress was concerned about the choke-hold that the largely monopolistic cable industry then had on video delivery in many markets. Congress understood from the FCC that that choke-hold was at least partly the result of the fact that competitors couldn’t secure programming owned by “vertically integrated cable companies”. (In this context, “vertically integrated cable companies” are cable operators that own attributable interests in companies that provide cable programming.)  So Congress just said “no”.

It ordered the Commission (among other things) to prohibit certain exclusivity agreements between a cable operator and a cable program provider in which the operator has an attributable interest. The idea was to assure that all competing cable operators would have access to the primo types of programs most attractive to subscribers.

Congress was aware that the video delivery industry was developing rapidly and that the need for the ban might decline over time. So Congress included a sunset provision: while the 1992 Cable Act required the imposition of the ban, it also required that the FCC revisit the ban in 2002 after the enactment of the Cable Act. Unless the FCC were then to determine that the ban continued to be necessary to protect competition and diversity, the ban would automatically expire. And even if the ban survived the 2002 review, it would be subject to similar reviews every five years thereafter. 

The ban did indeed survive the 2002 review, and the 2007 review as well. But the latter decision was appealed to the U.S. Court of Appeals for the D.C. Circuit in 2010. While the court affirmed the FCC’s decision to leave the ban in place for another five years, the court expressed concern because (a) Congress had clearly intended that the ban go away at some point and (b) the video delivery market has “changed drastically” since 1992. One of the three judges issued a dissenting opinion buying into the appellants’ argument that the ban raised serious First Amendment concerns.

Against that backdrop comes the NPRM.

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FCC Okays Second Area for "White Space" Operations

If you live in Nottoway County, Virginia, you’re in luck.

The FCC has authorized TV white space database coordinator Telcordia to offer service within Nottoway County, Virginia, a mostly rural area toward the southern part of the state. Initial operations will include 20 sites serving rural schools and households. The action comes less than a month after the FCC approved Telcordia’s database, and four months after the first white space operations were approved for Wilmington, NC by coordinator Spectrum Bridge, Inc.

Included in the Nottoway County order are special procedures for registering wireless microphones entitled to protection from white space devices.

We assume the pace of approvals will pick up. At the current rate, we calculate it will take until the year 2797 before white space systems are fully deployed. By then, we expect to be communicating telepathically via devices wired into our nervous systems. Assuming, of course, the FCC can free up enough spectrum.

FCC Seeks Further Input on Foreign Ownership Rules

Commission contemplates forbearance approach to direct alien ownership limits.

Last fall we reported on an FCC Notice of Proposed Rulemaking in which the FCC is considering how to simplify the application of the foreign ownership restrictions that appear in the Communications Act.   After digesting the comments submitted in that proceeding, the FCC has asked for more input. It seems that a number of commenters were concerned about the interplay of Section 310(b)(3) of the Act with Section 310(b)(4).

Section 310(b)(3) strictly forbids ownership of a broadcast or common carrier licensee by a corporation which is more than 20% owned by aliens or their representatives or by foreign governments or foreign corporations.   In other words, no more 20% of the licensee entity itself may be owned by aliens or their representatives. Section 310(b)(4), however, permits licensee entities to be owned by companies that are themselves owned by aliens or their representatives, so long as the FCC OKs the ownership. In other words, indirect ownership of licensee entities by any quantum of aliens is permissible as long as the FCC approves it.   These provisions have long been thought to define two separate classes of ownership, direct and indirect, with distinct restrictions applicable to each.

Apparently Verizon – a company whose Cellco Partnership subsidiary has significant foreign ownership – pointed out that the FCC’s 2004 effort to provide guidance on these matters actually confused things. Those 2004 guidelines seemed to treat indirect interests in licensees as being subject to the strict 20% prohibition of 310(b)(3) rather than the more liberal 25% provision applicable to indirect interests under Section 310(b)(4). Verizon correctly noted that this makes no sense, and the FCC seems to have heard Verizon’s plea.

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FCC Adjusts "White Space" Rules

Minor changes may signal an end to almost a decade of rulemaking.

The FCC has released yet another decision in its long-running effort to implement rules allowing unlicensed “white space” devices in the television bands. The latest revision does not represent any wholesale changes, but will make it easier for some devices to operate.

White space devices (TV Band Devices or TVBDs, in the FCC’s nomenclature) rely on the fact that every location has some TV spectrum not being used. Those vacant frequencies typically show up as white spaces on a map of spectrum occupancy – hence the name. Technical studies show that properly controlled unlicensed devices can use these channels without causing interference to TV operation and other authorized users, including wireless microphones.

Following a Notice of Inquiry late in 2002, and a 2004 Notice of Proposed Rulemaking, the FCC first adopted rules allowing white space devices in 2006, but left the technical specifics for a later date. Those came in 2008, and then in 2010 the FCC responded to petitions for reconsideration with a number of revisions. Now the FCC has addressed petitions for reconsideration of the 2010 order.

The rules categorize each white space device as either fixed or mobile. A fixed device must have its location either professionally programmed in or determined by an on-board GPS device, and is subject to limits on operating power, antenna height, and antenna gain limits. Before operating, it must query a database of available spectrum for its location. A mobile device may similarly use GPS to determine its location and then query a database (Mode II devices); alternatively, it can contact another white space device that will in turn query the database (Mode I devices). The FCC has so far approved ten private companies to administer the databases, of which two have completed testing to the FCC’s satisfaction.

In its recent order disposing of the petitions for reconsiderations, the Commission provided the following changes and clarifications:

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Update: FCC Seeks Accelerated OMB Review of Revised EAS Rules

Back in February we reported on the release of the Fifth Report and Order (5th R&O) in the on-going EAS proceeding, and then a couple of weeks ago we noted that the effective date of most, but not all, of the new EAS rules had been set (for April 23). We observed that the effectiveness of several of the new rules would be delayed because of the need to run them past the Office of Management and Budget for Paperwork Reduction Act (PRA) review. 

We may have spoken too soon.

According to a notice in the Federal Register, the FCC has asked OMB to review the new EAS rules “on an emergency basis” with an eye to getting everything approved by April 16, 2012. That might be a bit ambitious schedule-wise, since the deadline for comments in response to the notice is April 17, 2012, the day after OMB approval would be issued if the FCC were to get its way. Perhaps the Commission, figuring that any comments filed in response to the notice are likely to be ignored anyway, is suggesting that OMB can and should act before it ignores those comments, rather than hold off until the comments have been filed, at which point OMB could act after it ignores them.

The Federal Register notice is also unclear as to precisely which “information collections” it would like OMB to approve. As we pointed out in an earlier post, the 5th R&O itself was not a model of clarity on that score. The latest Federal Register notice merely refers vaguely to “a new information collection”, without identifying what that collection entails. The notice does indicate that the Commission will be submitting the information collection to OMB at some point during the 15-day comment period – but, again, that seems to undermine the utility of having a comment period at all. If commenting parties don’t know what they’re supposed to be commenting on, what’s the purpose of a comment period?

We’ll try to keep on top of this and report on any developments that may crop up.

Access of Evil? FCC Unveils NOITALS

Don’t be surprised when Broadband the FCC Cat pops up on your screen.

The Commission has long bemoaned the fact that the Great Unwashed are “woefully ignorant” of the nitty-gritty details of their Internet access. Not for long. That bell you just heard was signaling the start of classes at the University of FCC, Online Division. Attendance is required. Prepare to get schooled.

In a surprising move – made all the more surprising by the low-key way in which it was disclosed – the Commission is taking aggressive steps to correct the rampant problem of high tech know-nothingism.

Meet NOITALS – the Nationwide Online Information Tracking and Logistics System. (Apparent pronunciation: “KNOW-IT-ALLS”.) In a public notice announcing, among other things, an expansion of the 2012 Measuring Broadband America Performance Study of Residential Broadband Service in the U.S., the Commission mentions NOITALS, pretty much in passing, without any fanfare at all. The Commission plans to use NOITALS to measure everybody’s Internet access speed, along with other parameters of Internet performance). 

How’s it going to do that? 

It seems that NOITALS enables the Commission to see what’s going on in each individual computer, nationwide, without the intervention of the computer’s user.

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Copyright Office: We Have a List . . .

“Specialty station” list updated; MPAA objections rejected

As we reported last November, the U.S. Copyright Office (CO) was then in the process of updating its list of “specialty stations”. Those are stations that, when carried on cable systems as “distant signals”, trigger lower royalty burdens for the cable operator than other “distant” stations do. (Check out our earlier post for a more detailed explanation of how that works.) 

The CO has now completed its updating process. In a Federal Register notice, it has announced that all stations that had claimed to be “specialty stations” will be included in its official listing. This should not come as much of a surprise, since the CO has long accepted self-certifications from stations looking to get on the list.  Think of it as a kind of honor system.

That didn’t stop the Motion Picture Association of America (MPAA) from objecting to several of the proposed additions to the list. MPAA’s members receive distributions from the copyright royalty pool generated by (among other things) distant signal royalty payments. So MPAA’s members benefit more from distant signal carriage charged at full copyright rate, rather than carriage at the discounted “specialty station” rate. In its objections, MPAA urged that the CO both can and should wade into – and independently resolve – disputes concerning “specialty station” status. Needless to say, MPAA also argued that some of the claims of “specialty” status were just self-serving noise.

Sorry, the CO has now ruled – we stand by the position we’ve always taken, which is that we don’t have any legal authority to resolve disputes of that kind. We will maintain our self-certification honor system. Here’s our new specialty station list, which includes the stations whose status was contested.

What happens now?

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Second "White Space" Coordinator Approved

Operations are still limited to Wilmington, NC.

The FCC has announced that Telcordia Technologies, one of the ten database managers for “white space” operations, has been approved to provide service to the public. See the details here. Telcordia, which completed its test in January, is the second database manager to secure this approval.   Eight more are waiting in the wings.

But most of the public that Telcordia is authorized to serve will have to wait for that service. For now the FCC has approved white space operations only in Wilmington, NC.

Update: Effective Date for New EAS Rules - April 23, 2012

As we reported last month, in January the Commission released its Fifth Report and Order (5th R&O) in its long-running proceeding aimed at modernizing the Emergency Alert System. The 5th R&O has now been published in the Federal Register, which establishes the effective date for the new rules. And that effective date is (drum roll, please) . . . April 23, 2012. If you and your engineering staff haven’t focused on whether your current facilities conform to the standards set out in the 5th R&O, the countdown has now started and time’s a-wastin’.  (The deadline for having CAP-compliant equipment remains June 30, 2012.)

Note that several of the amended rules will still not kick in on the April 23 effective date. That’s because they entail some form of “information collection”, which requires that they be run through the Paperwork Reduction Act drill. According to the Federal Register notice, the particular rules whose effectiveness is temporarily PRA-deferred are Sections 11.21(a), 11.33(a)(4), 11.41(b), 11.42, 11.54(b)(13) and 11.55. Section 11.21(a) relates to the contents of State Plans. Section 11.33(a)(4) sets standards for the display and logging of SAME and CAP messages. Section 11.55 spells out EAS operation during state or local emergencies.  With respect to Sections 11.41(b), 11.42 and 11.54(b)(13), there seems to be some confusion. The 5th R&O appears to delete Sections 11.41(b) and 11.42, so it’s not clear why they would be subject to any PRA review. Ditto for Section 11.54(b)(13), although, in addition to deleting that specific subsection, the 5th R&O then recodifies its contents as 11.54(a)(3). Presumably this will all get straightened out eventually.

Update: OMB Sets Comment Deadline for Tower Registration Regimen Revisions

Last month we reported on changes to the FCC’s tower registration process that have been adopted, but not yet fully implemented. One of the hold-ups in the implementation process is the need for OMB approval (thanks to our old friend, the Paperwork Reduction Act). Never fear. The Commission is working on taking care of that detail. The first step of the PRA review process has been wrapped up and, according to a notice in the Federal Register, OMB has now invited comments on the FCC’s tweaks to the tower registration process. The deadline for those comments is April 18, 2012. The notice does not contemplate any reply comments, so once Patriot’s Day comes and goes, OMB will be in a position to sign off on the changes (assuming that everything is in order – and at this point, there seems little reason to doubt that that’s the case). Once OMB has given them the thumbs up, the FCC will publish a notice alerting us all to that and establishing an effective date. Check back here for updates.

Aereo vs. the Broadcasters

Another day, another way to move video to the Internet . . . and another set of lawsuits.

Welcome to the latest bout in the Alternate Video Delivery System Smackdown Series. In this corner, the upstart challenger, Aereo (formerly known as Bamboom Labs, Inc.); in that corner, pretty much every major broadcast network.

Aereo is the latest innovator seeking to bring video content from one source (in Aereo’s case, over-the-air broadcasting) to subscribers in some alternate fashion – a fashion that ideally makes it attractive enough to cause consumers to fork over $12/month to Aereo. Aereo plans to deliver a full (or at least nearly full) array of over-the-air broadcast programming to you through the Internet. That, of course, means that you would be able to access that programming through whatever Internet-accessible device you might choose – tablet, smartphone, desktop, big screen TV in your living room, etc. The programming could be streamed as it is being broadcast, or it could be accessed on a delayed basis, just like shows you might otherwise save on a DVR.

And that’s Aereo’s angle: as Aereo sees things, its service “enables consumers to access broadcast television via a remote antenna and DVR”. Actually, make that “cloud DVR”, a term Aereo slips into its on-line response to the two lawsuits brought against it by the major TV networks.

What exactly is a “cloud DVR”? It’s a quasi-imaginary device – actually, a combination of devices – that affords the user the ability to access streamed or recorded content from broadcast stations through the Internet. A crucial element of the technology is a teeny-weeny antenna – about the size of a dime (see illustration, above, taken from the Aereo website) – that Aereo uses to receive OTA broadcasts. When you subscribe to Aereo, you are assigned one such antenna – it’s yours and (supposedly) nobody else’s. It’s hooked to “massive amounts of storage and super-fast Internet connections”. You are then given an “elegant interface” with which to “control your antenna”. You can pick a channel to watch or you can tell it to record for later viewing.

So it’s just like sitting in your living room, fiddling with your cable remote, right?

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EAS 5th R&O: Who's Who/What's What

OMG!!  40+ abbrvs?!? YGTBK . . .

If you’re an EAS participant, you really ought to read the 5th R&O described in Davina Sashkin’s post. It contains a lot of information that you should be familiar with.

Yes, yes, it’s 96 pages long, and it’s got another 34 pages of appendices, and it’s got 800+ footnotes. We can’t do anything about any of that. But we can provide you with an alphabetical glossary of the abbreviations/acronyms sprinkled liberally throughout the item. We counted more than 40 of them, and that doesn’t include the names of commenting parties referred to in the item (e.g., “NAB”). You’re on your own when the Commission starts to mash abbreviations together (as in “CAP v1.2 IPAWS USA Profile v1.0”), but our glossary may still simplify your reading experience. Just print it out and keep it handy as you peruse the 5th R&O.

Brought to you as a public service by CommLawBlog.

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FCC Addresses CAP-to-SAME Conversion, Other EAS Issues

June 30, 2012 deadline for CAP-compliance remains in place as Commission sets certification requirements, streamlines/clarifies EAS rules

In January, the Commission released its Fifth Report and Order (5th R&O) in the proceeding designed to drag the Emergency Alert System (EAS) into the digital era.  With the June 30, 2012 deadline for CAP-compliance (more on that below) fast approaching, the Commission’s action came none too soon.

The 5th R&O is the latest in a series of decisions stretching back five years. As we have described in earlier posts, the goal is a digital emergency alert system that can operate across virtually all electronic communications media, including broadcast, cable, wireless devices and the Internet. The new system has been dubbed the Integrated Public Alert and Warning System (IPAWS).  

A keystone of IPAWS is the Common Alerting Protocol (CAP). That’s “an open, interoperable, data interchange format for collecting and distributing all-hazard safety notifications and emergency warnings to multiple information networks, public safety alerting systems, and personal communications devices.” In the old days, the public safety folks had to rely on the broadcast EAS system to get emergency warnings out to the public in harm’s way.  The CAP approach will ideally enable them to send a single, geo-targeted alert simultaneously across multiple platforms, including cellular, Internet, satellite and cable television providers.  

Welcome to Next Generation EAS.

Such radical change does not come easily. That’s especially true when you have not one, but two federal agencies working on the project. IPAWS is being established by the Federal Emergency Management Agency (FEMA), which is responsible for setting many, if not most, of the relevant technical standards. But while FEMA may be setting the standards, those standards have to be implemented and enforced by the FCC, which regulates most of the facilities which will actually deliver the alerts to the public.

FEMA announced the CAP standards in September, 2010. The FCC had previously decided that, once the CAP standards were on the books, EAS participants would have 180 days in which to assure themselves the capability of receiving and converting CAP-formatted alerts. That initial deadline was extended a couple of times; it’s now June 30, 2012.

The 5th R&O resolves a raft of practical questions raised in the Third Further Notice of Proposed Rulemaking issued last May. A central focus: how to overlay the CAP-receiving/converting requirement onto the “legacy” EAS system?

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Revised Tower Registration Regimen Ready (But Not Yet In Effect)

FCC adopts changes in ASR processes for the birds; OMB approval still needed

It looks like new bird-friendly procedures for proposed tower construction could be with us by summer. If you’re thinking about building a tower 200 feet tall (or taller) – and especially if you’re planning to build something taller than 450 feet – you might want to get that proposal on file sooner rather than later. The longer you wait, the more likely it is that you’ll end up subject to considerably more burdensome processes.

The new procedures have been years in the making. (We previewed them last April, shortly after the Wireless Bureau solicited comments on a preliminary version.) They arise from concerns raised by a number of conservation groups (e.g., the American Bird Conservancy, the National Audubon Society) who urged that the Commission should afford more opportunity for public comment about proposed tower construction. According to the conservation groups, towers pose risks to birds (particularly migratory birds).

Accordingly, the groups (with a boost from a 2008 decision of the U.S. Court of Appeals for the D.C. Circuit) have pressed the Commission to modify its Antenna Structure Registration (ASR) program. Those chickens will soon be coming home to roost.

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Congress Opens Door for Spectrum Repurposing, Incentive Auctions

With passage of the Middle Class Tax Relief and Job Creation Act, incentive auctions for spectrum repurposing take a great leap forward.

After more than a year of back-and-forth, it looks like our friends on Capitol Hill have finally come to terms on a plan to encourage – through “incentive auctions” – the so-called “repurposing” of spectrum now occupied by TV broadcasters to make it available for wireless broadband services. Snuggled in the middle of the payroll tax cut extension act, the long-awaited spectrum auction authority has been enacted and sent to the President who has said that he will sign it promptly.

(In signature Washington style, the curiously-named “Payroll Tax” bill – formal name: the Middle Class Tax Relief and Job Creation Act of 2012 – dedicates a mere three sentences to tax issues and more than 250 to other matters, like Medicare reimbursements, unemployment benefits, federal employee retirement rules . . . and the federal spectrum policy and telecommunications funds.)

Title VI of H.R. 3630 of the Act includes the particular provisions authorizing incentive auctions of broadcast spectrum and creating an interoperable public safety network. (We plan to provide a link to the Act as finally signed by the President when it’s available.)

The good news is that most, but not all, parties with some stake in the game received at least part of what they were hoping for. Of particular interest to broadcasters: the act requires the FCC to make “all reasonable efforts” to preserve existing coverage of TV stations; prohibits the involuntary moving of broadcasters from UHF to VHF, or from high-band VHF to low-band VHF; provides for a one-time auction and a relocation fund of $1.75 billion; and requires coordination with Canada and Mexico on border concerns.

The bad news, at least for low power TV licensees: the definition of “broadcast television licensee” for the purposes of incentive auctions is limited to full-power television stations and “Class A” television stations. LPTV licensees get only a single provision stating that nothing alters their spectrum usage rights. That language will provide little comfort to some in view of the secondary nature of LPTV operations. Still, the language can be cited by LPTV interests as a Congressional directive to the FCC not to ignore the fate of LPTV stations if and when the TV broadcast spectrum is truncated.

Also of note:

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Second "White Space" Database Completes Test

FCC requests public comment on results of Telcordia system testing

“White space” wireless operation on locally vacant TV channels requires that devices consult a database of users entitled to protection, including broadcast TV stations and some wireless microphones. See a list here. The FCC has authorized ten companies to provide and operate those databases. The second such company, Telcordia Technologies Inc., recently completed a 45-day test that began in December.

The FCC now seeks public input on the Telcordia results, which are posted here. Comments are due on February 16, 2012, and reply comments on February 23.

In the meantime, white space operations were scheduled to begin last week in Wilmington, NC, using a database provided by Telcordia’s competitor, Spectrum Bridge, the first to complete testing.

There are still eight database providers to go. We will keep track so you don’t have to.

Big Deal? Size Still Matters to M&A Regulators

Feds revise triggers for automatic merger and acquisition review

Last year saw some successful (NBC/Comcast) and some not so successful (AT&T/T-Mobile) merger applications in the communications sector.  And with hope for continued improvement in the overall economic climate springing eternal, it’s possible that more large scale mergers may be in the pipeline. With that in mind, potential merger/acquisition candidates should be aware that the federal government has performed its annual ritual of announcing the thresholds it will use for automatic federal review of mergers and acquisitions

If a transaction exceeds a certain amount, both the Department of Justice and the Federal Trade Commission must scrutinize the deal and render an opinion about any anti-trust concerns raised by the deal.  In addition, as AT&T is acutely aware, when a large merger involves communications assets, the FCC also has no problem sticking its nose into the deal.  In fact, the FCC has its own SWAT team (formally called the Office Of General Counsel Transaction Team) to review deals.  Unlike the DoJ and the FTC, the FCC’s team is not automatically required to review deals of certain size; they could theoretically refrain from involving themselves in deals that pass the triggers described below. Note, though, that the FCC’s SWAT team – as well as DoJ and FTC – can choose to investigate smaller deals coming in below the triggers.

Readers considering a merger or acquisition should bear in mind that after February 27, 2012, the administration automatically will be sending at least two agencies to take a closer look at transactions where either:

the total value of the transaction exceeds $272,800,000; or

the total value of the transaction exceeds $68.2 million andone party to the deal has total assets of at least $13.6 million (or, if a manufacturer, has $13.6 million in annual net sales) and the other party has net sales or total assets of at least $136.4 million

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

FCC v. Fox: The Swami Tells It Like It Was, and Like It Will Be

On January 10, the Swami and the Blogmeister took a field trip to the Supreme Court to catch the Fox/ABC indecency argument. Here’s their report.

[Blogmeister note: Last year the Supreme Court agreed to consider the constitutionality of the FCC’s broadcast indecency policies in the context of two cases, one involving comments made during awards shows aired by Fox Television, the other involving an episode of NYPD Blue on ABC. Check our previous posts for more background. The argument before the Supremes was held on January 10. Kevin “the Swami” Goldberg and Blogmeister Harry Cole attended.]

Blogmeister:  I think we can agree that, from the perspective of a broadcaster, the argument was disappointing. After the Second Circuit’s sweeping endorsements of First Amendment rights for broadcasters in Fox and ABC, it was a let-down to hear the far more cautious tone of the Supreme Court Justices.

Swami: Disappointing – maybe. I also thought “demoralizing” at first – but on further reflection, I don’t think this is a lost cause by any means. 

Blogmeister: Interesting. But before we ask you to gaze into your crystal ball and come up with a prediction of the vote, how about your thoughts on the overall arguments? For instance, what happened to the FCC’s interest in protecting children’s innocent ears from the evils of vulgar words? Pacifica was based in large measure on precisely that interest, but there was virtually no discussion of that at all during the argument. Instead, the government harped repeatedly on the notion that broadcasters have been given the use of their spectrum for free by the government, and they have derived “billions and billions of dollars” from that spectrum.

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Commission Dismisses TV Channel-Sharing Proposal

Despite – or, supposedly, because of – its own 2010 channel-sharing proposal, FCC summarily rejects similar 2008 approach advanced by ION

As part of its push to “repurpose” television broadcast spectrum for wireless broadband use, the FCC has, since 2010, been promoting the idea of channel sharing.  The idea is that two or more TV stations would share one 6 MHz broadcast channel, each having its own program stream.  One of the primary keys to enticing broadcasters to take the bait is that each station stream would have cable and satellite must-carry rights.

Attentive CommLawBlog readers may have thought that that proposal rang a bell – because (as we reported back in 2008) not only had somebody come up with the idea before, but that somebody had formally proposed its own license-sharing deal with features very similar to the approach the Commission is now pushing. 

In November, 2008, an assignment application (FCC Form 314) was filed proposing a “share-time” arrangement for a bunch of TV stations licensed to ION Media Networks.  A new company, Urban Television, LLC, would acquire “share-time licenses” permitting it to broadcast on the ION channel.  ION would continue to be the licensee of, and would continue to operate, its existing stations on the same channels.  (According to the application, Urban is owned 49% by ION and 51% by BET Founder Robert L. Johnson’s RLJ Companies.)

While the application was remarkably sparse on technical details – the contract between ION and RLJ was only two pages long, for crying out loud, and the summary of the transaction was only four (double-spaced, at that) – the basic idea boiled down to splitting up a single station’s 6 MHz channel into multiple, separately-licensed digital streams capable of accommodating  separately-owned TV stations.  As proposed by Urban Networks, each stream would be designated a “television station” and so would be entitled to the same mandatory cable and satellite carriage afforded to every full power station. Urban Networks sweetened the pot by offering a slew of new opportunities for minority entrepreneurs to participate in broadcast ownership and programming.

The broad strokes of Urban’s technical proposal were pretty close to the Commission’s repacking concept – separate licenses within a given 6 MHz channel, and cable and satellite carriage for everyone.

The FCC invited comments, and then proceeded to ignore the proposal even while advancing its own version of channel-sharing. 

But now, after a three-year wait, the Commission has summarily dismissed the Urban Networks applications.

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December, 2011: All is CALM

A run-down on what the new rules governing “loud” television commercials require, and when those requirements will kick in

Back in December, 2010, the CALM Act (short for “Commercial Advertisement Loudness Mitigation Act”) was signed into law, giving the FCC precisely one year to get its regulatory keister in gear and adopt rules mandated by the Act. We are pleased to report that the Commission met that deadline, with two days to spare. In a Report and Order adopted on December 13, 2011, the Commission established a set of complex technical rules and procedures intended to reduce the problem of “loud” commercials on television.

The CALM Act is intended to lower the volume (or, more accurately, the “loudness”) of televised commercials. We won’t have a sense of whether or not the new rules will work for another year or two (and maybe not even then). As discussed below, even the Commission acknowledges that the CALM Act will not necessarily eliminate the perception that some commercials are loud.  But regardless, TV licensees and MVPDs are now under the gun to bring themselves into compliance with the new rules by December 13, 2012 (although, also as discussed below, some stations may be eligible for an additional year or so to bring themselves into compliance).

In crafting the technical specs, the Commission had little heavy lifting to do. That’s because Congress directed the Commission had to deal with the problem, i.e., by mandating a “recommended practice” (RP) devised by the Advanced Television Systems Committee (ATSC). The ATSC, of course, is the international non-profit organization largely responsible for the design of the DTV standards now in place in the U.S. So pretty much all the Commission had to do on that front was explicitly incorporate the RP – known as ATSC A/85 RP to the cognoscenti – into the rules. (Fuzzy on ATSC A/85 RP? Check out our earlier post on the CALM Act.)

The real problem confronting the Commission was how to craft an enforcement system that divvies up the compliance responsibilities appropriately. And props to the Commission: the system they came up with, although a bit complicated, seems to do the trick.

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EEO: Web-only, Word-of-Mouth-only Recruitment NOT Enough

The Internet may be the go-to place for job-seekers, but the FCC still insists on an Old School approach when it comes to broadcast jobs and EEO.

Despite the fact that the Commission has itself acknowledged, repeatedly, that the Internet is an important, maybe even “critical”, resource for job-seekers, broadcasters with jobs to offer had better not rely on the Internet alone when recruiting for those jobs. If they do, they’re looking at a fine that could run into five digits. Ask a couple of licensees – one in Virginia, one in South Carolina – who just found out the hard way.

The FCC has long required broadcast employment units with five or more full-time employees to recruit broadly for minority and female applicants for all job openings. A report of recruitment efforts, including the referral sources that are notified of openings, must be placed in the public file of all stations in such employment units every year; they must also be posted on the stations’ websites (if they have websites). At the middle of the license term and at renewal time, those employment units must submit reports on their EEO efforts to the Commission. And each year the Commission also conducts random audits of EEO performance.

We have cautioned clients for at least a couple of years that the FCC insists on a broad spectrum of recruitment sources. The classic “word-of-mouth” approach and “referrals from friends” are not enough. And as we wrote just a year ago, the FCC has also cautioned that Internet-based recruitment cannot be relied on alone. (Irony alert: the fact that some businesses accept job applications only via the Internet has been touted by the Commission as a justification for its National Broadband Plan, which includes repurposing TV broadcast spectrum for wireless broadband.)

In the two recent cases (released on the last business day of 2011), the FCC nicked two station groups for $8,000 and $12,000 for inadequate dissemination of recruitment notices for some of their openings. For some, but not all, of their openings the groups had relied on Internet and word-of-mouth to spread the word. Not enough, the Commission announced. Its FCC’s words are direct and speak for themselves (although we’ve highlighted a particularly noteworthy sentence below):

The Licensee’s reliance on non-public sources such as word-of-mouth referrals and its own employee board, did not constitute sufficient recruitment as contemplated under the Commission’s rules, which require public outreach. …While the Commission does not require the use of a specific number of recruitment sources, if a source or sources cannot reasonably be expected, collectively, to reach the entire community, as here, a licensee may be found in noncompliance with the Commission’s EEO Rule. Further, the Commission’s interpretation of the EEO Rule does not allow a licensee to recruit solely from Internet sources to meet the requirement to widely disseminate information concerning the vacancy.   

We have been told over and over again by clients that the Internet is just about the only recruitment source that produces any results and that mailing notices of vacancies to a large list of community organizations is an exercise in futility.  That may be so in the Real World, but on Planet FCC things are apparently different – so the wise licensee will continue to keep a good supply of paper and postage stamps on hand.

Reminder: Closed Captioning Exemption Requests Due by January 18, 2012

Previously granted “permanent” exemptions may be gone, but requests for new exemptions can still be filed by January 18; failure to file means programming must be closed captioned by January 19

If you happen to be one of the 298 television programmers who lost closed captioning exemptions last October, heads up – your programming must be fully compliant with the closed captioning rules beginning January 19, 2012. But take heart, you can re-apply for your exemptions. The deadline for re-filing is January 18, 2012.

As we reported back in October, the Commission pulled the exemption rug out from under nearly 300 programmers who thought, not unreasonably, that the exemptions that the FCC’s Consumer and Governmental Affairs Bureau (CGB) had granted them five years ago were permanent. Turns out that the full Commission disagreed.

But the Commission did leave the door open for any of those programmers to try to get their exemptions back, as long as they can satisfy the new standards announced in October. The deadline for making such a request is January 18, 2012.

Programmers who are interested in petitioning for a new exemption must submit current, detailed documentation showing that it would be “economically burdensome” to provide closed captioning on the specific programming for which an exemption is sought. (“Economically burdensome” is the standard established by the Twenty-First Century Communications and Video Accessibility Act of 2010, but the Commission has provisionally interpreted the new test to mean the same thing as the old “undue burden.”)

Whether closed captioning is considered economically burdensome for a particular provider or program owner will depend on: (1) the nature and cost of the closed captioning; (2) the impact on the operation of the entity; (3) the financial resources of the entity; and (4) the type of operations. Although these factors appear similar to those used in the past, the categorical presumption that CGB used to use – a presumption that allowed it to green light lots of exemptions without carefully inspecting each request – is now gone. Instead, each new petition will now be considered strictly on a case-by-case basis.

Petitions for exemption must include:

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FCC Approves First "White Space" Operations

First white space database and end-user devices to begin operation in January in Wilmington, NC.

The FCC has approved the first “white space” database and the first end-user devices to begin operation on January 26, 2012, initially limited to the Wilmington, NC area.

White space devices are supposed to provide Wi-Fi-like services, only better, using locally vacant TV channels. Successful operation will depend on complex databases to help each device identify channels on which it can safely operate, without causing interference to TV stations, radio astronomy, wireless microphones, and several other services entitled to protection. We reported just last month that the first of ten FCC-approved database providers, Spectrum Bridge Inc., had posted the results from a 45-day test of its system. The FCC has now announced its acceptance of that system, and simultaneously, its approval of an end-user white space device that operates in conjunction with the Spectrum Bridge database.

Operators of the various services protected against the devices – see a list here – should make sure their facilities are properly listed in the database.

White space operations will be limited at the outset to the environs of Wilmington, NC. Wilmington was also the city chosen by the FCC a few years back for an early trial of the cut-over from analog to digital TV. We’re not sure why the FCC keeps putting Wilmington’s TV reception at risk. Perhaps the city is an unheralded center for high-tech early adopters. Or the home of someone whom the FCC just doesn’t like.

Reminder: EAS Nationwide Test Form 3's Are Due December 27

The job’s not over until the (electronic) paperwork is finished.

A tickler from our Forgotten-But-Not-Gone File reminds us to remind you that Form 3 reports from the nationwide EAS test conducted in early November are due to be filed by December 27 – the first day after the long Christmas weekend. Form 3 is not particularly complicated. In fact, if you’ve already completed Form 1 (which you should have, since it was supposed to be done by the date of the nationwide test), you’ve already taken care of just about all the heavy lifting here.

You can get to the reporting forms at the FCC’s website here. Note that there’s a notation on one page at that site indicating that Form 3 is due to be filed by December 24. That’s kind of true – the final report was due 45 days after the nationwide test, which does indeed take you to the 24th. But since December 24 is a Saturday, the FCC’s conventional rule (Section 1.4(j), if you want to delve into it, which we don’t recommend) provides that the deadline automatically over to the next business day. Since Monday, December 26 is a Federal holiday, the form is due to be filed by Tuesday, December 27.

Another White Space Database Ready to Make Its Debut

Telcordia Tech testing to take off 12/7.

Last September we reported on the fact that one of the nine (oops, make that ten) white space database administrators had announced that its system was ready to have its tires kicked. That 45-day test has since wrapped up, and the Commission has since invited comments on the results. 

And now a second database administrator – Telcordia Technologies, Inc. – has given the word that it, too, is ready for testing . . . or at least it will be, as of December 7. That date will kick off Telcordia’s 45-day test period, during which members of the public are invited to run the Telcordia system through its paces to ensure that it does what it’s supposed to do. (In case you’ve forgotten, all white space database systems are expected to (1) correctly identify channels in the TV band that are available for unlicensed operation, (2) register facilities in that band that are entitled to protection, and (3) afford protection to authorized services and registered facilities as specified in the Commission’s rules.)

You can access the Telcordia system at https://prism.telcordia.com/tvws/home/trial starting December 7 (but not before) and running through January 20, 2012, possibly longer if the Commission determines that an extension is warranted. The Commission encourages the public to take the system for a test drive to make sure that it's doing what it’s supposed to do. Items available for testing include a channel availability calculator, and separate utilities to register: MVPD receive sites; broadcast auxiliary temporary receive sites; fixed TVWS devices; and wireless microphones. Obviously, if any inaccuracies pop up, they should be reported to Telcordia pronto.

Check out our previous posts for more background on the white space database administrator program.

Update: TV Pickup Station Registration Requirement Out for Initial PRA Comments

Last August, in connection with its review of wireless backhaul regulation, the Commission announced that folks holding TV pickup licenses in the 6875-7125 MHz and 12700-13200 MHz bands would be required to register their stationary receive-only sites in the Commission’s Universal Licensing System (ULS). (You can read our report about the wireless backhaul overhaul here.) That new registration requirement, set out in Section 74.605 of the Commission's rules, has not yet kicked in – as with so many things, it’s subject to the Paperwork Reduction Act (PRA), so it needs the thumbs-up from OMB before it can take effect. And that thumbs up is still probably at least 90 days away, since the FCC has only just now started the PRA drill, which normally mandates an initial 60-day comment period at the FCC and a separate, follow-up 30-day comment period at OMB. 

In a notice published in the Federal Register, the Commission has gotten the ball rolling by requesting PRA-based comments on the ULS registration requirement for TV pickup stations in the 6875-7125 MHz and 12700-13200 MHz bands. Comments are due to be filed with the Commission by January 27, 2012. After that, it’ll be on to OMB.  (Note: the Federal Register notice refers at one point to Section 74.405.  Don't be fooled.  That appears to be the kind of typo anybody can make.  We're all talking about 74.605 here.)

Net Neutrality Update: One Lonely Reconsideration Petitioner

Could a single petition for reconsideration delay judicial review?

The Commission has announced that it has received one – and, apparently, only one – petition for reconsideration of its Open Internet order released last December (but not published in the Federal Register until September). For the curious among you, the seven-page petition – which is actually titled "Petition for Clarification or Reconsideration" – may be found here.  (It asks the Commission to clarify the "special services" aspect of the net neutrality order, particularly as that aspect would affect "enterprise customers".)

The import of this filing lies not so much in the substance of the arguments it presents, but rather in the effect that it might have on the timing of judicial review. As we have previously reported, multiple petitions for review of the Open Internet order have been filed with various federal courts of appeals */; all those petitions are set to be heard in a consolidated proceeding before the U.S. Court of Appeals for the D.C. Circuit. So the train heading toward Judicial Resolution is loaded up and ready to leave the station. 

But with the filing of the recon petition, there is now a lingering bit of business still pending before the Commission.  Theoretically, the FCC’s disposition of the petition for reconsideration could alter – maybe even eliminate – some arguments that might otherwise have to be resolved by the court on appeal. When such circumstances arise, it is routine – but not absolutely required – for the court to hold its processes in abeyance pending agency action on the reconsideration issues. The abeyance approach often seems the most efficient way of handling such situations.  Indeed, if the court steps in and tries to rule before the agency's action has stopped moving around, the result can be (and, in some cases has been) far more disruptive than if the court had chosen to wait.  It will be interesting to see whether the FCC (or some other party) files a request for the Court to hold the appeal in abeyance in light of the petition for reconsideration.

In dealing with the recon petition, the Commission will next publish a notice in the Federal Register, alerting the public to the filing of the petition and inviting responses to it. What with the time it will likely take to get that notice into the Register, and then the additional time for responses and replies, the matter won’t be ready for the Commission even to begin to think about it until early next year, at the soonest.

Whether the single petition for reconsideration in the Open Internet proceeding will slow down – or stop entirely – the appellate process is not clear. It’s hard to imagine that a relatively terse recon effort can, or should, delay judicial resolution of the broad range of issues likely to be presented on appeal. But stranger things have been known to happen. We’ll try to keep an eye on things, so check back here for updates.

*/  Speaking of those multiple petitions for review filed in multiple circuits, we note that three of the petitioners are bailing out of the proceeding.  The three – People's Production House, Media Mobilizing Project and Mountain Area information Network – had filed their petitions in the 2d, 3d and 4th Circuits, respectively.  On October 28, each filed a Motion for Voluntary Dismissal asking the D.C. Circuit to dismiss its respective petition.  No reason for the early departures was given (and, truth be told, the Court's rules do not require any such explanation).  Suspicious minds might guess that these petitioners filed their initial petitions largely, if not exclusively, in an effort to keep the case out of the D.C. Circuit – but as they hustle out the door now, we'll probably never know for sure.

Copyright Office: Making a List, Checking It Twice

CO seeks comments on latest “specialty station” list

Like Santa Claus, Oskar Schindler, David Letterman and Joe McCarthy, the Copyright Office (CO) has a list. The CO’s list consists of TV stations which claim to be “specialty” stations, a desirable status for some in the copyright world (more on that below). The CO is in the process of updating its list, and it has invited comments on some possible changes.

Not that the CO is in the business of deciding who should or shouldn’t be on the list. 

But before we get into all that, a bit of history may be in order. Back in the 1970s, the FCC’s regulation of the cable TV industry included limits on carriage of TV stations beyond the reach of their over-the-air service (known as "distant signals"). Those rules had been adopted against the background of a continuing policy debate about the implications of extended-area cable carriage for copyright owners, who like to be able to restrict distribution of their product, and the public, which likes to be able to watch more stations. Generally speaking, if a cable system carried a distant signal, the system had to pay more in copyright fees. But the FCC recognized that cable carriage of certain “specialty stations” might be desirable even if they originated far away from the cable system, because specialty stations are usually not locally available outside the largest markets. Accordingly, the Commission established a regulatory classification for such stations, which were defined as stations that

generally carrie[d] foreign language, religious, and/or automated programming in one-third of the hours of an average broadcast week and one-third of the weekly prime-time hours.

With the enactment of an overhaul of the copyright law in 1976 that largely eliminated prohibitions on distant signal carriage while imposing a higher royalty premium for such carriage, the need for Commission involvement waned, and in 1981 the FCC repealed its distant signal carriage rules and generally stopped worrying about “specialty stations”. A station’s self-identification as a “specialty station” may still come into play in some limited circumstances before the FCC – for example, if such a station seeks to be added to a DMA for must-carry purposes, its burden might be a tad lighter – but for the most part it’s a dead issue at the FCC.

Not so in Copyright Land.

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FCC Seeks Comment on "White Space" Database Test

The first of ten database administrators has posted the results of a 45-day test.

We reported back in September about a test of the first database for “white space” devices meant to provide Wi-Fi-like service on unused TV channels. The database – developed by Spectrum Bridge Inc. – is intended to help prevent interference from those devices into TV receivers, wireless microphones, and other authorized users of the bands. The FCC invited public participation in a 45-day online test.

Spectrum Bridge has completed its trials and submitted a “summary report” about it to the Commission. The FCC, in turn, is now requesting public input on the test result and the summary report. The request includes links to the report and three attachments submitted by Spectrum Bridge. We have been unable to access the Spectrum Bridge report and attachments by using the links provided in the FCC’s release. Presumably this is just a slight technical glitch that the FCC will correct.  However, since the Commission’s notice came out just before the start of a three-day weekend, we thought our readers might appreciate some working links to the Spectrum Bridge materials now, to give them something to pore through over the long weekend. Here they are:

The Spectrum Bridge summary report

Attachment 1 – “Dashboard” (statistics concerning traffic to the Spectrum Bridge test site)

Attachment 2 – Registration Records

Attachment 3 – Comments

Attachment 3, in particular, makes for interesting reading. It reflects a number of comments, criticisms and inquiries submitted to Spectrum Bridge during the test, and Spectrum Bridge’s responses. Some of the problems identified in the test are troubling.  For instance, Spectrum Bridge’s database ignored, at least initially, some facilities whose licenses (a) appeared to have expired but (b) were actually still in effect because of pending litigation relative to renewal of the licenses.  But it does appear that Spectrum Bridge was responsive to the problems. We shall see.

Comments on the Spectrum Bridge report are due on November 28, 2011, and reply comments on December 5.

Hill's Bills Drill Process Ills

House, Senate proposals – S.1784, H.R.3309, S.1780 and H.R. 3310 – look to increase transparency, efficiency, predictability of Commission’s activities

On November 2, Rep. Greg Walden (R-OR), Chairman of the Energy and Commerce Subcommittee on Communications and Technology, and Senator Dean Heller (R-NV) took the wraps off  legislation aimed at improving regulatory process at the Federal Communications Commission (FCC).  Just how might that be accomplished? According to the bills’ sponsors, by imposing a number of procedural constraints on the Commission that would force it to act more transparently, more efficiently, and within more predictable time frames.

As we’ve previously reported, over the last several years FCC process has at times been a source of bipartisan frustration.  Concern about the absence of certainty in how – and how fast – the process will run has developed into a mini-movement to revisit agency process.  Agency practices that have given rise to this alarm include: texts of orders not being released until weeks or months after their nominal adoption; “shot clocks” for agency action that are inconsistently applied (when they exist at all); unilateral control of the Commission’s agenda being wielded by the Chairman (allowing the Chairman to prevent action on matters that a majority of Commissioners might prefer to vote).

And, perhaps, the attention of a divided Congress is more easily attracted to an agency that asserts itself into areas where its statutory authority is at best indirect and, in the eyes of some, even nonexistent (hard to believe? check out the D.C. Circuit’s 2010 Comcast decision on net neutrality).

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Update: FCC Tweaks Nationwide EAS Test Reports, Again

In newly added “note”, FCC requests – but does not require – reports on translators, boosters and satellite stations

It looks like the Commission has revised the instructions for the electronic filing of reports on the Nationwide EAS Test. We have just received word from our friends at the NAB that the Commission has inserted the following “special note to broadcasters” in the introduction to those instructions:

Special Note for Broadcasters: For Form 1, Form 2, and Form 3, Broadcasters are encouraged to provide information only for their main, full-power facilities. As described below in the instructions for Form 3, we request that Broadcasters provide information on their translator, booster and/or satellite facilities so that we may obtain as complete a picture as possible of the extent of EAN dissemination. Broadcasters may note in the Explanation field of Form 3 that they use or own such facilities and may submit information about their translator, booster and/or satellite facilities via paper submission (e.g., Excel spreadsheet). If submitting a paper filing, Broadcasters are encouraged to include each facility’s FCC-issued Facility ID number, the latitude and