2015 Regulatory Fees Proposed: Stability Reigns (At Least For Now)

Just in time for the Memorial Day weekend, the FCC has released its proposed regulatory fees for 2015. Now we all have something to mull over during all those boring parades, fireworks shows, baseball games and cook-outs. Lucky us!

As usual, the proposed fees are set out in a Notice of Proposed Rulemaking (NPRM ) in which the FCC solicits comments on the proposals, as well as some other incidental matters relating to the fees. While the final figures (usually adopted in July or early August, payable in late August or September) may vary here and there from the proposed fees, generally any changes can be expected to be minor. Still, the 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).

For TV folks, reg fees appear to be stabilizing. Prior to last year, you may recall, the Commission had two separate TV fee schedules, one for VHF, the other for UHF. That differential treatment was tossed out in 2013 (effective with the 2014 reg fees). That led to some rough water on the UHF side – and smooth sailing on the VHF side – last year: VHF licensees noticed a substantial drop in their fees (as much as 48% for some), while UHF licensees suffered a major uptick (running from 15% to 30%). This year the proposed TV rates are proposed to remain largely where they were last year, with only modest (1% - 4%) increases. The only exception: FM/TV Translators and boosters and LPTV licensees, whose fees will go up 6% -- but, since last year’s fee was only $410, that amounts to only a $25 hike to $435.

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Update: Net Neutrality Appeal Headed Back to D.C., For Sure

 We recently reported that the destination of the appeal of the FCC’s “Open Internet” decision might be up in the air because parties had sought review in three different U.S. Courts of Appeals. That would normally mean that a random drawing would have to be held to determine which Circuit would get the nod. But the FCC was taking the position that an earlier drawing – in which the D.C. Circuit had been selected – should control, even though the FCC was simultaneously arguing that the appeals that had triggered that earlier drawing were fatally premature and should be tossed.

Potential crisis averted! The two petitioners who went to non-D.C. Circuits have now advised their respective Circuits that they’re cool with having their appeals transferred to D.C. Those would be Alamo Broadband, Inc. (which filed in the Fifth Circuit) and a group of four petitioners led by Full Service Network (which filed in the Third Circuit). That appears to eliminate any lingering question of venue, so all concerned should now be able to focus on the merits.

Oh, wait, we forgot to mention the stay requests.

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Update: FCC Officially Releases Pre-Auction Technical Certification Form, Reminds TV Licensees of Pre-Auction Licensing Deadline

Our regular readers know that the FCC has developed – and obtained OMB approval of – Form 2100, Schedule 381. That’s the form that will have to be completed and filed, at some point in the upcoming months, by (a) all full-power and Class A TV licensees entitled to mandatory protection in the upcoming incentive auction as well as (b) those with Commission-afforded discretionary protection.

Schedule 381 started to take shape last December, when the FCC sought comment on it – even though the draft of the form about which comments were sought was a bit hard to track down. (When we managed to get a copy of the draft, we provided a link to it for everybody’s ease of access.) As we reported last month, the Office of Management and Budget signed off on the form in late March, but still the only available copy of the form appeared to be the Word version buried on OMB’s website.

That’s changed. The FCC has now formally released Form 2100, Schedule 381. And it did so in connection with a public notice reminding full-power and Class A licensees of the upcoming May 29 Pre-Auction Licensing Deadline.

We, of course, had already reminded our readers of that deadline, but an extra heads-up never hurts. That’s especially true in view of the importance of both the May 29 deadline and the Certification Form. (Take a look at our last post on the topic if you’re unsure of what’s involved here.)

And we’ll take this opportunity to again urge anybody who expects to be filing Form 2100, Schedule 381 to review the form carefully NOW and to take any steps NOW that might be useful to insure that, when the time comes to file it, there will be no problems in getting it accurately completed and filed. The form will be due 30 days after the FCC releases its “Eligibility Public Notice” listing the facilities eligible for both protection in the repacking process and relinquishment in the reverse auction. That list will be based on the technical information on file in the FCC’s database as of May 29, 2015. While the precise date of the Eligibility Public Notice has yet to be announced, we do know that it’s expected shortly after the May 29 Pre-Auction Licensing Deadline, which obviously is right around the corner.

Consider yourself reminded.

Update: One More Aspect of New AWS-3 Rules Now in Effect

Almost a year ago we reported that the then-new AWS-3 service rules had become effective except for a handful of sections that couldn’t kick in at that point for various reasons. One of the sections that remained in limbo was Section 2.106, which added Fixed and Mobile allocations for the 2025-2110 MHz band to the Federal Table of Frequency Allocations. The hold-ups on that section? First, the total cash proceeds of the AWS-3 auction (which wrapped up in January, 2015) would have to meet the level specified in Section 309(j)(16)(B) of the Communications Act. Second, the Secretaries of State and Defense as well as the Chairman of the Joint Chiefs of Staff would have to certify to Congress that essential military capability would not be lost as a result of DoD’s surrender of the 1755-1780 MHz band for non-governmental use. (The certification would have to specify that alternative spectrum to be identified by NTIA and made available to DoD for its primary use would be an adequate replacement for the surrendered spectrum.)

Both conditions have now been met and, according to a notice in the Federal Register, Section 2.106 as amended last year is in effect as of May 12, 2015.

Public Inspection File Rule: The FCC Asks (Again) If It's Really Necessary

Thanks to the Paperwork Reduction Act, the public file rule is out for comment … again

The Paperwork Reduction Act strikes again! As we all know, the PRA requires the FCC to get clearance from the Office of Management and Budget for “information collections” the FCC wants to impose on its regulatees. OMB clearances have a shelf-life of three years, meaning that the Commission has to truck on back to OMB every three years to re-up previously issued clearances.

Those of you with reasonably long memories may see where this is heading.

Three years ago was when OMB last approved the Commission’s local public inspection file (and related political file) rules for broadcast and cable operators. (Those rules may be found at §§73.3526, 73.3527, 73.1943 and 76.1701.) And sure enough, the FCC has now solicited comments on those rules yet again as part of the process necessary to secure another three-year OK from OMB.

We reported on the 2011 proceedings back when they first got started. You may want to take a look at that report, because not much has changed this time around. The Commission is again inviting comment on several boilerplate questions, including:

(a)    whether the public file rules are “necessary for the proper performance of the functions of the Commission, including whether the [collected] information shall have practical utility”; and

(b) whether the Commission’s burden estimate is accurate.

As to that “burden estimate”, the numbers continue to amuse and amaze. Recall that in 2011 the Commission estimated that 52,285 respondents (providing a total of 52, 285 responses) would require anywhere from 2.5-109 hours to comply with the public file rules, resulting in a “Total Annual Burden” of “1,831,706” (the 2011 notice didn’t put any units on that total burden estimate, but we figure it probably referred to hours) and a “Total Annual Cost” of (are you sitting down?) “none”.

This time around, the corresponding estimates are: 24,558 respondents (providing a total of 63,234 responses); one hour to 104 hours per response; “Total Annual Burden” – 2,375,336 hours; “Total Annual Cost” – $882,236.

If these numbers look a bit odd to you, join the club.

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Update: Effective Date Set for TIS Tweaked Tweaks

Back in March we reported on a number of changes that the FCC had adopted with respect to its rules governing Travelers’ Information Stations. Those changes have now found their way into the Federal Register, so we all now know that the revised rules will take effect on June 4, 2015.

Hey, Full-Power and Class A TV Licensees: It's Almost May 29. Are You Sure Your Facilities Will Be Protected in the Repack?

Failure to complete construction or to find, and correct, discrepancies in FCC databases could result in less protection than expected.

Here’s a heads up reminder to all full-power and Class A TV licensees who expect to be eligible both for the incentive auction and for protection when the spectrum repack rolls around in the next year or two: the deadline for establishing the particular specs that will be protected in the repack is fast approaching. That deadline is May 29, 2015 (as we reported last January).

The deadline is important to at least two distinct categories of licensee.

The first group consists of folks currently holding certain construction permits who just haven’t yet gotten around to building out the facilities specified in their CP’s. If they don’t take care of that, with a covering license application on file by May 29, the CP facilities will not be protected in the repack. So, for example, all you analog Class A licensees holding onto permits to go digital may want to get on the stick and git ‘er done now, since digital footprints tend to be larger than analog. (And anyway, since – as we have reported – all Class A’s are going to have be digital by September 1, 2015 in any event, doesn’t it make sense to get the conversion done before the May 29 deadline anyway?) The bottom line for these folks: You’ve probably spent a bunch of time and money getting your permit - and it could all do down the drain if you don't finish the process by May 29.

Folks in the second group don’t have outstanding CPs.

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FCC Has More Questions About Designated Entities

Some rules may be tightened, others loosened.

The FCC is looking for expedited input about its auction rules governing Designated Entities (DEs). If you have any interest in DE-related matters, heads up: you’ve only got until May 14 to get your two cents’ worth in (and only until May 21 to file any replies).

For purposes of spectrum auctions conducted by the FCC, DEs are smaller companies that might otherwise find it hard, if not impossible, to compete with larger, well-established telecom companies in a dollar-for-dollar face-off. Committed to encouraging new entrants into the telecom universe, Congress instructed the Commission (in 47 U.S.C. §307(j)) to ensure opportunities for small businesses by, among other things, making bidding credits available to them. A bidding credit is defined by the FCC as a “percentage discount applied to the high bid amount for a license.” Practical illustration: if a bidder with a 25% bidding credit wins an auction with a bid of, say, $1 million, that bidder would have to pay only $750,000 after the credit is applied.

Last fall the FCC opened a proceeding looking to revise its DE rules for the first time in years. Among the changes it proposed: modification of the Attributable Material Relationship (AMR) rule so that DEs could lease their spectrum to non-DEs without losing their bidding credits. In response to its Notice of Proposed Rulemaking (NPRM), the FCC got an earful about not only the AMR rule but also various other aspects of the rules governing DEs.

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Digital Transition Deadline for LPTV/TV Translators Officially Suspended

Class A deadlines remain in effect.

Last October, we wrote about FCC proposals looking toward the future of Low Power Television (LPTV) stations after the upcoming incentive spectrum auction and associated repacking the TV spectrum into a smaller number of channels. One of the FCC’s proposals was to defer the September 1, 2015, deadline for LPTV stations and TV translators to complete construction of digital facilities and to terminate analog operation. The FCC tentatively concluded that it should grant that relief, because LPTV licensees should not be forced to invest in new facilities until they know whether they will be able to find channels after the spectrum repack.

While the FCC’s overall LPTV rulemaking has not yet been wrapped up, the Media Bureau has now announced an immediate suspension of the September 1, 2015, deadline for LPTV and TV translator stations. As a result, those stations may, if they wish, continue to transmit analog signals indefinitely, until the FCC says otherwise. There is no need to file applications to extend the expiration date of granted digital construction permits; in fact, the FCC does not want to have to deal with extension applications.

The suspension applies ONLY to the expiration date of construction permits for an existing analog LPTV or translator station’s initial digital facilities. This includes both flash-cuts from analog to digital on the same channel and permits to build companion digital stations on a different channel. The extension does NOT apply to the expiration date of construction permits for modification of facilities of stations that are already on the air with digital signals. Those permits still expire on the date indicated on the face of the permit.

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NAB to FCC: Erase, Replace White Space Database

Citing raft of errors, NAB urges suspension, overhaul of database requirements

The television white space (TVWS) database system, intended to increase the efficient use of TV spectrum, is a mess, according to the National Association of Broadcasters (NAB). Because of that, the NAB has asked the Commission to suspend operation of the system until the “serious design flaws” in the system can be fixed. The FCC is thinking about the NAB’s proposal, and has solicited comments on it.

The TVWS database system has been an ambitious undertaking since Day One. The idea, of course, is that there is some TV spectrum everywhere that is not being used at any one time by any licensed operator. Such spectrum can be put to good use by various low-power unlicensed devices (dubbed TV band devices, or TVBDs). But how is a TVBD user supposed to know where, when and what spectrum can be used? Enter the database.

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Brrrrr - FM Minor Mod Freeze Announced

With the deadlines for FM Auction 98 now on the books, the Commission has also announced that it will not accept ANY commercial or noncommercial minor mod applications between May 18 and May 28, 2015. That’s the filing window for short form (Form 175) applications for Auction 98.

These freezes are standard operating procedure when it comes to broadcast auctions. The goal is to avoid the creation of any conflicts (unforeseeable or otherwise) with auction proposals that could muck up the auction process. So if you have any intention of filing for a minor mod in the near term, you’d best be sure to get it filed before May 18 or be prepared to cool your heels for ten days until the freeze thaws on May 28.

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

Auction 98 - The Dates Are Set

You weren’t planning on taking summer vacation this year, were you? Good, because the dates for Auction 98 have now been set, and it looks like they’ll suck up most of the summer. So get out your calendar and mark these dates:

May 18, 2015 – 12:00 noon ET – Short-Form Application (FCC Form 175) filing window opens.

May 28, 2015 – prior to 6:00 p.m. ET – Short-Form Application (FCC Form 175) filing window deadline. The deadline for applications marks the beginning of the FCC’s very strict anti-collusion period. Bidders that intend to form consortia or otherwise partner with other bidders should have reached an agreement and disclosed it to the FCC by this deadline. Auction communications between or among bidders after this date could expose bidders to disqualification and hefty fines.

June 29, 2015 – 6:00 p.m. ET – Upfront Payments (via wire transfer). Based upon the markets that a bidder has selected in its May Short-Form Application, funds must be wired to the FCC as an upfront deposit to prove that the bidder is genuinely interested in participating in the auction.

July 23, 2015 – Auction Begins. 

At least a week before the July 23 start date, the FCC will let bidders know how many rounds of bidding will take place during the first few days. Depending upon the level of participation, it may take as little as a few days or as many as several weeks for the auction to end. The FCC’s anti-collusion rules will remain in effect throughout the auction (and for some time beyond the close of the bidding – keep an eye out for an announcement of when the coast is clear).  Those rules should be carefully followed.

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The Net Neutrality Order Has Hit the Federal Register!

Get your calendars out. It’s time to calculate the date by which petitions for judicial review of the FCC’s Open Internet Report and Order (R&O) must be filed. That’s because the event that triggers that calculation – publication of the R&O in the Federal Register – has now occurred.

Petitions for review of this kind of FCC proceeding are due to be filed within 60 days of the release of the agency decision. The date of “release” is the date of Federal Register publication, i.e., April 13. That means that petitions for review of the R&O by a federal appeals court must be filed no later than June 12, 2015. BUT if you’ve got your heart set on having the appeal heard by a particular circuit, you should definitely NOT wait until the last minute.

That’s because, if petitions are filed by different parties in different circuits, a lottery is conducted by the Judicial Panel on Multidistrict Litigation (JPML) to choose one of those circuits to be the court which will hear the appeal. And to get your preferred circuit’s ball into the JPML drum from which the random selection will be made, you have to file your petition with your preferred circuit no later than April 23 (i.e., ten days after Federal Register publication). And that’s not all. Once your petition’s been filed, you have to have a paper copy of it, showing the dated “received” stamp from the court, delivered to the FCC’s Office of General Counsel – also no later than April 23. (Since that latter copy has got to be in the hands of the General Counsel within that 10 day period, hand-delivery is the recommended approach.)

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Update: Comment Deadlines Set in STELAR Market Mod Proceeding

Last week we reported on the FCC’s Notice of Proposed Rulemaking (NPRM) triggered by the STELA Reauthorization Act of 2014 (STELAR). The NPRM has now been published in the Federal Register, which sets the deadlines for comments and replies. Comments may be filed by May 13, 2015 and replies by May 28. Comments and replies may be filed through the FCC’s ECFS online filing system; refer to Proceeding No. 15-71.

Update: Wireless Microphone Coordination Provision of Incentive Auction Order Now In Effect

As we all know, last June the Commission adopted its massive Report and Order setting out the rules for implementation of the spectrum incentive auction. The auction, of course, is one element of a major reorganization of the spectrum in which (among other things) television stations will be “repacked” into a narrower portion of the spectrum. The repacking affects more than just TV licensees. Wireless microphones and other licensed low power auxiliary stations (LPASs) are allowed to operate on unused TV channels on a secondary, non-exclusive basis, so reduction in TV channels reduces LPAS opportunities as well -- a special problem for wireless microphone users in congested areas.

Deep in the fine print of the magnum opus, the FCC – concerned about the impact that the re-pack will likely have on LPASs, and wireless microphones in particular – sought to ensure that LPAS licensees would have access to as many TV channels as possible post-repack.

One way to achieve that was to permit LPAS operation co-channel with TV stations at distances less than those specified in Section 74.802(a) of the Commission’s rules, provided such use was coordinated in advance. To that end, Section 74.802(b) was revised to read: 

Low power auxiliary stations may operate closer to co-channel TV broadcast stations than the distances specified in paragraph (b)(1) of this section provided that their operations are coordinated with TV broadcast stations that could be affected by the low power auxiliary station operation. Coordination must be completed prior to operation of the low power auxiliary station.

While portions of the incentive auction Report and Order became effective last October, the revised Section 74.802(b) did not because it had to be run through the Paperwork Reduction Act drill at the Office of Management and Budget. According to a notice published in the Federal Register. that process has been completed, OMB has given its thumbs up, and the revised Section 74.802(b) is effective as of April 1, 2015.

One-A-Day Sponsorship IDs?

FCC invites comments on proposal by coalition of nine radio licensees to shift sponsorship IDs primarily to Internet

In an unusual petition that was filed last November – but took five months to hit the FCC’s public radar screen – a group of radio station owners is asking the Commission to waive the sponsorship identification requirements for a “defined class of qualifying radio broadcasters”. While the prospects for a grant of the requested waiver may be limited (because it may be asking for something the FCC can’t provide), the fact of the request itself raises some interesting questions.

The petitioners, who call themselves the Radio Broadcasters Coalition, consist of nine companies, including several major radio group owners – iHeart Media (née Clear Channel), Emmis, Cox, Entercom, Greater Media, among others. According to the FCC’s summary, they would like the Commission to let “radio broadcasters airing music or sports programming … provide information about sponsored material through a combination of less frequent on air announcements together with enhanced online disclosures.”

Under the proposal, a qualifying radio station would, after a three-week “listener-education” period, have to make on-air sponsorship ID announcements only once each day (sometime between 6:00 a.m. and 7:00 p.m.), notifying listeners generally that (a) some programming on the station had been sponsored by certain identified sponsors and (b) listeners can find more details on the station’s website. At its website, each qualifying station would have a page, specifically accessible through a tab or link identified as “Enhanced Disclosure of Sponsored Programing”, containing “enhanced” sponsorship ID information. Such information would include a list of the names of sponsors, the names of the programs in which the sponsored material had aired, a list of the artists and music (or sports teams) affiliated with particular sponsor entities, and the types (but not amounts) of payments/services exchanged between sponsors and the station.

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Brrr - The Auction 98 FM Freeze is On

With Auction 98 now in the works, the Commission has frozen, effective immediately (i.e., as of March 16, 2015):

  • All applications proposing to modify any of the 131 vacant non-reserved band FM allotments scheduled for Auction 98 (currently slated to kick off on next July 23);
  • All petitions and counterproposals that propose a change in channel, class, community, or reference coordinates for any of the Auction 98 allotments; and
  • All applications, petitions and counterproposals that fail to fully protect any Auction 98 Allotment.

Filings in any of the above categories that happen to be submitted after the release of the FCC’s public notice will be dismissed. (Can’t remember what channels are up for grabs in Auction 98? Click here for the current list.) This freeze will remain in effect until the day after the deadline for Auction 98 long form applications – which will likely be sometime in late Summer/early Fall, 2015, at the earliest.

The freeze notice does not impose a freeze on any and all minor mod applications (for commercial or noncommercial stations) during the filing window for short form (Form 175) applications for Auction 98.  (The Form 175 filing window hasn’t been announced yet – look for that announcement in a month or two.) Such blanket freezes barring all minor mods during the Short Form window have been standard operating procedure in the last several FM auctions. Given that precedent, if you have a minor mod you’d like to file that doesn’t fit into any of the three freeze categories noted above, you might want to plan on getting it filed before the opening of the Form 175 filing period, just to be on the safe side. Otherwise, your ability to file could be delayed by a month or more. Check back here for updates on the auction schedule.

Freezes like this are routine when it comes to broadcast auctions. The goal is to avoid the creation of any conflicts (unforeseeable or otherwise) with auction proposals that could muck up the auction process.

For more information on Auction 98 itself, see our related post here.

Auction 98: 131 FM Allotments on the Block

The bidding won’t start until July, but there’s no time like the present to check out this year’s opportunities.

The FM construction permits available in the 2015 auction have hit the show room floor. If you’re thinking about bidding on any of the 131 new and used models up for grabs, start looking now. The bidding action won’t start until July, but that doesn’t mean that it’s too early to formulate your game plan. This year’s listings include 113 brand new construction permits, seven used permits (i.e., permits that were sold once but never built) and 11 permits – including Muleshoe, Texas – that went unsold during the last auction.

You can find a list of this year’s offerings here. As you peruse the list you’ll note that more than half (73 to be exact) are located in Texas. The remaining permits cover the map from New Hampshire to California and from Washington State to Georgia; there’s even a C2 up for grabs in Hawaii. 

As always, potential bidders should bear in mind that the FCC does not warranty what it sells. In fact, the FCC has included its standard four paragraph disclaimer, some in bold print, at page two of its notice. Among other tidbits, the Commission expressly disavows the useability of the CP’s on the auction block: “The FCC makes no representations or warranties about the use of this spectrum for particular services.” You have been warned.

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Update: Comment Deadlines Set in 76-81 GHz Proceeding

Last month we reported on a batch of FCC proposals aimed at liberalizing the rules governing operation in the 76-81 GHz band. The Notice of Proposed Rulemaking has now been published in the Federal Register, so we now know what the deadlines for comments and reply comments are. If you want to file comments, you’ve got until April 6, 2015; reply comments are due by April 20. Comments and replies may be filed through the FCC’s ECFS online filing system; refer to Proceeding Nos. 15-26, 11-90, 10-28 and 11-202.

Update: Most, But Not All, New E911 Rules Set to Take Effect in April

As we reported last month, the Commission has adopted a new set of E911 standards designed to improve E911 location capability. The FCC’s Fourth Report and Order setting forth those standards has now been published in the Federal Register. As a result, the new rules are set to take effect on April 3, 2015except for Sections 20.18(i)(2)(ii)(A) and (B); 20.18(i)(2)(iii); 20.18(i)(3)(i) and (ii); 20.18(i)(4)(i), (ii), (iii) and (iv); and 20.18(j)(2) and (3). Those all constitute “information collections” which, thanks to the hilariously named Paperwork Reduction Act, have to get the approval of the Office of Management and Budget before they can kick into gear. Check back here for updates as to those loose ends.

Update: Comment Deadlines Announced in Digital Remote Pickup Proceeding

A couple of weeks ago we reported on a Notice of Proposed Rulemaking and Order (NPRM/O) that resolved some questions related to broadcast remote pickup (RPU) authorizations and proposed a number of changes to the RPU rules. (Among the proposals: allowing broadcasters to use digital technology for their RPUs.) The NPRM has now been published in the Federal Register, so we know that comments in response to the NPRM are due to be filed by April 3, 2015, and reply comments are due by April 20.  Comments and replies may be filed through the FCC’s ECFS online filing system; refer to Proceeding No. 15-36.

Update: Effective Date Set for STELAR-mandated Rule Changes

Last month we reported on an FCC order implementing several rule changes dictated by Congress in the STELA Reauthorization Act of 2014. Those changes include the ban on joint negotiation for retransmission consent agreements by any two same-market TV stations not under common control (as that term is defined by the FCC rules). The Commission’s order has now been published in the Federal Register, so we can tell you when the revised rules will take effect. The magic date: April 2, 2015. Mark your calendars.

TV Stations: The SESAC Check is (Almost) in the Mail

TVMLC settlement with SESAC gets the thumbs up from judge; important forms to be sent to participating stations to get the refund process rolling

If you’re a full-power TV operator in the U.S. (or its territories) and you obtained a performance license from SESAC any time after January 1, 2008, make sure you keep an eye out for a form you’re likely to receive from the Television Music License Committee (TVMLC) or its attorneys entitled Settlement Antitrust Class Action Settlement Refund Payments.” Fill it out, return it, pass GO, collect much more than $200 and roll again. (Note: Stations own or operated by Univision or Telefutura (now UniMas) or any station that opted out of the settlement don’t qualify. We suspect that you know who you are.)

The settlement in question resolves claims made by the TVMLC against SESAC. I’ve already written in considerable detail about the settlement itself, so if you’re at all hazy on the details, take a look at my earlier post. As I reported last November, the TVMLC and SESAC had reached a settlement agreement and submitted it to Judge Paul A. Engelmayer, the federal judge presiding over the case.

The mere fact that the parties had resolved their differences was not the end of the story; the judge had to sign off on the deal, too. So a court-issued Notice was circulated giving any malcontents the right to protest the settlement terms or opt out. This was followed by a hearing held on February 18, 2015 – and one day later Judge Engelmayer sealed the deal in an Opinion and Order. With that, if you’re a qualifying station, the money will now start coming your way once TVMLC crunches some numbers.

The bulk of the Opinion and Order is legal mumbo jumbo addressing certain necessary issues, like whether the class was properly certified (it was), whether the settlement was “fair, adequate, and reasonable, and not a product of collusion” (no problem there, either), whether the plan of allocation was also “fair and adequate” (yup), and whether the contemplated attorney’s fees and costs make sense (they do).

But really, most affected TV licensees are probably far more interested in another set of questions, like:

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Update: Comment Deadlines Set for Form 323 RUFRN NPRM

We recently reported on the FCC’s proposal to revise its broadcast ownership reporting requirements to permit all attributable interest holders to utilize a “Restricted Use FCC Registration Number” (RUFRN) in connection with both commercial and noncommercial broadcast ownership reports (FCC Forms 323 and 323-E, respectively). The RUFRN would largely replace the Special Use FRN which the Commission invented in 2009-2010 when its initial plan – which would have required all individuals listed in commercial ownership reports to identify themselves with Social Security Number-based FRNs – ran into some rough sledding. The Notice of Proposed Rulemaking has now been published in the Federal Register, which triggers the deadlines for comments and replies. If you are itching to file comments, you’ve got until March 30, 2015; replies may be filed by April 13. Comments and replies may be filed through the FCC’s ECFS online filing system; refer to Proceeding Nos. 07-294 and 10-234.

Update: Comment Deadline Announced in FAA Drone Rulemaking

Last week we reported on a Notice of Proposed Rulemaking (NPRM) issued by the Federal Aviation Administration relative to the operation of “Unmanned Aircraft Systems” – what the rest of us out here in the Real World would refer to as “drones”. The NPRM has now made it into the Federal Register, so we know that comments in response to the NPRM are due by April 24, 2015.

STELAR Aftermath: Ban on Joint Retrans Negotiations, Other Rules Revised

At Congress’s direction, FCC narrows, considerably, the ability of same-market stations to negotiate retransmission consent deals jointly.

Back in November (as we reported), Congress passed the STELA Reauthorization Act of 2014 (a/k/a STELAR). Among other things STELAR required the Commission to modify certain rules to implement a number of Congressionally-dictated changes. STELAR also required that those modifications take effect pronto – some within 90 days, others within nine months of STELAR’s enactment. Obviously mindful of both the chores Congress assigned it and the limited time frame provided by Congress to get those chores done, the Commission has taken the first step in that direction, releasing an Order amending its rules to incorporate four STELAR-mandated provisions. The four provisions address sunset dates, the ban on joint retransmission consent negotiations, expanded protections for significantly viewed stations and elimination of the “sweeps prohibition.” 

Don’t be fooled by its meager five-page length and ostensibly limited scope: the Order will undoubtedly have far-reaching impact.

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LMS Watch: Form 2100 Gets Four More Schedules

Attention LPTV, Class A TV and TV Translator CP and license applicants: Form 2100 is your ONLY option as of February 23.

Last September we introduced our readers to the new “Licensing and Management System” (LMS) that the Commission plans to use as a one-stop-shop for all broadcast forms. Once LMS is fully operational, our old friend the Consolidated Database System (CDBS) will be put out to pasture. (Before you think about cheering for the demise of CDBS, you might want to take Form 2100 out for a test spin - CDBS may be a devil, but it's the devil we know.)

As we previously reported, in LMS all the various broadcast applications and forms which have traditionally been identified by separate numbers will now all have a common form number, Form 2100, but will be identified as separate “schedules” to that form. So, for example, where a full-power TV construction permit applicant used to have to file Form 301 in CDBS, in LMS the applicant will file Form 2100, including Schedule A. Full-service TV license applicants used to have to file Form 302-DT; in LMS they’ll file Form 2100, including Schedule B.

As initially rolled out last fall, LMS offered only Schedules A and B. But progress is clearly being made on the LMS front: a recent public notice advises that four more schedules (Schedules C, D, E and F) have now been added to the Form 2100 options.

The new schedules are to be used by Class A, LPTV and TV Translator applicants for the following purposes:

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Update: Comment Deadlines Set in Online Public Inspection File Proceeding

In the waning days of 2014 we reported on the release of a Notice of Proposed Rulemaking (NPRM) in which the Commission proposed to expand the online public inspection requirement to include radio broadcasters, cable operators and satellite broadcast services. The NPRM has made it into the Federal Register, which means we now know the comment deadlines. Comments may be filed by March 16, 2015 and reply comments by April 14. Comments and replies may be filed through the FCC’s ECFS online filing system; refer to Proceeding No.14-127.

Update: Comment Deadlines Extended in MVPD-Redefinition Proceeding

Last month we reported on the FCC’s proposal to redefine the MVPD universe  to include services “untethered” from any infrastructure-based definition – in other words, to include Internet-delivered, “over-the-top” services. The Media Bureau has now extended the comment deadlines in that proceeding. As a result, comments are now due by March 3, 2015 and reply comments by March 18. Comments and replies may be filed through the FCC’s ECFS online filing system; refer to Proceeding No.14-261.

Telecom Tickler 2015 - CPNI Certifications Due By March 2

 It’s that time of year again – time for our annual reminder to all telecommunications carriers and interconnected VoIP providers that your CPNI certifications are due by March 2, 2015. While the Enforcement Bureau has announced the deadline as March 1, it appears not to have noticed that in 2015, March 1 is a Sunday. Thanks to our old friend Section 1.4(j) of the FCC's rules, when a filing deadline falls on a holiday – and the rules do indeed specifically confirm that Sundays are “holidays” – the deadline rolls over to the next business day, which in this case will be Monday, March 2.

As described by the Enforcement Bureau, CPNI – Customer Proprietary Network Information to the uninitiated – includes “some of the most sensitive personal information that carriers have about their customers as a result of their business relationship”. Think phone numbers of calls made or received, or the frequency or duration of calls, etc. . . . basically the same stuff the NSA has apparently been collecting for years. While the NSA is not required to file CPNI certifications with the FCC, telecom carriers aren’t so lucky.

The Bureau has issued a convenient “Enforcement Advisory” to remind one and all of the fast-approaching deadline. Like similar advisories in past years, this year’s includes a helpful list of FAQs and a suggested template showing what a certificate should look like.

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Roam-eo, Roam-eo, Wherefore Art Thou? Locating E911 Callers to Become Easier

With widespread cooperation, Commission looks to improve accuracy, reliability of E911 location capability

Back in the day, when landline phones ruled, emergency responders could locate 911 callers with relative ease. After all, each landline phone was tied to a specific, readily identifiable address (and often a specific office at that address), so when a call came in, it was easy to pinpoint the originating address.

Then came wireless phones, and locating the emergency caller got trickier: an E911 message originating from a wireless phone could be coming from just about anywhere. Initially, the FCC mandated that carriers be able to provide Public Safety Answering Points (PSAPs) the location of an E911 caller to within 50 to 300 meters (depending on the technology used). But that requirement applied only to calls originating outdoors, and it mandated provision of only horizontal locations determined by geographic coordinates (i.e., latitude and longitude). What about wireless 911 callers who happened to be indoors or, worse, on an upper story in a high-rise?

As we reported, last year the FCC launched a proceeding looking to improve E911 location capability for just such circumstances. And now, in the wake of an impressively cooperative response to the Commission’s proposals, the FCC has adopted a Fourth Report and Order (4th R&O) establishing a new set of E911 location standards. Set to take effect gradually over a period of several years, the new standards reflect the seemingly universal acknowledgement that the ability of emergency responders to locate E911 callers quickly is a matter of utmost importance.

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Update: Official Deadline Announced for Top Ten Nonbroadcast Video Net Exemption Requests

 Last month we reported on the FCC’s triennial designation of the Top Ten nonbroadcast video networks, a designation that looks like an honor of sorts (until you realize that larger (i.e., >50,000 subs) MVPD’s must provide 50 hours per calendar quarter of video-described prime time or children’s television on the designated Top Five nets). The Commission’s January announcement offered listed networks an opportunity to try to get themselves excused from the list by seeking an exemption. That opportunity extends 30 days from publication of the announcement. The January public notice did not, however, state expressly what the triggering “publication” date was – and we suggested that it might be a good idea to assume that the issuance of the public notice itself constituted publication. As it turns out, the FCC planned to publish the notice in the Federal Register, an event that would officially start the 30-day period for requesting exemption. And now that notice has been published. As a result, petitions for exemption from inclusion on the list must be filed by March 5, 2015.

Incentive Auction Inquiry: Wide Range of Technical Questions Out for Comment

FCC tries to tie down crucial elements of underlying auction design, including definitions of “clearing targets”, “spectrum impairments”

While the schedule may have slipped some, the Incentive Auction is still on its way. And even if the Auction may not start until sometime in 2016 (at least according to the current thinking), the Commission is facing – now – the monumental task of working out the myriad details that will govern the auction process. To that end, last month the FCC invited comment on a mind-numbing array of highly technical questions about both the reverse and forward components of the Incentive Auction. We’ll summarize a few of the highlights concerning the reverse auction. (And let’s be clear, this is just a summary of about 80 pages – i.e., half of the 160+-page request for comments – of densely-packed Commission-ese.) We’ll address forward auction highlights in a separate post. 

Setting the Clearing Target and Impairment, Categories of Licenses 

The principal goal of the reverse auction is to clear UHF spectrum of current TV broadcast licensees in order to make that spectrum available to wireless operators. A couple of years ago, the Commission was hoping to be able to clear a nationwide “clean swath” of spectrum amounting to as much as 126 MHz. The thought was that the reverse auction software could be set up to use that level as a starting point from which the on-going reverse auction calculations would be based. In other words, unless a set of particular reverse auction deals would clear that pre-identified amount of spectrum, those deals would be non-starters.

The FCC now seems to be accepting the reality that using a fixed 126 MHz starting point (or even some lower level, like 108 MHz) might be a tad ambitious because of various practical constraints (for example, border interference considerations). As a result, it is now proposing an approach that would rely on a dynamic, rather than static, clearing target concept. The target would be the highest clearing target possible from among the available options depending on broadcaster participation in the reverse auction. But the Commission makes clear that it would like to hear from commenters relative to the notion of omitting any initial clearing targets.

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AWS-3 Auction Closes After Two Months of Bidding

FCC rakes in record receipts.

The FCC finally brought down the closing gavel for the AWS-3 auction (that would be Auction 97 for those of you who keep track of such things) on January 29. The auction began on November 13, took breaks for four holidays – Thanksgiving, Christmas, New Year’s Day and Martin Luther King Day – and even slowed down when a couple of winter storms blew through Washington, D.C. Still, by the time the 341 rounds of bidding were complete, nearly $45 billion in total successful bids had been netted, a record for FCC auctions. (The previous high number, taken in during the 2008 sale of 700 MHz frequencies, brought $19 billion, which looked big back then but now looks a bit thin.) The AWS-3 auction also featured the highest number of rounds, 341, exceeding the previous high (318) from the 2010 paging auction.

As the auction dragged on, the FCC was under the gun to get it closed, and quickly. Congress imposed a February, 2015 deadline for the FCC by which the FCC must issue licenses to the successful bidders, and plenty of paper will have to be pushed before those licenses can be officially bestowed. With an eye on the calendar as January sped by, the FCC goosed the auction process along by increasing eligibility requirements to 100% and accelerating bidding activity to 21 rounds a day. (When the auction started in November, the FCC conducted only three rounds a day.)

The close of the auction sets in motion a rapid series of events for both winning bidders and the FCC.

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Looking for Protection in the Repack? Get Those Facilities Licensed by May 29, 2015

Media Bureau announces “Pre-Auction Licensing Deadline” by which full power and Class A TV facilities must be licensed to be eligible for protection when the repack happens.

If you’re a full power or Class A TV licensee and you’d like your facilities to be eligible for protection in the channel repacking process, heads up. You’ve got until May 29, 2015 to get those facilities licensed (or at least to get a license application for them on file). That’s the latest word from the Media Bureau, which has officially designated May 29, 2015 as the Pre-Auction Licensing Deadline.

Earlier on in the development of the Incentive Auction (and related spectrum repacking) process, the Commission had concluded that all full power and Class A facilities that had been licensed by February 22, 2012 would get mandatory protection. But it also acknowledged that “discretionary protection” should be afforded to a separate subset of station facilities that had not obtained a digital license by that date. To qualify for discretionary protection, those facilities would have to be licensed by some “pre-auction licensing deadline” that would eventually be announced.

Now that deadline has been announced.

Facilities eligible for discretionary protection include:

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Update: More New AWS-3 Rules Now In Effect

Last year we reported on the adoption of new service rules governing AWS-3 spectrum use. And as we also reported a couple of months later, those rules took effect in July, 2014, except for a handful of provisions that had to be run through the Paperwork Reduction Act drill at the Office of Management and Budget. The good news is that, according to a notice in the Federal Register, that hurdle has now been cleared for Sections 2.1033(c)(19)(i)-(ii), 27.14(k) and (s), 27.17(c), 27.50(d)(3), 27.1131, 27.1132, and 27.1134(c) and (f). As a result, all of those sections have become effective as of January 28, 2015. That leaves only some revisions to Section 2.106 (the Table of Frequency Allocations) still in limbo. Don’t look for those last lingering changes to kick in until after the auction of the 1755-1780MHz band has been wrapped up. Check back here for updates on that front.

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

Plus ça change, plus c’est la même chose - If you’re a webcaster, you’ve got until February 2 to wrap up your annual SoundExchange homework. 

Sigh. Every year brings us another year closer to death. It sure feels that way as we do our Webcaster Wake-Up Call for 2015 – the last year for the rates and terms set in the Webcasting III decision. (The rates and terms that will govern for the next five-year term, i.e., 2016-2020, will be set by the Copyright Royalty Board in the Webcasting IV proceeding it cranked up last year and is still pending.)

Since these rates and terms have been in existence for almost five years, I’m running out of ways to cleverly remind those engaged in non-interactive webcasting about their filing and payment obligations because, well, nothing has changed.

But even if the underlying substance hasn’t changed, I can still spiff it up with a new presentation, one that might help readers navigate the SoundExchange trails a bit more easily. So as we say an early goodbye to Webcasting III (though we didn’t think so, we may yet miss you!) and look forward (or not) to whatever the CRB may do to us in Webcasting IV, here’s a chart that provides about as stripped down a reminder as you can get of the various SoundExchange options.

Before you test-drive the chart, though, keep a couple of things in mind:

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ANSI C63.17-2013 Now Officially in the FCC Rulebook

Five months ago we reported that, in a bit of regulatory tidying up, the Office of Engineering and Technology had updated the FCC’s rules. The Commission had, in 2012, incorporated by reference into its rules a standard – ANSI C63.17-2006, to be precise – adopted by the American National Standards Institute (ANSI). The standard governs certain measurement procedures in the 1920-1930 MHz band, used mainly for cordless phones, backstage intercoms, and other voice-quality audio gear.

The specific version referenced in the rules had been developed by ANSI in 2006 – but, wouldn’t you know it, ANSI revised its standard in 2013. So in August, 2014, OET opted to substitute the 2013 version for the 2006 version. As it turns out, though, just because OET said so in August didn’t make it so in August. OET’s order had to be published in the Federal Register for it to take effect. Oddly, that didn’t happen … until now. The order has just been published in the Federal Register, as a result of which the 2013 version of ANSI C63.17 has taken effect as of January 21, 2015.

As we noted last summer, if you’re seriously interested, you can get yourself a copy of ANSI C63.17-2013 here … as long as you’re willing to spend $113.00 for the privilege.

Proposed MVPD Redefinition Out for Comment

FCC looks to open ranks of MVPDs to Internet-delivered services – a move that could save what’s left of Aereo

It looks like the universe of multichannel video programming distributors (MVPDs) is going to be expanding considerably. Previously populated by the likes of cable, MMDS and broadcast satellite operators, the MVPD universe is set to be redefined to include services “untethered” from any infrastructure-based definition … if, that is, a proposal laid out in a Notice of Proposed Rulemaking (NPRM) last month (and just published in the Federal Register) takes hold. The result should expand consumer options for video program service, and might even revivify whatever may be left of Aereo once Aereo exits the bankruptcy process. And even if Aereo doesn’t survive, we can look for new Aereo-like services.

The proposed redefinition of what it means to be an MVPD is part of the Commission’s overall effort to encourage innovation and serve the “pro-consumer values embodied in MVPD regulation”. It’s also one more reflection of the FCC’s embrace of the technology transition – from old-fashioned, relatively inefficient analog service to digital, Internet protocol (IP) delivery – that is sweeping virtually all aspects of U.S. communications.

The Communications Act defines MVPD as a person (or entity) who “makes available for purchase, by subscribers or customers, multiple channels of video programming.” The Act cites some examples – “cable operator, a multichannel multipoint distribution service, a direct broadcast satellite service, or a television receive-only satellite program distributor” – but makes clear that those are not the only possible MVPDs. So the FCC appears to have some latitude when it comes to filling in the blanks Congress left.

And that’s what it’s now trying to do.

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Update: Start-Date for Certain Mandatory ECFS Filings Set

Last month we reported on the FCC’s expansion of the use of its ECFS (short for “Electronic Comment Filing System”) online filing system to permit – and, in five cases, require – certain non-docketed materials to be filed through ECFS. For the five types of filing that must be filed through ECFS, the dates by which that requirement is to take effect had not yet been fixed as of our last report.

For two of those types, we were able to calculate the effective date to be January 12 and, sure enough, the Commission has since confirmed the correctness of our calculatio: January 12 is indeed the date as of which Section 224 pole attachment complaints and formal Section 208 complaints must be filed through ECFS.

And thanks to a notice published in the Federal Register, we know the effective date as of which the remaining three types of filings will have to be filed electronically. .

The following types of filings will have to be submitted electronically as of February 12, 2015 :

  • Network change notifications by incumbent local exchange carriers
  • Domestic Section 214 transfer-of-control applications
  • Domestic Section 214 discontinuance applications

Once accepted through ECFS, each such notice or application will be assigned its own ECFS docket number, so related follow-on submissions should be filed through the conventional, docket-number-based ECFS interface.

Top Ten Nonbroadcast Video Networks? The Winners Are ...

Video description rules bring FCC into the ratings game ... every three years

When you’re trying to track down the national rankings of video programming networks, you may not think to check with the FCC – but, thanks to the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA), that’s the first place you should look. Every three years, at least.

As long-time readers may recall, back in 2011 the Commission, pursuant to Congress’s direction in the CVAA, adopted extensive video description rules applicable to broadcasters and multichannel video programming distributors (MVPDs). As to the latter, the rules require that MVPDs with more than 50,000 subscribers must provide 50 hours per calendar quarter of video-described prime time or children’s television on the five most popular cable channels.

Popularity in this context is determined based on (take a deep breath) an average of the national audience share during prime time of nonbroadcast networks that reach 50 percent or more of MVPD households and have at least 50 hours per quarter of prime time programming that is not live or near-live or otherwise exempt under the video description rules. (The relevant Nielsen ratings period this time around was September 30, 2013-September 28, 2014; the relevant stats were Nielsen’s “live +7 day” ratings, i.e., the ones that include incremental viewing that takes place during the seven days following a telecast.)

While the calculation of Top Five nets could presumably be performed annually (or even more often), the Commission chose to update its list only every three years. The first three-year term has screamed by since the 2011 adoption of the rules. And as promised, the Media Bureau has now announced the Top Five nonbroadcast video networks that will trigger MVPD video-description obligations until July 1, 2018. (Actually, it announced the Top Ten, presumably to provide for alternates should they be needed.)

The lucky networks:

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Comment Deadlines Set in IP Transition Proceeding

Early last month we reported that the FCC is seeking input on various ways in which the transition from the legacy copper network to Internet protocol (IP) technology will affect consumers and competitive providers. If you’re planning on tossing in your two cents’ worth, you now know the deadlines by which you’ll have to do so, because the FCC’s Notice of Proposed Rulemaking has now made it into the Federal Register: comments are due by February 5, 2015, and replies by March 9. Comments are replies may be filed through the FCC’s ECFS online filing system; refer to Proceeding Nos. 14-174, 13-5, 05-25, RM-11358 and RM-10593 (use the “Add another proceeding” button to get them all in).

Put It In Writing, Part II: Call for Comments on Closing Closed Captioning Loophole

FCC seeks input on possible regulation of “video programmers”.

As we reported recently, the FCC has ratcheted up its video captioning requirements for “Video Programming Distributors” (VPDs), a universe defined as “all entities who provide video programming directly to customers’ homes, regardless of distribution technology used (i.e., broadcasters and MVPDs)”. (Note that, despite that last “regardless of distribution technology” language, captioning requirements don’t apply to programming distributed solely on the Internet if it was not previously broadcast.) The new rules specify new caption quality standards for which VPDs are technically responsible – but VPDs can avoid penalties for captioning violations that are outside their control by making certain “best efforts”.

Those “best efforts” entail trying to get a certification from each “video programmer” (the definition of which we’ll come back to in a minute) confirming either that (a) the video programmer’s programming complies with FCC captioning standards; (b) the video programmer adheres to certain FCC-defined “best practices”; or (c) the video programmer is exempt from captioning obligations (exemptions can be based on financial hardship but are becoming increasingly difficult to get).

This approach may seem a reasonable allocation of responsibilities between VPDs and video programmers. But to the extent that it does not impose on non-exempt video programmers any independent obligation either to comply with the Commission’s captioning standards or utilize Commission-defined best practices, the approach may create a loophole of sorts because it doesn’t allow the FCC to take enforcement action directly against video programmers, as opposed to VPDs.

Apparently sensing this, the Commission has issued a Second Further Notice of Proposed Rulemaking (SFNPRM) looking for ways to close that loophole.

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Put It In Writing: New Video Captioning Standards Coming Soon

Effective date set for new video captioning requirements

In its continuing effort to assure that television programming is more accessible to the deaf and hard of hearing, last February the Commission ratcheted up the captioning requirements for Video Programming Distributors (VPDs) and video programmers. And now, thanks to a low-key announcement in the Federal Register, we know when the last of the new requirements will kick in: March 16, 2015. Anyone involved in the production and/or delivery of video programming to residential consumers should start getting familiar with the new rules as soon as possible, if they haven’t already done so. The whole shooting match may be found in the Commission’s 153-page “Report and Order, Declaratory Rule, and Further Notice of Proposed Rule Making” (R&O/DR/FNPRM) released February 24, 2014.

The new rules apply to both VPDs and video programmers. VPDs are defined as “all entities who provide video programming directly to customers’ homes, regardless of distribution technology used (i.e., broadcasters and MVPDs.” In essence, these are the folks who are ultimately responsible for delivering programming directly to the consumer. Video programmers, by contrast, are “entities that provide video programming that is intended for distribution to residential households including, but not limited to, broadcast or nonbroadcast television networks and the owners of such programming.” We can think of these as the folks who produce the programming that VPDs then deliver to consumers. Of course, with respect to some programming – local news programs, for example – a single entity may be both VDP and video programmer.

The new rules may be summarized as follows:

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Update: Comment Deadlines Set in Hearing Aid Compatibility Proceeding

A couple of weeks ago we reported on a request from the Wireless Telecommunications and Consumer and Governmental Affairs Bureaus for comments to refresh the record in a couple of proceedings relating to hearing aid compatibility regulations. The Bureaus’ public notice has now been published in the Federal Register, so we can calculate the applicable deadlines. While the Federal Register notice uncharacteristically fails to specify the dates, we figure that comments in response to the Bureaus’ request are due by January 22, 2015 (i.e., 30 days from the Federal Register publication), and replies are due by February 6 (i.e., 45 days from publication). All comments may be filed electronically through the FCC’s online system; separate copies of comments should be submitted in both Proceeding Nos. 07-250 and 10-254.

Update: Comment Deadlines Set in Contest Rule Proceeding

Last month we reported on a Notice of Proposed Rulemaking (NPRM) aimed at dragging the on-air contest rule (i.e., Section 73.1216) into the 21st Century. The NPRM has now made it into the Federal Register, which means that we now know the deadlines for filing comments and reply comments in response to the FCC’s proposal. Comments are due by February 17, 2015, and replies are due by March 19. Comments and replies may be filed electronically through the FCC’s ECFS filing site; refer to Proceeding No. 14-226.

JSA Update: Compliance Deadline Extension Confirmed

As we reported just before Thanksgiving, Congress passed the STELA Reauthorization Act of 2014 (STELAR), which the President promptly signed just after Thanksgiving (also as we reported). STELAR is a law with lots of provisions affecting lots of different areas of the video universe, as Paul Feldman’s pre-Thanksgiving post revealed. Attentive readers may have noticed the following, tucked in toward the end of that post:

Delayed Application of JSA Attribution Rule. Also as we reported in April, the Commission has determined that certain TV joint sales agreements (JSAs) will now give rise to attributable interests under the multiple ownership rules. As a result, in many markets, longstanding arrangements that had been viewed as consistent with the multiple ownership rules will have to be modified or unwound in order to bring them into compliance. The FCC has given affected parties until June 19, 2016 to take care of that. STELAR extends that compliance deadline by six months. (While the FCC will presumably issue a notice specifying the new deadline, we calculate it to be December 19, 2016.)

Sure enough, as predicted, the Media Bureau has issued a notice confirming that the deadline for bringing JSA arrangements into compliance with the revised rules adopted by the Commission last spring has been extended for six months to December 19, 2016. Mark your calendars!

Update: Two Wireless Mic Proceedings, One Set of Comment Deadline Extensions

A couple of months ago we reported on two proceedings, initiated simultaneously, looking into possible solutions to the problems that the upcoming repack of the spectrum will cause to wireless microphone users and manufacturers as well as various other users of the TV spectrum. While technically separate and distinct dockets, the two proceedings have obviously been linked from Day One. And now the FCC has announced, in a single consolidated order, that the comment deadlines for both proceedings have been extended. As a result, comments in either or both of the dockets may be filed by February 4, 2015; reply comments will be due by February 25. Use Proceeding Numbers 14-166 and 12-268 for the comments in the proceeding dealing primarily with wireless mics; use Proceeding Number 14-165 for the proceeding dealing more generally with unlicensed uses.

Update: Comment Deadlines Extended in 24 GHz Proceeding

Back in October we reported on a Notice of Inquiry seeking comments on the possible use of frequencies above 24 GHz for mobile services. According to a notice in the Federal Register, the deadlines for those comments have been extended. Comments are now due by January 15, 2015, and replies are due by February 17.

FCC Invites Comments About Not-Yet-Available Spectrum Auction Form

Can we all agree that responding to the invitation to comment on Form 2100, Schedule 381 would be easier if the form were available for review?

[Update: Form 2100, Schedule 381 has since been made available for review. See our follow-up post, which includes a link to the draft form.]

Like the first sparse snowflakes heralding a major blizzard long predicted but slow to arrive, an announcement in the Federal Register confirms that the spectrum auction is indeed approaching. The public notice invites comment on a new “information collection” – dubbed Form 2100, Schedule 381 – which all full-power and Class A television licensees will have to complete and submit prior to the incentive auction.

The form – formal name: “Certification of TV Broadcast Licensee Technical Information in Advance of Incentive Auction” – will require each licensee to certify that (a) it has reviewed the “technical data on file with the Commission related to its current license authorization” and (b) those data are “correct with respect to actual operations”. Basically, the Commission wants to be sure that the technical profile of the television industry as reflected in the FCC’s database is accurate, since that profile will be used both to identify the facilities to be sold in the reverse auction and to form the starting point for the spectrum repacking effort which is the ultimate goal of the auction. Licensees will also have to provide “basic data” concerning gear currently used by their stations; this information will be used to “facilitate the channel reassignment process following the completion of the incentive auction”.

The fact that the Commission is designing a form along these lines is not surprising – careful readers of the 400+ page behemoth incentive auction Report and Order will doubtless recall footnote 615 (nestled comfortably on page 86), which expressly flagged the FCC’s intent along these lines. But what is surprising is the fact that, while the Federal Register notice asks the public to comment on the proposed “information collection”, the form itself does not appear to be currently available. The Federal Register notice includes no copy of the proposed form, and a request emailed to the Commission has thus far elicited no response.

In other words, at this point it looks like Form 2100, Schedule 381 is the regulatory equivalent of vaporware.

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Update: Comment Deadlines Extended in LPTV/TV Translator Proceeding

 Last week we reported that the deadlines for comments and reply comments on a raft of proposals likely to affect the future of LPTV/TV translator operations had been set. And also as we reported, the odds of getting those deadlines extended were looking good.

Sure enough, the Media Bureau has granted a two-week extension. As a result, comments are now due by January 12, 2015, and replies are due by January 26.

Update: Effective Date, Comment Deadlines Set in Cell Phone Signal Booster Proceeding

Several weeks ago we reported on the FCC’s order disposing of several petitions for reconsideration that had been filed with respect to its 2013 decision to adopt a new regulatory approach to the use of cell phone signal boosters. In its most recent order the Commission adopted a couple of tweaks to its rules and proposed some further tweaks. All of those actions have now made it into the Federal Register. As a result, we now know when all but one of the newly-revised rules will take effect, and we also know the deadlines for commenting on the proposed additional tweaks.

According to one notice, all the revisions adopted by the Commission last month will take effect on
December 29, 2014 except for Section 20.21(f)(1)(iv)(A)(2), which, because it’s an “information collection”, must first be run past the Office of Management and Budget thanks to the Paperwork Reduction Act.

And according to a separate notice, comments on the newly-proposed tweaks are due by December 29, 2014 and replies are due by January 20, 2015.

Update: Comment Deadlines Set in LPTV/TV Translator Proceeding

Last month we reported on a Notice of Proposed Rulemaking (NPRM) advancing a number of proposals likely to affect the future of LPTV/TV translator operations, particularly following the spectrum repack. As we mentioned there, the FCC has given LPTV and TV translator licensees a lot to think about but not much time to do their thinking. The NPRM has now been published in the Federal Register, which means that the comment deadlines have been set – so we now know just how little time is available. Comments on the FCC’s proposals are due by December 29, 2014, and replies are due by January 12, 2015. Note, however, that a two-week extension of those deadlines has already been requested, and we understand that there's an excellent chance that that request will be granted. Check back here for updates.

Update: Comment Deadlines Set in Two Wireless Mic Proceedings

Last month we reported on a couple of Notices of Proposed Rulemaking looking for possible solutions to the problems that the upcoming repack of the spectrum will cause to wireless microphone users and manufacturers in particular as well as other unlicensed users of the TV spectrum (who may include some wireless mic folks as well as white space device users). Both of those NPRMs have now been published in the Federal Register – here (for the wireless mic item) and here (for the more general item on unlicensed uses). Thanks to that development, we now know the deadlines for comments and reply comments in the two proceedings. For both, the comment deadline is January 5, 2015; replies are due by January 26. Comments can be filed through the FCC's online ECFS filing system. Use Proceeding Numbers. 14-166 and 12-268 for the comments in the proceeding dealing primarily with wireless mics; use Proceeding Number 14-165 for the proceeding dealing more generally with unlicensed uses.

Reminder: ALL DTV Broadcasters Must File Form 317 by December 1

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

Attention, all DTV broadcasters! It’s that time of year again. Your Form 317 is due at the FCC by December 1. Since that’s the Monday following Thanksgiving weekend, you might want to start to focus on this now, before you get distracted by the holiday spirit.

Having trouble recalling just what Form 317 is all about? No problem. Form 317 is the “Digital Ancillary/Supplementary Services” Report on which you have to report whether, between October 1, 2013 – September 30, 2014, your DTV station provided any ancillary or supplementary services for a fee and, if so, how much revenue the station received. If you did provide any such services, then you’ve got to fork over five percent of the gross revenues you got from them (the payment to be accompanied by a completed Form 159, thank you very much.)

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

The filing requirement applies to ALL digital broadcasters of television programming – commercial and noncommercial – including not only full service stations, but also TV translators, LPTV and Class A television stations, whether operating pursuant to a license, program test authority, or Special Temporary Authority. And it applies whether or not the broadcaster in fact offered any ancillary/supplementary services for a fee. Obviously, if you offered no such services, the report will be short and you won’t have to do any calculations or pay any money to the Commission – but, if you have a facility that is operating digitally to broadcast television programming, the FCC wants a Form 317 report from you, and it wants that report by December 1.

As has become an annual custom, in its public notice reminding one and all of the requirement, the Media Bureau darkly observes that failure to file “may result in appropriate sanctions”. Consider yourself warned.

As with most forms these days, the Form 317 must be filed electronically through CDBS. Also, keep in mind for planning purposes that only one station goes on each report. Thus, if you are a licensee with a number of digital translators, you’ll probably need to allow more time for filing.

Marriott Wants FCC Guidance on How Far Venues Can Go to Control Their Wi-Fi Networks

Petition for rulemaking follows $600,000 consent decree. Hotels, convention centers, universities, hospitals among those potentially affected.

Last month we reported that the FCC had whacked Marriott Corporation for a cool $600,000 for messing with guests’ Wi-Fi hotspots. (The hotelier had prevented guests at its Opryland resort from using their own hotspots by transmitting disabling signals to private hotspots, forcing them to pay what the FCC felt were exorbitant rates for the resort’s own Wi-Fi service.) The FCC’s theory was that Marriott was violating Section 333 of the Communications Act, which bars interference with lawful communications.

While Marriott appeared to have accepted its come-uppance willingly (by signing onto a Consent Decree), it turns out there was more to the story. While the consent decree was being negotiated, Marriott mustered some reinforcements and took the offensive. Last August, joined by the American Hospitality and Lodging Association and Ryman Hospital Properties, Marriott filed a Petition for Declaratory Ruling or, in the Alternative, for Rulemaking asking the FCC to clarify exactly what operators of large venues may do to protect the security and quality of their own Wi-Fi networks. The petition was filed on August 25, 2014, but it took the FCC nearly three months to invite preliminary comments on it. If you’ve got something to say about this, you’ve got until December 19, 2014 to do so.

The petition raises all kinds of alarms about what will happen if the FCC decides that unlimited operation of private Wi-Fi hotspots must be permitted, even on private property. For example, Bad Guys could set up a private hotspot with the same SSID (network name) used by a hotel network. With that, they could grab traffic from hotel guests and exhibitors who think, wrongly, that they’re attaching to the hotel’s network. From there, it’s a snap for the Bad Guys to snag commercial information, including credit card numbers.

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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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Update: Last of the New Text-to-911 Rules Now Effective

Last month we reported that most of the rules adopted back in August to make text-to-911 service generally available took effect in October. As often happens, though, a small number of the new rules couldn’t kick in until the Office of Management and Budget gave them the go-ahead. That’s because those particular sections – Sections 47 CFR 20.18(n)(10)(i) and (ii), (n)(10)(iii)(C), and (n)(11) – are “information collections”.

Under the new rules, Public Safety Access Points (PSAPs) may voluntarily register when they are technically ready to receive text messages to 911. As PSAPs become text-ready, they may either register in the PSAP database (or, if the database is not yet available, submit a notification to PS Docket Nos. 10–255 and 11–153) or provide other written notification reasonably acceptable to a covered text messaging provider. To implement these requirements, the Commission seeks to collect information primarily for that database. Either approach will do the trick. (PSAPs and covered text providers may also mutually agree to an alternative implementation timeframe (other than six months). Covered text providers must notify the FCC of the dates and terms of the alternate timeframe that they have mutually agreed on with PSAPs within 30 days of the parties’ agreement.)

Additionally, some third-party notifications – to consumers, covered text providers, and the Commission – will need to be effective in order to implement text-to-911. The new rules provide for the collection of information about such notifications, which are essential to ensure that all affected parties are aware of the limitations, capabilities, and status of text-to-911 services.

According to a notice in the Federal Register, all these information collection rules have become effective as of November 14, 2014.

FCC Looking to Put Paging Spectrum to Better Use

Wireless Bureau invites comments on possible ways to encourage “more intensive” use of Part 22 paging spectrum.

Late on a Friday afternoon in mid-October, the Wireless Bureau issued a curious public notice reminding licensees in the Paging and Radiotelephone Services of various rules in Part 22 that they’re supposed to be complying with. Following the reminder, the notice veered sharply, creating a new docket that could open the door for increased use of channels historically allotted for use by paging and radiotelephone services.

The Bureau is requesting comments on how to promote “more intensive” use of this Part 22 paging spectrum by its licensees. In particular, the Bureau hopes that, by increasing “technical or operational flexibility”, it might encourage Part 22 paging licensees to deploy “innovative technologies” and/or narrowband equipment, or use offset frequencies if they hold adjacent channel blocks.

It’s no secret that for years the demand for paging services has declined steadily, presumably a victim of the overwhelming consumer acceptance of snazzier (and more effective) ways to contact people (like, for instance, cell phones and smartphones). The decline has been such that at times the Commission has struggled to get rid of remaining paging licenses. And when major bidders for those licenses have recently shown up, they appear to envision using the spectrum for various non-paging technologies, such as vehicle-to-grid, vehicular tracking or management, and smart grid and other energy management.

Over the years the Commission has taken a number of steps to encourage use of Part 22 paging spectrum: permissible operations for paging licenses have been expanded (allowing them to offer fixed, mobile, and hybrid services); burdensome common carrier regulatory treatment has been eliminated; and other technical and licensing restrictions have been lifted. The Public Notice continues in that vein.

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Spectrum Auction Recon Update: Corrected Reply Deadline Announced

Last week we reported on the establishment of opposition and reply deadlines with respect to a couple dozen or so petitions seeking reconsideration of the Commission’s spectrum auction Report and Order. According to a follow-up notice in the Federal Register, it turns out that the reply deadline announced by the Commission last week was off by a few days. If you want to file a reply to any oppositions to the recon petitions, you will have until November 24, 2014. That gives you an extra weekend – lucky you!

Update: Last of the New 911 Rules Now in Effect

Almost a year ago we reported on the adoption of a number of rules designed to improve performance of the 911 system in the aftermath of the 2012 “derecho” storm. Most of the new rules had taken effect by February of this year, but a couple lingered on in limbo, awaiting OMB approval. All but one of those stragglers made it through the Paperwork Reduction Act process last month, leaving only Section 4.9(h) on the outside looking in. (For those who may have lost track over the last year or so, Section 4.9(h) requires “Covered 911 Service Providers” to notify Public Safety Answering Points (PSAPs) and other “911 special facilities” of major disruptions in 911 service within time limits established by the Commission.)

The wait is over! According to a notice in the Federal Register, OMB has signed off on Section 4.9(h), so it has become effective as of November 4, 2014.

Death Watch: The Beginning of the End for Multilateration Location and Monitoring Service?

Wireless Bureau sets final deadline for M-LMS build-outs.

Way back before GPS was so widely available, the Commission created the Multilateration Location and Monitoring Service (M-LMS). Its purpose: keeping track of vehicles. Think operators pinpointing the locations of vehicles around a city (or around the country). M-LMS licenses were auctioned (to a handful of players) in 1999 and 2001. But in the decade-plus since, no M-LMS licensee has provided commercial service.

Attentive readers may recall that one licensee, Progeny/NextNav, obtained a waiver to provide non-vehicular location service (e.g.,a cell phone tracking service). And Progeny/NextNav has also announced plans to offer E911 location based service and mobile advertising. But vehicle location? Nada. Readers may also recall that, while the FCC invited comments on proposals to expand permissible uses of the service back in 2006, earlier this year it shut that proceeding down without taking any action.

As initially granted way back when, M-LMS licenses were subject to both interim and end-of-term construction deadlines. Since then, however, the FCC has generously and repeatedly provided extensions of time (at least seven additional years!) for construction, mostly in response to licensees’ assertions that no M-LMS equipment was commercially available.

In August, the Wireless Telecommunications Bureau signaled that the days of liberal extensions are now over.

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Effective Date of TV JSA Filing Requirement Set

Readers will recall that, last spring, the Commission decided that certain TV joint sales agreements (JSAs) may create attributable interests for the purposes of determining compliance with the multiple ownership rules. And, thanks to that change, JSAs that do create such interests have to be filed with the Commission. That applies any arrangement – new and old – that authorizes one TV station in a market to sell 15% or more of the advertising time of another station in the same market.

But as we reported back then, the requirement to file JSAs didn’t kick in when the rest of the revised JSA rules did. That’s because the filing provision constitutes an “information collection” that has to be approved by the Office of Management and Budget (thanks to the hilariously-named Paperwork Reduction Act) before that provision can take effect. In May we speculated that it would likely take about four-six months to wrap up that review process.

And sure enough, just like clockwork, OMB gave the FCC the official thumbs up on October 17 – according to a notice in the Federal Register.

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Response Dates Set for Spectrum Auction Recons

Meanwhile, back at the ranch …

While the NAB and Sinclair press their appeal of the Commission’s Incentive Spectrum Auction Report and Order (R&O), a number of other folks have expressed their discontent with various aspects of the R&O in petitions for reconsideration that the FCC will have to address and resolve. A list of those petitions has been published in the Federal Register. That notice sets the deadlines for oppositions and replies.  Oppositions to any or all of these petitions must be filed by November 12, 2014; replies to any oppositions are due by November 21.

More than 30 separate petitions have been filed on behalf of:

  • Abacus Television
  • Artemis Networks, LLC
  • GE Healthcare
  • Competitive Carriers Association
  • Advanced Television Broadcasting Alliance
  • T-Mobile USA, Inc.
  • Beach TV Properties, Inc.
  • Free Access & Broadcast Telemedia, LLC
  • Bonton Media Group, Inc./Raycom Media, Inc.
  • Block Communications, Inc./FBC Television Affiliates Association,
  • Gannett Co., Inc./Graham Media Group/ICA Broadcasting
  • Qualcomm Incorporated
  • CBS Television Network Affiliates Association/NBC Television Affiliates/ABC Television Affiliates Associates Association/FBC Television Affiliates Association
  • Cohen, Dippell and Everist, P.C.
  • the American Society for Healthcare Engineering of the American Hospital Association (WMTS Coalition)
  • Journal Broadcast Corporation
  • NBC Telemundo License LLC
  • Radio Television Digital News Association
  • LPTV Spectrum Rights Coalition
  • Sennheiser Electronic Corporation
  • the Dispatching Printing Company
  • Media General, Inc.
  • the Videohouse
  • Public Broadcasting Service, Inc./Association of Public Television Stations/Corporation for Public Broadcasting
  • American Legacy Foundation
  • Signal Above, LLC
  • the Walt Disney Company
  • International Broadcasting Network
  • U.S. Television, LLC
  • Mako Communications, LLC.
  • Expanding Opportunities for Broadcasters Coalition

You can take a look at the various petitions on ECFS – just go to the ECFS Search page and enter “12-268” in the “Proceeding Number” box and, in the “Type of Filing” box in the “Advanced Options” sections, select “Petition for Reconsideration from the drop-down menu. (Note that the list in the Federal Register does not correspond exactly to the petitions available on ECFS, but it’s reasonably close. One apparent omission: When we performed the ECFS search, it turned up a petition filed on behalf of Sprint that isn’t listed in the Federal Register notice.)

After the FCC has ruled on these petitions, interested parties will have the opportunity to seek judicial review of the FCC's reconsideration order. If (as may reasonably be expected) this leads to more appeals on the spectrum auction front, there's no telling what impact that might have on the start date of the auctions. As we reported last week, the anticipated start has already moved from 2015 to "early 2016" because of (among other things) the already-pending NAB and Sinclair appeals.

Check back here for updates.

FCC Imagines 10 Gb/s 5G Mobile Service Using 24+ GHz

The limitations that make frequencies over 24 GHz unsuitable for mobile use may not be limitations after all.

Engineers are never satisfied. Even when “4G” mobile service was still a new idea, the engineers had begun thinking ahead to what will eventually become 5G: 10 gigabits/second (far faster than 4G), a thousand-fold increase in traffic capacity, and end-to-end delays of no more than a thousandth of a second.

The problem is to find radio frequencies for all that capacity and speed. The prevailing belief has been that mobile wireless works best only below about 3500 MHz. Higher frequencies propagate badly and do not penetrate well through building walls. Frequencies that are much higher, above about 24 GHz – sometimes called millimeter wave frequencies – require “line of sight” conditions: the transmitting and receiving antenna must be able to see each other. Ordinarily such a set-up by its nature precludes mobile operations.

But the folks on the FCC’s Technological Advisory Council – a group of academics and private sector technology experts that advises the government – are not content with the prevailing belief.

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Update: Anticipated Spectrum Auction Date Pushed Back

If you picked “mid-2015” in your office pool for the date the FCC’s incentive spectrum auction would be held, we’ve got some bad news for you. While that was probably a pretty good bet up to now (since Commission officials have tenaciously stuck with the “mid-2015” date for some time), it’s not looking so good anymore. According to an item just posted on the FCC’s blog, the current target date is “early 2016”.

Gary Epstein, Chair of the Commission’s Spectrum Auction Task Force, alluding to “undeniable impediments” in the auction’s path, has this to say:

As Chairman Wheeler indicated several weeks ago, the court challenges to the auction rules by some broadcasters have introduced uncertainty.  Earlier this week, the court issued a briefing schedule in which the final briefs are not due until late January 2015.  Oral arguments will follow at a later date yet to be determined, with a decision not likely until mid-2015.  We are confident we will prevail in court, but given the reality of that schedule, the complexity of designing and implementing the auction, and the need for all auction participants to have certainty well in advance of the auction, we now anticipate accepting applications for the auction in the fall of 2015 and starting the auction in early 2016. Despite this brief delay, we remain focused on the path to successfully implementing the incentive auction. [Emphasis added]

With briefing wrapping up very late in January, the “court challenges” mentioned – one from the NAB, the other from Sinclair – probably won’t be argued until mid- to late spring, 2015. In our experience, the D.C. Circuit usually takes at least two-three months following oral argument to crank out a decision on relatively easy cases. More complex cases can take significantly longer. (Extreme example: One of my colleagues once had to wait more than three years for a decision following oral argument.)

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Update: Deadline Extended for "TV Broadcaster Relocation Fund Reimbursement Form" Comments

In late September we reported on the FCC’s request for comments about its proposed “TV Broadcaster Relocation Fund Reimbursement Form”. That’s the form that the Commission plans to use when, after the incentive spectrum auctions, TV licensees put pen to paper and figure out what it’s going to cost to move to their repacked facilities. Many (if not most) licensees will then be looking to Uncle Sam to cover those costs – and the Reimbursement Form (and related procedures described in the draft instructions to the form) will provide those licensees the access to the cash. In other words, the reimbursement process is a Big Deal that TV licensees should be focusing on now so as, ideally, to reduce the chances of disappointments down the line.

The Commission originally provided a paltry 30 days in which to review the proposed form and related procedural provisions, cogitate on the various issues they present, and then submit comments thereon. The National Association of Broadcasters figured that that just wasn’t enough time to gather all necessary and useful responsive information – for example, from engineers who have first-hand knowledge and experience in modifying TV transmission systems. The NAB asked for an extension and now, mirabile dictu, the Commission has agreed.

As a result, the deadline for comments has been extended to November 26, 2014. Happy Thanksgiving!

Snow Job: Comments Sought on Use of LMS Spectrum for Avalanche Rescues

RECCO asks FCC for waiver of Location and Monitoring Service rules.

The Location and Monitoring Service (LMS), a somewhat obscure service nestled in Subpart M to Part 90 of the FCC’s rules, is back in the news. This could be of considerable interest to you if you’re a skier who prefers avalanche-prone slopes.

LMS was originally envisioned as a service enabling fleet operators to pinpoint the locations of their vehicles around a city. That was 20 years ago. Since then, GPS has provided a more accurate, more cost effective alternative, leaving LMS without much of a market. In 2006, a company called Progeny LMS, LLC proposed that the FCC broaden the range of services possible under an LMS license. The Commission eventually abandoned that proposal, but in the meantime Progeny managed to obtain – over considerable objections from unlicensed users of the 902-928 MHz band – a waiver permitting it to use its LMS licenses for the location of items other than vehicles, like cell phones.

Now the FCC is considering another request for waiver of the LMS rules, and it has invited public comment.

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Update: More New 911 Rules Take Effect

Slowly but surely, the new set of rigorous requirements for 911 system service providers adopted last December in the wake of the 2012 “derecho” storm are coming on line. Most of those requirements took effect in February, but four particular rules did not. That’s because they involve “information collections” that had to be run past the Office of Management and Budget thanks to the Paperwork Reduction Act. OMB’s review process has now been wrapped up for three of the four – those would be Sections 12.4(c), 12.4(d)(1) and 12.4(d)(3) – and they have now taken effect, according to a notice in the Federal Register. (To refresh your recollections, Sections 12.4(c) and 12.4(d)(1) relate, respectively, to the required submission of annual reliability and initial reliability certifications. Section 12.4(d)(3) imposes certain record retention obligations.)

Still waiting in the wings: Section 4.9(h), which requires reporting on outages potentially affecting a special 911 facility. Apparently OMB hasn’t given that one the thumbs up yet. When that does happen, look for another Federal Register notice. We’ll let you know when that pops up.

Medical Body Area Networks Expand to Untether More Patients

FCC tweaks two-year-old MBAN rules.

Two years ago the Commission authorized Medical Body Area Network (MBAN) devices to operate in the 2360-2400 MHz region, immediately below the heavily-used unlicensed band that houses Bluetooth, and most Wi-Fi, along with many other applications. (We reported on that here, if you want to refresh your recollection.) MBANs relay information about a medical patient’s condition to data-gathering terminals, allowing patients to get up and move about without dragging wires behind or pushing carts full of equipment in front of them.

In August the FCC acted on petitions for reconsideration of its MBAN rules, making a few tweaks which mostly relaxed restrictions on MBAN use. The Commission also adopted procedures for frequency coordination and selection of an MBAN coordinator. That Second Report and Order has now been published in the Federal Register, so now we know that the tweaks will take effect as of November 5, 2014 except for Section 95.1225(c) (which requires the MBAN frequency coordinator to operate as a nonprofit entity and to provide information on a nondiscriminatory basis and to pass its database along to any eventual successor coordinator). That rule, which was added on reconsideration, must first be run past the Office of Management and Budget pursuant to the Paperwork Reduction Act.

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Broadcasters: Meet the New E-Filing System

Same as the old e-filing system? Maybe not. All broadcast forms will be reduced to a single form – plus schedules, of course.

The Media Bureau has announced the partial debut of the “Licensing and Management System” (LMS), an online filing system which, eventually, will replace the current system (i.e., the Consolidated Database System –what we know and love as CDBS) that’s been in operation since the turn of the century.

So CDBS may not be long for this world. Just how long will depend on how long the FCC takes to set up the necessary filing capabilities in LMS. But enough have been set up so far to open the doors for two specific types of applications.

In this case, full-power TV licensees and permittees are the ones on the cutting edge of technology: if you’re a full-power TV licensee or permittee and you need to file for a construction permit or covering license, you’ll be the first to experience LMS. That’s because, as of October 2, 2014, full-power TV folks in that position will have to file not a Form 301 (for a CP) or 302-DT (for a license), but a whole new Form 2100 (for either). And you’ll be filing that through LMS, not CDBS. In fact, as of October 2, CDBS won’t even be an option for such applications.

All broadcasters should get used to the notion of having to file Form 2100 because the Bureau’s goal is to reduce ALL broadcast applications to that single form.

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The Form of Things to Come: Media Bureau Previews Relocation Fund Reimbursement Process

Comments sought on new Reimbursement Form and related instructions to be used by TV/MVPD’s for post-Incentive Auction claims

The Media Bureau has given the television industry a sobering glimpse of what life will be like immediately after the close of the Incentive Auction. All full-power and Class A licensees would be smart to take a look now so that they’ll be ready when the time comes. And make no mistake: the FCC is confident that the time will come.

This opportunity to gaze into the future is afforded by the Bureau’s draft TV Broadcaster Relocation Fund Reimbursement Form (Reimbursement Form), about which the Bureau is soliciting comments.

When the Incentive Auction rolls around, stations opting to participate will either give up their channels or agree to shift channels in return for a share of the proceeds from the auction. Stations electing not to participate in the auction will be squeezed (“repacked” is the term the Commission uses) into the lower end of the spectrum now allocated to TV. As a result, an unknown number of TV stations will be forced to change channels. Implementation of such changes will necessarily force the affected stations to spend money.

Not to worry (too much), however: the TV Broadcaster Relocation Fund (Fund) will come to the (partial) rescue.

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Update: Last Piece of U-NII Revisions Now In Effect

Back in April we reported on the adoption of new rules intended to beef up Wi-Fi operations across the country. All but one of those rules took effect in early June. The lone exception? Section 15.407(j), which had to be vetted by the Office of Management and Budget because it involves “information collections” that bring the hilariously-named Paperwork Reduction Act into play. According to a notice in the Federal Register, OMB signed off on that section late last month and now, thanks to that notice, Section 15.407(j) has taken effect as of September 24, 2014.

The newly effective rule requires people who deploy more than a thousand outdoor access points in the 5.15-5.25 GHz band to submit a letter to the FCC acknowledging they will have to take corrective action if they cause harmful interference to licensed services. Details are here.

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.

2014 Reg Fees Set, Payment Deadline Announced

 Fire up your computer, free up some space on your credit cards and get your FRN information ready – you’ve got until SEPTEMBER 23, 2014 to get your reg fees paid … and they must be paid electronically.

Apparently intent on re-defining the terms “last minute” and “eleventh hour”, the Commission opted to wait until late on the afternoon of August 29 before it announced the final 2014 regulatory fees. For those of you anxious to cut to the chase, here’s a link to a convenient table setting out the new fees for broadcast-related services. (The table also provides, for TV-related services, comparisons of the 2014 fees against last year’s fees.)

Presumably because its adoption of the 2014 fees has come so late in the government’s fiscal year, the Commission has also taken the unusual step of simultaneously announcing the deadline for reg fee payments. That would be 11:59 p.m. (ET) on September 23, 2014.

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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.

Last Minute Update: Reply Deadline in 5.8 GHz U-NII Proceeding Extended

Last month we reported that the FCC had announced deadlines for oppositions and replies to several petitions for reconsideration that had been filed with respect to recent changes to the rules governing the 5 GHz unlicensed band. The FCC received over 100 filings. The deadline for replies was today, August 25. But, apparently, that didn’t provide quite enough time to plow through the pile of paper, at least according to the Association of Global Automakers, Inc.The Commission agreed, but not until the middle of the afternoon on August 25. This is good news for anybody who had been thinking about filing a reply, but just hadn’t gotten around to it yet. The rest of you may disregard the extension and continue your end-of-summer activities.

In any event, replies to the oppositions that were filed are now due on September 2, 2014. Have a great Labor Day weekend.

Update: Reply Comment Deadline Extended in Net Neutrality Proceeding

The comment total is already past 1,100,000, but who’s counting?

Really, would it be possible to get too many net neutrality comments? As if.

So we’re pleased to report that the FCC has extended the deadline for filing reply comments by five days. The new deadline is September 15, 2014.

The original reply deadline was September 10, but the Commission was concerned because, as we all remember, the initial comment deadline got extended from July 15 to July 18 (because the Commission’s online filing system was, um, choking a bit on the volume of comments being filed). Since initial commenters got an extra three days, figured the FCC, reply commenters should get the same. And since a three-day extension would plunk the deadline onto a Saturday, everybody gets an extra two days, taking the deadline to the following Monday.

So if you were sweating about getting your reply wrapped up in time, you can totally chill.

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Update: Deadlines for Seeking Reconsideration, Appeal of Spectrum Auction Report and Order Set

Exactly three months after its adoption, the FCC’s Report and Order (R&O) setting the preliminary ground rules to cover the ambitious incentive auction and repacking of the TV band has now been published in the Federal Register. While this does not mean that the auction is imminent – the FCC is still hoping that it will happen next year – the Federal Register publication does set the effective date of some (but not all) of the rules adopted in the R&O. Perhaps more importantly, it starts the clock on a number of important deadlines.

First and foremost, the effective date of some of the new rules is October 14, 2014. But heads up, because that does not apply to §§1.2105(a)(2)(xii) and (c)(6); 1.2204(a), (c), (d)(3), and (d)(5); 1.2205(c) and (d); 1.2209; 2.1033(c)(19)(iii); 15.713(b)(2)(iv); 15.713(h)(10); 27.14(k) and (t)(6); 27.17(c); 27.19(b) and (c); 73.3700(b)(1)(i) through (v), (b)(2)(i) and (ii), (b)(3), (b)(4)(i) and (ii), and (b)(5); 73.3700(c); 73.3700(d); 73.3700(e)(2) through (6); 73.3700(f); 73.3700(g); 73.3700(h)(4) and (6); 74.602(h)(5)(ii) and (iii); and 74.802(b)(2). Those sections all involve “information collections” that must be run past the Office of Management and Budget (thanks to the Paperwork Reduction Act) before they can take effect.

Irrespective of the effective date, the R&O’s appearance in the Register establishes the dates for seeking reconsideration or judicial review.

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Update: Comment Deadlines in FM Class C4 Proceeding Extended

Last month we reported that the Commission had formally acknowledged the petition for rulemaking filed by SSR Communications proposing the creation of a new class of FM channel – Class C4 – to be shoe-horned in between current Class A and Class C3. Comments on the proposal were invited. The Media Bureau has now announced that the comment period has been extended a month, to September 18, 2014. Additionally, the deadline for replies to any incoming comments has been extended to October 3.

While a one-month extension isn’t necessarily the end of the world – particularly since the SSR petition was filed in January, 2013, some 18 months before the Commission deigned to acknowledge it, indicating that, as far as the FCC is concerned, time isn’t of the essence here – this particular extension could signal trouble for the proposal.

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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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Update: Deadlines Set for Responses to Recon Petitions in AWS-3 Service Rules Proceeding

A couple of weeks ago we reported on the filing of two petitions for reconsideration of the adoption of rules governing AWS-3 service on 65 MHz of repurposed spectrum.  (We included links to the two petitions for those who might be inclined to read them.) A public notice reflecting those filings has now made it into the Federal Register. As a result, we now know the deadlines for oppositions and replies to the petitions: Oppositions must be filed by August 21, 2014, and replies are due by September 2.

5.8 GHz U-NII Update: Dates Set for Responses to Recon Petitions

A couple of weeks ago we reported that several petitions for reconsideration had been filed relative to last April’s changes to the rules governing the 5 GHz unlicensed band. The FCC’s notice concerning those petitions has now made it into the Federal Register, which means that the deadlines for filing oppositions and replies have now been set. If you’re inclined to oppose any (or all) of the petitions, you’ve got until August 14, 2014. Replies will be due by August 25.

Update: 3550-3650 MHz Replies Extended to August 15

No need to read the post; the headline says it all.

A recent item in in our series of posts on the FCC’s novel spectrum-management proposals for the 3550-3650 MHz band (and possibly 3650-6700 MHz as well) told you the reply comment date was … well, it doesn’t matter what we told you, because the FCC has now extended the reply comment date to August 15.

Resume your vacation.

Update: FCC Announces Form 477 Web Pages, Webinar

Webinar on new filing interface for Form 477 to be held on August 6; FCC releases link to Form 477 filing resources.

As we reported last month, the new Form 477 filing interface implemented as part of the Commission’s expansion of the Form 477 Data Program goes live on July 31. And as the FCC promised, additional Form 477 guidance – consisting of several web pages with instructions, resources, system guides, background information – is now available to prospective filers on the FCC’s website. (Cautionary note: While the FCC has indeed set up potentially useful web pages, it has included on those pages a number of links that are not yet live, at least as of the date the availability of those pages was first announced. The Commission assures one and all that those links will be updated before the new interface goes live on July 31.)

The Commission also promised an instructional webinar after the launch. True to its word, the FCC has announced that the promised webinar has been scheduled to occur on August 6, 2014 from 2:30-3:30 p.m. (ET). You can attend the real deal at the FCC’s Meeting Room in Washington, or you can watch it live over the ether at http://fcc.gov/live. Stay-at-home viewers will be given the opportunity to email questions in to the presenters during the show.

Looking for a Way Around a Statute of Limitations?

Video Division forfeiture order shows flexibility, but not necessarily in a good way

One thing you can say about the FCC: If they think they’ve caught a licensee in a violation, they can be persistent in their efforts to impose penalties for that violation. Whether those efforts are entirely consistent with the law is another question entirely.

With respect to any fine it issues, the Commission must consider the relevant statute of limitations. FCC forfeitures are subject to two separate such statutes. First, under Section 503 of the Communications Act, it can levy forfeitures for actions going back to the beginning of the current license term or one year, whichever is earlier. 

Once the Commission has issued its formal “forfeiture order”, a licensee can simply ignore that order. If the Commission wants to collect the fine in the face of such licensee inaction, it must convince the Department of Justice to sue the target licensee in federal district court. But a second, separate, statute (28 U.S.C. § 2462) says that law suits to enforce penalties must be started within five years of “the date the claim first accrued”.  

A recent forfeiture order reflects the Video Division’s awareness of that latter limit and at least one way the Division has devised to try to sidestep it.

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Media Bureau Invites Comments on Blanket Extension for New Unbuilt Digital LPTV/TV Translator CP's

Uncertainty created by upcoming TV repacking brings call for uniform, blanket extension.

If you’re holding onto a construction permit for an unbuilt digital low power television (LPTV) or TV translator station, listen up. The Advanced Television Broadcasting Alliance (ATBA) has asked the FCC for a blanket extension (or rule waiver) – to September 1, 2015 – to complete construction of such stations. And the Media Bureau has now requested comments on ATBA’s proposal (which was filed last February).

Although all full power television stations had to convert to digital operation in 2009, in 2011, in 2011 the FCC extended the deadline for existing LPTV stations to terminate analog operation until September 1, 2015. That date was set as the expiration for all construction permits for flash cut from analog to digital on the same channel, or for digital facilities on a different channel (companion stations). But the FCC denied requests for similar relief for holders of construction permits for new digital LPTV stations. Instead, the construction deadlines for such permits were left at their original dates (i.e., three years from their issuance), which meant that some such permittees face a deadline prior to September 1, 2015. Demonstrating that this was not just some inadvertent bureaucratic oversight, the Commission denied a request for reconsideration of the decision not to extend  such permits.

ATBA, whose Executive Director is Louis Libin, is one of two groups currently representing LPTV interests before the FCC. The other is the LPTV Coalition, headed by Mike Gravino.

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Is the Fuse Lit on the C4 Proposal?

Commission invites preliminary comments on 18-month old petition for establishment of new class of FM station.

A proposal to shoe-horn in another class of FM station between existing Classes A and C3 has taken a small but at least observable step ahead. We wrote about the proposal back when it first walked in the door at the FCC in January, 2013. Essentially, the idea is that the FM spectrum could be put to more efficient use if a new class of station – proposed ominous name: Class C4 – were to be established with maximum ERP of 12 kW and maximum antenna height of 100 meters.

The latest – actually, to this point, the only – indication of progress? The Commission has released a public notice formally identifying the petition for rulemaking (now dubbed “RM No. 11727”) inviting interested folks to file “statements opposing or supporting” the petition within 30 days, i.e., by Monday, August 18, 2014.

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Update: Petitions for Reconsideration Filed in AWS-3 Service Rules Proceeding

Back in April we reported on the adoption of service rules to govern AWS-3 service on 65 MHz of repurposed spectrum, and then last month we noted the publication of the FCC’s action in the Federal Register. As longtime CommLawBlog readers know, Federal Register publication of such things starts the time for filing petitions for reconsideration (which are due within 30 days of publication) and petitions for judicial review (due within 60 days of publication. And sure enough, according to an FCC public notice, two parties have indeed filed for reconsideration.

Trimble Navigation Limited and Deere & Company – two members of the GPS Innovation Alliance – filed a joint petition asking for more stringent limits on AWS-3 emissions into radionavigation satellite system spectrum. Meanwhile, Engineers for the Integrity of Broadcast Auxiliary Services Spectrum also sought reconsideration. Their complaint: in its decision the FCC appears to have completely ignored their comments regarding the FCC’s decision to move Department of Defense operations into the 2 GHz TV Broadcast Auxiliary Services band.

Interested parties will be permitted to comment on either of both of these petitions. The deadline, however, won’t be set until the FCC’s public notice shows up in the Federal Register. Ordinarily, the comment period in such situations is abbreviated, so if you are interested, be sure to check back here for updates.

INCOMING! Commission's Net Neutrality Comment Conundrum

As comments pile up in the Open Internet proceeding, straining the FCC’s systems, a post on the Commission’s blog got us thinking about transparency.

On July 14, 2014 – the day before the original deadline for initial comments in the Open Internet (a/k/a Net Neutrality) proceeding – in the spirit of transparency the FCC’s Chief Information Officer took to the Commission’s blog to tout the agency’s ability to track the numbers of comments flooding in over the transom. According to a couple of files linked in his post, the Commission had received nearly 170,000 Net Neutrality comments submitted electronically through ECFS (the FCC's online filing system), and another 442,000 or so by email. Those numbers are a moving target, though, and the target is only moving up: according to a post on ArsTechnica, by 11:00 a.m. on July 15, the tally was up to about 670,000.

It will doubtless go well beyond that, once ECFS comes back to life. The ArsTechnica post indicates that ECFS had crashed; our own observations here in the CommLawBlog bunker lent credence to that report, although the FCC conceded only that the “overwhelming surge” in traffic has “ma[de] it difficult” for some folks to file. As a result, the deadline for filing Net Neutrality comments has been extended to “midnight Friday, July 18”. (BTW – we confirmed with the FCC that they mean 11:59 p.m. (ET) on July 18.)

Keeping track of the influx of comments is presumably useful at some level, and the FCC’s ability to do so – apparently even on an hour-by-hour basis – is to be commended. But that ability is of, at best, secondary interest. When Katrina struck New Orleans, local residents may have been interested in precisely how much water was coming over the levees, whether by the minute or the hour or the day. But they were certainly more interested in how that water, however much water there was, was going to be disposed of.

Which brings us to some back-of-the-hand calculations.

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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.

Connect America Fund Recon: What the FCC Taketh, the FCC Can - and Does - Giveth Back

FCC answers some questions on next phase of CAF, but raises new questions about the CAF Phase II and Mobility Fund Phase II Auctions

If we go just by the title of the FCC’s most recent action in the Connect America Fund (CAF) docket, the FCC accomplished quite a bit in one fell swoop. The lengthy (108 pages!) document is entitled “Report and Order, Declaratory Ruling, Order, Memorandum Opinion and Order, Seventh Order on Reconsideration, and Further Notice of Proposed Rulemaking.” Phew! (Let’s just call it the CAF Recon Order for short.) That just about runs the gamut of possible FCC actions, so we should expect a lot for our money. And, to a large extent, we got it. 

The CAF Recon Order is a follow-on to the FCC’s massive and comprehensive attempt in 2011 to radically reform the entire regime of universal service funds (“USF”) and intercarrier compensation that has ruled the telecom landscape for a generation. That effort, grandiosely but not inaccurately dubbed the “Transformation Order” by the FCC, took an axe to the carrier-to-carrier rates and USF that previously paid for the high costs of completing long distance calls to rural areas of the country. Many prices paid by long distance telephone companies and wireless carriers, along with some previously available USF, were reduced, consolidated or eliminated over a period of a few years, and provisions that might have incentivized some operators to over-invest in upgrading their networks were eliminated. The availability of USF was eliminated as unnecessary for situations where, without reliance on USF, comparable service had been deployed. 

The “transformation”, while dramatic, has proven to be less than permanent in a number of respects.

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Update: Effective Date Set for Updated Spectrum Screen

Federal Register publication also establishes deadlines for reconsideration, appeal, of spectrum screen Report and Order.

CORRECTION!!! In this item as originally posted, we reported that the full text of the FCC’s spectrum incentive auction Report and Order, FCC 14-50, had been published in the Federal Register. That was incorrect. What appeared in the Federal Register was the related Report and Order, FCC 14-63, concerning the updated spectrum screens adopted in anticipation of the incentive auctions. We wrote about that latter order here. While the two orders are obviously related, they are also obviously separate and distinct, and – to put it bluntly – we messed up this time. While the deadline dates described in our original post are accurate, they apply only to the spectrum screen decision and not to the spectrum incentive auction Report and Order. We have revised the post accordingly. We apologize for this error.

Last June the Commission released its order adopting new spectrum screens in advance of the spectrum incentive auction. We reported on that order last month. The FCC’s spectrum screen Report and Order has now been published in the Federal Register. As a result, we now know that the rules adopted by the Commission are set to take effect on September 9, 2014.

Anyone who wants the FCC to rethink any part of the Report and Order has until Monday, August 11, 2014, to file for reconsideration. (The niceties of the recon drill may be found here.) Anyone who wants to take the matter straight to one of the courts of appeals has until September 9.

And anybody in that latter category who has his or her heart set on having the appeal heard by a particular Circuit will have to comply with the rules governing the judicial lottery procedures. Those rules kick in when petitions for review of a single order are filed in multiple Circuits. In that event, the determination of which Circuit gets to hear the appeal is made by lottery conducted by the Judicial Panel on Multidistrict Litigation. In order to get your preferred Circuit into the drum from which the lucky Circuit will ultimately be drawn, you have to file your petition for review within 10 days of July 11 (i.e., by July 21) and, also by July 21, you have to have a paper copy of the petition bearing the “received” stamp of the court delivered to the General Counsel’s office at the FCC. (Here’s a helpful guide about all this prepared by the FCC’s Office of General Counsel.)

Form 499 Changes in the Works, Apparently

Does the FCC really care about your input on a mandatory online filing requirement for the Forms 499? We’re not entirely sure.

The Office of Management and Budget advises that “[e]liminating . . . unjustified reporting and paperwork burdens” is a “high priority” of the current Administration. Perhaps, but OMB also reports that, in 2011 Americans spent an estimated 9.14 billion hours filling out Federal government forms.

According to a recent notice published in the Federal Register pursuant to the hilariously named Paperwork Reduction Act (PRA), the FCC is looking to streamline the reporting burdens of Forms 499-A and 499-Q by eliminating one filing requirement (“the third-party disclosure requirement” – whatever that means… more on this below) and ditching paper filing in favor of mandatory online electronic filing for Forms 499-A and 499-Q. So, thankfully, the FCC may be embracing the Administration’s supposed priority.

Or maybe the FCC just got tired of trying to squeeze new boxes and lines onto the paper forms whenever requirements change.

In any case, other than the extremely vague PRA notice, we know nothing about the proposed changes because the FCC hasn’t released any other information about them. So filers have no way of knowing how the new requirements may be implemented or whether the changes will actually reduce reporting burdens.

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Update: Final Effective Date for Form 477 Expansion Plan Set

The new Form 477 filing interface goes live on July 31.

Last year we reported on the Commission’s expansion of the Form 477 Data Program, which collects information from broadband and voice service providers. Because of the new “information collection” components, the expansion could not fully take effect until approval by the Office of Management and Budget. The FCC has now published notice in the Federal Register announcing OMB’s final approval of the new Form 477 protocols. As a result, all the rules comprising the Form 477 Data Program are now in effect and the FCC is ready to collect its data through a new filing interface.

And about that new interface. According to a recent Public Notice, the newly developed Form 477 filing interface – originally set to go live on July 31 – must be capable of collecting and processing data “securely and efficiently”. Of course, being a new system (and developed by the government), one would anticipate a few technical difficulties at the outset. To account for potential issues, the FCC has shifted the Form 477 filing window by 30 days – where it would typically run from July 1 to September 1, this year it will run from July 31 to October 1, 2014.

To assist filers with the new system, the Commission also plans to march out a number of resources – updated web pages, instructions, systems guide, and frequently asked questions – before July 31. It’s also planning to present an “instructional webinar”, but don’t look for that until sometime after the filing window opens. Unfortunately, there’s no mention of an Android or iPhone app.

More information on the revised Form 477 data collection can be found on the FCC’s website.

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.


Test Started

Test Finished; Comments Sought

Coordinator Approved


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




Update: Media Bureau Confirms JSA Attribution Effective Date

From our "Gee, haven't we heard this before somewhere?" file

If you happened to read our post from a month ago, you already know that the effective date for the new attribution rules relative to TV joint sales arrangements is June 19, 2014. The Media Bureau has now confirmed that in a public notice.

The Bureau’s notice sheds no new light on anything. Au contraire, it confirms our previous observations that: (a) the new filing requirements relative to the TV JSA rules are not yet effective (thanks to the need for OMB review mandated by the Paperwork Reduction Act) and (b) the two-year compliance period wraps up on June 19, 2016. On that last point, the public notice doesn’t say anything about the fact that, at least according to our official CommLawBlog calendar, June 19, 2016 is expected to be a Sunday.

Of course, as of their effective date, the new rules apply to new JSA's -- that is, the two-year compliance period relates only to JSA's already in existence prior to the effective date.

So no real news here, but now we do have official confirmation.

Upcoming Webinar: Paul Feldman on Net Neutrality

On the agenda: The implications of the FCC’s Open Internet decision

Few issues in the recent past have attracted as much attention as net neutrality. Everybody’s got something to say about it: industry representatives, public interest advocates, pundits on all sides of the political spectrum, even late night humor shows.

But how many of them have actually read the FCC’s decision and thought through its obvious, and not so obvious, implications?

FHH telecom guru Paul Feldman has, and he’s set to share his thoughts in a FREE webinar on Thursday, June 19, 2015 at 1:00 p.m. (ET).

Join Paul as he analyzes the current state of net neutrality and the prospects for further developments – at the FCC, in the courts, and in the real world.

This is a production of Team Lightbulb. You can register here.

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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Brrrrrr! The Freeze is On for LPTV/Class A/TV Translator Displacement Applications

If you’re an LPTV, Class A TV or TV translator licensee and you haven’t gotten around to filing for displacement facilities (or, in the case of translators, digital replacement translator (DRT) facilities), we’ve got bad news for you: effective immediately (that is, as of June 11, 2014), the Media Bureau has put a freeze on such filings. While the abrupt announcement of an in-effect-immediately freeze is always a bit surprising, the reason underlying the freeze is not. It’s necessary to ensure a static frequency landscape as the FCC gears up for the incentive auction.

Unlike many other freezes, this one is not expected to cause much disruption. That’s because, given the fact that the television digital transition was largely completed nearly five years ago, the Bureau figures that “there should be little occasion for new DRT and displacement applications to be filed.”

The freeze will remain in effect until after the incentive auction is completed. The Bureau will then announce a special filing window to be opened for existing DRT, LPTV, and TV translator stations displaced by the incentive auction-induced channel repacking.

This is not what you might call a Han Solo-in-carbonite freeze – there is a little wiggle room. During the freeze, LPTV and TV translators will be able to request a waiver to seek displacement if they can demonstrate that they are causing or receiving “new actual” interference to or from a full power television station. Here’s what the Commission has to say about “new actual interference”:

By “new” interference, we mean interference that is a result of the initiation of new or modified service by a full power station during the freeze. To qualify for the waiver, the displacement applicant must demonstrate either actual interference within the noise limited contour of the full power station or actual interference to the displacement applicant’s LPTV or TV translator station, either of which will result in the immediate loss of service to viewers, thus necessitating the grant of its application.

This waiver opportunity will not ordinarily extend to applications for new DRTs or Class A displacements. The need for such facilites has presumably already been identified and addressed.

The Bureau will continue to process DRT and displacement applications already on file prior to June 11. Also, during the freeze the Bureau will accept minor change applications and applications for digital flash cut and digital companion channels filed by existing LPTV and TV translator and Class A stations.

Update: Comments Requested on T-Mobile Declaratory Ruling Request

We recently reported on a Request for Expedited Declaratory Ruling in which T-Mobile is asking the Commission for guidance on how the “commercial reasonableness” of data roaming charges is to be measured. Acting with admirable alacrity, the FCC has now formally acknowledged the T-Mobile filing and has invited comments and reply comments about it. Anyone with something to say on the topic of data roaming charges has until July 10, 2014 to submit comments; reply comments may be filed by August 11. Submissions may be uploaded through the FCC’s ECFS filing site; use Proceeding No. 05-265.

Throwing More Gas on the Music Licensing Fire: DOJ Opens Review of Music Licensing Consent Decrees

Broadcasters feeling the heat as another agency tries to help the music industry 

In its never-ending push-and-pull relationship with the music industry over copyright royalties, the radio industry currently faces assaults on multiple fronts. While the creation of a “performance right” (or, as broadcasters view it, a “performance tax”) appears to have been staved off for another year (according to the NAB), there are plenty of other threats headed the broadcasters’ way.

For example, the radio industry is already subject to a performance right obligation requiring stations to pay recording artists, through SoundExchange, for the digital performance of sound recordings. That burden is almost certain to increase as a result of the “Webcasting IV” proceeding that will set new streaming rates for 2016-2020. Also, the Copyright Office is looking at whether changes to all aspects of music licensing are warranted. And lurking just beyond the horizon we have the “Respect Act” recently introduced in Congress. That would require digital radio services (Pandora, Sirius XM and anyone engaged in webcasting, including broadcasters) to pay royalties for sound recordings created before February 15, 1972. Such recordings are currently covered by most state copyright laws but not by federal law.

Now we can add another potential flashpoint: the Antitrust Division of the Department of Justice has initiated a review of the longstanding ASCAP and BMI Consent Decrees that mandate federal court oversight of the rates paid by radio broadcasters to ASCAP/BMI-repped songwriters/composers.

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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.

Update: Effective Date of New AWS-3 Rules Set

In April we reported on the adoption of new service rules for 65 MHz of re-purposed spectrum in the 1695-1710 MHz, 1755-1780 MHz, and 2155-2180 MHz bands to be used for Advanced Wireless Services (AWS-3). The Commission’s Report and Order has now been published in the Federal Register, which means that the effective date of most (but not all) of the new rules has been set. Mark your calendars: July 7, 2014 is the date. But note that the amendment to Section 2.106 (adding Fixed and Mobile allocations for the 2025-2110 MHz band to the Federal Table of Frequency Allocations) won’t kick in until the Commission issues a further notice in the Federal Register. Ditto for Sections 2.1033(c)(19)(i)-(ii), 27.14(k) and (s), 27.17(c), 27.50(d)(3), 27.1131, 27.1132, and 27.1134(c) and (f), all of which involve new "information collections" that first have to be run through the Paperwork Reduction Act drill at the Office of Management and Budget. Check back here for updates.

Auction 97: Date Set, Rules Floated for Upcoming AWS-3 Auction

FCC sets ambitious $10.5 billion reserve price.

Hot on the heels of its March 31, 2014 adoption service rules for the long awaited AWS-3 service, the FCC wasted no time issuing a public notice and request for comments in which it set a date – November 13, 2014 – for the auction of the new spectrum and proposed rules to govern the auction. (Last April we reported on the structure of the newly-authorized service and the license blocks that will be up for sale.)

If everything on the AWS-3 front looks like it’s moving fast, that’s because it is. The haste is necessitated by the looming statutory date of February, 2015 by which the Commission must have not only completed the auction but also actually issued the licenses to the winning bidders. The auction notice is designed to set the stage for the auction itself.

The auction will follow the typical FCC auction format, including the now-customary anonymous bidding feature. This relatively recent wrinkle to the auction process prevents bidders from knowing who is bidding on what until after the auction is over. A few features are of particular note:

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U-NII Waiver Requests Due in 30 Days

Waivers will allow retuning older U-NII-3 band systems to operate in U-NII-1.

The new U-NII rules, which take effect June 2, increase the power limits for the U-NII-1 band (5.15-5.25 GHz) and allow outdoor operation. Devices certified for the higher-powered U-NII-3 band (5.725-5.825 GHz) can be retuned for use in U-NII-1, but older systems may not comply with the new rules. Users or providers of those older systems have 30 days – until July 2 – to apply for waivers to allow their operation in U-NII-1. The FCC expects to quickly approve any such requests that seek to operate within the U-NII-1 band with up to 250 mW of conducted power and a PSD of 11 dBm/MHz with a 6 dBi gain antenna. This does not automatically rule out requests for higher power that come within the old rules for U-NII-3 (i.e., the ones that were in effect before June 2) or under the former version of Section 15.247, but the FCC may take longer to consider these.

If the above makes no sense to you, no need to worry – this post probably doesn’t affect you. Just ignore it.

Update: Comment Deadlines Set in 3.6 GHz Citizens Broadband Radio Service Proceeding

Back in April we reported on a sweeping Further Notice of Proposed Rulemaking (FNPRM) on the evolving creation of a Citizens Broadband Radio Service in the 3.5 GHz band. The proposal incorporates a new approach to how the world might handle spectrum use, including on-the-fly frequency coordination with priority up for sale via auction. The FNPRM has now been published in the Federal Register. As a result, we know the deadlines for comments and reply comments directed to the FCC’s proposals. Comments are due by July 14, 2014 and replies by August 1. Anyone wishing to comment now may do so by uploading their submissions in Proceeding No. 12-354 at the FCC’s ECFS filing site.

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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Net Neutrality 2014: The Regulators Strike Back

Trying to meet conflicting demands of court, Congress and constituency, Chairman Wheeler is on the horns of a dilemma.

The FCC’s May, 2014 monthly meeting was not ordinary. Protestors camped outside the Commission’s headquarters and shouted slogans in its meeting room. Democratic Commissioners showed signs of open rebellion against their Chairman. Republican Commissioners stood in blunt opposition to the Chairman. And everyone, including the Chairman, urged fervently that “the future of the Internet” was at stake.

Against this backdrop, Chairman Wheeler announced the FCC’s latest proposal for Open Internet rules. Caught between the demands of his political constituency and legal requirements set by the U.S. Court of Appeals for the D.C. Circuit, he attempted to walk a narrow and difficult path.

And by a 3-2 vote (with two of the three Commissioners in the majority expressing serious reservations), the FCC followed the Chairman on that path: it adopted a Notice of Proposed Rulemaking (NPRM) soliciting comments on the latest approach to “net neutrality” regulation.

Highlights of the NPRM include proposals to:

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Update: Effective Date Set for New JSA Limits

Federal Register publication also sets deadlines for comments on changes to ownership rules proposed in 2014 Quadrennial Regulatory Review.

What with the Federal Register publication of the new retrans consent restrictions, you had to know that the new limits on TV joint sales agreements (JSAs) couldn’t be far behind. And sure enough, the FCC’s 2014 Quadrennial Regulatory Review (2014 Quad Reg Review) decision has now been published in the Federal Register in two separate parts – one covering the Report and Order component and the other covering the Notice of Proposed Rulemaking (NPRM) component.

As a result, we now know when the new JSA rules for TV licensees will take effect – that would be June 19, 2014. We also know that comments on the various proposals in the NPRM are due by July 7, 2014 and reply comments by August 4.

While the new JSA rules require that TV JSAs old and new be submitted to the Commission (and placed in stations’ online public inspection files), that requirement will not kick in on June 19. Because that aspect of the rules constitutes an “information collection”, it must first be run past the Office of Management and Budget pursuant to the hilariously-named Paperwork Reduction Act. As a result, we don’t expect the file-with-the-FCC/place-in-the-public-file component to take effect for another four-six months or so. Check back here for updates.

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Update: Effective Date, Appeal/Recon Deadlines Set for New Restrictions on Retrans Consent Negotiations

Last month we reported on the Commission’s decision to prohibit joint retransmission consent negotiations between two non-commonly owned “Top Four” stations in the same market. The Report and Order component of that decision has now been published in the Federal Register. That establishes the effective date for the prohibition: June 18, 2014. Any TV licensees preferring some kind of joint retrans negotiations should thus be sure to wrap them up before then – but it’s probably best not to get your hopes up on that score, since the folks on the other side of the table will also be aware of the approaching effective date and may therefore not be especially motivated to close a deal before then.

The Federal Register publication also starts the countdown for (1) petitions for reconsideration asking the Commission to re-think things and (2) petitions for review asking a Federal appeals court to reverse the Commission. Recon petitions are due at the Commission no later than June 18, 2014. Petitions for review are due by July 18.

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Update: Effective Date Set for New Bulked-up Wi-Fi Rules

Early last month we reported on the adoption of new rules intended to beef up Wi-Fi operations across the country. Thanks to a notice in the Federal Register, we now know that those new rules (with one exception) will take effect on June 2, 2014. That starts a 12-month transition period (beginning with the June 2 effective date) by the end of which applications for certification of 5 GHz devices must meet the new and modified rules. IMPORTANT: Equipment manufacturers and operators who, prior to the effective date, installed outdoor U-NII-3 band systems that don’t comply with the new EIRP limits have until July 2, 2014 to file waiver requests. Not a big deal – the FCC has signaled it intends to grant these.

The one aspect of the new rules that is not subject to the effective date is Section 15.407(j). That section requires anybody “deploying an aggregate total of more than one thousand outdoor access points within the 5.15-5.25 GHz band” to first submit a letter to the Commission acknowledging that they will have to take corrective action should harmful interference to licensed services in the band occur. Since that submission requirement is, in the parlance of the hilariously-named Paperwork Reduction Act (PRA), an “information collection”, it must first be run past the Office of Management and Budget. That process, which generally takes four-six months or so, has also been initiated by a separate Federal Register notice.

PRA notices often contain curious nuggets, and this one is no exception. Again, Section 15.407(j) requires the preparation of a letter acknowledging responsibility for correcting interference. That’s what, maybe two-three paragraphs long, at most. And while we are loath to discourage the creative spirit, this type of letter appears ideal for a totally mechanistic, boilerplate approach. But the FCC’s “estimated time per response” for each respondent is a staggering 32 hours – that’s four full eight-hour days. Anyone charging by the hour for the preparation of such letters may want to make note of that estimate for future billing purposes.

Section 15.407(j) won’t take effect until OMB has signed off on it and the FCC has published a follow-up notice reporting on that. Check back here for updates.

Comment Deadlines Extended in Non-English EAS Inquiry

Last month we reported that comment deadlines had been set with respect to the long-pending proposal to establish a “designated hitter” approach to assure that EAS announcements are broadcast in foreign languages when the audience includes a significant number of non-English speaking folks. If you’re thinking about filing comments in that proceeding, get your calendar and your eraser out. The Public Safety and Homeland Security Bureau has just pushed the deadlines back a month. The Bureau was happy to do so particularly because the original proponent, the Minority Media and Telecommunications Council, was the one asking for more time. Comments in response to the Bureau’s request for comments are now due by May 28, 2014 and replies are due by June 12.

Travelers' Information Stations: To Filter (above 5 kHz) or Not to Filter, THAT is the Question

Comments have been invited on an NAB/SBE proposal aimed at (slightly) improving the audio quality on the TIS without interfering with AM stations.

Last July we blogged about changes the Commission had adopted to improve Travelers' Information Stations (TIS). At that time, the FCC proposed another fairly drastic change – the elimination of certain filtering requirements – that might potentially improve the service. The proposal went farther than some commenters thought advisable, which prompted them to propose a more moderate approach and, in response, the Public Safety and Homeland Security Bureau has now issued a Public Notice seeking further comment. (The Bureau probably could have skipped this step, but this writer thinks it’s a good thing they didn’t.)

TIS are low-power AM stations broadcasting information of interest to motorists, including traffic and road conditions, travel advisories, hazards, directions and the like. Each station covers only a small geographic area, most commonly along major highways and near tourist destinations.

AM service is notoriously interference-prone, with TIS as a potential source. The interference occurs because of the “sideband” portion of the TIS-transmitted AM signal. Excessively wide sidebands can cross over into another station’s channel, causing interference to that station. With AM stations – whose signals, particularly at night, can extend for hundreds of miles – this can cause big problems.

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

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

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

There are multiple problems here.

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

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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 . . .)

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

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

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

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

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

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

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Update: Comment Deadlines Set in Emergency Signalling Devices Proceeding

A week or two ago we reported on a Notice of Proposed Rulemaking (NPRM) in which the FCC is proposing changes to a number of rules relating to emergency signaling devices. The NPRM has now made it into the Federal Register, which means that we now know the comment deadlines. If you are planning to chip in your two cents’ worth, you’ve got until June 2, 2014 to file comments, and June 30 for replies. You can file comments by going to this FCC site and uploading your comments in Proceeding Number 14-36.

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

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

E911 Update: Third Further NPRM Comment Deadlines Set

Earlier this month we reported on the FCC’s Third Further Notice of Proposed Rulemaking (NPRM) in its effort to improve E911 location capabilities. The NPRM has now made it into the Federal Register, as a result of which we now know the comment deadlines. Comments in response to the NPRM may be filed by May 12, 2014 and replies by June 11.

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

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

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

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

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

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

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The Future of Music Licensing?

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

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

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

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

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

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

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Update: Reply Comment Deadline Extended in In-Flight Cell Phone Proceeding

Most readers will likely recall that, late last year, the FCC invited comments (and replies) on whether the Commission should lift its regulatory ban against cell phone use in airplanes. Not surprisingly, the FCC’s proposal attracted considerable attention. To date, more than 1,300 comments have already been filed in the docket.

Reply comments were originally due by March 17. Not anymore.

At the request of CTIA-The Wireless Association® and two aeronautics-related companies (AeroMobile Communications Limited and Panasonic Avionics Corporation), the deadline for replies has been extended a generous 60 days (to May 16, 2014). The extension will enable all parties to conduct further analyses and undertake further consultation relative to the thorny technical issues on the table. It will also give interested parties time to sift through the ever-growing pile of comments already submitted.

FCC Seeking Proposals for Rural Broadband Experiments

Some Connect America funding contemplated once policies, standards are set in second phase of proceeding.

The FCC is looking for proposals to bring advanced telecommunications services to rural Americans . . . and it’s planning on providing governmental cash to worthy proponents. To help it determine what projects will get funded and how much funding will be available, the Commission has launched a two-phase process. In the now-open first phase, prospective proponents have been invited to submit “expressions of interest” describing what they have in mind. In the second stage, the FCC will seek more detailed and definite applications, subject to resolution of certain policy issues in the Further Notice of Proposed Rulemaking (FNPRM) component of the Technology Transition Order. Comments on the FNPRM are due March 31. 

The Commission’s invitation is addressed to the widest range of communications service providers, including ILECs, CLECs, cable, utilities, fixed and mobile wireless, municipalities, Tribes, WISPs, and others. So if you’re interested in building high-speed, scalable IP-based networks in rural areas and maybe getting at least some federal funding in the process, listen up.

In its call for proposals, the FCC is focusing on proposals to build robust last-mile broadband, rather than middle mile projects. Proposed experiments described in expressions of interest must be for rural areas currently lacking Internet access service that delivers at least 3 Mbps downstream/768 kbps upstream.

The major goal here is to determine how the use of “tailored economic incentives” might encourage the deployment of next gen networks, wireline and wireless, in rural, high cost areas to which such networks have historically been slow to spread. In the FCC’s words, the experiment will “test, on a limited scale, the use of an application-based competitive bidding process with objective selection criteria”.

The Commission is currently considering what mechanism(s) to use in the award of Connect America funding support in price cap territories where the incumbent declines the offer of model-based support. One possibility would be for the FCC to use application-based competitive bidding, rather than a reverse auction. Another innovation: while such funding has previously been available only in areas served by price cap incumbent local exchange carriers, in this program it will also be made available in areas where the incumbent is a rate-of-return carrier.

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

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

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

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

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

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Update: Effective Date Set for New Level Probing Radar Rules

In January we reported on the adoption of new rules governing the use of level probing radar. The FCC’s Report and Order has now made it into the Federal Register, which establishes the effective date of the new rules. That date is April 7, 2014.

Update: Comment Deadlines Set in Proposed Text-to-911 Mandate Expansion

Last month we reported on an FCC proposal to expand its Text-to-911 mandate to include all texting service providers. That proposal has made it into the Federal Register. As a result, we now know that the deadline for comments on the proposal is April 4, 2014, and the deadline for reply comments is May 5. Comments and replies may be submitted electronically by uploading them at this FCC site; use Proceeding Number 11-153.

First IP Transition Experiment Proposal Out for Comment

First in the door with a proposal: Iowa Network Services, with the help of one of our Fletcher Heald colleagues

As we reported last month, in late January the FCC released its Technology Transitions Order inviting proposals for service-based experiments designed to gauge the effects likely to be encountered as we shift from the legacy telephone network to an all Internet Protocol (IP) alternative. The target deadline initially set for proposals was February 20. And with lightning speed, the very next day the Commission released a public notice seeking comment on the first proposal, which had been filed on February 20.

We are pleased to report that that proposal, filed by Iowa Network Services, Inc. (INS), was prepared by our colleague (and occasional CommLawBlog contributor) James Troup on behalf of INS, an FHH client.

INS operates a statewide Centralized Equal Access (CEA) network in Iowa comprised of more than 2,000 miles of fiber optic cable and dual tandem switches. The network allows INS to aggregate rural traffic, centralize the provisioning of expensive features and functionalities, and help bring the benefits of advanced communications services and competition to rural areas of Iowa. INS connects service providers to more than 300 rural exchanges.

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Update: New Protections for AM Signals Now In Effect

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

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

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

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

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

Out for Comment: Globalstar Proposal to Expand ATC Operation

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

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

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

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

But there are some complications.

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Update: Most, But Not All, New 911 Rules Now In Effect

Some reporting, record retention requirements still in limbo pending OMB approval

In December we reported on a new set of rigorous requirements for 911 system service providers. And as we reported last month, most – but not all – of the requirements were set to take effect on February 18, 2014. However, also as we reported last month, two of the new rule sections impose new “information collections”; before they can take effect, those two sections (Sections 12.4(c) and (d)(1)) must be run through the Office of Management and Budget (OMB), a process that generally takes several months.

What we did not report in January was the fact that two additional sections (Sections 12.4(d)(3) and 4.9(h)) also impose “information collections” and must, therefore, also be shipped over to OMB. (We didn’t report that in January because the FCC didn’t acknowledge that those two were in fact “information collections” until a corrective announcement in February.)

To recap, then, now that February 18 is here, all “Covered Service Providers” must take reasonable steps toward providing reliable 911 service by conducting network monitoring and circuit audits and insuring the availability of backup power at any central office that serves a public safety access point.

But until further notice from the FCC, “Covered Service Providers” are not required to submit their annual reliability certifications (Section 12.4(c)) or their initial reliability certifications (Section 12.4(d)(1)). They are also not required to comply with the record retention obligations of Section 12.4(d)(3) or to report on outages potentially affecting a special 911 facility (Section 4.9(h))..

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.

Update: Cell Signal Booster Marketing Deadline Extended

About a year ago we reported on the adoption of a new set of rules governing the use of cell phone boosters. In passing, we noted that all boosters marketed in the U.S. must comply with the new standards by March 1, 2014.

Not so fast.

Turns out that it was a bit trickier than expected to develop the test procedures necessary to ensure compliance. The task force designing those test procedures included members of the TCB Council, test labs, equipment manufacturers and representatives of the wireless industry. Despite that fact – or who knows, maybe because of it – the task force’s in-depth consideration of the process “revealed significant technical and policy issues”. The upshot: the test procedures weren’t finalized and published until last month. And without final test procedures, manufacturers weren’t in a position to finalize and submit applications to get their gear certified.

Now that the test procedures – which the FCC assures us are “more robust” and “comprehensive” – are in place, manufacturers have started to run their equipment through the process. But that takes time. As a result, the Commission has agreed to extend for 60 days, to and including April 30, 2014, the deadline by which all Consumer Signal Boosters marketed, distributed or sold in the United States must comply with Section 20.21 of the Commission’s rules. In the meantime, the restrictions on sale and marketing (set out in Section 20.21(g)) are being waived until April 30 as well.

AM Revitalization Update: Reply Comment Deadline Extended

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

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

Update: FCC Proposes Expansion of Text-to-911 Mandate to ALL Texting Service Providers

Comments sought on how and when text-to-911 should be required across-the-board, including by interconnected “over the top” services

Pity the poor FCC. Saddled with an outdated governing statute and limited resources, it’s supposed to regulate newly-minted whiz bang technologies that get embraced by the public seemingly before the FCC even learns about them. And when it tries to get ahead of the curve, it occasionally gets too far ahead. Case in point: its text-to-911 bounce-back rule for roaming customers. A great idea on paper but, as the FCC learned, beyond the capabilities of existing technology, the result being a last-minute revision to the rule last September.

Bloodied but unbowed, the FCC is again revising its text-to-911 rules in an apparent attempt to catch up with that “app” thing that all the kids are using. In a Policy Statement and Second Further Notice of Proposed Rulemaking (PS/SFNPRM) the Commission is proposing to require all interconnected text messaging services to enable consumers to send text message to 911. This would include texting apps that ride “over the top” (OTT) of the data services of wireless service providers. 

But this time, even the FCC recognizes that its ambitions may exceed present-day technical capabilities.

More than a year ago the Big Four wireless carriers (Verizon, AT&T, Sprint, and T-Mobile) agreed that, by May 15, 2014, they would provide text-to-911 service to Public Safety Answering Points (PSAPs) that are capable of, and that request to receive, such service. With text-to-911 capabilities for the Big Guys now just a few months away, the FCC has decided as a matter of policy that every CMRS carrier and every provider that enables interconnected texting should do this as well.

How and when that might happen is unclear.

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Telecom Tickler 2014 - CPNI Certifications Due By March 3

It’s that time of year again – time for our annual reminder to all telecommunications carriers and interconnected VoIP providers that your CPNI certifications are due by March 3, 2014. While the Enforcement Bureau has announced the deadline as March 1, it appears not to have noticed that in 2014, March 1 is a Saturday. Thanks to our old friend Section 1.4(j) of the FCC's rules, when a filing deadline falls on a holiday -- and the rules do indeed specifically confirm that Saturdays are "holidays" -- the deadline rolls over to the next business day, which in this case will be Monday, March 3.

As described by the Enforcement Bureau, CPNI – Customer Proprietary Network Information to the uninitiated – includes “some of the most sensitive personal information that carriers have about their customers as a result of their business relationship”. Think phone numbers of calls made or received, or the frequency or duration of calls, etc. . . . basically the same stuff the NSA has apparently been collecting for years. While the NSA is not required to file CPNI certifications with the FCC, telecom carriers aren’t so lucky.

The Bureau has issued a convenient “Enforcement Advisory” to remind one and all of the fast-approaching March 3 deadline. Like similar advisories in past years, this year’s includes a helpful list of FAQs and a suggested template showing what a certificate should look like. The only noteworthy change from last year: the potential per-violation fine has risen to $160,000 (from last year’s $150,000), and the maximum potential fine for a continuing violation has been similarly jacked up, to $1,575,000 (from last year’s $1,500,000).

As those potential fines indicate, the Commission takes this reporting requirement very seriously. Historically it has doled out five-digit fines to non-compliant carriers. In fact, the FCC’s zeal is such that, in many instances, it has initiated forfeiture proceedings even against carriers who, as it turned out, had fully complied with the rules.

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FCC Invites Experiments To Test Effects of All-IP Telephone Network.

Commission seeks data for critical policy dialogue; coming changes may particularly affect smaller carriers – and their customers.

Major changes are coming to the telephone system that provides the interconnected communications system on which American society has long depended. For more than 125 years that system has been based on a circuit-switched, mostly copper-wire-based public switched network (PSTN) – nowadays sometimes called a “Time Division Multiplex (TDM)” network. But networks based on Internet Protocol (IP) technology have begun to replace the PSTN. The FCC has now expressly acknowledged that the “the global multimedia communications infrastructure of the future” will consist of all-IP networks very different from the circuit-switched technology we have been used to since Alexander Graham Bell.

And with that acknowledgement, the FCC has now started to take steps to identify and assess the effects that the fundamental technological overhaul of our nationwide phone system are likely to have on phone companies, consumers, and the FCC’s own ability to achieve its statutory responsibilities.

To that end, the FCC has invited proposals for “service-based” experiments designed to illuminate and inform the transition to IP-based service. Reflecting the seriousness and urgency of its purpose, the FCC has set an unusually short deadline for the submission of the initial round of experiment proposals: they are due by February 20, 2014, a mere three weeks after the FCC’s call for those proposals. Potential experiment proponents will need to get moving quickly, as will parties wishing to comment on any proposals that are ultimately filed: comments are due by March 21.

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Update: AM Auction Moves Ahead

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

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

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

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

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

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

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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.

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

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

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

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

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

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

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H Block Update: Last of the New Rules Now Effective

Back in July we reported on the adoption of new service rules to govern the H Block band. All but a small handful of those rules took effect in September, and one of the stragglers kicked in in November. According to a notice in the Federal Register, the Office of Management and Budget has now cleared the last of the rules, so with the publication of the Federal Register notice on January 17, 2014, they have become effective. According to the notice, OMB signed off on these rules on September 26, 2013; why it’s taken nearly four months for the Commission to publish a perfunctory notice reflecting that sign-off is a mystery. Whatever the reason, all of the new H Block rules are now in effect.

Update: Effective Date Set for Most New 911 System Service Provider Rules

Last month we reported on a new set of rigorous reporting requirements to which 911 system service providers will be subject. The Commission’s Report and Order laying out the new requirements has now been published in the Federal Register, which means that they will become effective as of February 18, 2014 – EXCEPT FOR new Sections 12.4(c) and (d)(1). Those sections – which include the specs for the new Annual Reliability Certification and Initial Reliability Certification – involve new “information collections” which must be run through the Paperwork Reduction Act drill before they can take effect. That process generally takes several months to complete. Check back here for updates.

Update: Comment Deadlines Set in In-Flight Cell Phone Proceeding

Cell phones on airplanes? Everybody seems to have an opinion about the FCC’s proposal (about which we reported last month) – and it seems to be the same opinion across the board.

Now the Commission’s Notice of Proposed Rulemaking (NPRM) has made it into the Federal Register, so we all have a deadline for making our feelings known to the Commission. To be sure, the fact that no deadline has heretofore been established hasn’t stopped folks from expressing their views: within the first month following release of the NPRM more than 400 comments had been filed. No, we didn’t read them all, but a spot check indicates that approximately all of them oppose giving a governmental green light to cell phone use in the air.

On the other hand, none of the comments we saw takes on the main issue the FCC has authority to decide: whether cell phones in the air will cause interference to cell service on the ground. If the answer is no, the FCC will have little choice but to drop its ban and let the airlines decide what kind of cabin environment they want in the air.

Still, it’s possible that the Commission’s proposal has some fans somewhere who will be moved to file, but from the response the NPRM has received so far, the boo-birds are likely to outnumber the cheerleaders by a whopping margin. But who knows? In any event, according to the Federal Register notice, comments must be filed by February 14, 2014; reply comments are due by March 17. If you’re inclined to chip in your two cents’ worth, just click on over to this link and submit in Docket No. 13-301.  (You can also file separate comments pursuant to the hilariously-named Paperwork Reduction Act; those go to the FCC, but at a separate address listed in the Federal Regiater notice; they're due by March 17, too.)

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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Deadline for Hearing Aid Compatibility Status Reports Looms

Form 655’s are due January 15, 2014.

The FCC’s Enforcement Bureau has reminded wireless service providers – including resellers – that their hearing aid compatibility (HAC) reports (Form 655) are due to be filed by January 15, 2014. Since failure to file can lead to costly fines – starting at $6K per violation – it’s a good idea to get those reports in on time.

As a component of the FCC’s effort to assure that folks with hearing loss are afforded the safety and convenience benefits of wireless telephony, wireless service providers and handset manufacturers are subject to certain requirements: a minimum number of hearing aid-compatible handset models must be offered and/or a minimum percentage of all their models must be hearing aid-compatible, depending on a complex formula. Failure to meet the minimum requirements can net you a $15,000 penalty per month for each handset you’re short. (Hearing aid compatibility is rated on numerical scales that reflect how well the handset couples to hearing aids with a minimum of buzzing or other interference to the hearing aids.)

To help the FCC police compliance with that requirement, wireless service providers and manufacturers must submit annual status reports demonstrating (at least ideally) that they are meeting the minimum. Reports from wireless providers are due in January; manufacturers’ reports are due in July.

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

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

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

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

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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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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: Effective Dates Announced for Some (but Not All) of the New Rural Call Completion Rules; Comment Deadlines set for Proposed Rules

Last month we reported on the Commission’s Report and Order and Further Notice of Proposed Rulemaking (R&O/FNPRM) aimed at addressing the problem of failed telephone calls placed to small towns or rural areas. The R&O/FNPRM has now made it into the Federal Register in two separate parts. The R&O portion includes the rules that the Commission has already adopted, and the FNPRM portion includes the further contemplated changes about which the FCC has invited comment.

Federal Register publication, of course, means that effective dates and comments deadlines have now been established.

According to the Register notice, the newly adopted rules will become effective on January 16, 2014. Before you mark your calendars, though, be advised that that date appears to apply only to Section 64.2101, which consists of definitions. Section 64.2201, which specifies ringing indication requirements, will not take effect until January 31, 2014, and the various retention and reporting requirements (set out in Sections 64.2103, 64.2105 and 64.2107) won’t take effect until further notice because they have to run past the Office of Management and Budget thanks to the Paperwork Reduction Act.

As far as the FNPRM is concerned, comments may be filed by January 16, 2014 and reply comments by February 18, 2014.

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

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

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

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

This is a big deal.  Here’s why.

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

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Powerless Portals Pare Ownership Report Filing Period

Deadline trimmed by five hours.

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

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

Incentive Auction Update: Projected Auction Date Moved into 2015

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

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

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

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

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Update: Comment Deadlines Set in Wireless Infrastructure Rulemaking

In October we reported on a Notice of Proposed Rulemaking (NPRM), in which the Commission is exploring a host of potential measures to make it easier for wireless companies to build new infrastructure. The NPRM has now been published in the Federal Register, so the comment deadlines are established: if you want to file comments in response to the NPRM, you’ve got until February 3, 2014; reply comments are due by March 5.  To file online, start at this link and file in Docket No. 13-238.

LPFM Update: Audio Division Issues Progress Report, Road Map

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

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

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

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

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

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More 411 on 844: New Toll Free Numbers Up For Grabs as of 12/7/13

With toll free numbers fast running out, FCC declines to delay roll out of new toll free code despite concerns about possible abuses.

If you’ve got your eye on a vanity toll free telephone number you’d like to use – or if you might want to expand an existing vanity number to include another toll free area code – listen up: New toll free area code 844 is about to make its debut. And now the FCC has announced how numbers in that area code are going to be assigned.

Last summer we wrote about the new toll-free code, which is set to become available at noon (ET) on December 7, 2013. At that point area code 844 will join the ranks of 888, 877, 866, and 855, along with the original toll-free 800 code. 

All toll free numbers are administered by SMS/800, Inc., which oversees the toll free Service Management System for the North American Numbering Plan. Entities known as “Responsible Organizations” – usually referred to simply as “RespOrgs” – can access the SMS/800 database and reserve particular numbers. If a subscriber wants a particular toll free number, it contacts a RespOrg, which in turn obtains the number for that subscriber from the database.  A RespOrg is not supposed to reserve any number unless the RespOrg is doing so at the specific request of a telephone subscriber.

Anticipating an initial rush for numbers using the new 844 code, the FCC asked for comment on how distribution of those numbers should be handled. Its conclusion: limit each RespOrg to 100 numbers per day for the first 30 days. (The FCC imposed a similar limit when area code 855 first came on line.) After the first 30 days, the usual rule will come back into effect for numbers in the 844 code: like other toll free numbers, they will be assigned on a first-come, first-served basis.

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

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

Amateur Radio Association Seeks Faster Data Speeds

Proposed rule change would update 1980 provisions that limit radio-transmitted data rates.

The amateur radio community has come a long way since the early days of Morse code (even though, as recently as 2006, many amateurs opposed the FCC’s dropping a Morse code requirement). In fact Morse was the first popular form of digital radio transmission. But it was slow. Most amateurs, for most of the last century, preferred voice. Starting around the middle of the century, with the FCC’s blessing, a few amateurs began connecting Teletype machines to their transmitters, sending text messages via warbling tones that used a clumsy 5-bit protocol called a Baudot code. In 1980, after many amateurs had acquired early versions of the “home computers” that used the more modern 8-bit ASCII code, the FCC adjusted the rules to allow ASCII transmissions as well.

But the 1980 rules indirectly limited the speed of data transmission in some of the amateur bands most used for long-distance communications, those below about 30 MHz. Not that the FCC cared how fast anyone sent data way back then. But the accepted wisdom, in those days, said that higher data speeds necessarily occupied higher bandwidths – i.e., took up more spectrum. The FCC’s caps on “symbol rates,” which are one factor in data rates, supposedly furthered the goal of limiting how much spectrum any one transmission used.

During the intervening 33 years, as data transmission by radio matured from a curiosity to a necessity (smartphones, digital TV, Wi-Fi, etc.), engineers got much better at packing higher data rates into lower bandwidths. Notwithstanding this progress, however, the increasingly anachronistic symbol-rate limits remained in the FCC’s amateur rules.

The organization “ARRL, the national association for Amateur Radio” (originally, the American Radio Relay League) has now filed a Petition for Rulemaking that asks the FCC to fix the anomalies. ARRL’s proposal is simple: eliminate the caps on symbol rates, and instead regulate the element that actually matters – by imposing specific, numerical limits on bandwidth.

We think the idea has a lot of merit. Perhaps most important, it would free amateurs to experiment with faster modes of data transmission while still maximizing their sharing of scarce long-range spectrum resources.

The ARRL petition was filed on November 15, but the FCC has already given it a file number and invited preliminary comments on it. Tell the FCC what you think: file via ECFS in proceeding RM-11708, by December 23, 2013.

Auction Action, AM Style

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

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

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

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

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

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AM Revitalization Update: Comment Deadlines Set

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

Update: Form 323 Deadline Extended

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

LPFM Filing Window Extended, Again

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

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

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

Discount Daze Update: Comment Deadlines Announced in UHF Discount Proceeding

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

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

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

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

Having trouble recalling just what Form 317 is all about?  No problem.  Form 317 is the “Digital Ancillary/Supplementary Services” Report on which you have to report whether, between October 1, 2012 – September 30, 2013, your DTV station provided any ancillary or supplementary services for a fee and, if so, how much revenue the station received. If you did provide any such services, then you’ve got to fork over five percent of the gross revenues you got from them (the payment to be accompanied by a completed Form 159, thank you very much.)

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

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Form 499-A Instructions: Comment Sought (Again) on Proposed Changes

The latest version of the FCC’s clarification on reseller certification language recommended for use by wholesale telecommunications providers is now available for comment.

The FCC’s Wireline Competition Bureau is seeking comment on another round of proposed changes to the Form 499-A and Form 499-Q instructions. The latest proposals contain (among a few other things) what many hope will be the final version of the “reseller certification” language for use starting next year. (Reseller certifications are what wholesale telecommunications providers rely on to ascertain applicable Universal Service Fund (USF) contribution obligations.)

Our regular readers will recall that the Commission’s “Wholesaler-Reseller Clarification Order” from nearly a year ago promised clarification to the reseller certification language in the upcoming Form 499-A instructions.  As we observed last March, that clarification was missing from the instructions released earlier this year. Then in August we reported that a group of wholesale telecommunications providers had offered suggested revisions to the reseller certification language and other aspects of the FCC Form 499-A instructions.

(If you need to refresh your recollection of the information in our previous posts, now would be a good time to go back through them again. That background will be helpful for what follows.)

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Update: In 700 MHz Interoperability Push, FCC Acts Promptly on AT&T Prompt

FCC implements key provisions of AT&T’s 700 MHz interoperability proposal while extending interim construction deadline for 700 MHz A and B Block licensees until December 13, 2016.

In September we reported on a voluntary industry solution, proposed by AT&T and DISH Network, looking to bring interoperability to the 700 MHz block.  Since AT&T required, as a condition to its proposal, that the FCC adopt a number of rules to AT&T’s liking by December 31, 2013, we expressed some skepticism as to the FCC’s ability to meet that ambitious deadline. But lo and behold, the FCC has managed to do just that in record breaking time. 

In a "Report and Order and Order of Proposed Modification" released on October 29, the FCC, among other things, has modified: (a) certain technical requirements for the Lower 700 MHz D and E blocks; and (b) AT&T’s B and C Block licenses, as AT&T had requested as part of the voluntary industry interoperability solution.  The Commission also extended the interim construction benchmark deadline for all 700 MHz Lower A and B Block licensees until December 13, 2016, and issued a waiver of the interim construction benchmark for certain Lower 700 MHz A Block licensees that must limit their deployments in order to protect incumbent Channel 51 operations. 

What’s particularly noteworthy in the Order is the inclusion by the FCC of various escape valves AT&T provided for itself, which could delay the roll-out of 700 MHz interoperable devices for at least six months. It’s not clear what the FCC would do, if anything, to extend the interim construction deadlines for Lower A and B Block licensees should AT&T miss the deadline to begin the roll-out of interoperable devices.

In keeping with the breakneck speed with which the FCC seems to be dealing with AT&T’s proposal, the Order has been published in the Federal Register already. The amended rules are set to take effect on December 5, 2013, although the Order itself will technically be subject to judicial review until at least January 4, 2014 (and longer, if anyone seeks such review prior to that date).

H Block Update: Effective Date Set for Revised Certification Requirement

Last August we reported that most, but not all, of the H Block service rules adopted by the Commission in June were scheduled to take effect in September. The three exceptions: Sections 1.2105(a)(2)(xii), 27.12, and 27.17, all of which involve new “information collections” requiring Paperwork Reduction Act review by the Office of Management and Budget. Now we’re one step closer to getting all the new rules in place. By a public notice in the Federal Register, the Commission has announced that OMB has signed off on the revised 1.2105(a)(2)(xii), so that section (as revised) is now effective. (Turns out the OMB’s sign-off happened on September 17. We don’t know why the FCC held off a month and a half to spread the word.)

The new version of Section 1.2105(a)(2)(xii) requires

a party seeking to participate in any auction conducted pursuant to the 2012 Spectrum Act to certify in its application, under penalty of perjury, that the applicant and all of the related individuals and entities required to be disclosed on its application are not person(s) who have been, for reasons of national security, barred by any agency of the Federal Government from bidding on a contract, participating in an auction, or receiving a grant and thus statutorily prohibited from participating in such a Commission auction.

No word on the other two not-yet-effective rules. Check back here for updates on that front.

Update: FCC Seeks Further Comment on 3550-3650 MHz

Public notice lays out ideas based on industry responses so far.

We reported a year ago on the FCC’s novel proposals for spectrum management in the 3550-3650 MHz band.

Following the receipt of comments and a workshop, the FCC is rethinking the details. Its evolving ideas, on which the FCC requests comment, are set out in a public notice.

Ordinarily at this point in a blog piece, we would summarize the public notice. Not this time. It runs to 18 single-spaced pages and is dense with information; an accurate summary would be almost as long as the document itself. We recommend that interested persons consult the public notice directly.

This is not the last word. The FCC has signaled that the next stage will be a Further Notice of Proposed Rulemaking, before it proceeds to adopt rules. Usually, this sequence means the FNPRM will be largely a formality, setting out whatever rules the FCC expects to adopt. Those who want to affect the course of the proceeding should consider submitting their views in response to the public notice.

Comments are due by December 5, 2013 and reply comments by December 20. File in GN Docket No. 12-354.

Expert Group Seeks Expedited FCC Handling of Radio Technologies above 95 GHz

IEEE wants the FCC to declare that innovations in this frequency range are “new technologies” requiring a “public interest” determination within one year.

The history of radio is the history of a push to ever-higher frequencies. In the 1930s, “short wave” at 30 MHz (then called 30 “megacycles”) was near the upper limit. The post-war years saw a rapid push into single-digit gigahertz. Today there is off-the-shelf equipment at pretty much all frequencies up to 95 GHz.

But no higher, because that is where the FCC rules stop. The FCC has assigned uses to frequencies up to 275 GHz, and it claims jurisdiction up to 3,000 GHz. (Beyond 3,000 GHz, signals stop being radio waves and become infrared.)

But above 95 GHz, there are no rules to regulate any service. The FCC will not authorize the marketing of a device that transmits above 95 GHz. FCC approvals in this range can be obtained only on an experimental basis.

The Institute of Electrical and Electronics Engineers (IEEE), which includes the top experts in this area, expects frequencies above 95 GHz soon to be ripe for commercial exploitation. But the group sees the lack of FCC rules as a barrier. In addition to regulatory uncertainty, innovators will face what the IEEE delicately calls “an expected regulatory delay that is difficult to quantify.” We can be more blunt: with just one or two recent exceptions, the FCC has been notoriously slow in approving new technologies.

The IEEE filed a Petition for Declaratory Ruling that seeks to address the problem. It relies on a 1983 statute, called “Section 7,” that says, in part:

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FCC Releases Details on Workshop about Unlicensed Spectrum Issues

Workshop to take place November 8 at FCC headquarters.

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

Another H Block Update: Reconsideration of Auction Procedures Sought

A couple of days ago we called readers’ attention to a petition for reconsideration of the H Block service rules that had been filed by the Rural Wireless Association (RWA).  We mentioned in that post that an FHH client – NCTH, Inc. – had filed for reconsideration of the H Block auction procedures.  And now a public notice of that latter recon petition has made it into the Federal Register.  The NCTH petition urges the Commission to address and resolve RWA’s petition before the auction so that, if the Commission is persuaded by RWA’s arguments, it can make appropriate changes to the auction before the participants – that is, bidders and the FCC – get too deeply wedded to the procedures as originally announced.  (Spoiler alert: NCTH agrees with the RWA position.)

The NCTH petition also suggests that the Commission reduce the reserve price set for the H Block auction.  The reserve price is the minimum amount that the auction must bring in before the auction will be deemed to be valid. Often, the reserve price is set to be close to the initial minimum bid amount.  But here, the reserve price for the H Block auction is $0.50 per MHz/pop, which calculates out to about $1.5 billion – magnitudes greater than most observers had expected.  The astronomical reserve price may be part of an arrangement with DISH Network that has been the source of some speculation.  Since an unusually high reserve price could easily discourage smaller carriers from bidding, NCTH suggests that the Commission should lower the reserve price to increase participation.  (It also expresses concern about the Commission’s failure thus far to make clear on the public record what influence, if any, the DISH arrangement may have had on the establishment of the reserve price.)

Oppositions to the NCTH petition for reconsideration may be filed by November 13, 2013.  Replies may be filed by November 25.

Update: Revised Text-to-911 Bounce-Back Rule Now In Effect

Earlier this month we reported on the Commission’s last-minute amendment of its text-to-911 bounce-back rule. The amendment was necessitated by the fact – brought to the FCC’s attention by CTIA – that the bounce-back rule (that would be Section 20.18(n)(7)) would be impossible for carriers to comply with for roaming customers due to the way text-to-911 messages are handled.

The order announcing the amendment has now been published in the Federal Register. And as we pointed out in our original post, the Commission took care to provide that the amendment will take effect immediately upon Register publication (rather than 30 days thereafter, as is the FCC’s SOP). So the amended text-to-911 bounce-back rule is now officially in effect.

H Block Update: Reconsideration of Service Rules Sought

Another caltrop has been dropped in the path of the H Block auctions that the Commission is trying to push forward full speed ahead. A petition has been filed seeking reconsideration of the rules, adopted last June, governing the licensing of H Block spectrum.

The petition, filed by the Rural Wireless Association (RWA), challenges the FCC’s decision to issue H Block licenses on an Economic Area (EA) basis, rather than a Cellular Market Area (CMA) basis. It also faults the Commission for adopting population-based construction requirements. 

In RWA’s view, the H Block rules as adopted will present a barrier to the participation of small and rural carriers in the H Block auction and will result in the failure of carriers to provide H Block service to rural consumers. According to RWA (which used to be known as Rural Telecommunications Group, Inc.), Congress indicated that the FCC should be far more solicitous of rural interests than the H Block rules appear to be.

As we have previously indicated, the H Block rules and related auction procedures do seem to have been crafted with a particular agenda in mind, an agenda not necessarily consistent with rural interests. (Full disclosure: FHH represents a party that has sought reconsideration of the auction procedures.) Whether all this runs afoul of Congress’s intent remains to be seen. But the pendency of reconsideration petitions could cast enough of a pall of uncertainty over the upcoming auction to discourage potential bidders. And that, in turn, could reduce the government’s take out of the auctions. 

The Commission may seek to resolve the petitions sooner rather than later, to dispel any uncertainty as quickly as possible. But the prospect of appeals will still linger.

The filing of the RWA petition has now been noted in the Federal Register, which sets the dates for oppositions and replies. Anyone wishing to oppose the RWA petition has until November 12, 2013 to do so; replies may be filed by November 22.

Shutdown Follow-up: H Block Auction Dates Re-Set

If you’re planning on participating in the upcoming H Block auction, it’s time to get your calendar out and mark some scheduling changes. As a result of the governmental shutdown, the originally announced dates are being shifted to provide auction participants a bit more time for planning and preparation. According to the latest public notice, the auction will now begin on January 22, 2014 (eight days later than previously announced).  Other important dates are now set as follows:

Window for Short Form (FCC Form 175)
Applications OPENS:                                                               November 4, 2013 – 12N ET

Window for Short Form Applications CLOSES:            November 15, 2013 – 6:00 p.m. ET

Upfront payments (via wire transfer) due:                    December 18, 2013 – 6:00 p.m. ET

Auction begins:                                                                          January 22, 2014

To assist would-be bidders, the Commission is also presenting an online auction tutorial on November 4, 2013, and it's planning to conduct a mock auction on January 17, 2014.

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

LPFM protection of FM translator input signals modified in several respects

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

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

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

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

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

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

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

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

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H Block Update: Auction Scheduled

But government shutdown, still-pending issues could interpose delays.

Despite some dissension on the 8th floor of the FCC about whether to proceed immediately with the H Block auction, the FCC has adopted a scheduling order and associated rules and procedures to govern the auction. (Blogmeister's Note: As previously promised, here is a link to the FCC's original public notice setting the dates and procedures for the H Block auction -- but heads up!  Thanks to the government shutdown, the FCC has since adjusted the relevant dates.  Check here for our update.) Commissioner Rosenworcel had argued that the H Block auction should be paired with the auction of AWS-3 spectrum in order to reap a larger pay-out to the FCC from the combination of the two. Despite this objection, the Commission plunged ahead on September 13 to set the auction up for January 14, 2014. The Middle Class Tax Relief and Job Creation Act of 2012 had directed the FCC to auction this spectrum no later than February 23, 2015, so the Commission had a little leeway here on when it had to initiate the auction.

The H Block consists of the 1995-2000 MHz and 1915-1920 MHz bands.   It is therefore adjacent to the PCS G Block held by Sprint on one side and the AWS-4 band held by DISH Network on the other. This geographic setting has unfortunately made it the Alsace-Lorraine of telecommunications – the prize in a tug o’ war between the two giant adjacent licensees who have tried to make it their own.

The rules applicable to this auction follow the procedures typical for auctions these days with a few key exceptions:

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FCC Will Face Massive Backlog on Reopening

(Pent-up filings from the period of the shutdown will jam the agency)

With the FCC shutdown now halfway through its second week, we have been thinking about the start-up procedure when the shutdown finally ends. We don’t like how that looks.

Everything that would have come due during the shutdown instead will all be due on the same day: not the day the FCC reopens, but the day after that. Filings due on the day of reopening are likewise put off till that same next day.

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Update: Text-To-911 Bounce-Back Rule Revised for Roaming Customers

Amended rule to take effect on expedited basis; Rule adopted last May to be waived pending effectiveness of amendment

There’s nothing like an impending deadline to get your attention – even if you are the FCC.

Readers will recall that, just last May, the Commission adopted new rules requiring text-to-911 “bounce-back” messages when a person sends a text message to “911” but text-to-911 capabilities are not actually available. As we reported, the new rules were set to take effect on September 30, 2013. But in July, CTIA sought reconsideration, pointing out that the bounce-back rule (Section 20.18(n)(7), if you need to know) would be impossible for carriers to comply with for roaming customers due to the way text-to-911 messages are handled. Obviously, addressing that problem before the effective date was a matter of some importance.

And sure enough, the FCC has done what needed to be done. In an Order on Reconsideration issued on (wait for it) September 30, the FCC amended Section 20.18(n)(7) to read as follows:

(7) Notwithstanding any other provisions in this section, when a consumer is roaming on a covered text provider’s host network pursuant to 20.12, the covered text provider operating the consumer's home network shall have the obligation to originate an automatic bounce-back message to such consumer when (a) the consumer is located in an area where text-to-911 service is unavailable, or (b) the home provider does not support text-to-911 service in that area at the time. The host provider shall not impede the consumer’s 911 text message to the home provider and/or any automatic bounce-back message originated by the home provider to the consumer roaming on the host network.

This appears to address the problem identified by CTIA.

But this amendment won’t go into effect until it’s been published in the Federal Register, while the rule as adopted last May is already in effect. Doesn’t that mean that, at least for the time being, providers are technically in violation of the rule (even if compliance with the rule is technically impossible)?

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