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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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 “
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.
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 “
In a quaint tip-of-the-hat to the Way Things Used To Be, the FCC has issued .jpg)
It looks like the Supreme Court may have dumped a final, fatal treatment of Roundup on ivi, Inc. In 
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 
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 – 
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.
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: 
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 
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. 
(Blogmeister’s Note: FHH Telecom Law welcomes back 
Remember 
If you’re a “small” TV station or MVPD operator who missed the October deadline for filing for waiver of your obligations 
The 
As 
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.
Another sign of the season – the hurricane and wildfire season, that is. The Commission has issued its by-now-annual 
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. 
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?
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 
[Blogmeister Note: As 
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.
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. 
It’s official!!! The Commission’s revised antenna structure registration process is now in effect. We know that because the 
Last month 
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.”
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 .jpg)
A week or two ago 
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 
The 
As
OMG!! 40+ abbrvs?!? YGTBK . . .
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.
[Blogmeister note: Last year the 
As part of its push to “repurpose” television broadcast spectrum for wireless broadband use, 
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 
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.
Last August, in connection with 
The 
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.
The Joint Panel on Multidistrict Litigation (JPML) wasted no time in conducting a circuit lottery with respect to the FCC’s net neutrality order and the winner is (drum roll, please) – 
As it waves a metal detector over every inch of the country’s economy, looking for any stray nickel or dime with which to fund its ambitious 
After a relatively fast start, it’s been something of a rocky road for the Commission’s rulemaking aimed at encouraging the use of consumer-owned “CableCARD” devices for accessing MVPD services. The Commission got the latest stage of this proceeding cranked up in April, 2010, with a Fourth Further Notice of Proposed Rulemaking teeing up a number of .jpg)
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 2010 – are due at the Copyright Royalty Board by August 1, 2011 (since July 31, the normal deadline, falls on a weekend this year). 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.
Here in Washington, we’re used to a certain amount of hypocrisy. It’s part of the atmosphere, like exhaust fumes from the high school tour buses.
All you 
In February, 2010, the Commission issued a low-profile 
It turns out that, sometimes, the job’s not over even after the paperwork is done. An AM licensee found that out the hard way when it got slapped with 
A couple of weeks ago 
In recent months I’ve suggested – 
Folks trying to get their way at the Commission routinely engage in what we professionals refer to as “ex parte” contacts – which usually consist of face-to-face, one-on-one meetings with Commissioners or Commission staff. Such meetings theoretically provide an up close and personal opportunity for the outside party to pitch its side of some issue to the regulators.
Here’s a surprise! The 
We’ve posted a couple of alerts about the possible shutdown of the federal government and the effect that that could have on licensees (read them 
Proving yet again that where there’s a will, there’s a way, 
If you’re a TV licensee providing over-the-air feeds to one or more distant translator/LPTV/Class A stations, cable head-ends or satellite local receive sites, heads up. You need to act soon if you want reception of your signal at those sites to be protected from unlicensed devices operating in the TV band. April 5, 2011 is the deadline for TV stations with receive sites more than 80 kilometers beyond their protected contour to seek a waiver of the Commission’s geographic limitation to be able to register such receive locations. Note: this is a one-time-only opportunity.
While much attention in the MVPD/broadcaster world has recently been focused on the FCC’s 
On the same day that it was cranking out hundreds of pages of Very Important Documents (including an NPRM on retransmission consent, a Report and Order on rural radio and related items concerning spectrum opportunities for Native Americans, updated rules governing accessibility for citizens with disabilities), the Commission also managed to slip out, with virtually no fanfare, 
FCC enforcement procedures continue to baffle us.
Broadcasters and telecommunications operators contemplating possible deals for the coming year should remember that, as far as the federal government is concerned, there may be such a thing as Too Big. The Feds will step in to review an anticipated deal for potential antitrust problems if the deal exceeds certain threshold dollar amounts. The law mandates that those threshold amounts be revised every year for inflation. 
If you had the bad judgment to stick with the Saints-Seahawks game on Saturday of Wildcard Weekend, you may have missed our friend and occasional contributor, 
On December 1, 
The worm is turning.
Bad news for FilmOn.com. On November 22, a federal judge in New York ordered it not to “infring[e] by any means, directly or indirectly”, any copyrights owned by CBS, NBC, ABC or Fox. Judge Naomi Reice Buchwald made sure that the scope of her order included (but wasn’t limited to), the “streaming over mobile telephone systems and/or the Internet of any of the broadcast television programming in which any plaintiff [that would be any of the networks] owns a copyright”.
As 
The FCC is opening a new “Technology Experience Center.” Its purpose? To give “FCC employees and invited guests hands-on experience with the latest communications devices and solutions.”
Get set for a new set of sweeping changes cutting across all components of the communications universe, broadband and broadcast alike. On October 8, President Obama signed the 
Don’t be lending the FCC any money if you need to get paid back before mid-October, at the earliest. The 
Puzzled by the headline? So was I last month, when the Commission issued a public notice bearing the header “
Here’s another CommLawBlog Reg Fee Tip: if you received one of the FCC’s snail mail reg fee notices, be sure to take it with a grain of salt. It has come to our attention that the fees indicated in those notices may be wrong. 
Reminder to all you DIY reg fee filers: The FCC’s handy “
The cash registers are opened for business at the FCC’s 2010 Reg Fee Extravaganza. The lines form to the left.
It’s official!!!